Rare Ethics Punishment for Prosecutor Who Lied to Grand Jury

Ex-Prosecutor Is Suspended for Deceiving Grand Jury
The New York Law Journal by Jeff Storey  -  July 12, 2011

An attorney who, as a Brooklyn prosecutor, lied to a grand jury and then tried to cover up her deception by altering already-submitted evidence, has been suspended from the practice of law for one year.  The Appellate Division, Second Department, last week rejected a plea that only a public censure should be levied against Danielle M. Muscatello, who is now a criminal defense attorney in Queens. The ruling represents a rare disciplinary penalty for the misconduct of a prosecutor.  

Ms. Muscatello, 32, a 2006 graduate of the Benjamin N. Cardozo School of Law, joined the Brooklyn District Attorney's Office in January 2007.  On Nov. 5, 2009, she was presenting evidence to a grand jury in relation to a defendant who had been arrested for driving while intoxicated on Oct. 18.  She introduced a police report that records a defendant's blood alcohol content at the time a breathalyzer test is performed. However, after doing so, Ms. Muscatello noticed that the space where the blood alcohol content should have been recorded had been left blank.  Instead of halting the presentation, she assured the grand jury that the form reflected a blood alcohol content of .08 percent, a fact she knew from other previously introduced evidence.  On or about Nov. 12, Ms. Musccatello subpoenaed the police officer who had completed the form. With her supervisor out of the office, Ms. Muscatello fished the form out of the supervisor's briefcase and directed the officer to fill in the blank.  A few days later, when the supervisor noticed that the form was missing, Ms. Muscatello was questioned about its whereabouts. After admitting what she had done and apologizing, she was offered and took the opportunity to resign.  In January 2010, after disclosing the circumstances of her departure from the district attorney's office, Ms. Muscatello was hired as an associate by criminal defense attorney Robert DiDio in Queens.

Ms. Muscatello told the Second Department that she was "deeply remorseful and ashamed of her misconduct." She asked the court to take into consideration that she was "a young lawyer who had been practicing law for less than three years, that she panicked in a high-pressure situation and doubted herself, and that the conduct was isolated and aberrational."  She argued that she "had been punished enough as she had been terminated from her position as an Assistant District Attorney, which she considered an ideal job."  Ms. Muscatello submitted numerous character letters attesting to her reputation for honesty and integrity. Mr. DiDio wrote that she "consistently had expressed remorse…and displayed a high standard of ethical and moral character with me and my firm."  But the Second Department determined that a censure would not be sufficient punishment.  "Notwithstanding the respondent's candor, youth, remorse and lack of a prior disciplinary history, we conclude that the circumstances of this case warrant the respondent's suspension from the practice of law for one year," a unanimous Second Department panel concluded in Matter of Muscatello, 2010-01808.  The suspension is effective Aug. 5.  Michael S. Ross, who represented Ms. Muscatello, said in an interview that she "profoundly regrets her conduct and looks forward to restarting her career in the future."  Ms. Muscatello said in an e-mail, according to Mr. Ross, that she was "thankful to the court and to the people who have supported her in this difficult process."  The district attorney's office, which referred the matter to the disciplinary authorities, had no comment on the penalty. A spokesman said that the drunken-driving case was re-presented, and the defendant was indicted. He now is in treatment.  Mr. DiDio said in an interview that he thought the penalty received by his associate was "severe" given the fact that her "error of judgment" had not been intentional and had not changed the facts in the case.  By contrast, he said that he had dealt with many prosecutors who had intentionally misled the court and intentionally exaggerated evidence but had not been called to account.  Mark F. DeWan represented the grievance committee for the Second, 11th and 13th Judicial Districts. The Second Department panel consisted of Presiding Justices A. Gail Prudenti, and Justices William F. Mastro, Reinaldo E. Rivera, Peter B. Skelos and Daniel D. Angiolillo.  Jeff Storey can contacted at jstorey@alm.com.