People v. DePallo

Michael DePallo (defendant) was charged with second-degree murder, burglary, and robbery. During pretrial proceedings, DePallo admitted that he had forced an accomplice to participate in the crimes under the threat of death. At trial, DePallo’s attorney asked for a sidebar conference with the judge. At the sidebar, the attorney told the judge that DePallo had said he was involved in the crime. The attorney noted that he had advised DePallo that (1) DePallo did not have to testify and should not and (2) if DePallo testified, he had to testify truthfully. DePallo insisted on testifying at trial. In contrast to his prior pretrial statements, DePallo testified that he was at home the entire evening of the crime and that any contrary statements he had made to the police were induced by promises that he could return home. After the prosecution and defense rested their cases, DePallo’s attorney addressed the judge in chambers without DePallo or the prosecutor present. The attorney told the judge that DePallo had perjured himself about his involvement in the crime and his presence at the crime scene. During closing arguments, the attorney did not refer to DePallo’s testimony. DePallo was convicted. The appellate division affirmed the conviction, denying DePallo’s claim that he was denied effective assistance of counsel when his attorney disclosed the perjured testimony to the judge. DePallo appealed.