## Facts

- Michael DePallo was tried in Supreme Court, Richmond County, for a home-invasion killing of a 71-year-old man and was convicted of second-degree murder, burglary, and robbery.
- The prosecution evidence included blood and fingerprint evidence linking DePallo to the home and incriminating statements placing him at the scene.
- Before trial, DePallo sought to make a statement admitting he coerced an accomplice’s participation under threat of death.
- Defense counsel believed DePallo intended to testify falsely and warned him he need not testify, but that any testimony must be truthful; DePallo insisted on testifying.
- Counsel informed the court at sidebar of the perjury concern and proceeded by permitting DePallo to testify in narrative form on direct examination.
- DePallo testified he was home all evening and that prior contrary statements to police were induced by promises he could go home.
- The prosecutor cross-examined DePallo; defense counsel continued to object and otherwise represent him.
- After both sides rested, counsel met with the judge in chambers outside the presence of DePallo and the prosecutor and disclosed that DePallo had earlier told counsel he had been present at the homicide.
- In summation, counsel did not rely on DePallo’s narrative testimony and instead argued other aspects of the case.
- The Appellate Division affirmed; the Court of Appeals granted leave.

## Issues

1. Whether defense counsel rendered ineffective assistance by alerting the court to anticipated perjury, using narrative testimony, refraining from relying on that testimony in summation, and continuing representation.
2. Whether the defendant’s constitutional or statutory right to be present at a material stage of trial was violated by the in-chambers conference between the judge and defense counsel about counsel’s ethical obligations.

## Decision

- The Court of Appeals affirmed the conviction.
- Counsel’s handling of the anticipated perjury (notification to the court, narrative testimony, continued advocacy, and no reliance on suspected false testimony in summation) did not deny effective assistance.
- The defendant had no right to be present at the in-chambers conference, which concerned counsel’s ethical duties and did not involve fact-finding or decisions requiring the defendant’s input.

## Legal Principles

- A criminal defendant has a right to testify, but that right does not include a right to commit perjury.
- Defense counsel, as an officer of the court, may not knowingly assist in presenting false testimony and must avoid facilitating perjury.
- When counsel reasonably concludes a defendant will testify falsely, counsel may inform the court of the ethical conflict, allow narrative testimony rather than eliciting the suspected falsehood through traditional questioning, and refrain from relying on that testimony in summation while continuing to provide zealous advocacy on legitimate grounds.
- A defendant’s right to be present attaches to material stages where presence could affect the defense; it does not extend to conferences limited to legal or ethical matters that do not resolve factual disputes or require the defendant’s participation.

## Conclusion

The court upheld the conviction, holding that counsel remained constitutionally effective while taking steps to avoid assisting suspected perjury and that the defendant’s absence from an in-chambers ethics conference did not violate the right to be present because the conference did not affect factual determinations or require the defendant’s input.


People v. DePallo, 96 N.Y.2d 437 (N.Y. 2001)