| People v Marshall |
| 2019 NY Slip Op 04499 [173 AD3d 1257] |
| June 6, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Michael A. Marshall, Appellant. |
Kevin A. Jones, Ithaca, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.),rendered December 13, 2016, convicting defendant upon his plea of guilty of the crimes ofrobbery in the first degree and grand larceny in the third degree.
Defendant was charged by indictment with robbery in the first degree and grand larceny inthe third degree. The charges arose from defendant entering a bank and forcibly stealing morethan $3,000 while displaying what appeared to be a firearm. County Court thereafter agreed tocap defendant's prison term at seven years followed by five years of postrelease supervision ifdefendant pleaded guilty to both counts in the indictment. During the same court appearance,defense counsel notified the court of a conflict of interest and, after the court inquired ifdefendant would like to continue with current counsel or have new counsel assigned, defendantchose to stay with his current counsel. Defendant thereafter entered a guilty plea to both chargesof the indictment and was sentenced to prison terms of six years followed by five years ofpostrelease supervision for his conviction of robbery in the first degree and to 1
Defendant contends that a five-year preindictment delay violated his constitutional right to aspeedy trial. Although this claim survives his guilty plea, it is unpreserved for our review givendefendant's failure to raise this issue before County Court (see People v Shufelt, 161 AD3d 1451, 1451-1452 [2018], lvdenied 32 NY3d 1008 [2018]; People v Gardiner, 159 AD3d 1233, 1234 [2018], lv denied31 NY3d 1082 [2018]). Moreover, in light of the absence of a motion before County Court, "therecord has not been sufficiently developed to permit adequate review of this issue" (People v Grumberg, 153 AD3d1525, 1527 [2017]; see People v Gardiner, 159 AD3d at 1234). Defendant's relatedclaim that his counsel was ineffective for failing to move to dismiss the indictment on speedytrial grounds is equally unpreserved for our review absent an appropriate postallocution motion(see People v Shufelt, 161 AD3d at 1452; People v Gardiner, 159 AD3d at 1234).In any event, inasmuch as the record is insufficient to assess whether defendant's speedy trialrights were violated, it is also insufficient to determine whether defense counsel's failure to makea motion to dismiss on speedy trial grounds amounts to ineffective assistance of counsel (seePeople v Gardiner, 159 AD3d at 1234). Accordingly, this claim is more properly the subjectof a CPL article 440 motion (see Peoplev Horton, 166 AD3d 1226, 1228 [2018]; People v Ward, 161 AD3d 1488, 1489 [2018], lv denied 32NY3d 942 [2018]).
Although defendant's claim that he was deprived of the effective assistance of counselbecause he was denied conflict-free representation is similarly unpreserved given the absence ofan appropriate postallocution motion, we find that reversal of the judgment of conviction in theinterest of justice is warranted (see CPL 470.15 [3] [c]; People v McGee, 166 AD3d 1390,1391 [2018]). "A defendant is denied the right to effective assistance of counsel guaranteed bythe Sixth Amendment [of the US Constitution] when, absent inquiry by the court and theinformed consent of [the] defendant, defense counsel represents interests which are actually inconflict with those of [the] defendant" (People v Solomon, 20 NY3d 91, 97 [2012] [internal quotationmarks and citation omitted]; see Peoplev Sanchez, 21 NY3d 216, 222-223 [2013]). An actual conflict of interest may be waivedby the defendant "only after an inquiry has shown that the defendant has an awareness of thepotential risks involved in that course and has knowingly chosen it" (People v Simpson, 146 AD3d1175, 1177 [2017] [internal quotation marks and citations omitted], lv denied 30NY3d 983 [2017]; see People vPrescott, 21 NY3d 925, 927 [2013]). The court's failure to conduct an inquiry warrantsreversal "only if [the] defendant has demonstrated that a conflict of interest, or at least thesignificant possibility thereof, did exist" (People v McDonald, 68 NY2d 1, 9 [1986][internal quotation marks and citations omitted]; see People v Payton, 22 NY3d 1011, 1014 [2013]).
Here, while informing County Court about the terms of a plea offer, defense counsel alsoinformed County Court that the Assistant District Attorney had advised him that a number ofdefense counsel's former and current clients may be witnesses against defendant and that, if thecase were to go any farther, he would have a conflict. The court then reiterated the plea offer andinformed defendant that, if the matter were to go forward to trial, defense counsel wouldprobably have a conflict and would not be able to continue representing him because defensecounsel's office has represented witnesses who would testify against him. The court continued tosay, "Under those circumstances we would have to assign you a different attorney. Now at thispoint in time [defense counsel] has received an offer. He's discussed the case with. . . the prosecutor and there is an offer on the table. If you would like additionaltime to think about that[,] absolutely I will give you that time. . . . My question toyou is, one, do you want more time to think about it? And, two, because of that potentialconflict[,] would you rather discuss the matter further with [defense counsel] or with a differentattorney?" Defendant stated that he would rather stay with defense counsel. Defense counselasked the court to allow defendant more time to think about it. Subsequently, defendant appearedwith defense counsel and pleaded guilty to the indictment without any further discussion of theconflict of interest.
A review of the record reveals that there was at least a significant possibility of an actualconflict of interest (see People vWright, 27 NY3d 516, 521 [2016]).[FN*] Once informed of the conflict, County Courthad a duty to inquire whether defendant understood the risks of defense counsel's continuedrepresentation and, knowing those risks, was choosing to waive the conflict (see People v Cortez, 22 NY3d1061, 1066 [2014], cert denied 574 US &mdash, 135 S Ct 146 [2014]; People vGomberg, 38 NY2d 307, 313-314 [1975]; People v Simpson, 146 AD3d at 1177).However, the court did not make such an inquiry. Rather, the court merely informed defendant,while simultaneously reiterating the plea agreement that defense counsel had secured for him,that defense counsel would "probably" have a conflict if the matter continued. Therefore, defensecounsel's conflicted representation of defendant, absent a proper and informed waiver, depriveddefendant of his right to the effective assistance of counsel (see People v Prescott, 21NY3d at 927; People v Macerola, 47 NY2d 257, 263-264 [1979]). In light of thisdetermination, defendant's contention that his sentence was harsh and excessive has beenrendered academic.
Egan Jr., J.P., Lynch, Clark and Mulvey, JJ., concur. Ordered that the judgment is reversed,as a matter of discretion in the interest of justice, and matter remitted to the County Court ofBroome County for further proceedings not inconsistent with this Court's decision.
Footnote *:Notably, in their brief, the Peopleconcede that an actual conflict existed because defendant confessed to a prosecution witness whowas concurrently represented by defense counsel's law office. However, this detail is notcontained in the record.