| People v Maldonado |
| 2020 NY Slip Op 02953 [183 AD3d 1129] |
| May 21, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Noemi Maldonado, Also Known as Key,Appellant. |
Francisco Calderon, Albany, for appellant.
Letitia James, Attorney General, New York City (Dennis A. Rambaud of counsel),for respondent.
Clark, J. Appeal from a judgment of the Supreme Court (Breslin, J.), renderedSeptember 12, 2017 in Albany County, convicting defendant upon her plea of guilty ofthe crime of criminal sale of a controlled substance in the first degree.
In 2016, defendant and 20 other individuals were named in a 263-count indictmentinvolving an alleged conspiracy to obtain and sell heroin and cocaine in countiesthroughout the state. In full satisfaction of the 12 counts against her, defendant pleadedguilty to criminal sale of a controlled substance in the first degree and waived her right toappeal. Defendant subsequently sought to withdraw her guilty plea, but Supreme Courtultimately sentenced defendant, a second felony offender, to the negotiated prison termof 15 years, followed by five years of postrelease supervision. Defendant appeals.
We agree with defendant that her assigned counsel took a position that was adverseto her interests during the course of her motion to withdraw her guilty plea and thattherefore Supreme Court should have relieved her assigned counsel from hisrepresentation of her and ensured that defendant had alternate counsel on her withdrawalmotion. "[A] defendant has a right to the effective assistance of counsel on his or hermotion to withdraw a guilty plea" (People v Mitchell, 21 NY3d 964, 966 [2013]; see People v Oliver, 158 AD3d990, 990-991 [2018]). "[D]efense counsel need not support a pro se motion towithdraw a plea"; however, defense "counsel may not become a witness against his orher client, make remarks that affirmatively undermine a defendant's arguments, orotherwise take a position that is adverse to the defendant" (People v Prater, 127 AD3d1249, 1250 [2015] [internal quotation marks, ellipsis and citations omitted]; see People v Faulkner, 168AD3d 1317, 1318-1319 [2019]). When defense counsel takes a position that isadverse to the defendant, a conflict of interest arises and the trial court is obligated toassign new counsel to represent the defendant on the motion to withdraw his or her plea(see People v Mitchell, 21 NY3d at 967; People v Tyler, 130 AD3d 1383, 1385 [2015]; People v McCray, 106 AD3d1374, 1375 [2013]).
At the start of the scheduled sentencing date, Supreme Court was advised thatdefendant was not satisfied with her assigned counsel, that she planned to hire a newattorney with financial assistance from her family and that she wished to withdraw herguilty plea. Supreme Court thereafter engaged in a limited and pointed inquiry into thebasis for defendant's pro se motion to withdraw her plea. Toward the end of that inquiry,defendant asked if she could "fire [her] attorney." Supreme Court responded that she had"an absolute right to fire [her] attorney[, but that she did not] have an absolute right towithdraw [her] plea." Defendant replied, "Okay, so can I fire my attorney and come inhere with a proper attorney to consider the situation?" Following a discussion regardingthe length of defendant's requested adjournment, Supreme Court agreed to adjourn theproceeding to allow defendant the opportunity to obtain a new attorney, who could then"file whatever paperwork [is] need[ed]." During the colloquy, Supreme Court neverexpressly ruled on defendant's pro se motion to withdraw her plea, and we find no basisupon which to conclude that the court implicitly denied the motion. Rather, the recordreflects that Supreme Court left the withdrawal motion open for determination followingdefendant's retention of a new attorney and the potential filing of supplemental motionpapers.
After Supreme Court agreed to adjourn sentencing, without having decideddefendant's pro se motion, defense counsel requested that he be permitted to put "acouple [of] things on the record." Upon receiving the court's permission, defense counselproceeded to make several detrimental statements that were adverse and prejudicial todefendant. At this point, a conflict of interest arose between defendant and defensecounsel, and Supreme Court was obligated to relieve defense counsel of hisrepresentation of defendant (see People v Mitchell, 21 NY3d at 967; People vOliver, 158 AD3d at 991). Supreme Court, however, did not acknowledge that aconflict of interest had arisen or inform defendant that she was entitled to the assignmentof new counsel, should she opt to avail herself of that option.
When defendant subsequently appeared in Supreme Court for sentencing, she wasaccompanied by her original assigned counsel.[FN*] Once again, Supreme Court did notraise or address the conflict of interest that had previously arisen between defendant anddefense counsel, assign new counsel or advise defendant that she was entitled to theassignment of new counsel. Defense counsel requested that defendant be granted anadditional adjournment, citing defendant's recent and ongoing health issues and statingthat defendant had retained a certain named attorney, but that "[t]he funds just [had not]reached him yet." Without having afforded defendant an opportunity to confer with newcounsel regarding her motion to withdraw her plea or having ruled on that motion,Supreme Court denied the adjournment request and proceeded to sentencing. By failingto relieve defense counsel of his representation of defendant once the conflict of interestarose and to either assign new counsel or permit defendant a sufficient opportunity toretain alternate counsel to represent her, Supreme Court deprived defendant of her rightto the effective assistance of counsel in connection with her motion to withdraw her plea(see People v McCray, 106 AD3d at 1375). Accordingly, we vacate defendant'ssentence and remit the matter to Supreme Court for defendant to receive new counsel andfor further proceedings not inconsistent with this decision (see People v Russ, 118 AD3d1039, 1040 [2014]; People v McCray, 106 AD3d at 1375). Given ourdetermination, we need not address defendant's remaining contentions.
Aarons and Pritzker, JJ., concur.
Garry, P.J. (dissenting). Although we acknowledge and agree with the majority thatdefense counsel's final remarks to Supreme Court were adverse and prejudicial todefendant, we find the timing of those remarks to be critically significant. Thus, werespectfully dissent. Prior to offering his prejudicial remarks, counsel had conductedhimself properly; the comments he offered at the outset of the proceeding were limited todescribing his attempts to meet with defendant, advising the court of her wishes andconcerns, and then very briefly addressing a factual inquiry from the court. Thus,counsel's initial statements did not "stray[ ] beyond a factual explanation of his efforts onhis client's behalf," and he did not then take an adverse position (People v Washington, 25NY3d 1091, 1095 [2015]; see People v Ramos, 179 AD3d 1395, 1397 [2020]; People v Tyler, 130 AD3d1383, 1385 [2015]). At the very end of the proceeding, however, in hisfinal—unprompted and wholly unnecessary—remarks, counsel defendedthe advice that he had offered to defendant relative to the charges and offered his view ofthe limited likelihood of success in defeating one of the charges. He then went on todescribe a potential threat that defendant had made against him; he claimed that hepersonally did not perceive it as a threat, but that others had.
Significantly, defense counsel offered these adverse remarks only afterSupreme Court had implicitly denied defendant's motion to withdraw her plea. Contraryto the majority determination, we do not find from this record that the court deferreddecision on defendant's motion to withdraw her plea when granting her request for anadjournment. After defendant told the court that she intended to hire new counsel whosefee would be paid by her family, the court stated, "Fine, I'll give you two weeks to get alawyer, and he can file whatever paperwork he needs. If that doesn't happen, wemove forward with sentencing two weeks from today" (emphasis added).[FN1] By advising defendantthat she would be sentenced if her anticipated new counsel did not make a new filing, thecourt denied her pro se motion, without prejudice to any new application that her newcounsel might make.[FN2] Accordingly, counsel'sinappropriate remarks were not made prior to Supreme Court's determination. As thecourt had fully explored the basis for defendant's motion to withdraw her plea withoutany potentially improper influence arising from the later remarks by counsel, it was notnecessary to appoint alternate counsel (see People v Forshey, 294 AD2d 868,868-869 [2002], lv denied 98 NY2d 675 [2002]; People v Zirpola, 237AD2d 967, 967-968 [1997], lv denied 90 NY2d 899 [1997]; People vMaragh, 208 AD2d 563, 563-564 [1994], lv denied 84 NY2d 1013 [1994];see also People v Wilder, 246 AD2d 750, 751 [1998], lv denied 91 NY2d1014 [1998]). Therefore, we would not modify the judgment on this ground but, rather,would proceed to reach the merits of defendant's remaining arguments.
Reynolds Fitzgerald, J., concurs. Ordered that the judgment is modified, on the law,by vacating the sentence imposed; matter remitted to the Supreme Court for furtherproceedings not inconsistent with this Court's decision; and, as so modified,affirmed.
Footnote *:The lack of discussionconcerning defendant's pro se motion at later appearances supports her assertion that shereceived ineffective assistance of counsel rather than the conclusion that Supreme Courtimplicitly denied the motion.
Footnote 1:Defendant did notultimately appear for sentencing two weeks later but, rather, roughly seven weeks later;she was unable to attend on an interim date due to medical issues.
Footnote 2:The fact that the motionto withdraw the plea was not even glancingly mentioned again by anyone involved ateither of the two subsequent appearance dates lends further support to the findingthat all parties understood that it had, in fact, been denied.