| People v Good |
| 2009 NY Slip Op 03639 [62 AD3d 1041] |
| May 7, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Moses A.Good, Appellant. |
—[*1] Mark D. Suben, Special Prosecutor, Cortland (Jerome M. Mayersak of counsel) forrespondent.
Spain, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered January 2, 2008, convicting defendant upon his plea of guilty of the crime of sexualabuse in the first degree.
In November 2006, defendant was charged in a Broome County indictment with sexualabuse in the first and third degrees and endangering the welfare of a child based upon allegationsthat he subjected a 15-year-old girl to forcible sexual contact. The attorney assigned to representhim (hereinafter the first assigned counsel) was later granted permission to withdraw on April30, 2007 because he was hired by the Broome County District Attorney's office as a prosecutor,and new counsel was assigned about a week later (hereinafter the second assigned counsel). InJuly 2007, at the start of the suppression hearing, pursuant to a negotiated agreement, defendantentered a guilty plea to the top count in exchange for a sentence commitment of three years inprison with five years of postrelease supervision. At the date set for sentencing, defendant,represented by retained counsel, moved to withdraw his plea pursuant to CPL 220.60 (3)contending (1) that it had been involuntary, citing his illiteracy and certain responses in the pleacolloquy, and (2) that the second assigned counsel—with whom defendant reportedly hadminimal contact—had ineffectively represented him. At the People's request, a specialprosecutor was appointed to respond to defendant's motion based upon the conceded fact that the[*2]first assigned counsel who had represented him on thesecharges was employed by the Broome County District Attorney's office (see County Law§ 701). Thereafter, County Court denied defendant's motion to withdraw his plea andimposed the agreed-upon sentence. Defendant appeals.
Defendant contends that the judgment of conviction should be reversed because the firstassigned attorney who represented him for five months in the early stages of this criminal actionsubsequently joined the Broome County District Attorney's office, which prosecuted this matterand where that former counsel was employed at the time defendant entered his guilty plea.Although retained counsel did not specifically raise this issue in his motion to withdrawdefendant's plea and none of defendant's counsels objected to the continued prosecution by theBroome County District Attorney's office so as to preserve this contention for appellate review(see People v Krom, 91 AD2d 39, 46-47 [1983], affd on other grounds 61 NY2d187 [1984]; see also People v Gaines, 277 AD2d 900, 900 [2000]; accord People vBump, 103 AD2d 974, 975 [1984]), we deem it appropriate to exercise our interest of justicepower to reverse defendant's conviction (see CPL 470.15 [3] [c]; People vGaines, 277 AD2d at 900).
The Court of Appeals has established that when a defense attorney who represents adefendant during the initial stages of a criminal proceeding becomes employed by the DistrictAttorney's office that is prosecuting the defendant's ongoing case, the defendant and the publicare given "the unmistakable appearance of impropriety and [the situation] create[s] thecontinuing opportunity for abuse of confidences entrusted to the attorney during the months ofhis [or her] active representation of defendant" (People v Shinkle, 51 NY2d 417, 420[1980]; People v Gaines, 277 AD2d at 900-901; see also People v Abar, 99NY2d 406, 410 [2003]; People v English, 88 NY2d 30, 33-34 [1996]; People vHerr, 86 NY2d 638, 641 [1995]; Matter of Schumer v Holtzman, 60 NY2d 46, 55[1983]). The rule requiring disqualification when there is a "risk of prejudice attendant on [the]abuse of confidence, however slight" (People v Shinkle, 51 NY2d at 421), "is necessaryto prevent situations in which former clients must depend on the good faith of their formerlawyers turned adversaries to protect and honor confidences shared during the now extinctrelationship. In those situations the risk of abuse is obvious" (People v Herr, 86 NY2d at641).
Here, the record establishes that after five months of representation and two months prior tohis plea, defendant's first assigned counsel accepted a position with the Broome County DistrictAttorney's office, not "a 'huge' metropolitan office" (People v English, 88 NY2d at 34),and when County Court permitted counsel's withdrawal, defendant was not informed of anypossible conflict and did not waive objection to the conflict (see People v Gaines, 277AD2d at 901; cf. People vMcCrone, 12 AD3d 848, 849-850 [2004], lv denied 4 NY3d 800 [2005]). At thetime of the plea, defendant should not have had to "depend on the good faith of [his] formerlawyer[ ] turned adversar[y]" (People v Herr, 86 NY2d at 641) to protect and honorconfidences gained in that relationship. Indeed, in moving to withdraw defendant's plea,defendant's retained counsel relied upon conversations that he recently had with the firstassigned counsel (now a prosecutor), who reportedly expressed willingness to testify at a hearingon the motion concerning knowledge that he acquired as defense counsel. We find thatdefendant's right to counsel was thereby violated given the substantial risk of an abuse ofconfidence and not merely an appearance of impropriety (see People v Herr, 86 NY2d at641; Matter of Schumer v Holtzman, 60 NY2d at 55; People v Shinkle, 51 NY2dat 421). Accordingly, the judgment of conviction should be reversed.[*3]
Cardona, P.J., Mercure, Lahtinen and Malone Jr., JJ.,concur. Ordered that the judgment is reversed, as a matter of discretion in the interest of justice,plea vacated and matter remitted to the County Court of Broome County for further proceedingsnot inconsistent with this Court's decision.