| People v Bullock |
| 2010 NY Slip Op 06054 [75 AD3d 1148] |
| July 9, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Darin L.Bullock, Appellant. |
—[*1] David W. Foley, District Attorney, Mayville (Lynn S. Schaffer of counsel), forrespondent.
Appeal from a judgment of the Chautauqua County Court (John T. Ward, J.), renderedFebruary 23, 2009. The judgment convicted defendant, upon his plea of guilty, of aggravatedassault upon a police officer or a peace officer.
It is hereby ordered that the judgment so appealed from is modified on the law by vacatingthe sentence and as modified the judgment is affirmed, and the matter is remitted to ChautauquaCounty Court for further proceedings in accordance with the following memorandum: Defendantappeals from a judgment convicting him upon his plea of guilty of aggravated assault upon apolice officer or a peace officer (Penal Law § 120.11). We agree with defendant thatCounty Court erred in sentencing him in the absence of counsel and thus that vacatur of thesentence is required. The record establishes that defendant was initially assigned counsel, butthen retained counsel to represent him. At the time of the plea proceeding, the court indicatedthat it would sentence defendant to a 15-year determinate term of incarceration but wouldconsider a lesser sentence if defense counsel provided the court with "compelling reasons" to doso. Prior to sentencing, the court granted the motion of defense counsel to be relieved as counselfor defendant, after defendant indicated that he no longer wanted that attorney to represent him.Defendant informed the court that he intended to retain new counsel, whereupon the courtgranted his request for a 90-day adjournment of sentencing to enable him to do so. On theadjourned date of the sentencing, however, defendant appeared pro se and explained that hisfamily had the money to retain counsel but that the attorney he was attempting to retain couldnot meet with him for another month or so. The court denied defendant's request for a secondadjournment. When the court asked defendant at sentencing whether he wished to speak on hisown behalf, defendant informed the court that he was having difficulty in obtaining documentsthat would establish that there were mitigating factors entitling him to a lesser sentence. Thecourt determined that defendant waived his right to counsel and proceeded to sentencedefendant. The court then provided defendant with a copy of the presentence report, whichdefendant indicated that he had never received.
The People agree with defendant that the court erred in concluding that defendant waived hisright to counsel, but they instead contend that he forfeited his right to counsel. We reject thatcontention. "While egregious conduct by defendants can lead to a deemed forfeiture of the [*2]fundamental right to counsel" (People v Smith, 92 NY2d516, 521 [1998]), there was no such conduct by defendant here to warrant "an extreme,last-resort forfeiture analysis" (id.; cf. People v Wilkerson, 294 AD2d 298[2002], lv denied 98 NY2d 772 [2002]; People v Sloane, 262 AD2d 431 [1999],lv denied 93 NY2d 1027 [1999]; People v Gilchrist, 239 AD2d 306 [1997],lv denied 91 NY2d 834 [1997]). In addition, the court never warned defendant thatsentencing would proceed if he did not have new retained counsel by that time, nor did the courtoffer to assign new counsel to defendant if he could not afford to retain counsel (cf. People vTaylor, 164 AD2d 953, 954-956 [1990], lv denied 76 NY2d 991 [1990]). It thuscannot be said that defendant's conduct in requesting the second sentencing adjournment was"calculated to undermine, upset or unreasonably delay" sentencing (People v McIntyre,36 NY2d 10, 18 [1974]; see People vJames, 13 AD3d 649, 650 [2004], lv denied 5 NY3d 764 [2005]). The absenceof counsel to assist defendant at sentencing was particularly troublesome in this case, inasmuchas defendant informed the court that he was unable to present any mitigating circumstances forthe court to consider when sentencing him and, indeed, defendant indicated that he had notpreviously received a copy of the presentence report.
Although we recognize that a court has the discretion to determine whether to grant anadjournment, the complicating factor here was that the court granted the motion of defendant'sretained counsel for permission to withdraw, which left defendant without counsel at sentencing(cf. People v Loewke, 15 AD3d859 [2005], lv denied 4 NY3d 888 [2005]; People v Merejildo, 308 AD2d378 [2003], lv denied 1 NY3d 540 [2003]). Nevertheless, that complicating factor is notpivotal inasmuch as the issue on appeal is not whether the court abused its discretion in denyingthe request for an additional adjournment. Rather, the issue is whether the court erred insentencing defendant without counsel, and thus there is no need to analyze what the dissentcharacterizes as the "important issue" of whether an adjournment should have been granted.
The dissent has not identified any egregious conduct by defendant to warrant the conclusionthat he forfeited his right to counsel. The fact that defendant appeared without counsel on theadjourned sentencing date was not egregious under the circumstances of this case, in whichdefendant had not made multiple requests for an adjournment of sentencing but, instead, hadmade only one previous request. We disagree with the dissent's statement that we have "fail[ed]to recognize the fundamental distinction between the waiver of a right and the forfeiture of aright." The cases cited herein, including Wilkerson, Sloane, andGilchrist, each involve egregious conduct, e.g., abusive and threatening acts by thedefendants toward their attorneys, and thus those cases warrant the conclusion that thedefendants therein forfeited their right to counsel. The fact that the court here never warneddefendant that sentencing would proceed in the absence of counsel supports our conclusion thatdefendant did not engage in egregious conduct when he appeared pro se on the adjourned date ofsentencing.
We further conclude that the dissent mischaracterizes our holding by stating that we have"de facto conclud[ed] that dilatory conduct [by a defendant] may not result in the forfeiture ofthe right to counsel at sentencing." Indeed, if the court had simply warned defendant when itgranted his initial request for an adjournment that sentencing would proceed on the adjourneddate even if he did not have new retained counsel by then, or if the court had granted anadditional two-week adjournment with a similar warning, we may well have concluded thatdefendant forfeited his right to counsel. The court issued no such warnings in this case, however,and in the absence of any egregious conduct by defendant we cannot conclude that defendantforfeited his right to counsel. We therefore modify the judgment by vacating the sentence, andwe remit the matter to County Court for resentencing, at which time, if defendant seeks to retaincounsel, he must be afforded the opportunity to do so and shall be advised that sentencing shallproceed on the scheduled date if he appears without counsel or, if defendant is unable to affordto retain counsel, counsel shall be assigned.[*3]
All concur except Carni, J., who dissents in part andvotes to affirm in the following memorandum.
Carni, J. (dissenting in part). I respectfully disagree with the conclusion of my colleaguesthat defendant did not forfeit his right to counsel at sentencing. I therefore dissent in part andwould affirm the judgment.
On October 9, 2007, while incarcerated in the Chautauqua County Jail, defendant and otherinmates concocted an escape plan that included the use of a ceramic tile or brick as a weapon tosubdue a correction officer. Defendant and other inmates summoned a correction officer to theircell under the pretense that their toilet was clogged, and therefore they needed to use a bathroomoutside of their cell. Defendant had placed the ceramic tile or brick inside a sock in order tofacilitate its use as a weapon. While being escorted to a bathroom, defendant used the homemadeweapon to strike the correction officer repeatedly on the head, causing serious injuries.
On the morning scheduled for trial, while represented by his retained counsel, defendantpleaded guilty to one count of aggravated assault on a police officer or peace officer (Penal Law§ 120.11), and County Court made a sentencing commitment of a 15-year determinateterm of incarceration. In the absence of the plea agreement, upon conviction defendant faced amaximum term of 25 years of incarceration. Sentencing was scheduled for October 14, 2008. Byletter dated October 7, 2008, defendant discharged his retained counsel. By notice of motiondated November 10, 2008, defendant's retained counsel moved for an order permitting him towithdraw as attorney of record. By letter dated November 12, 2008, defendant advised the courtthat he had "dismissed" his retained counsel. Defendant requested that the court grant him "anadjournment to allow [him] ample time[ ] to retain new private counsel." On November 17,2008, the court granted the motion of defendant's retained counsel for permission to withdrawand adjourned the sentencing until a later date to be determined by the court.
On November 24, 2008, defendant appeared in court without counsel. In light of thecircumstances, the court specifically asked defendant whether he was "planning on hiringcounsel or whether [he could] afford to hire counsel." Defendant replied, "I have every intentionof retaining new counsel. I am asking for an adjournment to do so." The court inquired as to howmuch time defendant needed and granted defendant's request for an adjournment of 90 days.
On February 23, 2009, defendant appeared for sentencing and was again not represented bycounsel. Defendant represented to the court that he had sufficient funds to retain counsel but thathis attorney of choice could not meet with him until "April 3rd." Defendant did not identify theattorney to whom he was referring, and the record does not contain any prior communication tothe court from defendant, or from any attorney on defendant's behalf, to that effect. The courtdetermined that it would proceed with sentencing and stated, "I have given you ample time toretain counsel for the purpose of sentencing, Mr. Bullock. I believe that you're just stretching thisthing out unnecessarily. I'm prepared to proceed to sentence today." The court concluded thatdefendant had "waived" his right to counsel and sentenced defendant to the agreed-upon 15-yeardeterminate term of incarceration. As the majority correctly points out, however, the court erredin characterizing defendant's conduct as resulting in a "waiver" of the right to counsel instead ofapplying the appropriate characterization as one of forfeiture.
Initially, I disagree with the majority's conclusion that the court erred because it did not"offer to assign new counsel to defendant if he could not afford to retain counsel." On November24, 2008, the court specifically asked defendant whether he could afford to retain counsel, anddefendant represented that he was capable of retaining counsel. On February 23, 2009, defendantspecifically advised the court that he had marshaled the funds necessary to retain counsel andhad every intention of doing so.[*4]
Under these circumstances, I cannot agree with themajority that the court failed to ascertain defendant's need for assigned counsel. The majority'sdetermination essentially imposes the burden of offering assigned counsel to a defendant who, inresponse to the court's inquiry whether defendant can "afford to hire counsel," has represented incourt that he or she has the financial means and intention of retaining counsel. People vTaylor (164 AD2d 953 [1990], lv denied 76 NY2d 991 [1990]), the only authoritycited by the majority for that proposition, does not compel the additional offer of assignedcounsel required by the majority. Rather, Taylor involves a unique factual situationwhere the refusal of assigned counsel by the defendants was part of a calculated strategy withtheir retained attorneys to create reversible error or a mistrial. Indeed, the Second Department inTaylor held that defendants forfeited their right to counsel by failing to "discharge theirretained counsel and hire new counsel or accept appointed counsel" (id. at 956). Here,defendant also failed to hire new counsel and refused the court's offer to appoint counsel. Thus,in my view, Taylor does not support the majority's conclusion that defendant did notforfeit his right to counsel.
However, in concluding that defendant did not forfeit his right to counsel, the majority statesthat "the court never warned defendant that sentencing would proceed if he did not have newretained counsel by that time . . . ." In my view, that analysis fails to recognize thefundamental distinction between the waiver of a right and the forfeiture of a right. Forfeiture isoften confused with the closely related—but distinct—concept of waiver (seee.g. United States v Mitchell, 777 F2d 248, 258 [1985], cert denied 476 US 1184[1986] [concluding that the defendants "waive(d)" the right to counsel while resting the decisionon the notion of forfeiture]), and the majority has done so in this case. "[T]he forfeiture of a rightmay occur even though a defendant never made an informed, deliberate decision to relinquishthat right. While waiver requires a knowing, voluntary and intelligent decision, which may beeither express or implied, forfeiture occurs by operation of law without regard to defendant'sstate of mind" (People v Parker, 57 NY2d 136, 140 [1982]). Thus, in determiningwhether a defendant has forfeited his or her right to counsel, a determination whether thedefendant has been warned of the consequences of his or her conduct is irrelevant to the analysis(see People v Sanchez, 65 NY2d 436, 443-444 [1985]; Gilchrist v O'Keefe, 260F3d 87, 95 [2001], cert denied 535 US 1064 [2002] [no warning need precede thedeprivation of a Sixth Amendment right upon a forfeiture]). In Sanchez, the Court ofAppeals determined that a defendant forfeits the right to be present during trial by deliberatelyleaving the courtroom after trial has begun "regardless of whether [the defendant] knows that thetrial will continue in his [or her] absence" (id. at 443-444). Thus, in my view, themajority incorrectly relies upon the absence of a "warning" in a case in which the Peoplecorrectly concede that the appropriate analysis is one of forfeiture.
Although not addressed by the majority, it is also important to recognize that the " 'forfeitureof counsel at sentencing does not deal as serious a blow to a defendant as would the forfeiture ofcounsel at the trial itself' " (Gilchrist, 260 F3d at 99, quoting United States vLeggett, 162 F3d 237, 251 n 4 [1998], cert denied 528 US 868 [1999]).
While the majority also concludes that defendant's conduct was not so "egregious" as towarrant a forfeiture of the right to counsel, it also ignores one of the critical public policyreasons giving rise to the forfeiture doctrine, to wit, that "[t]he right to assistance of counsel,cherished and fundamental though it be, may not be put to service as a means of delaying ortrifling with the court" (United States v Fowler, 605 F2d 181, 183 [1979], reh denied608 F2d 1373 [1979]; see also Sanchez, 65 NY2d at 443). "As has been stated, '[t]heright to counsel does not include the right to delay' " (People v Arroyave, 49 NY2d 264,273 [1980], quoting People v Reynolds, 39 AD2d 812, 813 [1972]).
Here, as previously noted, defendant discharged his retained counsel by letter dated [*5]October 7, 2008. The sentencing scheduled for October 14, 2008was therefore adjourned. Although more than six weeks transpired from his discharge of retainedcounsel, defendant appeared on November 24, 2008 without retained counsel. Defendantrequested, and was granted, a further 90-day additional adjournment of sentencing. On February23, 2009, 18 weeks after defendant's discharge of retained counsel, defendant again appearedwithout retained counsel and offered only a nebulous and unsubstantiated claim that anunidentified attorney could not appear on his behalf for another five or six weeks. "At this point,public policy considerations against delay become even stronger, and it is incumbent upon thedefendant to demonstrate that the requested adjournment has been necessitated by forces beyondhis [or her] control and is not simply a dilatory tactic" (id. at 271-272). Whether anadjournment should be granted lies within the discretion of the sentencing court (see id.at 271). The majority neither recognizes nor analyzes that important issue. In my view, the courtwas in the best position to evaluate the bona fides of defendant's need for an adjournment, and Isee no reason to conclude that the court abused or improvidently exercised its discretion indenying defendant's request for yet another adjournment of sentencing.
Here, defendant had ample opportunity to retain counsel of his own choosing before hisrequest for an adjournment, and he failed to "demonstrate that the requested adjournment [was]necessitated by forces beyond his control and [was] not simply a dilatory tactic" (id. at272; see also People v Allison, 69AD3d 740, 741 [2010]). Thus, in my view, defendant forfeited his right to counsel atsentencing by his 18-week delay in retaining counsel.
By failing to recognize the public policy issue at stake and in de facto concluding thatdilatory conduct may not result in the forfeiture of the right to counsel at sentencing, themajority's determination is tantamount to transferring the control of the court's sentencingcalendar to criminal defendants. Sentencing courts in this Department will now be subject torepeated unsubstantiated requests for adjournments in order to retain counsel, and the courts willbe deprived of the critical discretionary authority to deny adjournment requests advanced asdilatory tactics. As a result of the majority's determination, courts will be foreclosed fromproceeding to sentencing even after determining that a defendant has forfeited his right tocounsel by such dilatory conduct. I cannot agree with the result reached by the majority.Present—Centra, J.P., Peradotto, Carni, Lindley and Pine, JJ.