| People v DiPippo |
| 2011 NY Slip Op 01671 [82 AD3d 786] |
| March 1, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Anthony DiPippo, Appellant. |
—[*1] Adam B. Levy, District Attorney, Carmel, N.Y. (Christopher York and Heather Abissi ofcounsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court, PutnamCounty (Neary, J.), entered September 23, 2009, which, after a hearing, denied his motionpursuant to CPL 440.10 to vacate a judgment of the same court (Braatz, J.), rendered July 11,1997, convicting him of murder in the second degree and rape in the first degree, upon a juryverdict, and imposing sentence.
Ordered that the order is reversed, on the law, the defendant's motion pursuant to CPL 440.10is granted, the judgment is vacated, and the matter is remitted to the Supreme Court, PutnamCounty, for a new trial.
In November 1995, a hunter discovered the remains of 12-year-old Josette Wright in awooded area. Her family had reported her missing more than a year earlier, on October 4, 1994,after she failed to return home the evening before. In April 1996, the defendant and hiscodefendant, Anthony Krivak, were arrested in connection with Wright's death and indicted formurder in the second degree (felony murder) and rape in the first degree. The defendant andKrivak were tried separately, and both were convicted, after jury trials, on both counts. On July11, 1997, the defendant was sentenced to concurrent terms of imprisonment of 25 years to life onthe conviction of murder in the second degree, and 8
The Supreme Court initially denied the motion without ahearing, and this Court granted the defendant's application for leave to appeal. Before the appealwas fully perfected, the parties stipulated to withdraw the appeal and proceed with theevidentiary hearing on the issues raised in the leave application. By decision and order datedNovember 28, 2007, this Court granted the defendant's application to withdraw the appeal.Following an evidentiary hearing, the Supreme Court denied the defendant's motion to vacate thejudgment. By decision, order and certificate dated December 24, 2009, a Justice of this Courtgranted the defendant's application for leave to appeal. We reverse.
In the order appealed from, the Supreme Court stated that it found "no evidence" that the factthat trial counsel's former client, Gombert, was identified as a possible suspect in the initialpolice investigation adversely affected counsel's representation of the defendant. Although theSupreme Court credited trial counsel's testimony that he perceived no conflict of interest at all,given the Supreme Court's determination that any conflict did not affect the defense, it foundirrelevant trial counsel's failure to perceive any conflict.
In finding that trial counsel's representation of the defendant was not affected by any conflictof interest, the Supreme Court accepted trial counsel's hearing testimony that he first learned,midtrial, that the police had seized and dismantled the car owned by Gombert's girlfriend, whichGombert regularly used, and that trial counsel immediately requested that the trial court admitinto evidence the photograph of the dismantled car to the jury to raise reasonable doubt, eventhough none of this was on the trial record. According to trial counsel, the trial court denied hisrequest, a fact the Supreme Court found demonstrated that trial counsel "perceived no conflict ofinterest and was unaffected by any sense of loyalty to Howard Gombert." The Supreme Courtalso found trial counsel's admission that he had not attempted to present a third-party culpabilitydefense of no moment, since there was insufficient evidence to allow such a defense, given that"no evidence connected [Gombert] with the commission of the crime." Rather, the SupremeCourt found, evidence regarding Gombert's possible involvement was mere speculation. Further,the Supreme Court noted that trial counsel presented a vigorous defense (asserting that Wrightran away from home on October 3, 1994, and died on a later date, and that the prosecution's chiefeyewitness was unreliable and essentially adopted the police version of the crime), called 12witnesses, including the defendant, and aggressively cross-examined the People's witnesses. Insum, the Supreme Court found that "it cannot be said that any of [trial counsel's] tactics weremotivated by a desire to assist Gombert."
Effective assistance of counsel is "representation that is reasonably competent, conflict-freeand singlemindedly devoted to the client's best interests" (People v Longtin, 92 NY2d640, 644 [1998], cert denied 526 US 1114 [1999]; see People v Harris, 99 NY2d202, 209 [2002]; People v Berroa, 99 NY2d 134, 139 [2002]). "That right is impairedwhen, absent a defendant's informed consent, defense counsel represents interests which areactually or potentially in conflict with those of the defendant. Conflicting interests may arise inthe simultaneous representation of clients with adverse interests, or in successive representationsbecause of an attorney's duty to maintain the former client's confidences even after representationhas ceased" (People v Berroa, 99 NY2d at 139 [citations omitted]; see People v Ennis, 11 NY3d 403,410 [2008], cert denied 556 US —, 129 S Ct 2383 [2009]). A defense attorney'sprevious representation of a client whose interests conflicted with those of a defendant involve apotential conflict of interest (see People v Ennis, 11 NY3d at 410; People v Abar,99 NY2d 406, 409 [2003]). As pertinent to the matter at bar, under the state constitutionalstandard, "[t]o prevail on an ineffective assistance of counsel claim [based on successiverepresentation], a defendant must first demonstrate the existence of a potential conflict ofinterest. Then, the defendant must show that the conduct of his defense was in fact affected bythe operation of the conflict of interest, or that the conflict operated on the representation"(People v Harris, 99 NY2d at 210 [internal quotation marks and citations omitted];see People v Abar, 99 NY2d at 409; People v Ortiz, 76 NY2d 652, 657 [1990];see also People v Longtin, 92 NY2d at 644). In meeting such burden, a defendant neednot show specific prejudice (see People v Ortiz, 76 NY2d at 657; People vAlicea, 61 NY2d 23, 30 n [1983]). "[I]n determining what motivated defense counsel, all ofthe circumstances surrounding the situation [may] be taken into account" (People vEnnis, 11 NY3d at 411).
In pertinent part, under the federal constitutional standard, counsel is ineffective if defensecounsel has an actual conflict of interest, meaning "a conflict that affected counsel'sperformance—as opposed to a mere theoretical division of loyalties" (Mickens vTaylor, 535 US 162, 171 [2002]).[*3]
Here, trial counsel testified at the hearing that uponlearning, midtrial, that his former client, Gombert, had initially been a suspect in theinvestigation, through photographs revealing that the police had dismantled a car which bothbelonged to Gombert's girlfriend and Gombert regularly used, he unsuccessfully "tried to get [thephotographs] before the jury" to raise reasonable doubt. Although the Supreme Court found trialcounsel credible, the trial transcript contains no reference to trial counsel's alleged request toadmit the photograph into evidence. Moreover, the parties stipulated that several months prior totrial, trial counsel was provided with discovery materials that included several witness statementsand police reports which possibly implicated Gombert. Notably, when the defendant's attorneycross-examined the defendant's trial counsel at the hearing, he set forth a lengthy hypotheticalbased upon information contained in the discovery materials which were the subject of thestipulation, including, among other things, a statement to the police from a witness who reportedseeing Wright enter a car with Connecticut license plates, driven by Gombert, at 4:00 p.m. on theday Wright was last seen; that the owner of the red car was Gombert's girlfriend; that Gombert'sgirlfriend gave a statement to the police indicating that about two days after Wright's missingperson poster was posted, Gombert told her that he had seen Wright walking on Route 52, aroundthe courthouse, a week earlier, that he did not tell his girlfriend where he dropped off Wright, andthat afterwards, the girlfriend recalled thinking she had heard that Wright was last seen in a redcar and that people would think it strange if Wright had last been seen in a red car and thatGombert had given Wright a ride in her (the girlfriend's) car; and that another witness gave astatement to the police indicating that Wright was going to start babysitting Gombert's daughter,but before that job was to start, Wright was reported missing. Although the hypothetical wasbased on discovery materials that had been provided to trial counsel, trial counsel testified that hedid not "know if [he] would have had a conflict" because he did not recall having suchinformation prior to trial, but expressed certainty that he had read whatever discovery materialhad been turned over to the defense.
Under the circumstances, including the failure of the trial record to support trial counsel'shearing testimony and his response to the lengthy hypothetical posed to him at the hearing by thedefendant's attorney, we need not defer to the Supreme Court's determination finding trialcounsel credible (see People v Prochilo, 41 NY2d 759, 761 [1977]; People v Bhattacharjee, 51 AD3d684 [2008]; People v Britton,49 AD3d 893, 894 [2008]; People vFrancis, 44 AD3d 788, 789 [2007]; cf. People v Knudsen, 34 AD3d 496, 497 [2006]).
We further note that at the outset of the hearing, the parties stipulated that trial counsel failedto disclose his prior representation of Gombert to either the court or the defendant, a failurewhich precluded inquiry by the trial court regarding the defendant's awareness of the conflict ofinterest and the risks of proceeding (see People v Gomberg, 38 NY2d 307, 313-314[1975]; People v Adeola, 51 AD3d811 [2008]).
Trial counsel's failure to disclose his conflict must also be viewed in conjunction with hisadmission that he did not conduct any investigation into Gombert's possible involvement once hediscovered that the car driven by Gombert had been seized and searched. For example, amongother things, trial counsel did not conduct even a minimal investigation into Gombert by sendingan investigator to ascertain Gombert's possible involvement. Had trial counsel disclosed theconflict to the defendant, it is likely that the defendant would have directed him to investigateGombert.
In sum, contrary to the Supreme Court's determination, trial counsel's actions did notunambiguously demonstrate that he "perceived no conflict of interest and was unaffected by anysense of loyalty to Howard Gombert." Instead, his failure to disclose his prior representation ofGombert and his failure to investigate Gombert as the possible perpetrator demonstrated "that theconduct of his defense was in fact affected by the operation of the conflict of interest, or that theconflict operated on the representation" (People v Harris, 99 NY2d at 210 [internalquotation marks and citations omitted]; see People v Ortiz, 76 NY2d at 657; see alsoPeople v Longtin, 92 NY2d at 644). Under the circumstances, trial counsel's admitted failureto investigate Gombert leads to the conclusion that if the defendant had been represented by adifferent attorney, "the events would have unfolded differently" (People v Mundo, 11 AD3d 388,389 [2004]). We therefore reverse the order, vacate the judgment of conviction, and remit thematter to the Supreme Court, Putnam County, for a new trial. Covello, J.P., Dickerson, Belen andLott, JJ., concur.