| People v Payton |
| 2012 NY Slip Op 07701 [100 AD3d 786] |
| November 14, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Wendell Payton, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), forrespondent.
Appeal by the defendant (1) from a judgment of the County Court, Suffolk County (Hinrichs,J.), rendered October 6, 2008, convicting him of robbery in the second degree, upon a juryverdict, and imposing sentence, and (2) by permission, from so much of an order of the samecourt, dated June 7, 2010, as denied, without a hearing, that branch of his motion which waspursuant to CPL 440.10 to vacate the judgment of conviction.
Ordered that the judgment is affirmed; and it is further,
Ordered that the order is affirmed insofar as appealed from.
Viewing the evidence in the light most favorable to the prosecution, we find that theconviction of robbery in the second degree was supported by legally sufficient evidence (seePeople v Contes, 60 NY2d 620, 621 [1983]). Moreover, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses,hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004],cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdict of guilt was not against theweight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
We find unpersuasive the defendant's contention that he was denied the effective assistanceof counsel by reason of a purported conflict of interest on the part of his trial counsel. The recordreveals that approximately 15 days prior to the commencement of the defendant's trial, theSuffolk County District Attorney's Office executed a search warrant at trial counsel's law office.Approximately two months after the defendant's conviction, but before sentencing, the trial courtwas made aware of the pending investigation and, at the defendant's request, assigned newcounsel to represent the defendant. Thereafter, the defendant moved pursuant to CPL 330.30 toset aside the verdict on the ground that his trial counsel had labored under a conflict of interest.The trial court denied the motion. Following the imposition of sentence, the defendant eventuallymoved pursuant [*2]to CPL 440.10 to vacate the judgment ofconviction, again on the ground of conflict of interest, and again the motion was denied.
"The right to effective counsel ensures not only meaningful representation but also theassistance of counsel that is 'conflict-free and singlemindedly devoted to the client's best interests'" (People v Berroa, 99 NY2d 134, 139 [2002], quoting People v Longtin, 92NY2d 640, 644 [1998], cert denied 526 US 1114 [1999]). Accordingly, "where adefendant makes a conflict-based claim of ineffective assistance of counsel, two questions arise.First, the court must determine whether there was a potential conflict of interest (People vAbar, 99 NY2d 406, 409 [2003]). Second, a 'defendant must show that the conduct of hisdefense was in fact affected by the operation of the conflict of interest, or that the conflictoperated on the representation' (People v Ortiz, 76 NY2d 652, 657 [1990] [internalquotation marks omitted])" (People vKonstantinides, 14 NY3d 1, 10 [2009]; see People v Harris, 99 NY2d 202, 210[2002]; People v Tisone, 85 AD3d1066 [2011]; People vGuadmuz, 63 AD3d 1178 [2009]). Here, even if it is assumed that trial counsel wasaware that he was a target of the investigation so as to satisfy the first prong of the foregoinginquiry, the defendant has failed to come forward with any evidence establishing that the conductof his defense was in fact affected by the operation of the conflict of interest, or that the conflictoperated on the representation. Therefore, his contention is unavailing (see People vKonstantinides, 14 NY3d at 14; see also People v Solomon, 20 NY3d91 [2012]; People v Guadmuz, 63 AD3d 1178 [2009]). In this regard, whilewe share our dissenting colleague's concern that a criminal defendant's right to the effectiveassistance of counsel never be compromised by the personal interests of the attorney representinghim, we decline to adopt the per se rule advocated by the dissent, which would require reversalabsent a showing of any effect which the conflict may have had on the representation, asexpressly contrary to clear and established precedent (see People v Konstantinides, 14NY3d at 14; People v Abar, 99 NY2d at 411). Furthermore, the dissent's suggestion thatthe defendant's trial counsel in this case procured a more favorable disposition with regard to hisown charges by failing to zealously represent the defendant at trial is unsupported by the recordand is manifestly inconsistent with the evidence of meaningful representation afforded by trialcounsel, who provided vigorous and competent representation to the defendant at every stage ofthe proceedings (see People v Thomas, 201 AD2d 687, 688 [1994]; People vCarney, 179 AD2d 818, 819 [1992]).
The defendant has failed to preserve for appellate review his contention that the sentenceimposed by the County Court improperly penalized him for exercising his right to a jury trial,because he did not set forth the issue on the record at the time of sentencing (see People vHurley, 75 NY2d 887, 888 [1990]; People v Garcia, 66 AD3d 699, 701 [2009]; People v Smith, 49 AD3d 904,906 [2008]; People v Gillian, 28AD3d 577 [2006], affd 8 NY3d 85 [2006]; People v Chapero, 23 AD3d 492, 493 [2005]). In any event,contrary to the defendant's contention, the fact that the sentence imposed after trial was greaterthan the term offered during plea negotiations is no indication that the defendant was punishedfor asserting his right to proceed to trial (see People v Pena, 50 NY2d 400, 411 [1980],cert denied 449 US 1087 [1981]; People v Brock, 69 AD3d 644 [2010]; People v DeHaney, 66 AD3d1040, 1041 [2009]; People v Garcia, 66 AD3d at 701; People v Smith, 49 AD3d 904,906 [2008]). Moreover, the sentence imposed was not excessive (see People v Suitte, 90AD2d 80 [1982]). Mastro, J.P., Dillon, and Sgroi , JJ., concur.
Miller, J. (dissenting). I respectfully dissent and vote to reverse the order dated June 7, 2010,grant that branch of the defendant's motion which was to vacate the judgment of conviction, anddismiss the appeal from the judgment as academic in light of the determination of the appealfrom the order.
The defendant was arrested on April 6, 2007, and later charged with one count of robbery inthe second degree. On June 20, 2007, pursuant to County Law article 18-B, an attorney(hereinafter trial counsel) was assigned to represent him in his defense. The prosecution of thedefendant's case was handled by the Office of the Suffolk County District Attorney.[*3]
The defendant's trial began on February 6, 2008, in theCounty Court, Suffolk County. Unbeknownst to the defendant, some days earlier, on January 23,2008, the Office of the Suffolk County District Attorney executed a search warrant on the lawoffice of trial counsel. The record does not reveal what was seized from trial counsel's law office.
Neither trial counsel nor the Office of the Suffolk County District Attorney disclosed to thedefendant—or to the trial court—the fact that a search warrant had been executed ontrial counsel's office days before the defendant's trial began. The trial proceeded to verdict withthe defendant represented by trial counsel. A verdict was returned on February 19, 2008, findingthe defendant guilty of one count of robbery in the second degree.
The defendant appeared for sentencing on April 16, 2008. When the matter was called, thecourt stated that since the date of the verdict, it had "learned of a potential conflict of interest"that had arisen with respect to trial counsel's continued representation of the defendant. Neitherthe court, the prosecutor, nor trial counsel disclosed the nature of the conflict on the record.Rather, the court merely stated that it had conducted an off-the-record conference in its chambersearlier that morning with trial counsel and the assistant district attorney. The court then askedtrial counsel if he had discussed the matter with the defendant after the conference, and trialcounsel said "Yes."
The court advised the defendant that, "under these circumstances," it was "prepared to assigna new attorney" to represent him. The defendant stated that he wanted the court to "[a]ssign anew lawyer right now." Trial counsel was relieved and a new attorney was assigned to representthe defendant.
Prior to the rescheduled sentencing date, the defendant, by his new attorney, moved to setaside the verdict pursuant to CPL 330.30 (1). The defendant alleged that during the course of histrial, trial counsel had been the subject of a criminal investigation by the same prosecutor's officethat was prosecuting his case. The defendant contended that the criminal investigation causedtrial counsel's interests to conflict with his own and that the resulting division of loyalty deprivedhim of his right to the effective assistance of counsel. The defendant argued that he never waivedhis right to conflict-free representation and that the failure to hold a hearing to determine theextent of the conflict constituted reversible error.
The People opposed the defendant's CPL 330.30 motion. The People did not deny that asearch warrant had been executed on trial counsel's office, but argued this contention could notbe considered on a CPL 330.30 motion because the defendant had failed to preserve thiscontention for appellate review since he did not object to the alleged conflict until after he hadbeen assigned new counsel. The People further argued that the motion should be denied on theground that it involved matters that were dehors the record and thus were properly the subject ofa CPL article 440 motion rather than a motion pursuant to CPL 330.30.
In an order dated October 3, 2008, the County Court denied the defendant's CPL 330.30motion. The court determined that "there [was] not nearly enough information . . .either on or off the record to conclude that an actual conflict existed." The court stated that theexecution of a search warrant on trial counsel's office merely created a potential conflict ofinterest and that the defendant was therefore required to demonstrate that this potential conflictactually affected or operated upon the representation. The court concluded that the defendantfailed to sustain his burden and, "having considered the fully competent manner in which trialcounsel represented defendant at trial, the Court specifically [held] that trial counsel was notineffective."
At the rescheduled sentencing on October 6, 2008, the defendant's new attorney sought toreargue the issue. He again asserted that the court was required to hold an evidentiary hearing toresolve the factual issues raised by the defendant's contentions. The defendant's new attorneynoted that an affidavit from trial counsel was not included in the defendant's motion papersbecause trial counsel's own defense attorney would not permit him to make any statement "duringthe pending investigation." The County Court denied this application and the defendant was[*4]sentenced to, inter alia, a determinate term of 13 years ofimprisonment.
Approximately two months later, on December 9, 2008, trial counsel was summarily arrestedand charged, by felony complaint, with criminal possession of a controlled substance in the fifthdegree. Later that same day, trial counsel appeared before the County Court, Suffolk County. AnAssistant District Attorney informed the court that the People had already "entered into a pleaagreement with [trial counsel]." The terms of this agreement were not set forth on the record andthe prosecutor asked the court to "seal [the plea agreement] in the court file." Trial counsel joinedin this request, and the People's application to seal the plea agreement was granted by the CountyCourt.
Trial counsel thereafter pleaded guilty to criminal possession of a controlled substance in thefifth degree by admitting that sometime in the period between January and December 2004, hepossessed at least 500 milligrams of cocaine. Trial counsel's plea was accepted by the CountyCourt. The People consented to trial counsel's immediate release on his own recognizance andconsented to waiving the preparation of a presentence report.
Trial counsel was sentenced on April 9, 2009. The People requested that trial counsel besentenced to a conditional discharge. Although acknowledging that under normal circumstances,certain mandatory conditions would be imposed in connection with a conditional discharge, theCounty Court, with the consent of the People, found "compelling circumstances" warranting awaiver of the mandatory suspension of trial counsel's driver's license. The compellingcircumstances warranting this waiver were not identified on the record. The court also waived,on consent of the People, any condition requiring trial counsel to remain in the jurisdiction of thecourt. In addition, the court granted trial counsel a certificate of relief from civil disabilities,again with the People's consent.
Meanwhile, the defendant in this case appealed to this Court from the judgment of convictionrendered October 6, 2008. The defendant moved in this Court to enlarge the judgment roll so asto include certain materials relating to the criminal action against trial counsel in the SuffolkCounty Court. By decision and order on motion dated March 1, 2010, this Court denied thedefendant's motion without prejudice to seeking relief pursuant to CPL article 440.
The defendant thereafter moved in the Suffolk County Court for an order vacating thejudgment of conviction pursuant to CPL 440.10 (1) (h) on the grounds that it was obtained inviolation of the New York State and Federal Constitutions. Alternatively, the defendant soughtan opportunity to obtain, inter alia, documents relating to trial counsel's criminal case which werestill held under seal and which could be presented in support of his position. The defendant'smotion papers included, inter alia, the December 9, 2008, felony complaint brought against trialcounsel, the transcript of his plea of guilty, and the transcript of his sentencing.
The People opposed the defendant's CPL 440.10 motion to vacate the judgment. The Peopleacknowledged that trial counsel "had become the subject of an ongoing criminal investigation,which later resulted in his December 2008 arrest . . . and guilty plea." However, thePeople noted that the defendant was "again" attempting to demonstrate that his attorney hadoperated under a conflict of interest, but that there was "no evidence or indication that [trialcounsel's] representation of defendant was in any way compromised by his own developing legalentanglements." The People further asserted that there was no post-conviction mechanism bywhich the defendant could obtain the sealed documents pertaining to trial counsel's criminal case,as there was no constitutional right to such discovery.
In an order dated June 7, 2010, the County Court denied the defendant's CPL 440.10 motionin its entirety. The court did not hold a hearing on the matter. It concluded that denial of themotion was appropriate under CPL 440.10 (3) (b), since it had previously decided the issue ofwhether trial counsel had operated under a conflict of interest during his representation of thedefendant in the context of the defendant's CPL 330.30 motion. The court also found that it wasbarred from reconsidering the issue under the doctrine of "law of the case."[*5]
Alternatively, the court determined that the defendant hadfailed to set forth any legal basis that could serve as grounds for granting the motion since thedefendant failed to allege that his defense was affected or otherwise operated upon by the allegedconflict. The court further determined that the defendant's moving papers failed to substantiatethe facts alleged therein and that there was "no reasonable possibility that [the] allegation[s][were] true."
The defendant subsequently applied to this Court for a certificate granting leave to appealfrom the order denying his CPL 440.10 motion. This Court granted the defendant's applicationand calendared the defendant's appeal from the order denying his motion to vacate the judgmentwith his direct appeal from the judgment of conviction. On these appeals, the defendantcontends, inter alia, that the judgment convicting him of robbery in the second degree should bereversed since he was deprived of his right to effective assistance of counsel. The defendant alsocontends that the County Court erred in denying, without a hearing, that branch of his motionwhich was pursuant to CPL 440.10 to vacate the judgment of conviction.
I vote to reverse the order which denied the defendant's motion to vacate the judgmentpursuant to CPL article 440 on the ground that the defendant was deprived of the effectiveassistance of counsel under both the Federal and State Constitutions and would grant thedefendant a new trial. Accordingly, I respectfully dissent.
" 'Of all the rights that an accused person has, the right to be represented by counsel is by farthe most pervasive for it affects his ability to assert any other rights he may have' " (UnitedStates v Cronic, 466 US 648, 654 [1984], quoting Walter V. Schaefer, Federalism andState Criminal Procedure, 70 Harv L Rev 1, 8 [1956]). Both the Constitution of the UnitedStates and the New York State Constitution ensure the right to effective assistance of counsel(see US Const 6th Amend; NY Const, art I, § 6; see also CPL 210.15 [2]).Under the State and Federal Constitutions, effective assistance of counsel is defined as"representation that is reasonably competent, conflict-free and singlemindedly devoted to theclient's best interests" (People v Harris, 99 NY2d 202, 209 [2002] [internal quotationmarks omitted]; see People v Ennis,11 NY3d 403, 410 [2008], cert denied 556 US 1240 [2009]; People v Ortiz,76 NY2d 652, 656 [1990]; see also Wood v Georgia, 450 US 261, 271 [1981]).
Under the federal standard for ineffective assistance of counsel, a defendant must show thathis or her attorney's performance fell below an objective standard of reasonableness, and that"there is a reasonable probability that, but for counsel's unprofessional errors, the result of theproceeding would have been different" (Strickland v Washington, 466 US 668, 694[1984]). Under the state standard, the constitutional requirements for the effective assistance ofcounsel "are met when the defense attorney provides meaningful representation" (People v Stultz, 2 NY3d 277, 279[2004] [internal quotation marks omitted]; see People v Baldi, 54 NY2d 137 [1981]).The state standard has been called "somewhat more favorable to defendants" (People v Turner, 5 NY3d 476, 480[2005]), because its "prejudice component focuses on the fairness of the process as a wholerather than its particular impact on the outcome of the case" (People v Caban, 5 NY3d 143, 156 [2005] [internal quotation marksomitted]; see People v Ozuna, 7NY3d 913, 915 [2006]; see also Rosario v Ercole, 601 F3d 118, 124-125 [2010],cert denied 563 US —, 131 S Ct 2901 [2011]).
However, federal courts interpreting the Sixth Amendment "have spared the defendant theneed of showing probable effect upon the outcome, and have simply presumed such effect"where "the likelihood that the verdict is unreliable is so high that a case-by-case inquiry isunnecessary" (Mickens v Taylor, 535 US 162, 166 [2002]; cf. Chapman vCalifornia, 386 US 18, 43 [1967, Stewart, J., concurring] [outlining instances whereconstitutional violations result in reversal "even if no particular prejudice is shown and even ifthe defendant was clearly guilty"]).
Thus, under the federal standard for ineffective assistance of counsel, where a defendant hasbeen completely denied an attorney at a critical stage of the proceedings, courts have not requireda defendant to show that such denial had a probable effect upon the outcome of his or her case(see Gideon v Wainwright, 372 US 335 [1963]; Hamilton v Alabama, 368 US 52,55 [1961]). Stated more broadly, "[a]ctual or constructive denial of the assistance of counselaltogether is legally presumed to result in prejudice" (Strickland v Washington, 466 USat 692; see Flanagan v United States, 465 [*6]US 259,268 [1984]; Powell v Alabama, 287 US 45, 58 [1932]).
The United States Supreme Court has also presumed prejudice in certain cases where adefendant is represented by an attorney burdened by a conflict of interest (see Cuyler vSullivan, 446 US 335, 349-350 [1980]; Holloway v Arkansas, 435 US 475, 489[1978]; Glasser v United States, 315 US 60, 75-76 [1942]). Generally, "[a] conflict ofinterest is involved if there is a substantial risk that the lawyer's representation of the client wouldbe materially and adversely affected by the lawyer's own interests or by the lawyer's duties toanother current client, a former client, or a third person" (Restatement [Third] of the LawGoverning Lawyers § 121; see ABA Annotated Model Rules of ProfessionalConduct, rules 1.7, 1.9; Rules of Professional Conduct [22 NYCRR 1200.0] rules 1.7, 1.9).
The United States Supreme Court has recognized that some conflicts of interest present a"high probability of prejudice" (Mickens v Taylor, 535 US at 175; see Torres vDonnelly, 554 F3d 322, 326 [2d Cir 2009]). The Court has also recognized that "it is difficultto measure the precise effect on the defense of representation corrupted by conflicting interests"(Strickland v Washington, 466 US at 692; see Glasser v United States, 315 US at75-76), and that it is similarly difficult to prove any such prejudicial effect (see Cuyler vSullivan, 446 US at 348-349; Holloway v Arkansas, 435 US at 490-491; see alsoMickens v Taylor, 535 US at 175).
Given the difficulty of proving and measuring the prejudicial effect of attorney conflicts andthe high probability of prejudice, the United States Supreme Court has opined that "it isreasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice forconflicts of interest" (Strickland v Washington, 466 US at 692). Accordingly,"[p]rejudice is presumed . . . if the defendant demonstrates that counsel 'activelyrepresented conflicting interests' and that 'an actual conflict of interest adversely affected hislawyer's performance' " (id. at 692, quoting Cuyler v Sullivan, 446 US at 350;see Mickens v Taylor, 535 US at 173-174; see also 3 Wayne R. LaFave, CriminalProcedure § 11.9 [d] [3d ed]). Under such circumstances, it is "at once difficult andunnecessary . . . to allow courts to indulge in nice calculations as to the amount ofprejudice" as "[t]he right to have the assistance of counsel is too fundamental and absolute"(Glasser v United States, 315 US at 76). Thus, there is no need to determine "the precisedegree of prejudice" sustained by a defendant (id. at 75).
However, in Mickens v Taylor (535 US at 174-175), the Court noted that it had onlyapplied a presumption of prejudice to cases involving multiple, concurrent representation ofclients with conflicting interests. The Court recognized that conflicts of interest may arise in avariety of circumstances, for instance, during successive representation of clients with conflictinginterests, or when an attorney's own interests conflict with those of a client (id.). TheCourt questioned whether a presumption of prejudice should apply to all forms of attorneyconflicts and made it clear that it had not yet addressed the issue of whether such a presumptionwas properly applied to situations where a defense attorney operated under other types ofconflicts (id. at 175-176; see Torres v Donnelly, 554 F3d at 326; see alsoMark W. Shiner, Conflicts of Interest Challenges Post Mickens v Taylor: Redefining theDefendant's Burden in Concurrent Successive, and Personal Interest Conflicts, 60 Wash &Lee L Rev 965, 992 [2003]).
The United States Supreme Court has not addressed the issue since Mickens v Taylor(535 US 162 [2002]; see Smith v Hofbauer, 312 F3d 809, 817 [6th Cir 2002], certdenied 540 US 971 [2003]). We may nevertheless look for guidance at the approach utilizedby the lower Federal Courts (see People v Kin Kan, 78 NY2d 54, 59 [1991]; NewYork R.T. Corp. v City of New York, 275 NY 258, 265 [1937], affd 303 US 573[1938]).
One approach is exemplified by a line of cases stemming from Beets v Scott (65 F3d1258 [5th Cir 1995], cert denied 517 US 1157 [1996]). In Beets, the UnitedStates Court of Appeals for the Fifth Circuit determined that the presumption of prejudicestandard articulated in Cuyler v Sullivan (446 US at 348), is only applicable to casesinvolving conflicts arising from the multiple concurrent representation of clients with conflictinginterests (see United States v Job, 387 Fed Appx 445, 450 [5th Cir 2010]; seealso 3 Wayne R. LaFave, Criminal Procedure § 11.9 [d] [3d ed]). Under Beets,a defendant who asserts that his attorney operated under a personal conflict of interest mustsatisfy the prejudice prong of Strickland (466 US 668 [1984]) by demonstrating that theresult of the proceeding would [*7]have been different but for theattorney's conflict (see 3 Wayne R. LaFave, Criminal Procedure § 11.9 [d] [3d ed];Mark W. Shiner, Conflicts of Interest Challenges Post Mickens v Taylor: Redefiningthe Defendant's Burden in Concurrent, Successive, and Personal Interest Conflicts, 60 Wash& Lee L Rev 965, 984 [2003]).
A different approach, "with somewhat stronger support" (3 Wayne R. LaFave, CriminalProcedure § 11.9 [d] [3d ed]), is illustrated by the framework applied by the United StatesCourt of Appeals for the Second Circuit. This approach groups attorney conflicts of interest intothree general categories: per se conflicts, actual conflicts, and potential conflicts (see Ventry vUnited States, 539 F3d 102, 111 [2d Cir 2008]; United States v Williams, 372 F3d96, 102-103 [2004]; see also 3 Wayne R. LaFave, Criminal Procedure § 11.9 [d][3d ed]). The New York Court of Appeals has also recognized the existence of per se conflicts(see People v Shinkle, 51 NY2d 417, 420 [1980]). Both courts have recognized that a perse conflict does not require a showing that the conflict either prejudiced the outcome of the caseor had an effect on the representation afforded to the defendant (see United States vFulton, 5 F3d 605, 611 [1993]; see also 3 Wayne R. LaFave, Criminal Procedure§ 11.9 [d] [3d ed]).
In this case, the defendant alleges that he was deprived of the effective assistance of counselbecause trial counsel represented him during the trial while operating under a conflict of intereststemming from the fact that he was the target of a criminal investigation conducted by the Officeof the Suffolk County District Attorney, the same office prosecuting the defendant.
The danger of prejudice which manifests itself when a defendant is represented by anattorney who is charged with or under investigation for a crime has been widely recognized(see Reyes-Vejerano v United States, 276 F3d 94, 99 [1st Cir 2002], cert denied537 US 985 [2002]; Armienti v United States, 234 F3d 820, 824-825 [2d Cir 2000];United States v Levy, 25 F3d 146, 156 [2d Cir 1994]; Thompkins v Cohen, 965F2d 330, 332 [7th Cir 1992]; United States v McLain, 823 F2d 1457, 1464 [11th Cir1987]; United States v DeFalco, 644 F2d 132, 136-137 [3d Cir 1979]; State vCottle, 194 NJ 449, 946 A2d 550 [2008]; People v Edebohls, 944 P2d 552 [Colo CtApp 1996]; Phillips v Warden, State Prison, 220 Conn 112, 595 A2d 1356 [1991];see also 3 Wayne R. LaFave, Criminal Procedure § 11.9 [d] [3d ed]; Anne BowenPoulin, Conflicts of Interest in Criminal Cases: Should the Prosecution Have a Duty toDisclose?, 47 Am Crim L Rev 1135, 1162 [2010]).
Where, as here, defense counsel is under investigation by the same prosecuting authority thatis prosecuting the defendant, one of the primary concerns is whether "[t]he interests of lawyerand client . . . have diverged with respect to their dealings with that office"(Armienti v United States, 234 F3d at 824-825). A defense counsel who is personally thesubject of criminal charges or awaiting a decision as to whether such charges will be broughtmay believe that he or she has an interest in tempering the defense of the client "in order to curryfavor with the prosecution" (United States v Levy, 25 F3d at 156; see Armienti vUnited States, 234 F3d at 824-825; see also Anne Bowen Poulin, Conflicts ofInterest in Criminal Cases: Should the Prosecution Have a Duty to Disclose?, 47 Am Crim LRev 1135, 1165 [2010]). Separate criminal charges brought against the attorney "may induce thelawyer to pull his punches in defending his client lest the prosecutor's office be angered by anacquittal and retaliate against the lawyer" (Thompkins v Cohen, 965 F2d at 332). In thisregard, it is noted that "an indispensable element of the effective performance of [an attorney's]responsibilities is the ability to act independently of the Government and to oppose it inadversary litigation" (Ferri v Ackerman, 444 US 193, 204 [1979]).
A lawyer who is under criminal investigation may also seek to prolong the defendant's trial,since the prosecuting authority may not wish to prosecute defense counsel until after thedefendant's trial has ended (see United States v McLain, 823 F2d at 1464; Rugiero vUnited States, 330 F Supp 2d 900, 907-908 [ED Mich 2004]). Such motivations provide adisincentive to engage in productive plea negotiations and may otherwise improperly influencedefense counsel's strategic decisions (see Rugiero v United States, 330 F Supp 2d 900,907-908 [2004]). Viewed from the other direction, "the prosecutor may be less willing to offerthe defendant the opportunity to cooperate if the prosecutor regards as a criminal the lawyerthrough whom the communication would flow" (Anne Bowen Poulin, Conflicts of Interest inCriminal Cases: Should [*8]the Prosecution Have a Duty toDisclose?, 47 Am Crim L Rev 1135, 1164 [2010]).
The "inherent emotional and psychological barriers" facing an attorney who is the target ofcriminal charges (United States v DeFalco, 644 F2d at 136), arise from "the attorney'sobvious self-serving bias in protecting his own liberty interests and financial interests"(Rugiero v United States, 330 F Supp 2d at 906). "The liberty concern at issue isavoiding or minimizing imprisonment" and "[t]he financial interests include avoiding disbarmentand avoiding termination of the attorney's current representation of the client in question"(id.). The effectiveness of an attorney who is personally facing the serious risk ofcriminal punishment may be diminished due to the all-encompassing distraction such a risk poses(see Anne Bowen Poulin, Conflicts of Interest in Criminal Cases: Should theProsecution Have a Duty to Disclose?, 47 Am Crim L Rev 1135, 1164 [2010]).
"The high probability of prejudice in this situation distinguishes this personal interest conflictfrom . . . weaker personal interest conflicts" which have been recognized in othercontexts (Rugiero v United States, 330 F Supp 2d at 906; cf. Mickens v Taylor,535 US at 174-175). "There are few, if any, lawyers who could easily disregard the possibility ofdisbarment or criminal proceedings against them personally, even if their client's interestsdemanded it" (People vKonstantinides, 14 NY3d 1, 16 [2009, Smith, J., dissenting]).
"The right to counsel guaranteed by the Constitution contemplates the services of an attorneydevoted solely to the interests of [the] client" (Von Moltke v Gillies, 332 US 708, 725[1948]). When a defendant is represented by an attorney who is the subject of a criminalinvestigation or charge, the danger that the attorney's self-interest poses to the defendant's interestthreatens one of the most basic elements of effective assistance of counsel: the attorney's duty ofloyalty.
The pervasive effect that personal influences have on the entire scope of representation alsobears on the ability of reviewing courts to detect their impact on the trial, rendering prophylacticprotection even more important than in cases involving multiple client conflicts. Indeed, whilethe United States Supreme Court has noted, in the context of multiple client conflicts, that "aninquiry into a claim of harmless error . . . would require, unlike most cases,unguided speculation" (Holloway v Arkansas, 435 US at 491; see United States vDeFalco, 644 F2d at 137), it has been recognized that even "greater difficulty is presentedwhere the conflict does not focus on a specific tactic or outcome, as where counsel. . . is the subject of an ongoing investigation" (3 Wayne R. LaFave, CriminalProcedure § 11.9 [d] [3d ed]).
Inasmuch as it is "extremely difficult" to prove that these types of personal conflicts have hada prejudicial effect on the client's case, numerous commentators have urged that such difficultiesjustify the imposition of prophylactic rules which dispense with the necessity of satisfying theprejudice prong usually required in ineffective assistance cases (Laurie L. Levenson,Conflicts Over Conflicts: Challenges in Redrafting the ABA Standards for Criminal Justiceon Conflicts of Interest, 38 Hastings Const LQ 879, 907 [2011]; see 3 Wayne R.LaFave, Criminal Procedure § 11.9 [d] [3d ed]; Anne Bowen Poulin, Conflicts ofInterest in Criminal Cases: Should the Prosecution Have a Duty to Disclose?, 47 Am Crim LRev 1135, 1164 [2010]).
Indeed, at least two states have deemed it expedient to provide such prophylactic protectionto its citizens so as to ensure that provided counsel is effective (see State v Cottle, 194 NJ449, 473, 946 A2d 550, 564 [2008] ["an attorney who is contemporaneously under indictment inthe same county as his client, and being prosecuted by the same prosecutor's office, is engaged ina per se conflict of interest" and, absent a valid waiver by the client, "the representation isrendered ineffective under (the) State Constitution"]; People v Edebohls, 944 P2d 552,556 [Colo Ct App 1996] [reversing judgment of conviction and holding that a "conflict ofinterest exists when defense counsel has been charged with a crime and is susceptible toprosecution, during the pendency of the representation of his or her client, by those responsiblefor the client's prosecution"]).
I conclude that under the circumstances here, Strickland (466 US 668 [1984]) is"inadequate to assure vindication of the defendant's Sixth Amendment right to counsel"(Mickens v Taylor, 535 [*9]US at 176). Given theconflict alleged by the defendant in this case, he need not satisfy the prejudice prong ofStrickland (466 US 668 [1984]) to demonstrate that he was deprived of the effectiveassistance of counsel. Accordingly, I reject the standard set forth by the Fifth Circuit in Beetsv Scott, (65 F3d at 1260).
I further conclude that the approach adopted by the New Jersey Supreme Court in State vCottle (194 NJ 449, 946 ADd 550 [2008]) is the only standard that will ensure that adefendant's Sixth Amendment rights are not violated. Simply stated, when defense counsel isunder indictment or the subject of a criminal investigation by the same office prosecuting his orher client, absent a valid waiver by the client, there is a per se conflict of interest. As the facts ofthis case well demonstrate, a per se rule is appropriate inasmuch as an attorney's decision toconceal such matters from the client demonstrates that the attorney has already placed his or herown self-interest before the interests of the client (cf. People v DiPippo, 82 AD3d 786, 791 [2011]).
Applying this standard, I conclude that the Supreme Court erred in denying the defendant'sCPL article 440 motion to vacate the judgment. The court denied the CPL article 440 motion onthe ground that it had already determined that the defendant had received the effective assistanceof counsel when it resolved the merits of his CPL article 330 motion and that the determinationconstituted the law of the case. The court alternatively concluded, on the merits, that thedefendant failed to make a sufficient showing as to whether the alleged conflict affected hisattorney's representation.
To begin, the County Court's determination that the issue of whether the defendant receivedthe effective assistance of counsel had already been finally and conclusively decided evinces amisapprehension of the nature of that claim. A defendant's claim of ineffective assistance mustbe viewed as a whole and when the claim depends, in part, upon matter that does not appear onthe record, it cannot be said that the entire claim could have been adequately reviewed on therecord of the direct appeal so as to procedurally bar consideration of the entire claim in thecontext of a subsequent CPL article 440 motion (see People v Lou, 95 AD3d 1035 [2012]; People v Maxwell, 89 AD3d 1108,1109 [2011]). Inasmuch as the defendant has presented such a "mixed claim" here by includingin his motion papers evidence which was not a part of the record on the direct appeal, "the CPL440.10 proceeding is the appropriate forum for reviewing the claim of ineffectiveness in itsentirety" (People v Maxwell, 89 AD3d at 1109; see People v Brown, 45 NY2d852 [1978]; People v Lou, 95 AD3d1035 [2012]).
Similarly, the doctrine of the law of the case does not preclude review of the defendant'sclaims of ineffective assistance of counsel. The doctrine of the law of the case "applies todeterminations which were necessarily resolved on the merits in [a] prior order" (Hampton Val. Farms, Inc. v Flower &Medalie, 40 AD3d 699, 701 [2007]; see South Point, Inc. v Redman, 94 AD3d 1086, 1087 [2012]; Lehman v North Greenwich Landscaping,LLC, 65 AD3d 1293, 1294 [2009]). Use of the doctrine here is inappropriate since thedetermination of the defendant's "mixed claim" of ineffective assistance of counsel was not, andcould not have been, resolved on the merits in the context of the defendant's CPL article 330motion (cf. People v Lou, 95 AD3d1035 [2012]; People v Maxwell, 89 AD3d at 1109).
Turning now to the merits of the defendant's CPL article 440 motion, I conclude that theSupreme Court erred when it denied the defendant's CPL article 440 motion. "At any time afterthe entry of a judgment, the court in which it was entered may, upon motion of the defendant,vacate such judgment upon the ground that . . . [t]he judgment was obtained inviolation of a right of the defendant under the constitution of this state or of the United States"(CPL 440.10 [1] [h]).
Here, the defendant alleged that he was deprived of the effective assistance of counsel due tothe fact that his trial counsel represented him while operating under a personal conflict of intereststemming from the criminal investigation conducted by the Office of the Suffolk County DistrictAttorney. In support of his motion the defendant submitted sworn allegations that the Office ofthe Suffolk County District Attorney executed a search warrant on trial counsel's law office inJanuary 2008, prior to the beginning of the defendant's trial in February 2008. These sworn [*10]allegations were conceded by the People in their opposition to thedefendant's CPL article 440 motion.
By submitting the record of the trial proceedings, the defendant further established that hedid not waive any conflict of interest, yet the investigation was not disclosed to him until after hewas convicted. The People do not contend otherwise. The trial record further shows that thedefendant attempted, but was unable, to place any facts relating to the conflict on the record sincethe County Court refused to hold a hearing and trial counsel refused to provide him with anaffidavit to support his CPL article 330 motion.
The defendant also submitted documentary evidence demonstrating that approximately twomonths after he was sentenced, on December 9, 2008, trial counsel was summarily arrested and,that same day, pleaded guilty pursuant to a sealed plea agreement which he had already enteredinto with the Office of the Suffolk County District Attorney. The documentary evidence evincednumerous aspects of trial counsel's sentence which were unusually favorable.
"The practice of law has an essential tradition of complete independence and uncompromisedloyalty to those it serves" (Rules of Professional Conduct [22 NYCRR 1200.0] rule 5.8 [a])."Recognizing this tradition, clients of lawyers practicing in New York State are guaranteed'independent professional judgment and undivided loyalty uncompromised by conflicts ofinterest' " (id.). "Indeed, these guarantees represent the very foundation of the professionand allow and foster its continued role as a protector of the system of law" (id.).
If there is a significant risk that the lawyer's own personal interests will so interfere with hisor her representation of the client, an attorney may not continue the representation without"informed consent, confirmed in writing" (Rules of Professional Conduct [22 NYCRR 1200.0]rule 1.7 [b] [4]; see Restatement [Third] of the Law Governing Lawyers § 125). Alawyer is required to "promptly inform the client of . . . any decision orcircumstance with respect to which the client's informed consent . . . is required"(Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.4 [a] [1] [i]).
Accordingly, defense counsel is "under a mandatory affirmative obligation both to recognizethe existence of a potential conflict and to alert the court to the facts and circumstancessurrounding that potential conflict" (People v Wandell, 75 NY2d 951, 952 [1990]; seePeople v Gomberg, 38 NY2d 307, 314 [1975]). "[A]ny conflicting interests that might cloudtheir representation" must be disclosed "at the earliest possible time" (People v Gomberg,38 NY2d at 314).
Such disclosure is necessary to allow defendants to make informed decisions when theyexercise their right to select the one who will represent them against the accusations of criminalconduct brought by the State (cf. People v Gomberg, 38 NY2d at 312). As stated byCircuit Justice Story: "An attorney is bound to disclose to his client every adverse retainer, andeven every prior retainer, which may affect the discretion of the latter. No man can be supposedto be indifferent to the knowledge of facts, which work directly on his interests, or bear on thefreedom of his choice of counsel. When a client employs an attorney, he has a right to presume, ifthe latter be silent on the point, that he has no engagements, which interfere, in any degree, withhis exclusive devotion to the cause confided to him; that he has no interest, which may betray hisjudgment, or endanger his fidelity" (Williams v Reed, 29 F Cas 1386, 1390 [D Me 1824,No. 17,733]).
Thus, "[d]efense counsel should disclose to the defendant at the earliest feasible opportunityany interest in or connection with the case or any other matter that might be relevant to thedefendant's selection of counsel to represent him or her or counsel's continuing representation"(ABA Criminal Justice Section Standards, Defense Function, Standard 4-3.5 [b] [Conflicts ofInterest]). "Such disclosure should include communication of information reasonably sufficientto permit the client to appreciate the significance of any conflict or potential conflict of interest"(id.).
Here, trial counsel failed to fulfill his duty to communicate to the defendant matters whichunquestionably bore on his ability to serve him with undivided loyalty. Trial counsel's failure[*11]to communicate with his client and fulfill his ethicalobligations could only have been rooted in his desire to protect his own personal and professionalinterests even at the expense of the defendant's ability to make an informed choice about whowould represent him.
As it has been recognized in other conflict cases, "justice must satisfy the appearance ofjustice" (Offutt v United States, 348 US 11, 14 [1954]). A "[d]efendant, and indeed thepublic at large, are entitled to protection against the appearance of impropriety," and the courtsshould not "deny defendants the right to both the fact and appearance of unswerving andexclusive loyalty on the part of attorneys who represent them" (People v Shinkle, 51NY2d 417, 421 [1980]). Representation by one who is not fully committed to advancing theinterests of the client is not representation at all. That the defendant was represented at trial byone who would place his interests over the defendant's interests is enough to undermine myconfidence in the fairness of the defendant's trial and to subvert my faith in the result.
I conclude that the defendant sustained his burden, under both the federal and stateconstitutions, of demonstrating that he was denied the effective assistance of counsel due to histrial counsel's conflict of interest. Accordingly, I would grant the defendant's motion to vacate thejudgment on the ground that the defendant was deprived of his right to the effective assistance ofcounsel (see CPL 440.30 [3]).