| People v Beard |
| 2012 NY Slip Op 07798 [100 AD3d 1508] |
| November 16, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James Beard,Also Known as "Pops", Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered March9, 2010. The judgment convicted defendant, upon a jury verdict, of criminal sale of a controlledsubstance in the third degree (two counts) and criminal possession of a controlled substance inthe third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawand a new trial is granted.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of two countseach of criminal possession of a controlled substance in the third degree (Penal Law §220.16 [1]) and criminal sale of a controlled substance in the third degree (§ 220.39 [1]),defendant contends that the evidence is legally insufficient to support his conviction. Defendantcontends that the People failed to establish that he had constructive possession of the controlledsubstance (drugs) because there is no evidence that he controlled the premises where the drugswere sold or that he exercised control over the unknown suspect who participated in the drugsales. That contention is unpreserved for our review inasmuch as it was not specifically raised insupport of defendant's motion for a trial order of dismissal (see People v Latorre, 94 AD3d 1429, 1429-1430 [2012], lvdenied 19 NY3d 998 [2012]; Peoplev Jones, 92 AD3d 1218, 1218 [2012], lv denied 19 NY3d 962 [2012]; seegenerally People v Gray, 86 NY2d 10, 19 [1995]). In any event, that contention lacks meritbecause the evidence is legally sufficient to establish that defendant "exercised 'dominion orcontrol' over the [drugs] by a sufficient level of control . . . over the [unknownsuspect] from whom the [drugs were] seized" (People v Manini, 79 NY2d 561, 573[1992], quoting Penal Law § 10.00 [8]; see Penal Law § 220.39). There islikewise no merit to defendant's further contention, which is preserved for our review, that theevidence is legally insufficient to establish defendant's identity (see Jones, 92 AD3d at1218). "It is well settled that, even in circumstantial evidence cases, the standard for appellatereview of legal sufficiency issues is whether any valid line of reasoning and permissibleinferences could lead a rational person to the conclusion reached by the [jury] on the basis of theevidence at trial, viewed in the light most favorable to the People" (People v Hines, 97NY2d 56, 62 [2001], rearg denied 97 NY2d 678 [2001] [internal quotation [*2]marks omitted]; see generally People v Bleakley, 69 NY2d490, 495 [1987]). Here, we conclude that the trial evidence, although largely circumstantial,could lead a rational person to conclude that defendant was the individual who arranged the drugsales (see Latorre, 94 AD3d at 1430; Jones, 92 AD3d at 1218). Further, althougha different result would not have been unreasonable (see People v Danielson, 9 NY3d 342, 348 [2007]; Bleakley,69 NY2d at 495), we conclude that, viewing the evidence in light of the elements of the crimes ascharged to the jury (see Danielson, 9 NY3d at 349), the verdict is not against the weightof the evidence (see generally Bleakley, 69 NY2d at 495).
We agree with defendant, however, that he is entitled to a new trial because County Courtviolated his right to counsel. "Under our State and Federal Constitutions, an indigent defendantin a criminal case is guaranteed the right to counsel" (People v Medina, 44 NY2d 199,207 [1978]; see US Const, 6th Amend; NY Const, art I, § 6; People v Linares, 2 NY3d 507,510 [2004]). That "right does not begin and end with the assignment of counsel"(Linares, 2 NY3d at 510). Rather, trial courts bear the "ongoing duty" to " 'carefullyevaluate serious complaints about counsel' " (id. at 510, quoting Medina, 44NY2d at 207; see People v Sides, 75 NY2d 822, 824 [1990]). Although "[t]he right of anindigent criminal defendant to the services of a court-appointed lawyer does not encompass aright to appointment of successive lawyers at defendant's option[,] . . . the right tobe represented by counsel of one's own choosing is a valued one, and a defendant may be entitledto new assigned counsel upon showing 'good cause for a substitution' " (Sides, 75 NY2dat 824, quoting Medina, 44 NY2d at 207). Thus, trial courts are obligated to conduct, atthe very least, a " 'minimal inquiry' " when a defendant voices " 'seemingly serious' " complaintsabout his or her assigned defense counsel (People v Porto, 16 NY3d 93, 100 [2010], quoting Sides, 75NY2d at 824-825).
Here, we conclude that defendant articulated complaints about his assigned counsel that weresufficiently serious to trigger the court's duty to engage in an inquiry regarding those complaints(see Sides, 75 NY2d at 824-825). Before jury selection, defendant advised the court thathe was not comfortable proceeding with his assigned attorney because he had never spoken to theattorney before that time, he had not been informed that his trial was commencing that day, andhe had not been informed of certain pretrial hearings conducted in his absence. The courtinterrupted defendant and engaged in an off-the-record discussion with the attorneys. Thereafter,the court explained to defendant that the trial was "going to have to go forward" with hisassigned counsel because "[t]he District Attorney's Office has brought up a confidential witnessall the way from the State of Texas and they're ready to go today," the District Attorney's officehad "spent a lot of money" to secure the confidential witness, and there were 50 prospectivejurors in the courthouse. The court then proceeded to explain the jury selection process and,when the court asked defendant whether he would permit defense counsel to handle certain jurorissues at the bench, outside of defendant's presence, defendant reiterated that he did not "feelcomfortable" with defense counsel. The court replied that "if [defendant could] afford to hire[his] own attorney, [he could] do so, but if [he could not] afford to do that, then the PublicDefender's Office . . . has designated [defense counsel] as [his] trial attorney and so[defense counsel would] be [his] trial attorney."
Defendant's allegations—in particular, the allegation that he had never previouslyspoken to his assigned counsel and that he was unaware his trial was commencing thatday—are serious on their face and should not have been "summarily dismiss[ed]" by thecourt, especially in light of the fact that defendant's allegations are either supported by oruncontradicted by the record (Sides, 75 NY2d at 825; cf. People v Augustine, 89 AD3d 1238, 1240-1241 [2011], lvdenied 19 NY3d 957 [2012]). Indeed, the record established that an assistant public defenderother than defendant's assigned counsel met with defendant before trial and reviewed with himcritical evidence, i.e., the police surveillance videotapes, prepared an extensive [*3]omnibus motion, and argued the motion. Additionally, the recorddoes not contradict defendant's allegations that he was not apprised of a change in the trial dateand that a hearing was conducted in his absence. Specifically, although the record establishes thatdefendant was present when the court initially scheduled the trial date, there is no evidence thathe subsequently received notice of the change in the trial date. Moreover, the minutes of the courtclerk indicate that an audibility hearing was held, but no transcript of that proceeding is includedin the record. Thus, there is no evidence that defendant was present at that hearing.
We therefore conclude, based on the record before us, that the court violated defendant'sfundamental right to counsel by failing to make any inquiry concerning his serious complaintsregarding his assigned counsel (see Sides, 75 NY2d at 824-825; cf. People v Haith, 44 AD3d 369,370 [2007], lv denied 9 NY3d 1034 [2008]; People v Reese, 23 AD3d 1034, 1035 [2005], lv denied 6NY3d 779 [2006]; People vEngland, 19 AD3d 154, 154-155 [2005], lv denied 5 NY3d 805 [2005]). Thecourt did not, for example, ask defendant to explain his position or ask defense counsel, on therecord, to address defendant's allegations that they had never met or that defendant had not beenadvised of the new trial date. Instead, as noted above, the court advised defendant that the trialwould proceed with his assigned counsel because the District Attorney's office had arranged forthe appearance of a confidential witness, who had traveled from Texas, and prospective jurorswere waiting. While "[t]he court might well have found upon limited inquiry that defendant's[complaints regarding his assigned counsel were] without genuine basis, . . . itcould not so summarily dismiss [his complaints]" (Sides, 75 NY2d at 825; see Peoplev Graham, 169 AD2d 512, 512-513 [1991], lv denied 77 NY2d 906 [1991]; see generally People v Branham, 59AD3d 244, 245 [2009]; People vRodriguez, 46 AD3d 396, 397 [2007], lv denied 10 NY3d 844 [2008]).
We reject the People's contention that the court had no duty to conduct an inquiry regardingdefendant's complaints because his assertions were "conclusory" (cf. People v Watkins, 77 AD3d1403, 1404 [2010], lv denied 15 NY3d 956 [2010]). To the contrary, defendant'scomplaints were highly specific and factual in nature. Additionally, we note that the court failedto give defendant an opportunity to explain his complaints. Indeed, the court cut defendant off,admonished him not to interrupt, and advised him that, unless he could afford to hire his ownattorney, there would be no substitution of counsel (see Branham, 59 AD3d at 245;Rodriguez, 46 AD3d at 397; cf. People v Rodriguez, 166 AD2d 903, 904 [1990],lv denied 77 NY2d 910 [1991]).
In light of our conclusion, there is no need to address defendant's remaining contentions.Present—Fahey, J.P., Peradotto, Carni, Whalen and Martoche, JJ.