| People v McCummings |
| 2015 NY Slip Op 00610 [124 AD3d 502] |
| January 22, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Daviel McCummings, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Lisa A. Packard ofcounsel), for appellant.
Cyrus R. Vance Jr., District Attorney, New York (Christopher P. Marinelli ofcounsel), for respondent.
Judgment, Supreme Court, New York County (Renee A. White, J.), renderedDecember 20, 2010, convicting defendant, after a jury trial, of attempted murder in thesecond degree, assault in the first degree, and two counts of criminal possession of aweapon in the second degree, and sentencing him, as a second felony offender, to anaggregate term of 20 years, reversed, on the law, and the matter remanded for a newtrial.
Defendant is entitled to a new trial because the court improperly denied his requestfor substitution of counsel without conducting any inquiry whatsoever, and withoutpermitting defendant to explain, either orally or in writing, why such an inquiry might benecessary (see People vRodriguez, 46 AD3d 396 [1st Dept 2007], lv denied 10 NY3d 844[2008]). At the beginning of the fourth day of trial, defendant asked to speak to the court.In denying his request, the court clearly assumed that he wanted to make a statementpertaining to his defense, even after defendant indicated that the subject matter was "myattorney and advice" and that the attorney was not "doing his proper work." Defendantthen asked to hand up papers that defense counsel immediately identified as "a notice ofmotion for reassignment of counsel," but the court refused to look at the papers, andstated, "I will not reassign counsel. The motion is denied."
Contrary to the dissent's characterization, it is not exalting form over substance toexpect the trial court to allow a defendant seeking to substitute counsel the opportunity tomake specific factual allegations in support of his or her application. In People vSides (75 NY2d 822 [1990]), for instance, the trial court was found to have erred infailing to ask "even a single question" about the nature of the disagreement after both thedefendant and his counsel spoke of a breakdown in communications and trust (id.at 825; see also People vBranham, 59 AD3d 244 [1st Dept 2009]). Here, the court did not even learn thenature of the disagreement, let alone ask any questions about it. While not all requests fornew counsel contain the specific factual allegations to show that the complaints andrequest are "serious," which then triggers the court's obligation to make a "minimalinquiry" into the nature of the disagreement and its potential for resolution (see People v Porto, 16 NY3d93, 100 [2010]), here defendant was not given an opportunity to make anyallegations. This is not a situation where a defendant rested on unelaborated claims; thecourt expressly declined to listen to defendant or read his submissions (see People vSides, 75 NY2d at 824; cf.People v Nelson, 7 NY3d 883, 884 [2006] [there was no abuse of the court'sdiscretion in denying the application for substitution of counsel where the court initiallyrejected the application without inquiry, made just prior to jury selection, but "thereafterallowed defendant to voice his concerns about defense counsel" and heard defensecounsel]).
The dissent's position is based on assumptions, rather than the actual record. First,the dissent assumes that defendant's application had no merit and was made solely as a"disruptive, dilatory tactic," because it was raised so late in the trial and directly followedthe court's [*2]comment that defense counsel had hadplenty of time to subpoena a particular surveillance tape, and could cross-examine thedetective about its contents.
Whether defendant's application was a dilatory tactic is unknowable from this recordbecause the court failed to ascertain the basis for defendant's motion before denying it.Second, the dissent assumes that defendant's motion was based solely on the manner inwhich the trial had been conducted until then. However, according to the record,defendant's initial request was based on "my attorney and advice" (emphasisadded). A claim alleging incorrect or improper advice is a very different type ofcomplaint from a claim based on an attorney's trial performance. The court could nothave known about the specifics of the claim as to advice. We cannot know that the"advice" at issue pertained, as the dissent assumes, to defendant's testifying or any otherdefense strategy. Third, the dissent assumes that defendant's motion was nothing moresubstantive than a "preprinted form motion[ ]" such as is often prepared by defendants inadvance for possible use (see e.g. People v Porto, 16 NY3d at 96). There is noevidence indicating what the motion papers consisted of, given that the court declined toaccept them and they are not in the record. It is speculation to conclude that defendant'smotion was pro forma. Even if he had used a printed form, we have no idea whatdefendant may have added to supplement the printed category of complaints. It wouldhave taken, at most, a quick colloquy to discern whether defendant's application was"seemingly serious," based on its inclusion of "serious complaints" about his counsel(see id. at 99-100). The court, had it briefly engaged defendant and reviewed hispapers, would then have had a basis on which to decide whether a minimal inquiryshould be undertaken as to the nature of the disagreement or its potential for resolution.Absent a properly developed record, we cannot be as sanguine as the dissent is in findingthe application disingenuous (see id. at 100). Alternatively, given that the jurywas ready to enter the courtroom, it would have been proper and justified for the court toindicate that the application had been made at an inopportune time and that it wouldconsider defendant's papers at some other point in the day. We are mindful that had thecourt considered the application, only the most compelling circumstances would havejustified granting it (see People v Arroyave, 49 NY2d 264, 271 [1980]).Nevertheless, we conclude that a new trial is unavoidable under the circumstancespresented.
However, defendant has not established that he is entitled to suppression of hisstatements on the ground that they were the product of an unlawful arrest. The Peoplehad no burden to come forward with evidence supporting the arrest, because,notwithstanding the motion court's erroneous description of the hearing as a"Dunaway/Huntley" hearing, defendant only moved to suppress onvoluntariness-related grounds and never litigated any Fourth Amendment issue regardingthe statements (see People v Wells, 298 AD2d 142 [1st Dept 2002], lvdenied 99 NY2d 586 [2003]). Defendant's argument that his counsel renderedineffective assistance by failing to raise a Fourth Amendment claim may not be addressedon direct appeal because it involves matters outside the record requiring a CPL 440.10motion. In the alternative, to the extent the existing record permits review, we find thatdefendant has not shown that counsel's failure to litigate the legality of his arrest wasobjectively unreasonable, or that it caused him any prejudice under the state and federalstandards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; Stricklandv Washington, 466 US 668 [1984]).
In light of the foregoing, we do not reach defendant's remaining contentions.Concur—Sweeny, J.P., Andrias, Richter and Feinman, JJ.
Saxe, J., dissents in a memorandum as follows: I would affirm the judgmentconvicting defendant of attempted murder in the second degree, assault in the firstdegree, and criminal possession of a weapon. In my view, the trial court acted properly indenying, without further inquiry, defendant's request to be assigned new counsel. Theapplication was made on the fourth day of trial, the court was fully aware of the aspect ofcounsel's conduct with which defendant took issue, and that conduct did not warrant theassignment of new counsel. Under the circumstances, no inquiry of defendant waswarranted before the application was denied.
At the beginning of the fourth day of trial, before the jury was brought in, defensecounsel [*3]remarked that although in one of the DD5she had been given less than a week earlier, a detective mentioned the existence of twosurveillance camera DVDs, he, counsel, had only been given one tape. The courtinquired of the prosecutor, who indicated that she had only been given one tape and thatshe had inquired of the detective, who said he had no knowledge of a second tape. Thecourt then upbraided defense counsel for failing to subpoena the second tape, but saidcounsel could cross-examine the detective about such a tape. Immediately thereafter,defendant asked to speak, and when the court responded that he would have anopportunity if he wished to testify, defendant clarified, "I'm not talking about testifying.It is about my attorney and advice," continuing, "It's about him doing his proper work."When the court said, "Sir, I will not discuss it with you at this time," defendant asked tohand up papers that counsel identified as a notice of motion for reassignment of counsel.The court stated, "I will not reassign counsel. The motion is denied," and the jury wascalled in.
The majority holds that the trial court had an obligation to make a "minimal inquiry"by accepting and perusing defendant's prepared motion papers, and that its failure to doso requires reversal. In my view, however, the court here had no reason to make such aninquiry, and its failure to accept and peruse the pro se motion papers was not reversibleerror.
In considering an application for new assigned counsel, the court is required tocarefully evaluate "seemingly serious requests in order to ascertain whether there isindeed good cause for substitution" (People v Sides, 75 NY2d 822, 824 [1990]).However, when such a motion is made during trial, only the most compellingcircumstances will justify granting it (see People v Arroyave, 49 NY2d 264, 271[1980]). Importantly, not all requests for new counsel trigger a court's obligation to makea "minimal inquiry" of the defendant (see People v Porto, 16 NY3d 93, 100 [2010]).
Grounds for the assignment of a new attorney are established where there is agenuine conflict of interest or a complete breakdown in communication betweendefendant and the attorney (see People v Sawyer, 57 NY2d 12, 19 [1982], certdenied 459 US 1178 [1983]); indications that assigned counsel is lacking in therequisite "ability and integrity" will also warrant action by the court (see People vPorto, 16 NY3d at 100). When the court has little or no first-hand knowledge of thelevel of counsel's performance or the interplay between counsel and the defendant, it willlikely be necessary to make some inquiry to determine whether grounds for theassignment of new counsel exist. For example, in People v Sides (75 NY2d at822), the defendant was assigned counsel at his arraignment, appeared with counsel onthe next court date, at which a plea offer was made, and the matter was adjourned fordefendant's response. On the adjourn date, the defendant asked for the assignment of newcounsel. The court, appropriately, heard from counsel regarding a breakdown incommunication between himself and the defendant, but then "fail[ed] to ask even asingle question about the nature of the disagreement or its potential for resolution"(id. at 825). It was due to the court's lack of first-hand information regarding thelawyer-client interactions, and the information provided by assigned counsel, that furtherinquiry by the court was necessary.
Here, in contrast, the application was made on the fourth day of trial. The trial judgehad more than ample first-hand knowledge of counsel's highly competent work andefforts, and there had been no indications of a conflict of interest or a breakdown incommunications up to that point. The most likely basis for defendant's sudden pro seapplication for new counsel was the interchange that immediately preceded theapplication, which concerned the possibility that a second surveillance camera DVDexisted that was not provided, but counsel's conduct in this respect did not providegrounds to replace him.
Given what it had already seen up to that point, the court had every reason toconclude that there was no valid basis for defendant's application beyond the court's ownremark regarding counsel's failure to subpoena the referred-to second tape. Evenaccepting the court's position that defense counsel should have subpoenaed the secondDVD, it was apparent that cross-examination of the detective could shed sufficient lighton the existence and content of any second tape, so counsel's "failure" was very far fromestablishing ineffective assistance warranting replacement of counsel at that point.
While the majority emphasizes defendant's reference to "my attorney and advice" inhis [*4]first interjection, suggesting that the court had anobligation to ascertain the nature of defendant's presumed complaint that counsel gaveincorrect or improper advice, it is hard to imagine the kind of "advice" that counsel mighthave given defendant at that point in time, on the fourth day of trial, that would havejustified defendant's motion for new counsel. The advice that counsel would be givingdefendant at that point in the case would relate to defendant's testifying or some otherdefense strategy. These are areas where differences of opinion between counsel andclient often arise; however, their resolution does not involve replacing counsel.
By reversing based on the trial court's rejection of the pro se application withoutasking defendant to elaborate or reading through his papers, the majority is exalting formover substance. The timing of defendant's application, after days of damning testimonyagainst him, had all the hallmarks of a disruptive, dilatory tactic, and there was noindication that the application was meritorious. Reversing defendant's conviction on thisground forces future trial courts to take part in a charade of seeming to peruse andconsider meritless, often preprinted form motions that defendants prepare in advance forpotential use should the opportunity arise (see e.g. People v Porto, 16 NY3d at96).
Undoubtedly, it would have made this Court's task easier had the trial court simplyengaged in that charade before denying the motion; going through those motions wouldhave eliminated the issue here. However, a trial court should not be required to put onsuch a show where, as here, the defendant's application is not a "seemingly seriousrequest" warranting "minimal inquiry" as contemplated by People v Sides (75NY2d at 822).
Moreover, it should be acknowledged that as a practical matter, a substitution ofcounsel at that point would have necessitated a mistrial. It is simply disingenuous tosuggest that a short continuance would have sufficed for a new attorney to pick up thetrial in midstream within a few days, and a delay of anything beyond a few days normallynecessitates releasing the jurors and commencing the trial anew. Surely, so drastic aresult was not appropriate or necessary here.
To be clear, I fully recognize the critical importance of ensuring and protecting adefendant's right to competent, conflict-free representation. I do not mean to imply that itshould be taken lightly. Nevertheless, in the present case nothing happened during thecourse of the trial to indicate that counsel was anything other than highly competent andconflict-free.
In my view, on the particular facts presented here, there was no reversible error attrial. Since I agree with the majority that defendant's motion to suppress his statementswas properly denied, his conviction should be affirmed.