| People v Gibson |
| 2015 NY Slip Op 02236 [126 AD3d 1300] |
| March 20, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJimmy W. Gibson, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Robert Shoemaker of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti,J.), rendered November 25, 2008. The judgment convicted defendant, upon a juryverdict, of attempted murder in the second degree and assault in the first degree.
It is hereby ordered that the judgment so appealed from is reversed on the law and anew trial is granted.
Memorandum: On appeal from a judgment convicting him following a jury trial ofattempted murder in the second degree (Penal Law §§ 110.00, 125.25[1]) and assault in the first degree (§ 120.10 [1]), defendant contends thatSupreme Court abused its discretion in denying his request for assignment of newcounsel. We agree, and we therefore reverse the judgment and grant a new trial.
Defendant requested new counsel in a letter he sent to the court approximately onemonth prior to trial, and two weeks later defense counsel himself moved to withdraw asassigned counsel. Defense counsel stated in his letter-motion that he was "unable tocommunicate effectively" with defendant and that he could therefore no longer representhim. At the next court appearance, which was ten days before trial, defendant specificallyoutlined his grievances against defense counsel and stated that he could not communicatewith him. The court then turned to defense counsel, who stated that his most recentmeeting with defendant was "rather antagonistic" and that he too believed that there hadbeen an irreparable breakdown in the attorney-client relationship. Defense counseldescribed his motion to withdraw as a "drastic measure," noting that he had never beforemade such a request. In denying defendant's request for new counsel and defensecounsel's motion to be relieved of the assignment, the court stated, inter alia, that a lackof communication between a defendant and his attorney does not constitute good causefor appointment of substitute counsel, "[e]specially when there may be some indicationthat lack of communication was initiated or promoted by the defendant as opposed todefense counsel."
The determination "[w]hether counsel is substituted is within the discretion andresponsibility of the trial judge . . . , and a court's duty to consider such amotion is invoked only where a defendant makes a seemingly serious request[ ]" (People v Porto, 16 NY3d93, 99-100 [2010] [internal quotation marks omitted]; see People v Sides, 75NY2d 822, 824 [1990]; People v Medina, 44 NY2d 199, 207 [1978]). Thus,where a defendant makes "specific factual allegations" against defense counsel(Porto, 16 NY3d at 100), the court must make at least "some minimal inquiry" todetermine whether the defendant's claims are meritorious (Sides, 75 NY2d at825; see People v Smith, 18NY3d 588, 592-593 [2012]). Upon conducting that inquiry, "counsel may besubstituted only where 'good cause' is shown" (Porto, 16 NY3d at 100; see People v Linares, 2 NY3d507, 510 [2004]).
Here, the court erred in determining that a breakdown in communication between[*2]attorney and client cannot constitute good cause forsubstitution of counsel. Although the mere complaint by a defendant thatcommunications have broken down between him and his lawyer is not, by itself, goodcause for a change in counsel (see People v Faeth, 107 AD3d 1426, 1427 [2013], lvdenied 21 NY3d 1073 [2013]), where a complete breakdown has been established,substitution is required (see Sides, 75 NY2d at 824-825; People v White,288 AD2d 839, 839 [2001], lv denied 97 NY2d 689 [2001]). Here, bothdefendant and defense counsel agreed that they were unable to communicate, andnothing said by either of them during the court's lengthy inquiry indicated otherwise.
We conclude that the court also erred in suggesting that any breakdown incommunication was "initiated or promoted by the defendant as opposed to defensecounsel." That conclusion is not supported by the record, which shows that thebreakdown in communication resulted from legitimate concerns defendant had aboutdefense counsel's performance. For instance, it is undisputed that defendant, who wasfacing a maximum sentence of 25 years in prison, had not been informed by defensecounsel whether there were any plea offers in his case, notwithstanding that the trial wasimpending. In addition, defense counsel met with defendant only sporadically and hadnot yet discussed with him what defense strategy he intended to pursue against thecharges. Defendant also informed the court without contradiction that defense counselrefused to return or take phone calls from defendant's wife and failed to provide him witha copy of certain motion papers that defendant had repeatedly requested. Under thecircumstances, we cannot conclude that the breakdown in the attorney-client relationshipwas initiated by unreasonable demands or unrealistic expectations from defendant.
Finally, with respect to our dissenting colleague's assertion that a defendant'scomplaints of infrequent contact with his or her attorney do not constitute good cause forsubstitution, we note that the cases cited for authority refer to "vague" (People v MacLean, 48 AD3d1215, 1217 [2008], lv denied 10 NY3d 866 [2008], reconsiderationdenied 11 NY3d 790 [2008]) and "conclusory" (People v Benson, 265 AD2d814, 814 [1999], lv denied 94 NY2d 860 [1999], cert denied 529 US1076 [2000]), assertions of infrequent contact. Here, in contrast, defendant's complaintsof infrequent contact were specific and supported by the record. In any event, defendant'srequest for substitution of counsel was not based solely on complaints of infrequentcontact with his attorney; as noted, the motion was based primarily on the undisputedbreakdown in communication between defendant and his attorney.
All concur except DeJoseph, J., who dissents and votes to affirm in the followingmemorandum.
DeJoseph, J. (dissenting). I respectfully dissent. In my view, Supreme Court did notabuse its discretion in denying defendant's request for substitution of defense counselinasmuch as there was no good cause for substitution (see People v Porto, 16 NY3d93, 99-100 [2010]; Peoplev Linares, 2 NY3d 507, 510 [2004]; People v Sides, 75 NY2d 822, 824[1990]). Therefore, I would affirm.
At the outset, I note that the court conducted an extensive inquiry into defendant'sallegations (see People vSmith, 18 NY3d 588, 592-593 [2012]; cf. Sides, 75 NY2d at 825),which went beyond its "minimal inquiry" obligation (Sides, 75 NY2d at 825; see People v Faeth, 107 AD3d1426, 1427 [2013], lv denied 21 NY3d 1073 [2013]).
Defendant based his allegation of a breakdown in communication with defensecounsel largely on complaints of infrequent contact. Such complaints, however, do notconstitute good cause for substitution (see People v MacLean, 48 AD3d 1215, 1217 [2008], lvdenied 10 NY3d 866 [2008], reconsideration denied 11 NY3d 790 [2008];People v Benson, 265 AD2d 814, 814-815 [1999], lv denied 94 NY2d860 [1999], cert denied 529 US 1076 [2000]). Defendant also asserted that therehad been a breakdown in communication inasmuch as defense counsel had failed toprovide him with motion papers or to inform him whether any plea offers had been made.Based on my examination of the record, I conclude that defendant's assertions" 'do not suggest a serious possibility of good cause for substitution' "(People v Moore, 41 AD3d1149, 1150 [2007], lv denied 9 NY3d 879 [2007], reconsiderationdenied 9 NY3d 992 [2007]; see generally People v Torres, 14 AD3d 801, 803 [2005],lv denied 4 NY3d 836 [2005]). Defendant's remaining assertions concerning thealleged breakdown in communication were conclusory and, thus, insufficient to establishgood cause (see People vThagard, 28 AD3d 1097, 1098 [2006], lv denied 7 NY3d 795[2006]).
Overall, in my view, even when defense counsel has moved for substitutionindicating that he is "unable to communicate effectively with [defendant]," the court doesnot abuse its [*3]discretion in denying substitution wherethe breakdown in communication was owing to defendant's uncooperative attitude anddefense counsel has conducted an otherwise effective defense (see People vJessup, 266 AD2d 313, 313-314 [1999], lv denied 94 NY2d 921 [2000];see generally People v Johnson, 292 AD2d 871, 871-872 [2002], lvdenied 98 NY2d 652 [2002]). Present—Centra, J.P., Peradotto, Lindley,Sconiers and DeJoseph, JJ.