| People v Dollinger |
| 2015 NY Slip Op 04503 [128 AD3d 1085] |
| May 27, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Eugene W. Dollinger, Appellant. |
Steven A. Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant, andappellant pro se.
Adam B. Levy, District Attorney, Carmel, N.Y. (Heather M. Abissi and David M.Bishop of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Putnam County(Reitz, J.), rendered May 9, 2013, convicting him of driving while intoxicated as a felonyin violation of Vehicle and Traffic Law § 1192 (3), upon his plea of guilty,and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the sentence imposed;as so modified, the judgment is affirmed, and the matter is remitted to the County Court,Putnam County, for resentencing in accordance herewith.
On March 16, 2012, the defendant appeared before the County Court represented byan attorney from the Putnam County Legal Aid Society, and entered a plea of guilty todriving while intoxicated as a felony in violation of Vehicle and Traffic Law§ 1192 (3). The defendant was discharged to Drug Treatment Court andadvised that if he violated any conditions of his participation, he "might" be sentenced to1
On April 4, 2013, the defendant appeared in the County Court again with hisattorney from the Putnam County Legal Aid Society. The People were represented by anassistant district attorney other than the one who was present when the defendant pleadedguilty. The defendant admitted that he violated the conditions of treatment court bydriving a vehicle on February 15, 2013, when he was not supposed to be driving. Thecourt noted that the defendant, in a letter to the court, had previously lied about drivingon February 15, 2013. The prosecutor recommended that the defendant be sentenced toan indeterminate term of imprisonment of 1
On May 9, 2013, the defendant appeared for sentencing. He was, however, no longerrepresented by the Putnam County Legal Aid Society. Instead, he was represented by theattorney who, as an assistant district attorney, had represented the People in March 2012when he pleaded guilty. The attorney had also previously prosecuted the defendant'swife. In the interim, that attorney had left the District Attorney's office and startedworking for a private firm. At the sentencing proceeding, she told the court that thedefendant did not "have a violation" of his treatment conditions until his probationofficer observed the defendant with his vehicle at a gas station; she further commented,"that goes to show you that if you keep screwing up, at some point [*2]you are going to get caught." The County Court sentencedthe defendant to an indeterminate term of imprisonment of 1
On this appeal, the defendant claims that he was deprived of his right to effectiveassistance of counsel. He faults the representation provided by the Putnam County LegalAid Society, and by the attorney who appeared for him at sentencing.
The defendant's claim that the Putnam County Legal Aid Society provided him withineffective assistance of counsel with respect to the proceedings prior to sentencing isbased, in part, on matter appearing on the record and, in part, on matter outside therecord and, thus, constitutes a "mixed claim of ineffective assistance" (People v Maxwell, 89 AD3d1108, 1109 [2011]; seePeople v Evans, 16 NY3d 571, 575 n 2 [2011]). In this case, it is not evidentfrom the record that the defendant was deprived of the effective assistance of counsel bythe Putnam County Legal Aid Society (cf. People v Crump, 53 NY2d 824, 825[1981]; People v Brown, 45 NY2d 852 [1978]). Since this claim of ineffectiveassistance of counsel cannot be resolved without reference to matter outside the record, aCPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety(see People v Freeman, 93AD3d 805 [2012]; People v Maxwell, 89 AD3d at 1109).
The merit of the defendant's contention with respect to his representation atsentencing, however, is evident on the record. Where, as here, a defendant makes aconflict-based claim of ineffective assistance of counsel, the court must determine, first,whether there was a potential conflict of interest, and second, whether the defendant hasshown that the conduct of the defense "was in fact affected by the operation of theconflict of interest, or that the conflict operated on the representation" (People v Konstantinides, 14NY3d 1, 10 [2009] [internal quotation marks omitted]; see People v Sanchez, 21NY3d 216, 223 [2013]; People v Payton, 100 AD3d 786, 787 [2012], mod22 NY3d 1011 [2013]). Reversal is required if the conflict "operates on or affects thedefense" (People v Sanchez, 21 NY3d at 223 [internal quotation marksomitted]).
The record establishes that the defendant's representation at sentencing by theattorney who had represented the People when he pleaded guilty presented a potentialconflict of interest (see People v Abar, 99 NY2d 406 [2003]). Moreover, therecord establishes that the potential conflict actually operated on or affected the defense.Indeed, the defendant's attorney at sentencing, by characterizing the defendant as a repeatoffender, showed that she had not departed from her prosecutorial stance. Accordingly,we vacate the sentence imposed, and remit the matter to the County Court, PutnamCounty, for resentencing.
The defendant's remaining contentions are without merit or need not be addressed inlight of our determination. Balkin, J.P., Leventhal, Hall and Hinds-Radix, JJ.,concur.