| People v Moya |
| 2016 NY Slip Op 03241 [138 AD3d 620] |
| April 28, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Ricardo Moya, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (Margaret E.Knight of counsel), for appellant.
Ricardo Moya, appellant pro se.
Cyrus R. Vance, Jr., District Attorney, New York (Susan Axelrod of counsel), forrespondent.
Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), renderedMarch 19, 2013, convicting defendant, after a jury trial, of burglary in the second degree,and sentencing him, as a second violent felony offender, to a term of seven years,unanimously reversed, on the law, and the matter remanded for a new trial.
In conducting a colloquy on defense counsel's request to be relieved, the court erredin failing to permit defendant to provide any input, or to even be present. At least by thetime that the substance of counsel's ex parte application became clear, defendant shouldhave been included in the proceeding.
Defendant had criticized the performance of trial counsel persistently and in manyregards, in letters to the court and on the record in pretrial proceedings. He requested newcounsel and also filed a disciplinary complaint against counsel while the case waspending. Nothing in the record suggests that counsel's performance was deficient on thegrounds alleged or that defendant was entitled to new counsel on these grounds.
However, during the first afternoon of trial testimony, in an ex parte colloquy withthe court that counsel requested, counsel, while recounting the efforts he had made tozealously represent defendant, stated, among other things, that he was concerned thatdefendant was attempting to "set [him] up to be the basis of his appeal for ineffectiveassistance of counsel or some other type of misconduct." Counsel also read to the court aletter he had received from defendant, in which defendant, among other things, stated, ina plainly accusatory manner, that "[t]here is no doubt where your interests lies," and thathe "hope[d] you and [the judge] can continue a fine relationship." Counsel asked to berelieved and the court denied the request.
We agree with defendant that this proceeding was an "ancillary proceeding[ ] [atwhich] he . . . may have [had] something valuable to contribute" (Peoplev DePallo, 96 NY2d 437, 443 [2001]), and thus that his exclusion from it was error.While defendant may not have been able to justify counsel's removal, we cannot say thatthe "new matter" brought to light at the ex parte proceeding—where counselrevealed the content of a privileged communication with the court, and expressed thebelief that defendant's criticisms of his performance were insincere attempts to sow errorin the record— implicated "no potential for meaningful input from. . . defendant" (id.) on the subject of whether continuedrepresentation by counsel was appropriate.
The proceeding also implicated the court's obligation to make a "minimal inquiry"regarding whether the new facts justified substitution of counsel (see People v McCummings,124 AD3d 502, 505 [1st Dept 2015]; see also People v Brown, 305 AD2d422 [2d Dept 2003]). As in McCummings, "[w]e are mindful that had the courtconsidered the application, only the most compelling circumstances would have justifiedgranting it," but find that "a new trial is unavoidable under the circumstances presented"(124 AD3d at 504).
[*2] In light of theforegoing, we find it unnecessary to reach defendant's remaining contentions, includingthose contained in his pro se supplemental brief, except that we find that the verdict wasbased on legally sufficient evidence. Concur—Mazzarelli, J.P., Acosta, Andriasand Richter, JJ.