| People v Tucker |
| 2016 NY Slip Op 03637 [139 AD3d 1399] |
| May 6, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJoseph Tucker, III, Appellant. (Appeal No. 1.) |
Michael J. Stachowski, P.C., Buffalo (Michael J. Stachowski of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns,J.), rendered December 12, 2012. The judgment convicted defendant, after a nonjurytrial, of robbery in the second degree (six counts).
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law and a new trial is granted.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon a nonjury verdict of six counts of robbery in the second degree (Penal Law§§ 20.00, 160.10 [1]; [2] [b]). In appeal No. 2, defendant appeals bypermission of this Court from an order denying his motion pursuant to CPL 440.10seeking to vacate the judgment of conviction.
With respect to appeal No. 1, we reject defendant's contention that the testimony ofhis accomplices was not sufficiently corroborated and thus that the conviction is notsupported by legally sufficient evidence. We conclude that the testimony of the victimstended to connect defendant with the crime and harmonized with the narrative providedby the accomplices in such a way that Supreme Court could have been reasonablysatisfied that the accomplices were telling the truth (see People v Reome, 15 NY3d 188, 191-192 [2010]; People v Highsmith, 124 AD3d1363, 1364 [2015], lv denied 25 NY3d 1202 [2015]; People v Rimmen, 17 AD3d1078, 1079 [2005], lv denied 5 NY3d 768 [2005]). Moreover, the in-courtidentifications of defendant by two of the victims, although equivocal, were "sufficient tosatisfy the minimal requirements of the accomplice corroboration statute" (People vJones, 85 NY2d 823, 825 [1995]; see CPL 60.22 [1]; People v Billingsley, 128AD3d 1520, 1520-1521 [2015], lv denied 27 NY3d 963 [2016]).
We agree with defendant, however, that he is entitled to a new trial because the courtviolated his right to counsel when it failed to conduct a sufficient inquiry into hiscomplaint regarding a conflict of interest with defense counsel. Prior to commencementof a scheduled suppression hearing, defense counsel informed the court that, based onrecent discussions, defendant wanted to request new counsel, and that there had been abreakdown in communication between defense counsel and defendant regarding theissues that they needed to address. Defendant subsequently confirmed that he wasrequesting new assigned counsel and informed the court that he had filed a grievanceagainst defense counsel resulting in a conflict of interest. "[A]lthough there is no rulerequiring that a defendant who has filed a grievance against his attorney be assigned newcounsel, [a] court [is] required to make an inquiry to determine whether defense counsel[can] continue to represent defendant in light of the grievance" (People v McCullough, 83AD3d 1438, 1440 [2011], lv denied 17 NY3d 798 [2011]; see People v Smith, 25 AD3d573, 575 [2006], lv denied 6 NY3d 853 [2006]; see also People vBrown, 305 AD2d 422, 423 [2003]). Moreover, "where potential conflict isacknowledged by counsel's admission of a breakdown in trust and communication, thetrial court is obligated to make a minimal inquiry" (People v Porto, 16 [*2]NY3d 93, 101 [2010]; see People v Sides, 75 NY2d822, 824-825 [1990]). We thus conclude on this record that the court was obligated tomake a minimal inquiry (see Sides, 75 NY2d at 825; McCullough, 83AD3d at 1440; Smith, 25 AD3d at 575-576).
The court failed to fulfill that obligation. Instead, upon defense counsel'srepresentation that defendant wanted new assigned counsel and that there had been abreakdown in communication, the court told defendant that he could retain any attorneyhe wanted and asked him whether he could afford to do so (see Sides, 75 NY2dat 824). Defendant then stated that he had filed a grievance against defense counsel and,as he began to explain that defense counsel was not properly handling his case, the courtcut defendant off, expressed its opinion that defense counsel had provided him withcompetent representation, and indicated that it would not allow defendant to "changelawyers on the day of a hearing just because [he was] not comfortable with it." Therecord thus demonstrates that the court, without conducting any inquiry, failed to providedefendant with an opportunity to explain his complaints (see People v Beard, 100 AD3d1508, 1512 [2012]; Peoplev Branham, 59 AD3d 244, 245 [2009]). Indeed, the court "erred by failing toask even a single question about the nature of the disagreement or its potential forresolution" (Sides, 75 NY2d at 825). "[H]ad the court conducted that inquiry, itmight well have determined that, despite the defendant's allegedly having filed agrievance, the grievance was merely a delaying tactic or that the defense counsel was,despite the grievance, fully capable of providing the defendant with effectiverepresentation" (Smith, 25 AD3d at 575-576). The court could not, however,summarily dismiss the request (see Sides, 75 NY2d at 825; Beard, 100AD3d at 1512).
In light of our determination, we dismiss appeal No. 2 as academic (see People v Wilson, 5 NY3d778, 779 n [2005]; People vOxley, 64 AD3d 1078, 1084 [2009], lv denied 13 NY3d 941 [2010]),and there is no need to address defendant's remaining contentions.Present—Whalen, P.J., Peradotto, Lindley, DeJoseph and NeMoyer, JJ.