| People v Burks |
| 2019 NY Slip Op 03850 [172 AD3d 1640] |
| May 16, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Gerard Burks, Appellant. |
Theodore J. Stein, Woodstock, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Clark, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered October 19,2017 in Albany County, convicting defendant upon his plea of guilty of the crime of murder inthe second degree.
Defendant was indicted on the charge of murder in the second degree (intentional murder)based upon allegations that, in November 2016, he approached a woman outside of her apartmentin the City of Albany, struck her, causing her to fall to the ground, and then repeatedly stompedon her head, thereby inflicting injuries that ultimately resulted in her death. The beating waswitnessed by a nearby resident and captured on street surveillance video. Defendant wasapprehended near the crime scene with blood on his sneakers and clothing, which was laterdetermined to be consistent with a DNA profile from the victim. Defendant ultimately pleadedguilty to the indictment and waived his right to appeal with the understanding that he would besentenced to a prison term of between 18 and 19 years to life.
When defendant appeared for sentencing, he stated that he had no recollection of the fatalattack due to his consumption of alcohol and certain pain medication and, further, that hebelieved that the Albany County Public Defender's office had a conflict of interest in representinghim because it was headed by a retired judge who had presided over an unrelated 2014conviction from which he had a pending appeal. In an abundance of caution, Supreme Courtrelieved the Public Defender's office and assigned the Conflict Defender's office to representdefendant. Defendant thereafter moved to withdraw his guilty plea. Supreme Court denied thatmotion and later sentenced defendant, in accordance with the plea agreement, to18
"The decision whether to grant a motion to withdraw a guilty plea rests within the sounddiscretion of the trial court and, generally, such relief will be permitted only where there isevidence of innocence, fraud or mistake in the inducement" (People v Little, 92 AD3d 1036, 1036 [2012] [citations omitted]; accord People v Nealon, 166 AD3d1225, 1226 [2018]; see People vNieves, 166 AD3d 1380, 1380 [2018]). In support of his motion, defendant asserted thathis guilty plea was not knowing and voluntary due to the alleged ineffective assistance of counselprovided by the Public Defender's office. Defendant primarily took issue with the fact that thePublic Defender's office continued to represent him in the face of a purported conflict of interest,as well as his counsel's alleged failure to investigate and properly advise him on a potentialintoxication defense. We agree with Supreme Court that defendant's claims are withoutmerit.
Pursuant to Judiciary Law § 17, a retired judge is prohibited from "act[ing] asattorney or counsellor in any action, claim, matter, motion or proceeding, which has been beforehim [or her] in his [or her] official character" (see also Rules of Professional Conduct [22NYCRR 1200.0] rule 1.12 [a]). The Rules of Professional Conduct impose additional restraintsupon the ability of a retired judge's legal associates to undertake or continue representation "in amatter upon the merits of which the [retired judge] has acted in a judicial capacity" (Rules ofProfessional Conduct [22 NYCRR 1200.0] rule 1.12 [a]; see Rules of ProfessionalConduct [22 NYCRR 1200.0] rules 1.0 [h]; 1.12 [d]). The crime at issue here occurred after thePublic Defender retired from judicial office and, thus, it is clear that the instant criminal matterwas not before him in his official capacity (compare People v Sumter, 169 AD3d 1275, 1276 [2019]). Nor isthere any allegation of factual ties between the present matter and any prior matters over whichthe Public Defender presided (compare NY St Bar Assn Comm on Prof Ethics Op 1064[2015]).
Defendant nevertheless suggests that his appeal from the 2014 judgment ofconviction—upon which he was not represented by the Public Defender's office (see People v Burks, 163 AD3d1268 [2018])—created a conflict of interest because he raised issues regarding theconduct of the Public Defender's office and the then-County Judge. Assuming, without deciding,that this scenario created a potential conflict of interest, it remained incumbent upon defendant to"show that the conduct of his defense was in fact affected by the operation of the conflict ofinterest, or that the conflict operated on the representation" (People v Abar, 99 NY2d406, 409 [2003] [internal quotation marks and citation omitted]; see People v Sanchez, 21 NY3d216, 223 [2013]). Defendant did not make that showing here.
Affirmations submitted by the Public Defender and the Chief Assistant Public Defenderestablished that defendant's case was primarily handled by the Chief Assistant Public Defender(hereinafter defense counsel), that the Public Defender only spoke to defendant at defendant'srequest and that the Public Defender did not become aware of defendant's appeal from the 2014judgment of conviction until after defendant pleaded guilty. Additionally, defense counseldetailed the numerous conversations that he had with defendant and his family regardingpotential resolutions of this matter, his review of the extensive evidence of defendant's guilt, hisexploration of potential defenses, including an intoxication defense, and his conclusion that thebest course was to pursue a favorable plea bargain. As reflected by the record, defense counselultimately negotiated an advantageous plea deal that limited defendant's sentencing exposure.Thus, if there was a potential conflict of interest, there is no basis in this record to conclude thatit impacted upon the representation provided to defendant or his defense (see People v Wright, 129 AD3d1217, 1219 [2015], affd 27 NY3d 516 [2016]; People v Graham, 283 AD2d885, 890 [2001], lv denied 96 NY2d 940 [2001]).
Further, we discern no abuse of discretion in Supreme Court's denial of defendant's motion towithdraw his plea based upon defense counsel's alleged failure to adequately investigate andadvise him on a potential intoxication defense. To warrant the submission of an intoxicationcharge to a jury, there must be "sufficient evidence of intoxication in the record for a reasonableperson to entertain a doubt as to the element of intent on that basis . . . [or] evidenceof the recent use of intoxicants of such nature or quantity to support the inference that theiringestion was sufficient to affect [the] defendant's ability to form the necessary criminal intent"(People v Rodriguez, 76 NY2d 918, 920 [1990] [internal quotation marks and citationsomitted]; accord People v Lee, 129AD3d 1295, 1299 [2015], lv denied 27 NY3d 1001 [2016]).
Defendant acknowledged during the plea colloquy that he fully discussed a potentialintoxication defense with counsel, and defense counsel confirmed such discussions in a detailedaffirmation. In support of his motion, defendant offered nothing more than his own self-servingstatement that he was unable to recall the crime due to his consumption of alcohol and certainpain medication. It is well settled that evidence of intoxication must include "more than a bareassertion by a defendant that he [or she] was intoxicated" (People v Gaines, 83 NY2d925, 927 [1994]; see People vDuffy, 119 AD3d 1231, 1234 [2014], lv denied 24 NY3d 1043 [2014]).Moreover, defense counsel averred that he conducted an investigation into the viability of anintoxication defense and provided a legitimate explanation for concluding and advisingdefendant that such defense did not have any serious prospect of success. Specifically, defensecounsel cited to a videotape depicting defendant's behavior while in police custody in the hoursafter the offense, stating that it showed defendant "to be in control of his actions," as well asmedical records stating that defendant did not require medical treatment following the incidentand "was able to make rational decisions." Inasmuch as defendant failed to demonstrate that hereceived anything less than meaningful representation in the lead-up to his guilty plea, which thecolloquy reflects was knowing, intelligent and voluntary,[FN*] there is no basis upon which to disturbSupreme Court's denial of defendant's motion to withdraw his plea (see People v Sullivan, 153 AD3d1519, 1521-1522 [2017], lv denied 30 NY3d 1064 [2017]).
To the extent that we have not addressed any of defendant's remaining contentions, they havebeen examined and found to be without merit.
Garry, P.J., Mulvey, Devine and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Contrary to defendant's assertion,Supreme Court did not engage in coercion when, following defendant's decision to proceed topretrial hearings after unsuccessful plea negotiations, it noted the "overwhelming" evidenceagainst him and suggested that he discuss the issue further with counsel (see People v Colon, 106 AD3d1367, 1368 [2013]; People vMorelli, 46 AD3d 1215, 1216 [2007], lv denied 10 NY3d 814 [2008]).