| People v Jones |
| 2019 NY Slip Op 04543 [173 AD3d 1628] |
| June 7, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Todd Jones, Appellant. |
Mark D. Funk, Conflict Defender, Rochester (Kathleen P. Reardon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (Victoria M. Argento, J.), renderedNovember 20, 2014. The judgment convicted defendant, upon his plea of guilty, of burglary inthe first degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,the plea is vacated, and the matter is remitted to Monroe County Court for further proceedings onthe indictment.
Memorandum: Defendant appeals from a judgment convicting him upon his guilty plea ofburglary in the first degree (Penal Law § 140.30 [4]). We agree with defendant thathe is entitled to vacatur of his guilty plea because County Court violated his right to counselwhen it failed to conduct a sufficient inquiry into his complaint regarding defense counsel'srepresentation of him. "Under our State and Federal Constitutions, an indigent defendant in acriminal case is guaranteed the right to counsel" (People v Medina, 44 NY2d 199, 207[1978]; see US Const 6th Amend; NY Const, art I, § 6; People v Linares, 2 NY3d 507,510 [2004]). Consistent with that guarantee, trial courts have the "ongoing duty" to" 'carefully evaluate serious complaints about counsel' " (Linares, 2NY3d at 510, quoting Medina, 44 NY2d at 207; see People v Sides, 75 NY2d822, 824 [1990]).
Whether to grant a defendant's request to substitute counsel is "within the 'discretion andresponsibility' of the trial judge" (Peoplev Porto, 16 NY3d 93, 99 [2010], quoting Medina, 44 NY2d at 207), and "acourt's duty to consider such a motion is invoked only where a defendant makes a 'seeminglyserious request[ ]' " (id. at 99-100, quoting Sides, 75 NY2d at 824). It istherefore "incumbent upon a defendant to make specific factual allegations of 'serious complaintsabout counsel' " (id. at 100, quoting Medina, 44 NY2d at 207). If adefendant makes such a showing, "the court must make at least a 'minimal inquiry,' and discernmeritorious complaints from disingenuous applications by inquiring as to 'the nature of thedisagreement [with counsel] or its potential for resolution' " (id., quotingSides, 75 NY2d at 825).
Here, during the plea colloquy, defendant attempted to inform the court that he was pleadingguilty only because he was not receiving effective assistance of counsel. Although vague andconclusory complaints about counsel generally are insufficient to trigger the court's duty to makean inquiry (see People v Chess, 162AD3d 1577, 1578-1579 [4th Dept 2018]; People v Watkins, 77 AD3d 1403, 1404 [4th Dept 2010], lvdenied 15 NY3d 956 [2010]), the court here "failed to provide defendant with an opportunityto explain his complaints" (People vTucker, 139 AD3d 1399, 1400 [4th Dept 2016]; see People v Beard, 100 AD3d 1508, 1512 [4th Dept 2012]; People v Branham, 59 AD3d 244,245 [1st Dept 2009]; see also Sides, 75 NY2d at 824-825). The court refused to acceptdefendant's pro se letter regarding the matter and did not otherwise allow defendant to expandupon his claim of ineffective assistance of counsel. Defendant's "request may well have been afrivolous delaying tactic" (People vRodriguez, 46 AD3d 396, 397 [1st Dept 2007], lv denied 10 NY3d 844 [2008]).Nevertheless, we conclude that the court had "no basis to completely cut off the discussionwithout hearing any explanation" (id.). A "defendant must at least be given anopportunity to state the basis for his [or her] application" (People v Bryan, 31 AD3d 295, 296 [1st Dept 2006]).
Moreover, under the facts of this case, we reject the People's contention that defendantabandoned his request when he decided to plead guilty while still represented by the sameattorney. After refusing to allow defendant to articulate his complaints about defense counsel, thecourt essentially gave defendant an ultimatum: plead guilty with present counsel or proceed totrial with present counsel (cf. People vOcasio, 81 AD3d 1469, 1470 [4th Dept 2011], lv denied 16 NY3d 898 [2011],cert denied 565 US 910 [2011]; People v Hobart, 286 AD2d 916, 916 [4th Dept2001], lv denied 97 NY2d 683 [2001]). The People also contend that defendant'schallenge to the court's denial of his implicit request for substitution of counsel is foreclosed byhis guilty plea. We reject that contention because, for the reasons discussed herein, defendant'scontention "implicates the voluntariness of the plea" (People v Morris, 94 AD3d 1450, 1451 [4th Dept 2012], lvdenied 19 NY3d 976 [2012] [internal quotation marks omitted]).
Based upon the foregoing, the judgment should be reversed and the plea vacated (seeSides, 75 NY2d at 825; Branham, 59 AD3d at 245). In light of our conclusion, thereis no need to address defendant's remaining contentions. Present—Centra, J.P., Carni,Lindley, NeMoyer and Troutman, JJ.