46 N.Y.2d 873 | NY | 1979
Two issues are tendered for our review. On the eve of the scheduled trial, at a pretrial identification hearing, assigned counsel for appellant, Louis Alperin, Esq., discovered that he had previously represented an important identification witness to be called by the prosecution, one James Gonzalez, and had been intimately involved with his family and his personal history and background, including certain things which might prove embarrassing to the witness. After his becoming aware of the identity of defense counsel, Gonzalez backed away from identification of defendant.
On reviewing the record we agree with the Appellate Division that it was not error for the court to have excused defense counsel in the circumstances disclosed, nor was appellant thereby deprived of any constitutional right. This is not an instance in which the court relied on a waiver of a potential conflict of interest by the defendant or allowed the defendant to continue with his counsel (e.g., People v Gomberg, 38 NY2d 307; see Ann., 27 ALR3d 1431). Precisely the opposite occurred; the court rejected appellant’s desire to retain his assigned counsel. Cases involving a defendant’s right to proceed pro se do not fit, and cases in which counsel
On the second issue, defendant argues that the case must at least be remitted for resentencing because the sentencing Judge made express reference to another crime for which defendant had been indicted but not convicted. Our reading of the record satisfies us that the sentences imposed for the crimes of which defendant was convicted were in no way affected by the court’s awareness of the other indictment and did not represent an imposition of additional punishment for the other crime charged. On the contrary, it appears that the court’s reference to the fact that the other indictment was to be dismissed was made for defendant’s information, and thus for his benefit. The failure of defendant and his counsel to voice any protest at the time confirms this interpretation.
Accordingly, the order of the Appellate Division should be affirmed.
Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in Per Curiam opinion.
Order affirmed.
It is of interest to note that on defendant’s subsequent trial, Gonzalez positively identified defendant and persisted in his identification. He explained his inability to identify defendant at the pretrial hearing as a lie, attributable to Mr. Alperin’s presence in the courtroom as defendant’s counsel. "The reason I didn’t say the exact truth that day, I know Mr. Alperin certain years, and one time he, he took care of a case for me, and it was my parents and things, and I just, I felt he is bringing up my past, and I didn’t want it to come up. I, I just didn’t want it. * * * I didn’t know what to say, and I was mixed up. I went downstairs, and I called up, and I called the District Attorney’s office, and I came back up, and I apologized”.