47 N.Y.2d 257 | NY | 1979
Lead Opinion
The issue presented for our determination on these appeals is whether defendants were deprived of the effective assistance of counsel by reason of counsel’s joint representation of defendants at trial. While we had thought the applicable legal principles firmly established by prior decisions of this court, the circumstances of this case compel us to elaborate further on the safeguards which must be employed to ensure that a defendant is afforded adequate legal representation.
The pertinent facts are as follows: Defendants Maceróla and Letko were charged in a three-count indictment with the crimes of burglary in the second degree (Penal Law, § 140.25, subd 1, par [b]) and assault in the second degree (Penal Law, § 120.05, subd 1) as a result of events occurring during the evening hours of March 31, 1976, at the Governor’s Motor Inn in the Town of Guilderland. The indictment alleges, in substance, that defendants knowingly and unlawfully entered the Motor Inn with intent to commit the crime of assault, and that defendants did assault the proprietor and his wife, inflicting serious physical injury.
Defendants, represented by an attorney retained by both, were jointly tried. The jury rendered a verdict finding both defendants guilty of the crimes of burglary in the second degree and two counts of assault in the third degree.
It is the contention of the defendants that they were deprived of their constitutionally guaranteed right to the effective assistance of counsel by reason of their representa
It is indisputable that one accused of committing a crime is entitled to the effective assistance of counsel. Such right is guaranteed by both the Federal and State Constitutions, and by State statute (US Const, 6th Arndt; NY Const, art I, § 6; CPL 210.15, subd 2), and courts must remain ever vigilant in their duty to ensure that a defendant receives effective legal representation. As we have recognized, effectuation of this duty may be significantly impaired where one attorney "simultaneously represents the conflicting interests of a number of defendants.” (People v Gomberg, 38 NY2d 307, 312, citing Glasser v United States, 315 US 60, 70.)
While the joint representation of multiple defendants is certainly not per se violative of one’s constitutional right to the effective assistance of counsel (People v Gonzalez, 30 NY2d 28, 34, cert den 409 US 859; Holloway v Arkansas, 435 US 475, 482), we have charged the trial court, in cases where codefendants are represented by a single attorney, with the weighty responsibility of determining whether "the defendant’s decision to proceed with his attorney is an informed decision.” (People v Gomberg, 38 NY2d 307, 313, supra.) The rationale for imposing such duty is obvious. It is all too apparent that the respective interests of each defendant which must be zealously safeguarded are oftentimes at odds, making crucial decisions by defense counsel during the entire criminal proceeding all the more difficult, and, at times, precluding certain defense strategies. For example, an attorney may be less than willing to engage fervently in plea negotiations to obtain a lesser charge for one defendant if to do so would require that defendant to testify against the other defendants, or to call a defendant to testify on his own behalf when his testimony may be detrimental to other defendants whom the attorney represents. (See, generally, Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and the
Defendants, however, often unschooled in the nature of criminal proceedings, may not always sense when a conflict of interest does exist or perceive how such conflict may run counter to the effectiveness of his attorney’s representation. Thus, before the formal commencement of trial, it is the responsibility of the Trial Judge, independent of the attorney’s obligation to inform his clients of any conflicting interests which may hinder his representation,
Here, however, the record is devoid of any indication that the Trial Judge, by proper inquiry,
Insofar as joint representation of codefendants is not per se violative of the constitutional guarantee to the effective assistance of counsel (see, e.g., Holloway v Arkansas, 435 US 475, 482, supra), there exists no compelling reason to adopt a rule which would automatically equate the trial court’s failure to undertake proper precautionary measures with an error of constitutional magnitude requiring reversal in every instance. There may always exist those cases in which joint representation of multiple defendants is, without doubt, justified, and the court’s neglect in admonishing codefendants of the potential risks entailed in joint representation would not deprive, without more, a defendant of his right to the effective assistance of counsel. However, where a Trial Judge has failed to make satisfactory inquiry and a defendant can demonstrate that a conflict of interest, or at least the significant possibility thereof, did exist, a new trial must be ordered for "[t]he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” (Glasser v United States, 315 US 60, 76, supra; see People v Gomberg, 38 NY2d 307, 312, supra; United States v Lawriw, 568 F2d 98, 104-105, cert den 435 US 969, reh den 436 US 951; United States ex rel. Hart v Davenport, 478 F2d 203, 209-211.)
In this case, the record reveals that there was indeed a conflict of interest which endangered each defendant’s right to receive advice and assistance from an attorney whose paramount responsibility is to that defendant alone. Defense counsel found himself in a very awkward position at trial in that by attempting to establish a separate defense for each defendant, he was, by implication, incriminating the other defen
Nor does the fact that defendants were charged with accessorial liability (Penal Law, art 20) ameliorate the inherent dangers when counsel for defendants attempted to represent their conflicting interests, as the dissent would surmise. Quite to the contrary, it becomes even more critical where one defendant is charged with the criminal conduct of another that he be represented by an attorney who, without the constant need to balance delicately competing interests, is free to demonstrate, by extensive examination of his own client or by penetrating cross-examination of other defendants, that the defendant whom he represents did not harbor the culpability required to sustain a conviction on the theory of accessorial liability. Simply put, when defendants are charged with accessorial liability, this only enhances the need to be represented by separate counsel.
Defendants having demonstrated an apparent conflict, it becomes unnecessary for us to speculate, as the dissent would now do, as to the exact prejudice resulting from the defendants’ joint representation. The right of every person accused of committing a crime to the effective assistance of counsel is too fundamental to tolerate such conjecture by appellate courts, especially where, as here, the prejudice which results when dne attorney represents codefendants with conflicting interests may never clearly manifest itself in the record. (Cf. People v Felder, 47 NY2d 287.) As observed by the Supreme Court: "Joint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing.” (Holloway v Arkansas, 435 US 475, 489-490, supra [emphasis added].) Since the trial court failed to ascertain on the record whether each defendant had an awareness of the potential risks of joint representation and since defendants have demonstrated the existence of a conflict of interest, a new trial is required.
. The trial court charged assault in the third degree as a lesser included offense of assault in the second degree with respect to the attack upon the proprietor of the Motor Inn, Donald Hauffe. The trial court only submitted the crime of assault in the third degree in reference to the assault upon the proprietor’s wife, June Hauffe.
. Separate counsel, different from counsel retained by defendants at trial, represented the defendants on their appeals to the Appellate Division and this court.
. Every attorney is under an ethical obligation to disclose fully to each client the possible implications of joint representation, and a lawyer may not act for the client unless the client has expressly consented to that course of representation. (Code of Professional Responsibility, EC 5-16, DR 5-101, subd [A]; DR 5-105, subds [B], [C]; ABA Standards Relating to the Defense Function, § 3.5, subds [a], [b].) Here, there is no evidence that the defense attorney fulfilled this obligation.
. As we recognized in People v Gomberg (38 NY2d 307, 312, supra), “an important concomitant of the right to counsel is the obligation of the courts to respect a selection of counsel made by the defendant”. By requiring a Trial Judge to apprise a defendant of the potential risks involved in joint representation, no violence befalls the right of a defendant to select an attorney of his own choosing. Rather, we are merely ensuring that such choice is intelligently and knowingly made.
. The factors and considerations which a Trial Judge should take into account when inquiring of a defendant whether he has an awareness of the potential risks
Dissenting Opinion
(dissenting). The orders of the Appellate Division should be affirmed and the defendants’ convictions should be sustained in every respect. Therefore, I dissent from the holding by the majority.
It is appropriate to set forth a brief description of what occurred when the defendants entered the motel premises owned by the victims Donald and June Hauffe, with the obvious intention of retaliating for whatever occurred to defendant Macerola’s mother, who apparently had become involved in an altercation on the premises a few nights before. Maceróla sought out the owner, Donald Hauffe, and began to abuse him. Hauffe, frightened by his demeanor, then left Maceróla to call the police. Maceróla followed him into the living quarters, picked up Hauffe and threw him into the corner. When the fracas moved into the public area Letko, Macerola’s codefendant and coconspirator, began punching Hauffe and knocked him to the floor. Letko then broke Hauffe’s nose and began the process of gouging out Hauffe’s eyes. When Mrs. Hauffe came to the aid of her husband, Letko, who is six feet four inches tall and weighs 525 pounds, struck at her, causing her to hit her head on an air conditioner and to fall against a table. Both victims sustained serious injuries, resulting from the obviously unprovoked actions of both Maceróla and Letko. The jury was properly instructed by the court that the defendants were accused and charged as having acted in concert.
It is upon this factual background that defendants claim they were deprived of effective assistance of counsel because of the now perceived possible conflict of interest between the defense which each defendant might have offered. In the context of the factual background revealed by the record in this case, it is inconceivable that there could be any conflict of interest between these defendants or, indeed, any inconsistencies in their respective defenses to the charges. In such circumstances, a claim of deprivation of effective assistance of counsel just cannot be sustained, even under the factual claims made by defendants themselves regarding these brutal assaults.
When defendants Maceróla and Letko were arrested and accused of burglary and assault they retained Armand Riccio
This right actually encompasses two conflicting interests of the defendants, making it necessary to carefully balance them. One interest is, of course, the right to be free of any potential conflict of interest that may arise when one lawyer represents two or more defendants; and, secondly, and of equal importance, is the right of every defendant to select counsel of his choice, and this right may well be interfered with if the trial court injects himself too actively into the advisability of joint representation. As we said in People v Gomberg (38 NY2d 307, 312-313): "[a]n important concomitant of the right to counsel is the obligation of the courts to respect a selection of counsel made by the defendant and such choice should not be lightly interfered with. (See United States v Sheiner, 410 F2d 337, 342, cert den 396 US 825.) Once counsel is selected, the evolving relationship of attorney and client becomes increasingly close and intimate. In order to give proper professional guidance to his client, the attorney should be made fully cognizant of the relevant facts. (ABA Standards Relating to the Defense Function, §§ 3.1, 3.2; see Whiting v Barney, 30 NY 330, 332-333.) Trial strategy and tactics must be carefully planned and discussed. In order to insure that the attorney and client have the privacy necessary for effective representation, we have in our State, as a matter of public policy, given confidential attorney-client communications a privileged status. (CPLR 4503; Richardson, Evidence [10th ed], § 411, pp 404-405.) It has even been suggested that the freedom of confidential communication between lawyer and client is as valuable as the privilege against self incrimination. (See People v Lynch, 23 NY2d 262, 271.)”
Recognizing the fine balance that must be struck if these two important but conflicting rights are to be respected, we have evolved the necessary rules for joint representation. First, we note that joint representation is not per se violative of constitutional guarantees of effective assistance of counsel. "This principle recognizes that in some cases multiple defendants can appropriately be represented by one attorney; in
Any inquiry by the court as to whether counsel has perceived a possible conflict of interest and informed his clients of it should necessarily be limited in scope to avoid interference with the attorney-client relationship (People v Gomberg, supra, at pp 313-314). Given the limited nature of the inquiry, I agree with the majority that it is sophomoric to say that the Constitution mandates a reversal without any showing of prejudice whenever the court fails to inquire.
The record in this case does not indicate that either defendant was in any way prejudiced by the joint representation. They merely intimate how their interests might have conflicted if a different theory of defense was used. This was not a case where a defendant testified and made statements shifting the blame to his codefendant as in Gomberg. Nor is it a case where evidence was admissible against only one codefendant but was nevertheless not objected to on behalf of the other, as in Glasser. Counsel was not precluded from cross-examining any defense witnesses because he was privy to their secrets as in Holloway. It is, pure and simple, a case where the defendants agreed totally on their story, so access to another attorney would not have changed matters.
As in Gonzalez, "both defendants had the same interest in discrediting the testimony of the People’s witnesses” (People v Gonzalez, 30 NY2d 28, 33, supra). Their defense was essentially that Maceróla was legitimately at the Governor’s Motor Inn when he was attacked by Donald Hauffe, and that Letko came to his aid, injuring both Mr. and Mrs. Hauffe. Both defendants directed their trial strategy to convincing the jury that this story, and not the People’s, was the true version of what happened. Certainly there was no conflict between their interests where the common goal was so closely shared. Even the District Attorney, who candidly noted on oral argument that his policy is to inform the court when he perceives any indication of conflict, saw none. Mere speculation of what might have been is not enough. Actual, not imagined, conflict of interest must be shown before a defendant may successfully
The only conflict pointed to in the majority opinion is that defense counsel might have reduced Macerola’s responsibility for the assaults in the eyes of the jury if he had emphasized that Letko caused the injuries. Since the defendants were charged with accessorial liability (Penal Law, art 20) the jury could have convicted Maceróla for Letko’s acts, and since Maceróla was portrayed as the instigator of the crimes it is inconceivable that emphasizing his alleged inactive role in the actual assault would have benefited him. Likewise, any claim of prejudice, as advanced by the majority, because defense counsel should have emphasized that Letko was not involved in the burglary evaporated when his conviction for that crime was set aside by the Appellate Division; and also because the jury properly received the case on the theory of accessorial conduct.
It is of no small moment that it be noted that the Appellate Division attached no significance whatsoever to the claims of the defendants and, indeed, both opinions in that court treated the issue with obvious disdainful insignificance, presumably for the reasons expressed in this dissent.
In sum, absolutely no conflict of interest, or even a possibility thereof, has been demonstrated. Neither has there been any showing of any prejudice whatsoever, in any manner or form and no legal or logical reason to reverse the convictions has been shown. I, therefore, vote to affirm the orders of the Appellate Division.
Judges Jones, Wachtler and Fuchsberg concur with Judge Jasen; Judge Gabrielli dissents and votes to affirm in a separate opinion in which Chief Judge Cooke concurs.
In each case: Order reversed, etc.
