People v PetersPeople v Peters
Christina Swarns, Office of the Appellate Defender, New York City (Kate Mollison of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York City (Alice Wiseman of counsel), for respondent.
Gesmer, J.
In this observation drug sale case, defendant, an alleged seller, was appointеd the same attorney at his Criminal Court arraignment as Edward Jones, one of the alleged buyers. During the course of counsel‘s simultaneous representation of defendant and Jones, Jones accepted a plea that required him to allocute to a description оf one of the drug sellers. Jones allocuted to a description fitting defendant, and testified consistently with the allocution as a prosecution witness at trial. Since we find that counsel‘s simultaneous representation of defendant at the time of Jones‘s plea constituted аn actual
Defendant was arraigned in Criminal Court on July 8, 2012. The felony complaint alleged that, along with a codefendant, defendant had been observed speaking with Edward Jones and another man in the vicinity of 333 Sixth Avenue. The complaint identified Jones by name, described him as a “separately charged defendant,” and listed his arrest number.1 According to the complaint, Jones allegedly handed money to defendant, who walked over to a magazine stand. Jones then walked to the magazine stand, picked up an object, and placed it in his poсket. When Jones was arrested, he possessed crack cocaine.
During defendant‘s arraignment, he was appointed the same counsel as Jones. Defendant and Jones‘s simultaneous representation continued for the next six months.
Counsel represented defendant during his arraignment in Supreme Court on August 1, 2012. He filed an omnibus motion on defendant‘s behalf on August 20, 2012. In his supporting affirmation, counsel stated, “It is alleged the defendant . . . did sell a bag of cocaine to Edward Jones . . . in the vicinity of 333 [Sixth Avenue] . . . .”
On January 17, 2013, counsel appeared with Jones in Criminal Court and informеd the sitting judge that “[t]here is an offer of a violation, 15 days. My client will allocute as to the seller. That‘s what they want him to do, they want him to describe the seller that he bought from.” The People confirmed that they were offering a disorderly conduct violation that required a “particulаr allocution” from Jones. “After a conversation with Mr. Jones,” counsel informed the court that he was authorized to enter Jones‘s plea.
Jones was sworn in and the People allocuted him as follows:
“[The People]: [I]s it true that you bought crack cocaine from two men . . . ?
“[Jones]: Yes.
“[The People]: One of those men was an African American who was about 24 years old?
“[Jones]: Yes.
“[The People]: Six feet tall?
“[Jones]: Yes.
“[The People]: Weighed about 180 pounds?
“[Jones]: Yes.”2
Counsel continued to represent defendant after Jones‘s plea. In June 2013, counsel asked to be relieved because defendant had filed a disciplinary complaint against him. Defendant was appointed a new attorney. That attornеy was also relieved, and in October 2014, defendant proceeded to hearings and a nonjury trial under the representation of his third attorney (trial counsel).
The People subpoenaed Jones to testify at defendant‘s trial. Before Jones was called as a witness, the Assistаnt District Attorney informed the trial court that “[o]n the advice of some of my supervisors, I obtained an order . . . for counsel to be assigned, based on the fact that Mr. Jones said that if he were to testify, he would testify inconsistently with his sworn plea minutes, sworn plea allocution.” Counsel was thus аppointed to “explain . . . the dangers of giving testimony that could lead to perjury charges.”
Trial counsel notified the trial court that, from his review of Jones‘s plea minutes, it appeared that, at the time of the plea, Jones and defendant had been represented by the same counsel. The trial court asked the Assistant District Attorney how this could have happened, and he replied that he did not know.
When Jones was called as a witness, he identified defendant in the courtroom and testified that he knew defendant from seeing him in the area of Sixth Avеnue and West Fourth Street. Jones further testified that he saw defendant on Sixth Avenue on July 8, 2012, and that he indicated to defendant that he wanted to buy crack cocaine. Jones testified that he placed ten dollars on a magazine stand for defendant and defendant placеd a glassine of crack cocaine on the magazine stand that Jones took.
After the completion of Jones‘s direct examination, the trial court recessed for trial counsel to prepare his cross-
During cross-examination, Jones admitted that he did tell the Assistant District Attorney, in his office, that defendant did not sell him crack cocaine. During redirect, Jones explained that he believed he did not have to tell the prosecutor the truth in his office, but that, now that he was under oath, he was “not going to perjure [him]self.”
Prior to resting, trial counsel asked for a ruling on his application to strike Jones‘s testimony. The trial court denied the application. Trial counsel renewed his motion for a trial order of dismissal on these grounds, which was also denied. The trial court found defendant guilty of criminal sale of a controlled substance in the third degree and imposed a sentence of time served.
A defendant‘s right to the effective assistance of counsel includes the right to be represented by an attorney who has no conflicts and is “singlemindedly devoted to the client‘s best interests” (People v Berroa, 99 NY2d 134, 139 [2002] [internal quotation marks omitted];
[1]
In finding an actual conflict, we reject the Peоple‘s argument that counsel‘s simultaneous representation of defendant and Jones gave rise only to a potential conflict. The People‘s reliance on People v Harris (99 NY2d 202 [2002]) is misplaced. In that case, counsel was unaware that he had represented both the defendant and a confidential informant who had testified against the defendant in the grand jury (Harris, 99 NY2d at 210). Here, Jones‘s connection to defendant was not hidden from counsel; the felony complaint alleged that Jones had purchased drugs from defendant, and counsel demonstrated he was awarе of that allegation. Moreover, while the Court of Appeals acknowledged in Harris that, had the defendant and the informant been represented by separate counsel, defendant
Wе have also considered and rejected the People‘s argument that the record on appeal is insufficient to decide the conflict of interest issue (cf. People v Mora, 290 AD2d 373 [1st Dept 2002], lv denied 98 NY2d 639 [2002]; People v Frias, 250 AD2d 495, 496 [1st Dept 1998], lv denied 92 NY2d 982 [1998]).
[2] We turn now to the issue of the appropriate remedy. While the presence of an actual conflict mandates reversal, defendant has argued that we should also either dismiss the indictment or remand for a new trial at which Jones‘s testimony is excluded. We reject defendant‘s request for dismissal, but we agree that the People should be precluded from using Jones‘s testimony.
Defendant‘s request for dismissal is unavailing for two reasons. First, the record before us establishes that, even without Jones‘s testimony, the People possess other evidence with which to establish a prima facie case against defendant should they retry him (compare People v Rossi, 80 NY2d 952, 954 [1992], with People v Perkins, 189 AD2d 830, 833 [2d Dept 1993]).
Second, while defendant has complеted his sentence, he was convicted of a class B felony, a serious offense for which a “penological purpose[ ]” would be served by remanding the matter for further proceedings (People v Allen, 39 NY2d 916, 918 [1976]; People v Conceicao, 26 NY3d 375, 385 n [2015]).
However, we agree that it is necessary and appropriate to prеclude the People from using Jones‘s testimony should they retry defendant. In other cases, courts have granted remedies uniquely tailored to dissipating the taint of counsel‘s ineffective assistance. Thus, in cases where a defendant received ineffective assistance bеcause of counsel‘s failure to seek suppression, the matter was remitted for a suppression hearing (People v Bilal, 27 NY3d 961, 962 [2016]; People v Zeh, 144 AD3d 1395, 1398-1399 [3d Dept 2016], lv denied 29 NY3d 954 [2017]). Where appellate counsel failed to argue that trial counsel was ineffective for failing to object to the submission of a time-barred charge of manslaughter in the first degree and the jury acquitted the defendant of murder and convicted on the time-
Under the unique circumstances of this case, the exclusion of Jones‘s testimony at any future trial is necessary to dissipate the taint of counsel‘s conflicted and ineffective representation. Counsel acted against defendant‘s interests when he advised Jones to accept a plea requiring an allocution adverse to defendant. The allocution eliminated any possibility that Jones could have provided exculpatory testimony as a defense witness, and ensured instead that Jones‘s testimony would be inculpatory when he was called as a witness by the People. Accordingly, Jones‘s testimony was, and continues to be, interwoven with a violation of defendant‘s state and federal right to the effective assistance of counsel.
We have considered and rejected defendant‘s arguments concerning suppression rulings. Since we are ordering a new trial, we find it unnecessary to reach any other issues.
Accordingly, the judgment of the Supreme Court, New Yоrk County (Bruce Allen, J.), rendered November 7, 2014, convicting defendant, after a nonjury trial, of criminal sale of a controlled substance in the third degree, and sentencing him to time served, should be reversed, on the law, the matter remanded for a new trial, and the People precluded from using the testimony of Edward Jones at any retrial.
Renwick, J.P., Kapnick and Kern, JJ., concur.
Judgment, Supreme Court, New York County, rendered November 7, 2014, reversed, on the law, the matter remanded for a new trial, and the People precluded from using the testimony of Edward Jones at any retrial.