People v. RubaduePeople v. Rubadue
Appeals (1) from a judgment of the County Court of St. Lawrence County (Jerome J. Richards, J.), rendered December 3, 2019, upon a verdict convicting defendant of the crime of criminal possession of a controlled substance in the second degree, and (2) by permission, from an order of said court (John F. Richey, J.), entered May 29, 2020, which denied defendant‘s motion pursuant to
Police received an anonymous tip that methamphetamine was being manufactured at a residence in the City of Ogdensburg, St. Lawrence County and, after detecting the distinctive smell of methamphetamine production outside of the residence, they obtained a search warrant that was executed in the early morning hours of April 2, 2019. During the search, investigators recovered equipment and materials needed to produce methamphetamine. They also entered a bathroom to find codefendant Harold Planty, one of the home‘s residents, tossing an emptied plastic bottle into a wastebasket near the toilet while defendant and Kenneth Reese, her boyfriend, crouched nearby. The contents of the bottle were recovered from the unflushed toilet and tested positive for methamphetamine. Defendant, Harold Planty and codefendant Melissa Planty were thereafter charged in a June 2019 indictment with various offenses. The record reflects that Reese separately faced charges relating to the April 2019 incident, as well as an earlier one in March 2019. Following motion practice, the only charge surviving against defendant was one count of criminal possession of a controlled substance in the second degree. Defendant rejected several plea offers, while the Plantys and Reese entered into plea agreements requiring them to, among other things, cooperate in her prosecution. Following a jury trial at which it was established that the requisite amount of methamphetamine was produced at and recovered from the Plantys’ residence, and the Plantys and Reese all testified to defendant‘s knowing involvement in that production, she was found guilty as charged.
Defendant was remanded to jail to await sentencing and, while there, disclosed to a counselor that her assigned counsel had expressed interest in a sexual relationship with her over the course of the representation. She corroborated that claim by providing a series of sexually charged text messages between them. Those messages further included assigned counsel‘s representations to defendant that he viewed her case as “winnable.” After learning of defendant‘s disclosures, County Court (Richards, J.) made clear that it did not share assigned counsel‘s assessment that the case was “winnable” if defendant chose to go to trial and, noting the possibility that assigned counsel had hyped defendant‘s chances of success “because [of] his interest in a potential sexual relationship,” relieved assigned counsel due to a conflict of interest and assigned substitute counsel to represent defendant going forward
Substitute counsel filed a motion to vacate the judgment less than a week later upon the ground that assigned counsel had engaged in “[i]mproper and prejudicial conduct” outside the trial record that would have, if known, required reversal (
County Court should not have denied defendant‘s CPL article 440 motion due to her pending direct appeal. To reiterate, defendant argued in that motion that reversal of the judgment was required because assigned counsel had a conflict of interest arising out of his personal interest in pursuing a sexual relationship with her. “The right to effective counsel ensures not only meaningful representation but also the assistance of counsel that is ‘conflict-free and singlemindedly devoted to the client‘s best interests’ ” (People v Berroa, 99 NY2d 134, 139 [2002], quoting People v Longtin, 92 NY2d 640, 644 [1998], cert denied 526 US 1114 [1999]), and a defendant is denied that right “when, absent inquiry by the court and the informed consent of [the] defendant, defense counsel represents interests which are actually in conflict with those of [the] defendant” (People v Payton, 22 NY3d 1011, 1013 [2013] [internal quotation marks and citation omitted]; accord People v Gibson, 185 AD3d 1101, 1102 [3d Dept 2020], lv denied 35 NY3d 1066 [2020]). Accordingly, if a trial court handling a criminal matter becomes “aware of facts from which it appears that conflicting interests arguably exist, the [court] must conduct a record inquiry of each defendant whose representation is potentially conflict-ridden in order to ascertain whether he or she ‘has an awareness of the potential risks involved in that course and has knowingly chosen it’ ” (People v McDonald, 68 NY2d 1, 8 [1986], quoting People v Gomberg, 38 NY2d 307, 313-314 [1975]). The “failure to undertake [an] inquiry and obtain the defendant‘s consent ‘requires reversal only if the conflict is an actual one. Where the conflict is merely potential, reversal is mandated only if the defendant can establish that the conflict
“[A] sexual relationship between a lawyer and client creates the risk of impairing the professional judgment of the lawyer, and rendering the client unable to make rational decisions related to his or her case, [and] . . . may be detrimental to the client‘s interests” (Matter of Raab, 139 AD3d 116, 119 [1st Dept 2016]; see Rules of Prof Conduct [22 NYCRR 1200.0] rule 1.8 Comment [17]). There is therefore an inherent potential conflict of interest whenever a sexual relationship develops during the course of a representation which requires the client‘s awareness of the risks and his or her consent, but the circumstances surrounding the pursuit or existence of such a relationship may give rise to an actual conflict of interest, such as where counsel demands sexual relations “as a condition of entering into or continuing any professional representation” or “employ[s] coercion, intimidation or undue influence” in pursuing them (Rules of Prof Conduct [22 NYCRR 1200.0] rule 1.8 [j] [1]; see Matter of Raab, 139 AD3d at 119).1 The nature of a conflict of interest arising out of a sexual relationship between an attorney and client is heavily context dependent, in other words, and the text messages between defendant and assigned counsel in the record on direct appeal leave it unclear how assigned counsel‘s pursuit of such a relationship unfolded and whether it gave rise to a potential or an actual conflict of interest. County Court (Richards, J.) failed to conduct the requisite inquiry to resolve that issue and either set aside the verdict or assess whether, if the conflict was only potential, defendant was aware of the potential risks and consented to them. The record further permits nothing beyond speculation as to how the conflict, assuming that it was only potential and not an actual one that would require a new trial, operated on defendant‘s defense. In the absence of such information, County Court (Richey, J.) improperly denied defendant‘s CPL article 440 motion upon the ground that “sufficient facts appear[ed] on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon [a pending direct] appeal” (
In her CPL article 440 motion, defendant filled in the omissions in the record on direct appeal with an affidavit in which she explained that assigned counsel had inappropriate contacts with her in telephone conversations and text messages during his representation of her and that he repeatedly advised her to reject favorable plea offers because, according to him, her case was winnable at trial given the proof against her. She further averred that she was following assigned counsel‘s advice in rejecting those offers and denied that he had ever advised her to plead guilty. Substitute counsel accordingly
Pritzker, Ceresia, Fisher and Powers, JJ., concur.
ORDERED that the decision is withheld, and matters remitted to the County Court of St. Lawrence County for further proceedings not inconsistent with this Court‘s decision.