People v. De Sarno

239 A.D.2d 74, 670 N.Y.S.2d 254, 1998 N.Y. App. Div. LEXIS 2483

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 12, 1998
• Status: Published

Opinions

OPINION OF THE COURT

Crew III, J.

On September 13, 1995, an undercover State Police Investigator approached defendant, Gerald Alexander, and two other men in front of a residence located at 414 Madison Street in the City of Ithaca, Tompkins County. The Investigator asked one of the unidentified men for cocaine but was refused because the man did not know him. The second unidentified individual, however, indicated that he knew the Investigator and removed several packets of cocaine from his pocket. Alexander interrupted this transaction, telling the man not to sell to the Investigator. The Investigator then approached defendant, who engaged in a brief conversation with Alexander and then sold the Investigator a bag of cocaine for $20. As a result, defendant and Alexander were indicted and charged with criminal sale of a controlled substance in the third degree. Additionally, defendant was charged with criminal possession of a controlled substance in the third degree.

During the ensuing proceedings, defendant was represented by John Rowley and Alexander was represented by Benjamin Darden. Shortly before trial, defendant applied for permission to substitute Darden as her retained counsel in place of Rowley. Rowley expressed his dire concerns about such substitution, advising County Court that he had written to his client indicating that the substitution would not be in her best interest and warning that he could envision no decision more detrimental to her interest. The District Attorney likewise expressed a pointed concern regarding the proposed joint representation, specifically alluding to defenses such as agency and coercion which would be diametrically opposed to Alexander’s interest.¹ County Court thereafter held an in camera Gomberg hearing (People v Gomberg, 38 NY2d 307), at which time Darden assured the court that his dual representation presented no conflict in that Alexander had no role in the alleged transaction, as defendant was coerced into selling the drugs by someone other than Alexander. Both defendant and Alexander then expressed their desire to be represented by Darden in spite of any potential for conflict.

Following a jury trial, at which defendant testified that a third person had forced her to engage in the sale in question and that Alexander had no involvement therein, defendant was found guilty of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. Alexander was found guilty of criminal sale of a controlled substance in the third degree. Defendant was then sentenced to indeterminate concurrent terms of imprisonment of 31/3 to 10 years.

Following her conviction, defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction, which motion was denied without a hearing. This Court then granted defendant permission to appeal from said denial. Defendant’s sole contention on both her direct appeal and her appeal from the denial of her CPL 440.10 motion is that her constitutional right to effective assistance of counsel was violated because of a conflict of interest in the joint representation by Darden.

In support of her CPL 440.10 motion, defendant proffered a tape recording of a conversation between her and certain City of Elmira police officers made subsequent to her conviction but prior to sentencing.² In the taped interview defendant asserts, inter alia, that she had told her first attorney, Rowley, that Alexander forced her to sell cocaine to the Investigator. She further stated that Alexander had threatened her, at gunpoint, not to implicate him in the crime and that Alexander had arranged for her representation by Darden and had supplied Darden with her retainer from the proceeds of drug sales. Finally, she claimed that the events about which she testified at trial were perjurious and concocted by Darden.

Defendant’s presentence statements, as well as her affidavit and that of her appellate counsel, if true, suggest that she may have been coerced into accepting the joint representation by Darden. Additionally, a letter written to defendant" by Alexander while in prison advising her that he had retained an attorney to represent her on appeal and directing her to discharge her assigned appellate counsel lends further support to that contention. In these circumstances, we are of the view that while County Court conducted an appropriate Gomberg inquiry and satisfied itself that defendant, at that point in time, had made an informed decision to proceed with Darden as counsel despite the potential for conflict, the court erred in denying defendant’s CPL 440.10 motion without a hearing. In our view, defendant raised a viable issue as to whether her waiver of the potential conflict was voluntary, thereby requiring a hearing, at the conclusion of which a factual determination concerning voluntariness could be made. Accordingly, the matter must be remitted to County Court for this purpose. Assuming County Court determines that the purported waiver was involuntary, it then will be necessary to determine if there was in fact a conflict of interest.³

1 . We note that unlike the dissent, we do not view the People’s position on appeal as inconsistent with or antipathetic to their position at the time substitution was sought. Rather than abrogating their view that the proposed substitution presented a "patent” conflict of interest, they here assert that defendant clearly was made aware of the potential conflict and knowingly and voluntarily waived it.

2 . Defendant failed to appear at her originally scheduled sentencing and a bench warrant was issued for her arrest. Apparently that warrant was executed by members of the Elmira Police Department, who interviewed defendant prior to turning her over to Tompkins County authorities.

3 . We note that the evidence presented at trial on behalf of defendant and Alexander was precisely as portrayed by Darden at the Gomberg hearing and unless untrue, as claimed by defendant, did not constitute a conflict.