People v. McCummings

124 A.D.3d 502, 1 N.Y.S.3d 97

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 22, 2015
• Docket: 13432 1544/10
• Status: Published

Opinions

Judgment, Supreme Court, New York County (Renee A. White, J.), rendered December 20, 2010, convicting defendant, after a jury trial, of attempted murder in the second degree, assault in the first degree, and two counts of criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to an aggregate term of 20 years, reversed, on the law, and the matter remanded for a new trial.

Defendant is entitled to a new trial because the court improperly denied his request for substitution of counsel without conducting any inquiry whatsoever, and without permitting defendant to explain, either orally or in writing, why such an inquiry might be necessary (see People v Rodriguez, 46 AD3d 396 [1st Dept 2007], lv denied 10 NY3d 844 [2008])- At the beginning of the fourth day of trial, defendant asked to speak to the court. In denying his request, the court clearly assumed that he wanted to make a statement pertaining to his defense, even after defendant indicated that the subject matter was “my attorney and advice” and that the attorney was not “doing his proper work.” Defendant then asked to hand up papers that defense counsel immediately identified as “a notice of motion for reassignment of counsel,” but the court refused to look at the papers, and stated, “I will not reassign counsel. The motion is denied.”

Contrary to the dissent’s characterization, it is not exalting form over substance to expect the trial court to allow a defendant seeking to substitute counsel the opportunity to make specific factual allegations in support of his or her application. In People v Sides (75 NY2d 822 [1990]), for instance, the trial court was found to have erred in failing to ask “even a single question” about the nature of the disagreement after both the defendant and his counsel spoke of a breakdown in communications and trust {id. at 825; see also People v Branham, 59 AD3d 244 [1st Dept 2009]). Here, the court did not even learn the nature of the disagreement, let alone ask any questions about it. While not all requests for new counsel contain the specific factual allegations to show that the complaints and request are “serious,” which then triggers the court’s obligation to make a “minimal inquiry” into the nature of the disagreement and its potential for resolution (see People v Porto, 16 NY3d 93, 100 [2010]), here defendant was not given an opportunity to make any allegations. This is not a situation where a defendant rested on unelaborated claims; the court expressly declined to listen to defendant or read his submissions (see People v Sides, 75 NY2d at 824; cf. People v Nelson, 7 NY3d 883, 884 [2006] [there was no abuse of the court’s discretion in denying the application for substitution of counsel where the court initially rejected the application without inquiry, made just prior to jury selection, but “thereafter allowed defendant to voice his concerns about defense counsel” and heard defense counsel]).

The dissent’s position is based on assumptions, rather than the actual record. First, the dissent assumes that defendant’s application had no merit and was made solely as a “disruptive, dilatory tactic,” because it was raised so late in the trial and directly followed the court’s comment that defense counsel had had plenty of time to subpoena a particular surveillance tape, and could cross-examine the detective about its contents.

Whether defendant’s application was a dilatory tactic is unknowable from this record because the court failed to ascertain the basis for defendant’s motion before denying it. Second, the dissent assumes that defendant’s motion was based solely on the manner in which the trial had been conducted until then. However, according to the record, defendant’s initial request was based on “my attorney and advice” (emphasis added). A claim alleging incorrect or improper advice is a very different type of complaint from a claim based on an attorney’s trial performance. The court could not have known about the specifics of the claim as to advice. We cannot know that the “advice” at issue pertained, as the dissent assumes, to defendant’s testifying or any other defense strategy. Third, the dissent assumes that defendant’s motion was nothing more substantive than a “preprinted form motion [ ]” such as is often prepared by defendants in advance for possible use (see e.g. People v Porto, 16 NY3d at 96). There is no evidence indicating what the motion papers consisted of, given that the court declined to accept them and they are not in the record. It is speculation to conclude that defendant’s motion was pro forma. Even if he had used a printed form, we have no idea what defendant may have added to supplement the printed category of complaints. It would have taken, at most, a quick colloquy to discern whether defendant’s application was “seemingly serious,” based on its inclusion of “serious complaints” about his counsel (see id. at 99-100). The court, had it briefly engaged defendant and reviewed his papers, would then have had a basis on which to decide whether a minimal inquiry should be undertaken as to the nature of the disagreement or its potential for resolution. Absent a properly developed record, we cannot be as sanguine as the dissent is in finding the application disingenuous (see id. at 100). Alternatively, given that the jury was ready to enter the courtroom, it would have been proper and justified for the court to indicate that the application had been made at an inopportune time and that it would consider defendant’s papers at some other point in the day. We are mindful that had the court considered the application, only the most compelling circumstances would have justified granting it (see People v Arroyave, 49 NY2d 264, 271 [1980]). Nevertheless, we conclude that a new trial is unavoidable under the circumstances presented.

However, defendant has not established that he is entitled to suppression of his statements on the ground that they were the product of an unlawful arrest. The People had no burden to come forward with evidence supporting the arrest, because, notwithstanding the motion court’s erroneous description of the hearing as a “Dunaway/Huntley” hearing, defendant only moved to suppress on voluntariness-related grounds and never litigated any Fourth Amendment issue regarding the statements (see People v Wells, 298 AD2d 142 [1st Dept 2002], lv denied 99 NY2d 586 [2003]). Defendant’s argument that his counsel rendered ineffective assistance by failing to raise a Fourth Amendment claim may not be addressed on direct appeal because it involves matters outside the record requiring a CPL 440.10 motion. In the alternative, to the extent the existing record permits review, we find that defendant has not shown that counsel’s failure to litigate the legality of his arrest was objectively unreasonable, or that it caused him any prejudice under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668 [1984]).

In light of the foregoing, we do not reach defendant’s remaining contentions.

Concur — Sweeny, J.P, Andrias, Richter and Feinman, JJ.