People v. Pagan

57 Misc. 3d 486, 57 N.Y.S.3d 385
CourtCriminal Court of the City of New York
DecidedJuly 28, 2017
StatusPublished

This text of 57 Misc. 3d 486 (People v. Pagan) is published on Counsel Stack Legal Research, covering Criminal Court of the City of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Pagan, 57 Misc. 3d 486, 57 N.Y.S.3d 385 (N.Y. Super. Ct. 2017).

Opinion

OPINION OF THE COURT

David J. Kirschner, J.

On October 17, 2016, defendant was charged with assault in the second degree (Penal Law § 120.05 [2], a class D felony); assault in the third degree (Penal Law § 120.00 [1], a misdemeanor); menacing in the second degree (Penal Law § 120.14 [1], a misdemeanor); criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2], a misdemeanor); menacing in the third degree (Penal Law § 120.15, a misdemeanor); and harassment in the second degree (Penal Law § 240.26 [1], a violation).1

[488]*488The People now move for defense counsel to be relieved on the grounds that counsel previously had represented the complaining witness in his criminal case, at the same time he represented defendant in this case. The People contend that this prior simultaneous representation presents a conflict of interest.

Defendant opposes. Defense counsel maintains that no conflict exists because the attorney from their organization who represents defendant did not and cannot obtain any confidential information about the complainant from their organization’s records and files on that case. Defense counsel further asserts that they represented the complainant only at arraignment, and when they learned of the dual representation, they were relieved at the next court date.

After a review of the moving and opposing papers, oral arguments, prior court proceedings, and papers on file with the court, the People’s motion is denied.

I. Background and Procedural History

On October 16, 2016, at approximately 1:00 p.m. in front of an address in Bronx County, defendant allegedly pushed Robert Smith and hit him in the back of the head with a wooden stick. As a result of defendant’s purported actions, Smith received two staples in the back of his head. The police arrested defendant and he was charged as stated.

On October 17, 2016, defendant was arraigned on the charges. Assigned counsel, The Bronx Defenders, by attorney Kinte Morgan, represented defendant. Defendant entered a plea of not guilty and was released on his own recognizance.

On January 24, 2017, Smith, the complaining witness in defendant’s case, was arrested and charged with assaulting his wife Indra Moreno on December 31, 2016, at the same address located in Bronx County. Assigned counsel, The Bronx Defenders, by attorney Malika Lubell-Doughtie, represented Smith at arraignment. The matter was adjourned to February 17, 2017.

On February 16, 2017, defendant’s case was scheduled before this court. Before the parties appeared that day, the People interviewed Smith. They learned about Smith’s pending criminal case and that The Bronx Defenders was representing him.

The People reported this simultaneous representation by The Bronx Defenders to the court and maintained that it was a conflict of interest. They sought to have The Bronx Defenders [489]*489relieved on defendant’s case and requested the opportunity to submit written papers on the request.

The Bronx Defenders, by attorney Karume James, opposed the request to be relieved and reported that his organization would immediately seek to be relieved from Smith’s case.

On February 17, 2017, The Bronx Defenders filed an application to be relieved as counsel for Smith. The application was granted.

On March 10, 2017, the People filed papers in support of their request for the court to relieve The Bronx Defenders from representing defendant. They claim The Bronx Defenders’ prior representation of Smith creates a conflict of interest in violation of defendant’s right to conflict-free representation pursuant to the Sixth Amendment of the United States Constitution. Specifically, they argue the past representation of Smith will restrict attorney Morgan from effectively cross-examining Smith in an effort to avoid the appearance of impropriety in how he obtained information against Smith. The People further claim such prior dual representation will cast doubt on the propriety of any potential conviction, and thus be grounds for reversal on appeal. They also argue the Rules of Professional Conduct require that The Bronx Defenders be relieved.

In papers dated April 26, 2017, defense counsel argues there is no conflict of interest because attorney Morgan did not obtain any confidential information about Smith from their organization’s records on Smith’s case. In addition, they argued any potential future conflict is ameliorated because, upon learning of the dual representation, they were promptly relieved from representing Smith and have maintained a separation of the cases.

In an affirmation, attorney Morgan stated that he does not have information regarding Smith’s case and never spoke to any of the attorneys at The Bronx Defenders about Smith or Smith’s case (affirmation of Kinte Morgan, dated Apr. 25, 2017 at 2). He further stated that the only information he has on Smith’s case was that The Bronx Defenders represented Smith on an unrelated domestic violence matter (affirmation of Morgan at 2). Attorney Morgan seeks to remain on defendant’s case because he has invested time and resources into this defense by investigating, interviewing witnesses, and regularly discussing this matter with him (affirmation of Morgan at 2).

On May 16, 2017, this court heard oral arguments on the matter. The People contend that because The Bronx Defenders [490]*490represented Smith at arraignment, they already possess personal information about him to which they otherwise would not have had access (8-9).2 They argued such representation might restrict and limit The Bronx Defenders in their cross-examination of Smith in a self-imposed attempt to alleviate any doubt as to the manner in which they obtained information against Smith (6-8, 13). The People also contend that Smith’s case and defendant’s case are so intertwined that it constitutes a conflict of interest. Finally, the People argued the prior representation refutes The Bronx Defenders’ claim that their conflict protection protocol prevents a conflict of interest (9, 13).

The Bronx Defenders, for their part, stated they were relieved from representing Smith immediately upon learning of the dual representation. They asserted that, in any event, large public-defense organizations such as theirs may simultaneously represent two clients for a period of time. They maintained that where, as in this case, each client was represented by different lawyers from the organization in separate and unrelated matters, there is no conflict of interest (11, 16-17). The Bronx Defenders assured the court that Morgan did not and cannot obtain confidential information regarding Smith from their files (4, 10-13), and that an ethical wall of separation has been established between the cases within their organization (14). They argued that any information regarding Moreno was irrelevant because she was not represented by their organization and thus there is no attorney-client privilege protection (11).

II. Discussion

A defendant in a criminal case has the right to effective assistance of counsel (US Const 6th Amend; NY Const, art I, § 6). Effective assistance is representation that is reasonably competent, conflict-free, and single mindedly devoted to the client’s best interests (People v Ortiz, 76 NY2d 652, 656 [1990]).

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Bluebook (online)
57 Misc. 3d 486, 57 N.Y.S.3d 385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-pagan-nycrimct-2017.