Opinion
2012-11-16
The PEOPLE of the State of New York, Respondent, v. James BEARD, also known as “Pops,” Defendant–Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
PRESENT: FAHEY, J.P., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon a jury verdict of two counts each of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ) and criminal sale of a controlled substance in the third degree (§ 220.39[1] ), defendant contends that the evidence is legally insufficient to support his conviction. Defendant contends that the People failed to establish that he had constructive possession of the controlled substance (drugs) because there is no evidence that he controlled the premises where the drugs were sold or that he exercised control over the unknown suspect who participated in the drug sales. That contention is unpreserved for our review inasmuch as it was not specifically raised in support of defendant's motion for a trial order of dismissal ( see People v. Latorre, 94 A.D.3d 1429, 1429–1430, 942 N.Y.S.2d 390,lv. denied19 N.Y.3d 998, 951 N.Y.S.2d 474, 975 N.E.2d 920;People v. Jones, 92 A.D.3d 1218, 1218, 937 N.Y.S.2d 805,lv. denied19 N.Y.3d 962, 950 N.Y.S.2d 114, 973 N.E.2d 212;see generally People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, that contention lacks merit because the evidence is legally sufficient to establish that defendant “exercised ‘dominion or control’ over the [drugs] by a sufficient level of control ... over the [unknown suspect] from whom the [drugs were] seized” ( People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563, quoting Penal Law § 10.00 [8]; seePenal Law § 220.39). There is likewise no merit to defendant's further contention, which is preserved for our review, that the evidence is legally insufficient to establish defendant's identity ( see Jones, 92 A.D.3d at 1218, 937 N.Y.S.2d 805). “It is well settled that, even in circumstantial evidence cases, the standard for appellate review of legal sufficiency issues is whether any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the [jury] on the basis of the evidence at trial, viewed in the light most favorable to the People” ( People v. Hines, 97 N.Y.2d 56, 62, 736 N.Y.S.2d 643, 762 N.E.2d 329,rearg. denied97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [internal quotation marks omitted]; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Here, we conclude that the trial evidence, although largely circumstantial, could lead a rational person to conclude that defendant was the individual who arranged the drug sales ( see Latorre, 94 A.D.3d at 1430, 942 N.Y.S.2d 390;Jones, 92 A.D.3d at 1218, 937 N.Y.S.2d 805). Further, although a different result would not have been unreasonable ( see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1;Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), we conclude that, viewing the evidence in light of the elements of the crimes as charged to the jury ( see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
We agree with defendant, however, that he is entitled to a new trial because County Court violated his right to counsel. “Under our State and Federal Constitutions, an indigent defendant in a criminal case is guaranteed the right to counsel” ( People v. Medina, 44 N.Y.2d 199, 207, 404 N.Y.S.2d 588, 375 N.E.2d 768;seeU.S. Const., 6th Amend.; N.Y. Const., art. I, § 6; People v. Linares, 2 N.Y.3d 507, 510, 780 N.Y.S.2d 529, 813 N.E.2d 609). That “right does not begin and end with the assignment of counsel” ( Linares, 2 N.Y.3d at 510, 780 N.Y.S.2d 529, 813 N.E.2d 609). Rather, trial courts bear the “ongoing duty” to “ ‘carefully evaluate serious complaints about counsel’ ” ( id. at 510, 780 N.Y.S.2d 529, 813 N.E.2d 609, quoting Medina, 44 N.Y.2d at 207, 404 N.Y.S.2d 588, 375 N.E.2d 768;see People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233). Although “[t]he right of an indigent criminal defendant to the services of a court-appointed lawyer does not encompass a right to appointment of successive lawyers at defendant's option[,] ... the right to be represented by counsel of one's own choosing is a valued one, and a defendant may be entitled to new assigned counsel upon showing ‘good cause for a substitution’ ” ( Sides, 75 N.Y.2d at 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233, quoting Medina, 44 N.Y.2d at 207, 404 N.Y.S.2d 588, 375 N.E.2d 768). Thus, trial courts are obligated to conduct, at the very least, a “ ‘minimal inquiry’ ” when a defendant voices “ ‘seemingly serious' ” complaints about his or her assigned defense counsel ( People v. Porto, 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283, quoting Sides, 75 N.Y.2d at 824–825, 552 N.Y.S.2d 555, 551 N.E.2d 1233).
Here, we conclude that defendant articulated complaints about his assigned counsel that were sufficiently serious to trigger the court's duty to engage in an inquiry regarding those complaints ( see Sides, 75 N.Y.2d at 824–825, 552 N.Y.S.2d 555, 551 N.E.2d 1233). Before jury selection, defendant advised the court that he was not comfortable proceeding with his assigned attorney because he had never spoken to the attorney before that time, he had not been informed that his trial was commencing that day, and he had not been informed of certain pretrial hearings conducted in his absence. The court interrupted defendant and engaged in an off-the-record discussion with the attorneys. Thereafter, the court explained to defendant that the trial was “going to have to go forward” with his assigned counsel because “[t]he District Attorney's Office has brought up a confidential witness all the way from the State of Texas and they're ready to go today,” the District Attorney's office had “spent a lot of money” to secure the confidential witness, and there were 50 prospective jurors in the courthouse. The court then proceeded to explain the jury selection process and, when the court asked defendant whether he would permit defense counsel to handle certain juror issues at the bench, outside of defendant's presence, defendant reiterated that he did not “feel comfortable” with defense counsel. The court replied that “if [defendant could] afford to hire [his] own attorney, [he could] do so, but if [he could not] afford to do that, then the Public Defender's Office ... has designated [defense counsel] as [his] trial attorney and so [defense counsel would] be [his] trial attorney.”
Defendant's allegations—in particular, the allegation that he had never previously spoken to his assigned counsel and that he was unaware his trial was commencing that day—are serious on their face and should not have been “summarily dismiss[ed]” by the court, especially in light of the fact that defendant's allegations are either supported by or uncontradicted by the record ( Sides, 75 N.Y.2d at 825, 552 N.Y.S.2d 555, 551 N.E.2d 1233;cf. People v. Augustine, 89 A.D.3d 1238, 1240–1241, 932 N.Y.S.2d 247,lv. denied19 N.Y.3d 957, 950 N.Y.S.2d 109, 973 N.E.2d 207). Indeed, the record established that an assistant public defender other than defendant's assigned counsel met with defendant before trial and reviewed with him critical evidence, i.e., the police surveillance videotapes, prepared an extensive omnibus motion, and argued the motion. Additionally, the record does not contradict defendant's allegations that he was not apprised of a change in the trial date and that a hearing was conducted in his absence. Specifically, although the record establishes that defendant was present when the court initially scheduled the trial date, there is no evidence that he subsequently received notice of the change in the trial date. Moreover, the minutes of the court clerk indicate that an audibility hearing was held, but no transcript of that proceeding is included in the record. Thus, there is no evidence that defendant was present at that hearing.
We therefore conclude, based on the record before us, that the court violated defendant's fundamental right to counsel by failing to make any inquiry concerning his serious complaints regarding his assigned counsel ( see Sides, 75 N.Y.2d at 824–825, 552 N.Y.S.2d 555, 551 N.E.2d 1233;cf. People v. Haith, 44 A.D.3d 369, 370, 844 N.Y.S.2d 10,lv. denied9 N.Y.3d 1034, 852 N.Y.S.2d 20, 881 N.E.2d 1207;People v. Reese, 23 A.D.3d 1034, 1035, 803 N.Y.S.2d 852,lv. denied6 N.Y.3d 779, 811 N.Y.S.2d 347, 844 N.E.2d 802;People v. England, 19 A.D.3d 154, 154–155, 796 N.Y.S.2d 353,lv. denied5 N.Y.3d 805, 803 N.Y.S.2d 34, 836 N.E.2d 1157). The court did not, for example, ask defendant to explain his position or ask defense counsel, on the record, to address defendant's allegations that they had never met or that defendant had not been advised of the new trial date. Instead, as noted above, the court advised defendant that the trial would proceed with his assigned counsel because the District Attorney's office had arranged for the appearance of a confidential witness, who had traveled from Texas, and prospective jurors were waiting. While “[t]he court might well have found upon limited inquiry that defendant's [complaints regarding his assigned counsel were] without genuine basis, ... it could not so summarily dismiss [his complaints]” ( Sides, 75 N.Y.2d at 825, 552 N.Y.S.2d 555, 551 N.E.2d 1233;see People v. Graham, 169 A.D.2d 512, 512–513, 564 N.Y.S.2d 368,lv. denied77 N.Y.2d 906, 569 N.Y.S.2d 938, 572 N.E.2d 621;see generally People v. Branham, 59 A.D.3d 244, 245, 873 N.Y.S.2d 280;People v. Rodriguez, 46 A.D.3d 396, 397, 848 N.Y.S.2d 94,lv. denied10 N.Y.3d 844, 859 N.Y.S.2d 402, 889 N.E.2d 89).
We reject the People's contention that the court had no duty to conduct an inquiry regarding defendant's complaints because his assertions were “conclusory” ( cf. People v. Watkins, 77 A.D.3d 1403, 1404, 909 N.Y.S.2d 233,lv. denied15 N.Y.3d 956, 917 N.Y.S.2d 116, 942 N.E.2d 327). To the contrary, defendant's complaints were highly specific and factual in nature. Additionally, we note that the court failed to give defendant an opportunity to explain his complaints. Indeed, the court cut defendant off, admonished him not to interrupt, and advised him that, unless he could afford to hire his own attorney, there would be no substitution of counsel ( see Branham, 59 A.D.3d at 245, 873 N.Y.S.2d 280;Rodriguez, 46 A.D.3d at 397, 848 N.Y.S.2d 94;cf. People v. Rodriguez, 166 A.D.2d 903, 904, 560 N.Y.S.2d 563,lv. denied77 N.Y.2d 910, 569 N.Y.S.2d 943, 572 N.E.2d 626).
In light of our conclusion, there is no need to address defendant's remaining contentions.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted.