Opinion
9021983
Decided April 26, 2005.
Thomas J. Spota, Suffolk County District Attorney, Emily A. Constant, Esq., Riverhead, New York, for Plaintiff.
Anthony M. La Pinta, Esq., Hauppauge, New York, Defendant's Atty.
ORDERED that this motion by defendant for an order pursuant to CPL § 440.10 (1) (g) and (h) and § 440.20 (1) vacating the judgment of conviction for Murder in the Second Degree and entering a judgment of Manslaughter in the First Degree, or, in the alternative, vacating the sentence of twenty five years to life and ordering a new sentencing hearing upon the grounds, inter alia, that defendant was denied the effective assistance of counsel is considered by the Court and is determined as follows:
On March 27, 1983, Michael LaPinta was murdered in his home in West Islip, New York. Charged in that murder were Leonard Crociata, the victim's brother-in-law and Marie LaPinta, the victim's wife. After a joint trial of the defendants before a jury, each was convicted of the crime of Murder in the Second Degree and each was sentenced to an indeterminate term of imprisonment of 25 years to life. During the course of the proceedings that culminated in the judgment of conviction, the defendants, who were siblings, were represented by attorneys from the same law firm, Gallop, Dawson, Kimeleman and Clayman from New York City. Samuel Dawson was lead counsel and represented defendant Leonard Crociata. His partner, Steven Kimeleman, represented defendant Marie LaPinta. At arraignment, the court questioned counsel about the joint representation of defendants in response to which counsel noted that they had discussed a possible conflict of interest with their clients. It does not appear that there was a specific inquiry of the defendant herself or any indication that she understood the nature of the potential conflict of interest or the effect it would have on her defense. Further, it does not appear that defendant agreed to waive any potential claim of conflict of interest on the record in court. However, the prosecutor at the time, Edward Jablonski, recognized the potential for conflict of interest and stated his objection on the record.
Defendant, who was born and raised in Italy, had a somewhat limited understanding of the English language. An interpreter was not present at the arraignment.
Defendant now moves for the requested relief upon the ground, inter alia, that there was a conflict of interest in the joint representation of defendant and co-defendant by the same law firm. Although the issue of the potential conflict of interest was raised at arraignment on the indictment at a time when defendants were only beginning to understand the nature of the charges and the case against them, there was no inquiry made of defendants at the time of trial regarding this conflict of interest. Defendant asserts that as a result of this conflict, certain mitigating facts were not brought to the attention of the jury during trial and resulted in defendant being convicted of Murder in the Second Degree. Defendant contends that during the course of her marriage to Michael LaPinta, she had been subjected to years of physical, verbal and emotional abuse at the hands of her husband and that the confrontation that resulted in the death of Michael LaPinta was the direct outgrowth of the violent and bitter marriage. Defendant argues that had these facts been developed at trial in front of the jury, she would not have been convicted of Murder in the Second Degree. Further, defendant contends that there was no evidence brought forth at trial regarding her limited role in the murder of her husband. Finally, defendant argues that at the very least, these facts concerning the years of abuse and her limited involvement should have been brought to the attention of the Court at sentencing. Had this been done, defendant asserts, she would not have received the maximum sentence permitted under the law.
To support her claim of domestic violence and the effect that years of marriage to her abusive husband had on her, defendant offers several affidavits, including a narrative report of a psychological evaluation of defendant prepared at defendant's request. The evidence shows that defendant was born and raised in the small town of Castellamare del Golfo outside of Palermo, Sicily and attended school only until fifth grade. Defendant asserts that she was not raised in a loving and supportive environment. According to defendant, her father was a "brutal, selfish, abusive and severe man who physically assaulted her, psychologically and emotionally abused her, physically assaulted her brothers and who physically abused her mother". When defendant was 20 years old, her father arranged for her marriage to Michael LaPinta, who was a distant cousin and lived in Brooklyn, New York. Defendant left her home in Italy in the summer of 1956 to live with her new husband in Brooklyn. At the time, defendant was hopeful that with the start of her new life in America, she would at last be free from the years of abuse she had both experienced and witnessed from her father. According to defendant, that hope for a new and personally fulfilling life was short-lived. It quickly became apparent to defendant that her husband was a controlling and violent man. He did not allow her to leave their home unless she was accompanied by him. Defendant believed that her husband was possessive and jealous of any happiness she found in her new country. Consequently, when defendant registered and began to attend classes to learn English, defendant almost immediately made her stop the classes since he was jealous of the people she was meeting while learning the new language. Violence often erupted from her husband at dinner since he was often unhappy with the food she prepared. Defendant came to understand that the food she prepared was her husband's excuse to become violent and assaultive.
Report of Dawn M. Hughes, PhD., Clinical and Forensic Psychologist, who performed a psychological evaluation of defendant on December 21, 2004.
In support of the claims raised by defendant by this motion, defendant contends that her representation by an attorney from the same law office as the attorney representing the co-defendant represented a conflict of interest and compromised her defense of the charges against her. Although it was the co-defendant who possessed the gun used to kill Michael LaPinta and who fired that gun, there was no defense put forth on behalf of defendant whereby she claimed less culpability because of what was, arguably, a passive role in the events surrounding the victim's death or because she had been subjected to years of abuse at the hands of her husband. Further, defendant notes that no issue was raised at sentencing regarding defendant's difficult childhood or the nature of defendant's relationship with her husband that might have led the sentencing court to impose less than the maximum sentence allowed under the law.
In response to defendant's motion, the People candidly acknowledge that the circumstances of both defendants having been represented by the same law firm, raises "a strong possibility of a conflict of interest in their representation." They further note that had the two defendants been represented by independent counsel, "defendant LaPinta's counsel could have focused on the different mental states the prosecution's evidence itself attributed to the two co-defendants". Moreover, the People admit that had defendant been questioned and testified at trial regarding the relationship with her husband, that testimony "would have provided prima facie support for advancement of a justification defense based on spousal abuse and/or battered woman's syndrome."
The New York State and Federal Constitutions guarantee the right to effective assistance of counsel, "meaning representation that is reasonably competent, conflict-free and singlemindedly devoted to the client's best interests" ( People v. Longtin, 92 NY2d 640, 644, 684 NYS2d 463, see also, People v. Ortiz, 76 NY2d 652, 563, NYS2d 20). Consequently, a lawyer may not represent two clients whose interests are in conflict, nor may a lawyer represent a defendant as well as the chief prosecution witness against him ( People v. Wandell, 75 NY2d 951, 555 NYS2d 686). The Trial Judge "has a duty to protect the right of an accused to effective assistance of counsel" ( People v. Gomberg, 38 NY2d 307, 313, 379 NYS2d 769; People v. Macerola, 47 NY2d 257, 263, 417 NYS2d 908). Before the trial begins, "it is the responsibility of the Trial Judge, independent of the attorney's obligation to inform his clients of any conflicting interests which may hinder his representation, to `ascertain, on the record, whether each defendant [represented by the same attorney] has an awareness of the potential risks involved in that course and has knowingly chosen it'" ( People v. Macerola, supra at p. 263 quoting People v. Gomberg supra, at p. 313). In People v. Mattison ( 67 NY2d 462, 503 NYS2d 709), the Court held that absent an inquiry by the court and a knowing consent by the defendant, an attorney may not represent a criminal defendant at trial at which a codefendant whose plea bargain — including the promise to testify against defendant — was negotiated by a partner in the same firm.
Here, both sides agree that there was no Gomberg inquiry made of defendant prior to trial regarding the potential for conflict of interest by the joint representation of defendant and her co-defendant by the same law firm. Therefore, it cannot be said that defendant knowingly consented to the continued representation by counsel under those circumstances. This failure to conduct a Gomberg inquiry prior to the start of trial was error. However, the question remains as to whether the error warrants a vacatur of the conviction. The Court's inquiry on an application such as this does not stop at the finding that a Gomberg inquiry was not made since it is not sufficient for a defendant seeking to vacate a judgment of conviction to establish that a conflict of interest existed. In order to prevail on a claim of ineffective assistance of counsel, defendant must show that "the conduct of his defense was in fact affected by the operation of the conflict of interest," or that the conflict "operated on" the representation ( People v. Alicea, 61 NY2d 23, 31, 471 NYS2d 68). In other words, defendant must establish that the potential conflict have borne a substantial relation to the conduct of the defense ( People v. Recupero, 73 NY2d 877, 879, 538 NYS2d 234).
Here, it is clear that certain defenses that were potentially available to defendant during the trial of this action were not presented to the jury. While the "battered women's syndrome" defense had, at that time, only recently begun to be accepted in courts ( see, for example, People v. Torres, 128 Misc 2d 129, 488 NYS2d 358), counsel for defendant did not attempt to elicit any testimony about the facts surrounding defendant's relationship with her husband and the years of physical and emotional abuse. Certainly, as the passive participant in the actual murder, the significance of defendant's role could have been argued to the jury. Finally, at sentencing, the circumstances regarding the abuses suffered by defendant at the hands of her husband could have been presented to the Court.
In 1998, the Legislature recognized the role of domestic violence against persons accused of a crime and enacted Penal Law section 60.12 allowing the sentencing court to impose an alternative and lesser indeterminate sentence of imprisonment upon a finding that defendant was the victim of physical, sexual or psychological abuse by the victim or intended victim, that such abuse was a factor in causing defendant to commit such offense and that the victim was a member of the same family or household as defendant.
Quite obviously, defendant and her co-defendant had pronounced differences in the type and quantum of evidence against them and in the facts that they could have offered to support the defenses each one could have raised at trial. Certainly, it appears that counsel for defendant did not attempt to mitigate defendant's involvement in the crime itself nor did he raise any issue regarding her ability to form the requisite intent necessary to be found guilty of murder in the second degree. These were defenses that were available only to defendant and not available to co-defendant. Given the fact that these defenses were not raised at trial by counsel from the same law firm as the attorney representing co-defendant, the Court is compelled to conclude that there was an actual conflict in the representation of defendant, that defendant was prejudiced by this representation, and that defendant was denied her right to effective representation by counsel during the trial of this indictment. Thus, defendant is entitled to the vacatur of her judgment of conviction.
Turning to the specific relief sought by defendant, she moves pursuant to CPL § 440.10 subd 1 (g) and (h) for an order vacating her judgment of conviction for Murder in the Second Degree and entering a judgment of Manslaughter in the First Degree upon the ground that there has been new evidence discovered since the entry of judgment and upon the ground that the judgment was obtained in violation of her right to the effective assistance of counsel. CPL § 440.10 provides in relevant part that where the Court grants a defendant's application to vacate the judgment of conviction, the Court, with one exception, must vacate the judgment and dismiss the accusatory instrument or order a new trial. The one exception to this rule is where the motion is based upon the existence of newly discovered evidence. Where the Court finds that there is newly discovered evidence and that the newly discovered evidence creates a probability that had such evidence been received at trial the verdict would have been more favorable to the defendant, the Court may, with the consent of the People, modify the judgment by reducing it to one of conviction for a lesser offense than the one contained in the verdict.
Here, it must be noted that the People have not consented to the entry of a judgment for a lesser offense. The People argue, and the Court agrees, that the evidence upon which defendant bases her application is not newly discovered evidence. In order to constitute newly discovered evidence in support of a motion such as this, the evidence must have been discovered since trial, must be such that it could not have been discovered before the trial by the exercise of due diligence, must not merely impeach or contradict the former evidence, must be based upon sworn allegations and must be proven by a preponderance of the evidence ( see, People v. Balan, 107 AD2d 811, 484 NYS2d 648). The evidence in this instance cannot be said to be newly discovered. Defendant was well aware of its existence prior to trial. Consequently, to the extent that defendant seeks vacatur of the judgment of conviction and the entry of a judgment to a lesser offense, the application must be denied.
However, to the extent the application is based upon defendant's claim that she was denied the effective assistance of counsel, the motion to vacate the judgment is granted and a new trial is ordered. For the reasons stated previously, the Court is convinced that the representation of defendant and her co-defendant by attorneys from the same law firm represented a conflict of interest, that defendant was not adequately made aware of the scope of the conflict and that the conflict effected the nature of the defense interposed during the trial of this indictment. Accordingly, the motion is granted to the extent that the previously entered judgment of conviction is vacated and a new trial is ordered
However, to the extent that defendant's motion sought to set aside the sentence imposed pursuant to CPL § 440.20, there is no basis for that relief. CPL § 440.20 applies only in instances where an issue is raised concerning the propriety of the sentence imposed ( see, People v. Cooks, 67 NY2d 100, 500 NYS2d 503). Here, the sentence of a indefinite term of imprisonment of 25 years to life was entirely proper based upon defendant's conviction of Murder in the Second Degree. Therefore, the relief sought by defendant on this basis must be denied.
Finally, it must be noted that the People have consented to the vacatur of defendant's conviction and they are to be commended for their candor in recognizing the merits of defendant's application. The obligation of the District Attorney is to insure that the ends of justice are served and the District Attorney's office has been forthright and forthcoming in response to this motion. Given all of the facts adduced by defendant in support of her motion, justice requires the vacatur of this conviction.
Accordingly, the motion by defendant is granted solely to the extent that the judgment of conviction of defendant for Murder in the Second Degree is vacated and a new trial is ordered. Defendant is to be remitted to the Supreme Court, Suffolk County for further proceedings on this indictment.