Opinion
Index # DA 140-17
03-06-2020
THE PEOPLE OF THE STATE OF NEW YORK v. EDWARD MERO, Defendant.
APPEARANCES: For the People: HONORABLE P. DAVID SOARES Albany County District Attorney Albany County Judicial Center Albany, New York 12207 VINCENT STARK Assistant District Attorney COLIN D'ARCY Assistant District Attorney For the Defendant: HUGLAW, PLLC Attn: MATTHEW C. HUG, ESQ. -and - TREY SMITH, ESQ. 21 Everett Road Extension Albany, New York 12205
DECISION/ORDER
Indictment # 23-8204 APPEARANCES: For the People: HONORABLE P. DAVID SOARES
Albany County District Attorney
Albany County Judicial Center
Albany, New York 12207 VINCENT STARK
Assistant District Attorney
COLIN D'ARCY
Assistant District Attorney For the Defendant: HUGLAW, PLLC
Attn: MATTHEW C. HUG, ESQ.
-and -
TREY SMITH, ESQ.
21 Everett Road Extension
Albany, New York 12205
LYNCH, J. Following a jury trial, on December 19, 2017, the jury found the defendant guilty of two (2) counts of Murder in the Second Degree, in violation of Penal Law Section 125.25 (1), a Class A-1 violent felony, and two (2) counts of Tampering with Physical Evidence, in violation of Penal Law Section 215.40 (2), a Class E felony. On February 13, 2018, this Court sentenced defendant to an aggregate indeterminate sentence with a maximum term of Life and a minimum term of 50 years. The case was prosecuted by David Rossi, Chief Assistant District Attorney and Steven Sharp, then an Assistant District Attorney. Cheryl Coleman, Esq. served as trial counsel for the defendant.
The trial commenced on November 29, 2017 and concluded on December 19, 2017.
The prosecution's claim that ADA Sharp had a minimal role at trial is unpersuasive. Having presided over the trial, this Court observed that ADA Sharp had a significant and meaningful role as co-counsel.
By written motion dated December 27, 2019, Defendant moved for an Order pursuant to CPL § 440.10 (1)(b), (f). and (h) to vacate his previous convictions. The essential ground for the motion to vacate is that he was deprived of his constitutional right to effective assistance of counsel and fundamental due process rights. Defendant has also raised a conflict of interest issue claim, arising out of the undisclosed business relationship between attorney Coleman and ADA Sharp, in which Sharp prepared draft appeals in criminal cases arising outside of Albany County during the period 2014-2018, encompassing the pendency of the Mero case (hereinafter the "Coleman/Sharp business relationship" or "business"). Defendant claims that undisclosed business undermined the integrity of the underlying trial, necessitating reversal.
FACT FINDING HEARING
On January 20, 2020, the Court granted a hearing on the 440 motion. The hearing took place on February 21, 26, and 27, 2020.
David Soares testified that he has served as Albany County District Attorney from January 1, 2005 to date. He also served as president of the District Attorney's Association from 2018-2019. DA Soares hired Steven Sharp as an Assistant District Attorney in 2009. He never spoke to ADA Sharp about the Mero case.
DA Soares testified that he is responsible to make and implement office policy. He also testified as follows:
"Q. Do you as a general matter of practice, personally, handle cases in trial courts?DA Soares testified that there is an unwritten policy prohibiting ADA's from performing criminal defense work (hereinafter referred to as "unwritten policy"). He agreed that a violation of that prohibition creates an appearance of impropriety. DA Soares acknowledged he never advised ADA Sharp about the policy. He also acknowledged he did not have any record to substantiate he ever communicated the terms of the unwritten policy to any individual prosecutor.
A. I do not.
Q. What about personally handle appellate issues?
A. I do not.
Q. Do you, typically, appear on the record?
A. I do not.
Q. Have you ever appeared on the record since you became DA?
A. No; I don't think I have."
On June 20, 2018, when ADA Horn advised him about the Coleman/Sharp business relationship. DA Soares testified that he was "shocked". DA Soares allowed ADA Sharp to continue to work until he elected to suspend him with pay on August 7, 2018. He accepted ADA Sharp's resignation on August 15, 2018.
DA Soares acknowledged he had previously issued an office ethics policy which created a misconduct review board. The office policy provided: "every allegation of prosecutorial misconduct...shall be reviewed by the board" (emphasis added). DA Soares testified that he did not to refer the subject misconduct issue to the review board, because he opted to review the Sharp/Coleman matter himself, along with Special Counsel Christopher Horn and Chief Assistant DA David Rossi.
Attorney Coleman testified at the hearing as follows. She acknowledged that ADA Sharp had prepared draft appellate briefs for her in four cases during the period 2014-2018. She paid him approximately $20,000.00. She she did not disclose the business relationship to anyone. She claimed that DA Soares did not like her and felt he would fire ADA Sharp if he found out he was working for her. She admitted she did not advise this Court about the business relationship and opined that she did not have any ethical obligation to do so. In fact, she characterized attorney Hug's request that she disclose the business to the Court as "extortion" and labeled him a "weasel" because he was exposing ADA Sharp to being fired.
Attorney Coleman testified that she met with Defendant Mero at the Albany County Jail and told him that ADA Sharp had done some appellate work for her and observed him smile in response. She then assured Mero that there wouldn't be advantage from the relationship. When asked if she told Mero that ADA Sharp was currently doing work for her, she testified that she didn't know. When asked if she told defendant that she was obligated to disclose the business relationship to the Court, she replied, no. Defendant Mero testified that attorney Coleman did not advise him about her business relationship with ADA Sharp.
Attorney Coleman was questioned about an incident that took place in the lobby of the courthouse during the trial (evening of December 11, 2017). She testified as follows: "What happened was I was present when a group of people, not involved in the case, afterwards, were making jokes. I did not take part in the joking, but I did not stop the joking either." (emphasis added) That testimony is in direct conflict with the following colloquy between the Court and Ms. Coleman that took place on the morning of December 12, 2017, to wit:
"The Court: Because as I understand from our conference in chambers, Ms. Coleman, that you were making derogatory comments about your client.Attorney Coleman testified that the so-called lobby discussion was an acceptable example of a trial attorney merely blowing off steam. Attorney Coleman testified that she was unaware that the juror was present during the lobby discussion, and once she realized the juror was in the lobby, she self-reported the event to the Court.
Ms. Coleman: I did" (emphasis added) (see Exhibit "1", p. 1321).
Defendant's counsel asked a series of questions concerning Ms. Coleman's alleged failure to follow witness leads, and alleged failure to call defendant's father, Douglas Mero as a trial witness. In a nutshell, Ms. Coleman had called one Anthony Greco as a trial witness (Exhibit A, pp. 1,451-1,464). Mr. Greco testified that on January 26, 2013 (the night of the fire) he was at his friend Megan Cunningham's home and that he left by 1:00 a.m. on January 27, 2013 (Exhibit "A" p. 1,454). He did not see the defendant (Exhibit "A" p. 1,462). At the hearing, defense counsel asked attorney Coleman why she failed to follow up on a lead that Greco had told the police he left at 3:00 a.m., and that Ms. Cunningham had texted a friend advising that Greco left her apartment at 3:15 a.m. That line of questioning was made in conjunction with the defense proffer that defendant's father, Douglas, could have testified he heard the alarm at his house at 3:00 a.m. and defendant was in his home at that time. Ms. Coleman responded that her decision not to challenge Greco, nor call Doug Mero as a trial witness, was a strategic decision. The defense also questioned Ms. Coleman about the alleged failure to investigate a claim that a Trooper had asked Chief P.J. McKenna if he was sure he had the right guy. Ms. Coleman responded that query rose to the level of opinion, not relevant facts.
The Court notes that the defense did not ask Ms. Coleman any questions about her alleged failure to investigate a witness named Romeo (see Affidavit of Julie Mero ¶ 29-35).
Cecelia Walsh is the public information officer for the Albany County District Attorney's office. She testified about the receipt of media inquiries about the Coleman/Sharp business relationship, and her responses thereto.
ADA Christopher Horn is special counsel to the DA. He testified that he told ADA Sharp that the DA's office policy prohibited the conduct of criminal defense work outside of the office. He also testified that such policy was very well known. He testified that on June 20, 2018, ADA Sharp advised him about the Coleman/Sharp business relationship, and he immediately reported same to DA Soares. ADA Horn testified he had no knowledge of the Coleman/Sharp business relationship before June 20, 2018.
Former ADA Sharp testified that he did prepare four (4) appellate draft briefs for Ms. Coleman and was paid $20,500.00 for the work. He testified he performed the work after hours, and that he had no access to attorney Coleman's office or files. He acknowledged engaging in 12 telephone calls with attorney Coleman during the trial period, albeit could not recall the substance of the calls. He completed his last job in January 2018 when he finished the draft brief in People v. West, 166 A.D. 3d 1080 [3d Dept. 2018].
ADA Sharp testified "there was no rule or policy in place in the DA's office" that would preclude such work. He testified that neither DA Soares, ADA Horn, ADA Rossi nor anyone else ever told him about any such policy or rule. He also testified that "if there was a rule in place, I would not have done it". He noted that it was well known that another assistant district attorney maintained an open law practice outside of DA work. ADA Sharp testified he did not disclose the outside work for he knows that DA Soares doesn't like Attorney Coleman.
The distinction between a part time and full time DA is of no consequence, for the claimed prohibition against outside criminal work would apply in either case.
ADA Rossi testified that he, too, was surprised when he first heard of the Coleman/Sharp business relationship. He did not know anything about it until June 20, 2018 when ADA Horn called him to advise. He testified that it was "self-evident" and "understood" that no such outside work was allowed, albeit he would not call that prohibition a "policy". ADA Rossi testified, "when I heard the name Alex West that had an impact on me" and "the affect that was going to have on the district attorney as president of the DA's association". ADA Rossi also testified, "I think I hadn't thought about the conflict, the impact, the fact that they had worked on cases opposed to each other, and the impact that it had because David was the president of the DA's association that was, sort of, when it all impacted me; the import of it" (emphasis added).
FINDINGS OF FACT
The credible evidence establishes the following facts. During the pendency of attorney Coleman's representation of Defendant Mero, she had an undisclosed, ongoing and mutually beneficial business relationship with ADA Sharp. ADA Sharp prepared four (4) appellate brief drafts in criminal cases arising outside of Albany County for attorney Coleman's use during the period running from 2014 to 2018. In consideration, Attorney Coleman paid $20,500.00 to ADA Sharp. In return, she received the benefit of prepared appellate briefs. Contemporaneous with the conduct of the Mero trial (i.e. November 29, 2017 to December 19, 2017), ADA Sharp was working on the appellate brief draft in People v. West, 166 A.D. 3d 1080 [3d Dept. 2018]. Attorney Coleman and ADA Sharp did not disclose their business relationship to the District Attorney or his staff.
Neither the Albany County District Attorney, nor his staff, had knowledge of the Coleman/Sharp business relationship until it was disclosed by ADA Sharp on June 20, 2018. The Albany County District Attorney did not. however, have any policy in effect that prohibited ADA Sharp from engaging in the disputed appellate work. Moreover, ADA Sharp was never advised that any such policy existed. ADA Sharp would not have performed the outside appellate work if a policy prohibiting same was in place. ADA Sharp's outside appellate work is the direct product of the District Attorney's lack of oversight in the day-to-day prosecutorial operations of the office and failure to establish office policy prohibiting such work.
As aforementioned, attorney Coleman claimed she told Defendant about her business with ADA Sharp and essentially assured defendant that the arrangement was above board. Defendant denied attorney Coleman ever disclosed same. Assuming arguendo, without deciding, that attorney Coleman so advised the defendant, it is manifest that Mr. Mero did not give informed consent to attorney Coleman's continued representation. Whether you credit Mr. Mero's or attorney Coleman's testimony, the result is the same, to wit: defendant was not fully informed about the existence of the appearance of an impropriety, the existence of a conflict of interest, his right to waive the conflict or seek new counsel, and his right to a judicial inquiry into the nature and impact of the conflict.
Neither attorney Coleman nor ADA Sharp advised this Court about the existence of their business relationship. Absent any office policy prohibiting such work, and in consideration of the fact that ADA Sharp was only in his 8th year of practice, it is manifest that ADA Sharp's failure to advise the Court about the business was not willful. Considering Attorney Coleman's 30 years of legal experience as of the trial date, her self-serving claim that she had no ethical obligation to disclose the business to the Court is not persuasive.
During the Mero trial, attorney Coleman was not conflict-free due to the business with ADA Sharp. Attorney Coleman repeatedly demonstrated that she was not single-mindedly devoted to her client's best interests as follows: (1) failed to obtain informed consent to waive the conflict from her client; (2) failed to disclose the conflict to the Court due to fear of repercussions to ADA Sharp, with no regard to her client's interests; (3) wrongfully characterized Attorney Hug's efforts to achieve full disclosure to the Court as extortion, and inappropriately called Hug a weasel, evidencing her myopic focus on her relationship with ADA Sharp, with no regard to her client's interests; and (4) publicly engaged in disparaging remarks about her client resulting in the discharge of a sworn juror mid-trial (see Exhibit "A" pp. 1,315 to 1,328).
The foregoing notwithstanding, having presided over the trial, this Court did not observe any conduct by ADA Sharp throughout the trial that was inconsistent with his zealous prosecution of the case. Moreover, this Court did not observe any conduct by attorney Coleman throughout the trial that was inconsistent with her zealous representation of her client.
STATEMENT OF LAW
The integrity of the judicial process is at stake in this proceeding. It is manifest that judicial integrity must be maintained to ensure fundamental fairness for all persons charged with a crime through due process of law (see Wood v. Ga, 450 U.S. 261, 273 [1981], where the Court reversed a conviction and remanded for a hearing on a conflict of interest issue, stating "we base our decision in this case on due process grounds"). The conflict issue merits a hard look.
The issues raised herein impact Defendant's constitutional rights to the effective assistance of counsel and fundamental fairness through due process of law (US Const, 5th, 6th and 14th Amdts; NY Const, art I, §6; see also, CPL 210.15 (2)).
The Sixth Amendment to the LIS Const. provides, inter alia: "in all criminal prosecutions, the accused shall enjoy the right...to have the assistance of counsel for his defence". Article 1 § 6 of the New York Constitution provides, inter alia: "in any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel..."
The Fifth Amendment to the US Const. provides, inter alia: "No person shall...be deprived of life, liberty, or property, without due process of law..." The Fourteenth Amendment to the US Const. provides, inter alia: "No Slate shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the law". Article 1 § 6 of the New York Constitution provides, inter alia: "no person shall be deprived of life, liberty or property without due process of law".
In People v. Harris, 77 N.Y. 2d 434, at 439 [1991], a case involving dual representation, the Court reaffirmed the significance of the constitutional right to due process and the effective assistance of counsel, holding,
"By constitutional and statutory interpretation, we have established a protective body of law in this area resting on concerns of due process, self-incrimination and the right to counsel provisions of the State Constitution which is substantially greater than that recognized by other State jurisdictions and far more expansive than the Federal counterpart. The Court has described the New York rule as a cherished principle, rooted on this State's prerevolutionary constitutional law and developed independent of its Federal counterpart. Manifestly, protection of the right to counsel has become a matter of singular concern in New York..." (underscored emphasis added: case citations and internal quotations omitted).While factually distinguished, the principle established in Harris is applicable, to wit: "Effective assistance is representation that is reasonably competent, conflict-free and singlemindedly devoted to the client's best interests" (People v. Harris, 99 N.Y. 2d 202, 209 [2002] (internal quotations and citations omitted) (emphasis added); see also, People v. Hill, 172 A.D. 3d 1095 [2d Dept. 2019]).
Where, as here, defense counsel was not conflict-free, nor single-mindedly devoted to her client's interests, the fundamental fairness of the process is at issue.
GENERAL INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Defendant claims he was deprived of the effective assistance of counsel due to the failure to impeach a witness and to call certain witnesses at trial as set forth above. It is well settled that "so long as the evidence, the law. and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement [i.e. effective assistance of counsel] will have been met" (see People v. Baldi, 54 N.Y. 2d 137, at 147 [1981]; see also, In People of the State of New York v. Cummings, 16 N.Y. 3d 784 [2011]: People v. Stultz, 2 N.Y. 3d 277, at 284 [2004]); People v. Ramsaran, 141 A.D. 3d 865, rev'd 29 N.Y. 3d 1070; People v. Wright, 25 N.Y. 3d 769); People v. Cassala, 130 A.D. 3d 1252, Mot. For Lv. To App. Denied, 27 N.Y. 3d 994; People v. Caldavado, 26 N.Y. 3d 1034 (Nov. 23, 2015)).
Here, the record demonstrates that attorney Coleman properly filed pre-trial motions, engaged in suppression hearings, intelligently participated in jury selection, gave a cogent opening statement at trial, vigorously cross-examined witnesses, presented defense witnesses (made strategic determinations relative thereto), participated in the charge conference and made a cogent closing statement. But for and subject to the conflict of interest claim discussed below, attorney Coleman facially provided meaningful counsel.
CONFLICT OF ISSUE CLAIM
In People v. Ennis, 11 N.Y. 3d 403, 410 [2008J, the Court recognized the general context in which conflict claims arise, stating "To date, our conflict of interest cases have generally fallen into one of two categories: cases where a potential conflict of interest was identified based on defense counsel's previous or concurrent representation of a client whose interests conflicted with those of defendant and cases where defense counsel became a witness against defendant" (internal citations omitted). Conflict issues are not. however, limited to the general context (People v. Longton, 92 N.Y. 2d 640, 644, where court held, "nor are conflicting interests limited to the simultaneous representation of clients"). The subject conflict claim does not fall squarely within the general category, but it is real.
It is undisputed that ADA Sharp and attorney Coleman, maintained an undisclosed and mutually beneficial business relationship contemporaneous with the pendency of this case. Rule 1.7 of the Rules of Professional Conduct provides:
"Conflict of interest: Current ClientsThe foregoing conflict may be waived if the "affected client gives informed consent, confirmed in writing" (See Rule 1.7 (b) (4)). During the Mero trial, the contemporaneous brief preparation in the West case was a direct violation of Rule 1.7. Clearly, the record is barren of any evidence of informed consent. The mutually beneficial business arrangement stands in stark contrast to the required adversarial process of the Mero trial.
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if a reasonable lawyer would conclude that either:
(1) The representation will involve the lawyer in differing interests; or
(2) There is a significant risk that the lawyer's professional judgment on behalf of a client will be affected by the lawyer's own financial, business, property or other personal interests." (22 NYCRR 1200.7 Rule 1.7)
While rules of professional conduct are not dispositive (see People v. Grimes, 32 N.Y.3d 302, 317 [2018]), a rule violation is a considered factor in the conflict analysis.
Moreover, the business controverts the provisions of Rule 1.11 (d) (2) of the Rules of Professional Conduct, which provides:
"...a lawyer currently serving as a public officer or employee shall not: negotiate for private employment with any person who is involved ...as lawyer for a party in a matter in which the lawyer is participating personally and substantially".As applied, ADA Sharp negotiated an employment agreement with attorney Coleman, who was representing defendant Mero, and ADA Sharp was personally and substantially prosecuting Mero. The conflict is plain (see People v. Zimmer, 51 N.Y. 2d 390, 395 [1980], where the Court held DA's dual role as prosecutor and corporate attorney/stockholder for corporate victim necessitated recusal for the "conflict was plain"; see also, Matter of Pinney v. Van Houten, 168 A.D. 3d 1293, 1296 [3d Dept. 2019], where the Court held,
"A district attorney is an elected officer charged by statute with the duty to prosecute all crimes and offenses arising within his or her jurisdiction (see Matter of Soares v Herrick , 20 NY3d 139, 144, 981 NE2d 260, 957 NYS2d 664 [ 2012]). These responsibilities must "be conducted in a manner that foster[s] rather than discourage[s] public confidence in our government and the system of law to which it is dedicated" ( People v Zimmer , 51 NY2d 390, 396, 414 NE2d 705, 434 NYS2d 206 [1980]). The appearance of impropriety that could arise from the public perception that a district attorney will investigate or prosecute an individual in a selective manner discourages public confidence in a fundamental governmental function and, therefore, affords a sufficient basis for a district attorney to recuse himself or herself".The record establishes an appearance of impropriety and corresponding an objective basis to assert the conflict of interest claim (c.f. People v. Wright, 27 N.Y. 3d 516 [2016]).
As aforementioned, DA Soares testified that he did not have any knowledge of the Coleman/Sharp business relationship. Despite his apparent detachment from the day-to-day prosecutorial operations of his office, DA Soares is charged with constructive knowledge of the conflict (see People v. Mattison, 67 N.Y. 2d 642, at 471 [1986], where the Court held, "we have made clear that for the purpose of disqualification of counsel, knowledge of one member of a law firm will be imputed by inference to all members of that law firm" (internal quotations omitted)). DA Soares admitted the business relationship created an appearance of an impropriety. Chief Assistant Rossi testified that the "conflict" became most evident when considering the import of the West case.
Both attorney Coleman and ADA Sharp breached their mandatory affirmative duty to disclose the business relationship to the court (Rule 3.4 (a) (3) of the Rules of Professional Conduct). Attorney Coleman also breached her corresponding duty to fully advise her client.
In People v. Wandell, 75 N.Y. 2d 951 [1990], the Court addressed defendant's conflict claim arising out of defense counsel's concurrent representation of the prosecution's primary witness. Both defense and prosecution "were acutely aware that a conflict existed", and their failure to apprise the Court was "inexcusable" (i.d. at 953) The Court held.
"both the prosecution and defense counsel are under a mandatory affirmative obligation both to recognize the existence of a potential conflict and to alert the court to the facts and circumstances surrounding that potential conflict...so that the Trial Judge can conduct a record inquiry and be satisfied that the defendant has an awareness of the potential risks involved in that
course and has knowingly chosen it" (internal citations and quotations omitted; emphasis added) (i.d. 952); see also People v. Prescott, 21 N.Y. 3d 925 [2013], where the Court held, "Counsel has the duty to inform the client and the court so that the court may ascertain the nature of the conflict and give the client an opportunity to waive it." (id. at 927)); People v. Solomon, 20 N.Y. 3d 91 [2012] where the Court held, "We have specifically held, and now reaffirm, that a defendant is denied the right to effective assistance of counsel guaranteed by the Sixth Amendment when, absent inquiry by the court and the informed consent of defendant , defense counsel represents interests which are actually in conflict with those of the defendant" (citation omitted)" (id. at 97) (emphasis added); People v. McDonald, 68 N.Y. 2d 1. at 8 [1986], where the Court held, "initially it is defense counsel's burden to recognize the existence of a potential conflict of interest, to alert both the client and the court to the potential risks involved, and to obtain the client's informed consent to counsel's continued representation despite those risks").
In People v. Brown, 33 N.Y. 3d 983 [2019], the Court of Appeals succinctly identified two categories of conflict, actual or potential, as follows: "An actual conflict of interest arises when an attorney has divided and incompatible loyalties within the same matter necessarily preclusive of single-minded advocacy. A potential conflict, on the other hand, is one that may never be realized... and it is the defendant's heavy burden to show that a potential conflict actually operated on the defense" (underscored emphasis added; citation and internal quotations omitted) (Id. at 987); see also, People v. Cortez, 22 N.Y. 3d 1061 [2014]); People v. Sanchez, 21 N.Y. 3d 216, at 223 [2013], where the Court held "an actual conflict exists if an attorney simultaneously represents clients whose interests are opposed, and, in such situations, reversal is required if the defendant does not waive the conflict" (underscored emphasis added)). There is, however, a third category of conflict, i.e. conflict per se.
In Ventry v. United States, 539 F. 3d 102, 111 [U.S. Ct of Appeals 2nd Circuit 2008], the Court defined the categories of conflict of interest as follows:
"Per se conflicts . . . are so severe that they are deemed per se violations of the Sixth Amendment. Such violations are unwaivable and do not require a showing that the defendant was prejudiced by his representation. Actual conflicts occur when the interests of a defendant and his attorney diverge with respect to a material factual or legal issue or to a course of action, and violate the Sixth Amendment when counsel's representation of the client is adversely affect[ed] by the existence of the conflict. Potential conflicts exist if the interests of the defendant may place the attorney under inconsistent duties at some time in the future and violate the Sixth Amendment when they "prejudice . . . the defendant" (internal quotations and citations omitted) (emphasis added).; see Dissenting Opn. in People v. Payton, 100 A.D. 3d 786, 795 [ 2d Dept. 2012], where the Court recognized, "The New York Court of Appeals has also recognized the existence of per se conflicts (see People v Shinkle , 51 NY2d 417, 420, 415 NE2d 909, 434 NYS2d 918 [1980])").
Since the subject conflict arose out of Coleman/Sharp's work on collateral cases, it is not an "actual" conflict. The issue distills to whether the business relationship established either a potential conflict and/or a conflict per se.
POTENTIAL CONFLICT
As a potential conflict, defendant bears a heavy burden to prove "that the conduct of his defense was in fact affected by the operation of the conflict of interest or the conflict operated on the representation" (People v. Harris, supra. at 210) (emphasis added). In People v. Sanchez, 21 N.Y. 3d 216, at 223 [2013], the Court expanded its analysis of what it means to operate on the defense as follows:
"a potential conflict that is not waived by the accused requires reversal only if it operates on or affects the defense- i.e. the nature of the attorney-client relationship or underlying circumstances bear a substantial relation to the conduct of the defense". The requirement that a potential conflict have affected, or operated on, or borne a substantial relation to the conduct of the defense- three formulations of the same principle- is not a requirement that the defendant show specific prejudice. Nevertheless, it is the defendant's heavy burden to show that a potential conflict actually operated on the defense" (citations omitted) (underscored emphasis added) (id. at 223)";(see People v. Recupero, 73 N.Y. 2d 877, 879 [1988], where the Court recognized the lack of definition in the review standard, holding.
"... vacatur of the plea will only result where the defendant demonstrates that a significant possibility of a conflict of interest existed bearing a substantial relationship to the conduct of the defense. We have not attempted to define significant possibility previously, preferring to analyze conflict claims on a case-by-case basis. Our decisions make clear, however, that a significant possibility is more than a potential conflict of interest and that before relief will be accorded the conflict must do more than exist, it must have operated"; see also, People v. Ortiz, 76 N.Y. 2d 652, 657 [1990]).
In People v. Abar, 99 N.Y. 2d 406 [2003], the Court, rejected Defendant's ineffective counsel claim based on counsel's conflicting and successive duties, first as prosecutor, and next as defense counsel in the same case. The Court held the conflict did not operate on the defense, stating,
"the concerns that arise when a defense attorney, who has acquired confidences from a client based on their attorney-client relationship, changes employment and undertakes the prosecution of that individual are not necessarily implicated here. Put another
way, there is no evidence that the Public Defender obtained any information about defendant through her prior employment as an assistant district attorney that compromised her representation of him" (id. at 410)By way of contrast, in People v. Shinkle, 51 N.Y. 2d 417, 421 [1980], the Court vacated the conviction based on the successive representation by counsel, first as the defendant's attorney, and then as District Attorney in the same case (see also, People v. Good, 62 A.D. 3d 1041 [3d Dept. 2009]). As more fully discussed below, the court vacated the conviction without the necessity of finding that the conflict operated on the defense.
In People v. Berroa, 99 N.Y. 2d 134 [2002], the defense attorney interviewed witnesses who could not establish an alibi defense, and she called those witnesses in furtherance of a misidentification defense. The witnesses testified, however, in support an alibi defense. The attorney thus became a potential witness, creating a conflict of interest. Counsel entered a stipulation the witnesses had not previously made statements to support an alibi which "crystallized rather than cured the conflict of interest" (i.d. at 142). The Court reversed the conviction, finding the conduct bore a substantial relation to the conduct of the defense.
As aforementioned, the subject conflict claim does not arise out of successive representations as in Abar and Shinkle. The potential conflict is, however, akin to the conflict in Berroa. Here, attorney Coleman engaged in out-of-court discussions with third parties, in which she made disparaging statements about her client, all within earshot of a sworn juror, culminating in her stipulation to discharge that juror. Rule 3.5 (a) (4) of the Rules of Professional Conduct (22 NYCRR 1200.7 Rule 3.5 (a) (4)) prohibits communication with a juror. That potential conflict became very real during the trial when the juror claimed he had not heard nor paid attention to so-called Coleman lobby discussion, in direct contradiction to Ms, Coleman's versions of the event. Frankly, but for the stipulation of the parties to discharge the juror. Ms. Coleman became a potential witness in the juror inquiry under CPL §270.35 (see People v. Sher, 24 N.Y. 2d 454, where Court conducted inquiry on communications made to a juror during the trial).
Trial by jury is the cornerstone of our system of justice. Art. 1 §2 of the New York State Constitution provides: "Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever..." (see also USCS Const. Amend. 6 which provides: "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury..."). Jury selection is a material part of and commences a trial (CPL §1.20 (11) and §260.30 (1)). As a direct result of attorney Coleman's misconduct by openly disparaging her client, the loss of a sworn juror clearly operated on the defense of the case.
An issue exists, however, as to whether that misconduct arose out of the business conflict in this case. Attorney Coleman's public disparagement of her client was an outrageous demonstration that she was not single-mindedly devoted to her client's best interests. The foregoing notwithstanding, ADA Sharp was not present during the lobby fiasco. There is no causal relationship between attorney Coleman's disparaging remarks and the business relationship with Sharp.
As aforementioned, during the trial itself, and notwithstanding attorney Colman's disparaging her own client, both attorney Coleman and ADA Sharp zealously and effectively represented their respective interests. It is the finding of this court that the potential conflict arising out of the business did not operate on the conduct of the defense or representation.
CONFLICT PER SE
Attorney Hug alleged that Coleman "likely shared information with former ADA Sharp" (see Hug Aff¶ 108). Both attorney Coleman and ADA Sharp testified that no confidences were disclosed; frankly, I found that testimony to be wholly credible. Such finding is not dispositive, however, for defendant does not have the burden to prove actual prejudice.
In People v. Shinkle, supra. at 420-421, the court vacated the conviction without finding that the conflict operated on the defense. In so doing, the Court held.
"The fact that the attorney who had initially represented defendant and participated actively in the preparation of his defense was chief assistant in the office of the prosecutor in the months preceding and during defendant's trial inescapably gave both defendant and the public the unmistakable appearance of impropriety and created the continuing opportunity for abuse of confidences entrusted to the attorney during the months of his active representation of defendant. It is no answer that defendant offers no evidentiary proof of actual prejudice. In the circumstances such proof would most likely be out of defendant's reach. Nor docs it serve to protect the interests of defendant that procedures were devised and scrupulously followed to insulate Leopold from the prosecution of this case. The inherent impropriety of the situation is further demonstrated in this instance when, in an attempt to show that the insulation was practically effective, the People circuitously resorted to an affirmation from Leopold himself. In defendant's perception it was his former attorney who was personally championing the People's cause against him.
Defendant, and indeed the public at large, are entitled to protection against the appearance of impropriety and the risk of prejudice attendant on abuse of confidence, however slight. We recognize that the rule applied in this case may impede the transfer of attorneys between offices of Legal Aid or Public Defender and of District Attorney. This circumstance, however.
affords no basis to deny defendants the right to both the fact and appearance of unswerving and exclusive loyalty on the part of attorneys who represent them." (emphasis added)While Shinkle dealt with conflict arising out of successive representation in the same case (i.e. an actual conflict), conflicts are not limited to any fact pattern but must be assessed on a "case-by-case basis" (see People v. Recupero, supra.; People v. Longton, supra.).
Here, the People also resorted to obtaining an affidavit from attorney Coleman to support their opposition to the motion, evidencing that attorney Coleman is championing the People's cause against her own client.
In People v. Herr, 86 N.Y. 2d 638 [1995], the Court addressed the conflict issue arising out of defense counsel's part time work as a "Village Prosecutor". The Court elevated risk from "however slight", adopted in Shinkle, to a "substantial risk of an abuse of confidence", stating.
"Thus, the rule of Shinkle is that disqualification is required when there is a risk of prejudice attendant on the abuse of confidence. ...The courts, as a general rule, should remove a public prosecutor only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence ... and the appearance of impropriety, standing alone, might not be grounds for disqualification. The objector should demonstrate actual prejudice or so substantial a risk thereof as could not be ignored". (underscored emphasis added)Finding the Village Prosecutor "had no connection to the office of the District Attorney charged with prosecuting defendant", the Court found there "was no opportunity for the abuse of confidences comparable to that which existed in Shinkle" (i.d. at 642) (emphasis added).
In People v. Adams, 20 N.Y. 3d 608, 612-613 [2013], the complainant was a sitting City Court Judge. The District Attorney appeared before the City Court Judge/Complainant daily. The defendant was her neighbor and ex-paramour. The defense cited disparate treatment and moved for the appointment of a Special Prosecutor. In granting the application for the appointment of a special prosecutor, the Court clarified the meaning of the phrase "a substantial risk of an abuse of confidence" as follows:
"The courts, as a general rule, should remove a public prosecutor only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence. The latter phrase refers to the opportunity for abuse of confidences entrusted to [an] attorney. In general, [t]he objector should demonstrate actual prejudice or so substantial a risk thereof as could not be ignored. However, in rare situations, the appearance of impropriety itself is a ground for disqualification, as our case law recognizes, when the appearance is such as to discourage public confidence in our government and the system of law to which it is dedicated. In a case of that nature, [d]efendant[s], and indeed the public at large, are entitled to protection against the appearance of impropriety. We are persuaded by the unique circumstances that this is such a case." (Internal quotations and citations omitted; emphasis added)Clearly, in Adams, the Court was dealing with a unique fact pattern that did not fall squarely into the general category of conflict claims more fully addressed above. The Court also held that it was the appearance of impropriety itself that required disqualification (c.f. Matter of Columbia County Subpoena Duces Tecum Dater Mar. 20, 2013 (Czajka), 118 A.D. 3d 1081, 1083 [3d Dept. 2014]. where court held "there has been no showing that the investigation...presents the rare situation in which the appearance of impropriety itself is a ground for disqualification" (internal citations and quotations omitted) (emphasis added)).
To prevail, defendant need not show that there was an actual disclosure of confidences. Rather, defendant must show that the impropriety itself created the "opportunity for abuse of confidences" and is of such a nature that it undermines both the defendant's and the public's confidence in the integrity of the judicial process. Here, DA Soares admitted he was "shocked" by the business disclosure. Chief Assistant Rossi admitted that he recognized the "import" of the conflict. Considering these reactions, it is manifest that the defendant and the public, too, would recognize the import of and be shocked by the poor judgment exercised by both attorney Coleman and ADA Sharp. Like the circumstance in Herr, however, ADA Sharp had no access to Coleman's offices or files, thus limiting opportunity for abuse of confidences.
In fine, this is not one of those rare cases where the impropriety is so egregious that it undermines public confidence in the judicial process necessitating vacatur of the jury verdict and corresponding sentence.
For the reasons set forth above. Defendant's motion to vacate his conviction and sentence is DENIED.
This memorandum constitutes both the decision and order of the Court. Dated: Albany, New York
March 6, 2020.
/s/_________
PETER A. LYNCH, J.S.C. PAPERS CONSIDERED:
1. Notice of Motion to Vacate Conviction dated December 27, 2019, with the supporting Affirmation of Matthew C. Hug, dated December 27, 2019, the Affidavit of Edward Mero dated November 27, 2019 and the Affidavit of Julie Mero dated December 23, 2019;440 Hearing Exhibits: Defendant's Exhibits:
2. Memorandum of Law by Attorney Hug dated December 27, 2019;
3. Memorandum of Law by ADA Vincent Stark dated January 17, 2019, with exhibits, including but not limited to the Affidavit of David Rossi dated 1/17/2020 and the Affidavit of Cheryl Coleman dated 1/17/2020; and
4. Post-Hearing Memorandum of Law by ADA Vincent Stark dated March 4, 2020.
A. People's Response to Subpoena Duces Tecum dated February 6, 2020 with attachments (Bates page number 1 to 442);
B. Attorney Hug e-mail to DA Soares dated 6/26/18 with attached letter to Judge Roger McDonough dated June 21, 2020;
I. Appellate Brief - People v. Banks:
J. Appellate Brief - People v. Michael Nichols
Q. Appellate Brief - Ganesh Ramsaran
Upon issuance of this decision, all exhibits are to be returned to the parties who introduced them.
People's Exhibits:
1. People v. Mero Trial Transcript (2 Volumes, pp. 1 - 1,764) 1 (a) CD - electronic version of trial transcript