Opinion
No. 10–4317.
2012-02-22
The PEOPLE of the State of New York, Plaintiff, v. Mannie URIE, Defendant.
Westchester County District Attorney, Theresa Gerardi, Esq., Mount Vernon, for Defendant.
ADAM SEIDEN, J.
Defendant is charged by misdemeanor information with Assault in the Third Degree (PL 120.00) and Harassment in the Second Degree (PL 240.26).
A jury trial was commenced on November 14, 2011; the was jury impaneled and both parties gave opening statements. The trial continued on November 15, 2011. The People called the complainant, John Collins to testify. After giving testimony on direct and cross-examination, the complainant informed ADA Steve Ronco that defense counsel, Theresa Gerardi, had represented him in the past on an unrelated vehicle and traffic matter. ADA Ronco informed the Court of same and upon a review of the Court file with respect to the complainant's previous case, the Court found that Ms. Gerardi did not represent him on a misdemeanor traffic matter. However, when confronted with Mr. Collins' statement, Ms. Gerardi disclosed to the Court that she did in fact, represent Mr. Collins on a prior felony charge that had been reduced to a violation and sealed. This Court declared a mistrial without prejudice to the People, based upon the fact that Ms. Gerardi failed to disclose to the Court, prior to the start of the trial and prior to Mr. Collins's examination, that she represented the prosecution's chief witness in the past.
Defendant now brings this motion seeking to dismiss the accusatory: 1) in the interest of justice, and 2) on the grounds that double jeopardy has attached.
The People oppose the motion.
In support of the motion to dismiss, defense counsel argues that the complainant, John Collins, incorrectly told ADA Ronco that she represented him on an aggravated unlicensed operation of a motor vehicle charge about which she had cross-examined him during his testimony. Defense counsel states that she advised ADA Ronco and the Court that it was not the case, but that she had represented the complainant in a felony matter in 2002 or 2003 which resulted in a plea to a violation. Defense counsel states that she did not cross-examine the complainant about that matter in which she represented him because that record is sealed. She also argues that she advised the Court that she divulged the previous representation of the complainant to defendant and that defendant opted to continue to have her continue to represent him in this matter. Defense counsel argues that the Court erred when it failed to conduct an inquiry of the defendant and the complainant prior to declaring a mistrial.
In support of that branch of the motion seeking to dismiss in the interest of justice, defendant argues, inter alia, that trial testimony revealed numerous inconsistencies in the complainant's version of events. Defendant further argues that he is innocent of the charges and has no criminal record. He maintains that the confidence of the jury system would only improve since dismissal of the charges will save the time, money and energy expended on another trial.
In support of that branch of the motion seeking dismissal based upon a claim that double jeopardy has attached, defendant argues that the Court abused its discretion in declaring a mistrial sua sponte without consent of defense counsel since there was no “manifest necessity” to discharge the jury. Defense counsel argues that the Court did not consider proper alternatives before declaring a mistrial, i.e. conducting inquiries of the complainant and defendant about potential conflicts and their consent or non-consent to defense counsel's representation. She also argues that the Court failed to articulate physical impossibility to proceed with the trial. Defense counsel maintains that the Court did not specifically address any physical impossibility other than to say that defense counsel had created “an impossible situation” that could not be corrected sufficiently. Accordingly, counsel argues that since the Court failed to sustain a burden of showing physical impossibility or manifest necessity to declare a mistrial, the information must be dismissed.
In opposition to the motion, the People argue that the Court had sufficient manifest necessity to declare a mistrial based upon Ms. Gerardi's failure to disclose to the Court or the District Attorney's Office that she had represented the complainant on a prior felony charge. ADA Ronco argues that the defendant was never able to make a knowing and intelligent waiver of his conflict on the record prior to trial because defense counsel's prior representation was never disclosed in open court until after the complainant testified. Further, neither the Court nor the District Attorney's Office were able to make a full and complete inquiry on the record as to any potential conflict or reservation the complainant or defendant may have had. ADA Ronco argues that Ms. Gerardi, as the complainant's prior attorney, could have been aware of certain facts that she would be precluded in bringing up on cross-examination based on attorney-client privilege. The People argue that it was Ms. Gerardi's duty and responsibility to be candid and forthright with the Court and she failed to do so. Thus, the People maintain that declaration of a mistrial was a manifest necessity and they should not be barred from continuing the prosecution of its case due to the disingenuous conduct of defense counsel. Finally, the People argue that the proper remedy is to have new counsel assigned or retained and proceed with the case at a second jury trial.
The Court will first address defendant's application to dismiss in the interest of justice. The charges against the defendant stem from an incident occurring on October 13, 2010 at Mt. Vernon High School, where he is alleged to have gotten in an argument with Mr. Collins, a fellow custodian, grab him by the throat, choke him and state “I'll kill you boy”. As a result of this conduct, it is alleged that Mr. Collins suffered substantial pain, specifically 4 lacerations to his neck and bleeding which required medical treatment.
Criminal Procedure Law § 170.40 sets forth the factors to be considered in determining the appropriateness of a dismissal in the interest of justice. A dismissal in the interest of justice is required when “some compelling factor, consideration or circumstance” exists “clearly demonstrating that conviction or prosecution of the defendant ... would constitute ... injustice.” SeeCPL § 170.40. Dismissal should be “ ‘exercised sparingly’ and only in that ‘rare’ and ‘unusual’ case where it ‘cries out for fundamental justice beyond the confines of conventional considerations.” People v. Belge, 41 N.Y.2d 60, 62 (1976); People v. Howard, 151 A.D.2d 253, 256 (1st Dept 1989). In consideration of all the statutory factors set forth in CPL 170.40, the court finds that dismissal in the interest of justice is not warranted under these circumstances. The mere fact that the defendant has no prior record, or has an exemplary background is insufficient to justify the exercise of the court's discretion to dismiss the case (People v. Bebee, 175 A.D.2d 250 (2d Dept 1991)).
The Court will now address defendant's double jeopardy argument. The double jeopardy clauses of the state and federal constitutions protect an accused from multiple prosecutions for the same offense (See CPL § 40.30(1)(b)). In a trial by jury, once a jury is impaneled and sworn, jeopardy attaches ( Id.). When the Court declares a mistrial sua sponte, without the defendant's consent or at defendant's objection, a retrial will be prohibited unless there is a showing of manifest necessity for declaration of a mistrial or the ends of public justice would be defeated by failure to declare a mistrial (Cohen v. Lotto, 19 AD3d 485 (2d Dept 2005) (citing People v. Ferguson, 67 N.Y.2d 383, 388 (1986)). “In determining whether such manifest necessity exists, there must be a high degree of necessity before concluding that a mistrial is appropriate, i.e., the reasons underlying the grant of the mistrial must be necessitous, actual and substantial' “ ( Id.) citing Matter of Kleigman v. Justices of Supreme Ct., Kings County, 285 A.D.2d 646, 647 (1983)). “Even if the reasons for granting a mistrial are deemed actual and substantial, the court must explore all appropriate alternatives prior to granting a mistrial” ( Id.).
“[B]oth 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 (see People v. McDonald, 68 N.Y.2d 1, 8), 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' “ (People v. Wandell, 75 N.Y.2d 951 (1990) (citing People v. Gomberg, 38 N.Y.2d 307). An inquiry is vital “because defendants may not always sense when a conflict exists or perceive how it might undermine effective representation” ( Id. (citing People v. Mattison, 67 N.Y.2d 462, 468 (1986)). Where defense counsel and the prosecution are aware that an actual or potential conflict exists, they must bring it to the court's attention at the outset of trial (People v. Lombardo, 61 N.Y.2d 97 (1984); a late disclosure or failure to bring the underlying facts to the court's attention is inexcusable and a new trial will be ordered ( People v.. Wandell, supra at 953).
Here, the Court's declaration of a mistrial was a manifest necessity because defense counsel did not disclose her prior representation of the complaining witness/victim until after he testified on direct and cross-examination against the defendant and was off the witness stand. Defense counsel argues that the Court should have conducted an inquiry of both the complainant and the defendant prior to declaring a mistrial. The Court finds that this argument is irrational and has no merit. An inquiry of the complainant or the defendant AFTER testimony had been taken would have been moot and serve no purpose (emphasis added). By failing to disclose the prior representation, defense counsel prevented the Court from ascertaining, on the record, whether the defendant had an awareness of the potential risks involved in his continued representation by Ms. Gerardi and had knowingly chosen to continue such representation. Defense counsel's argument that she disclosed her prior representation of the complainant to the defendant, and defendant still desired her representation, is baseless. The right to counsel of choice is not absolute (People v. Gordon, 272 A.D.2d 133 (2000) (citing Wheat v. United States, 486 U.S. 153 (1988). The client is not the one to determine whether his attorney can continue representation. It is the Court that must balance the public's perception of the judicial system, the integrity of the judicial system, and the enforcement of ethical standards of legal practice. When these interests are in need of protection, they override a waiver of the right to client confidentiality and justify the removal of defense counsel from a case (People v. Twedt, 7 Misc.3d 665 (Sup Ct. Bronx Co.2005)). A lawyer representing two clients whose interests actually conflict cannot give either client undivided loyalty. It has been held that the right to effective assistance of counsel had been violated when a lawyer represented both a defendant and the chief prosecution witness ( People v. Wandell, supra ) or a defendant accused of a crime and the victim of that crime (People v. McDonald, 68 N.Y.2d 1, 9). Even though a representation has ended, a lawyer has a continuing professional obligation to a former client, including the duty to maintain the client's confidences and secrets (People v. Alicea, 61 N.Y.2d 23, 29), which may potentially create a conflict between the former client and present client.
Here, defense counsel's prior representation of the complaining witness/victim in this case was clearly a conflict of interest ( People v. Twedt, supra; see also People v. Hall, 46 N.Y.2d 873 (1979)). Defense counsel had knowledge of a prior arrest and conviction against Mr. Collins, yet she did not disclose it or question the complainant about it on cross-examination, even though that information could have helped the defendant's case. Further, counsel never spoke to her former client/the complainant, about her representation of the defendant. When continued representation “work[s] unfair prejudice either to the prosecution or to defendant”, counsel should be disqualified ( Id.). Accordingly, the Court finds that under the conflict rules of the Code of Professional Responsibility, the representation of the defendant by defense counsel was improper. A mistrial was properly declared out of manifest necessity and it was impossible for the court to continue with the jury trial. Therefore, the motion to dismiss on the grounds that double jeopardy has attached is denied. Ms. Gerardi is removed from the case to protect the integrity of the judicial system and enforce ethical standards of legal practice. The defendant shall retain new counsel.
Motion denied.
This constitutes the Decision and Order of this Court.