Opinion
390 KA 19-00963
06-30-2023
The PEOPLE of the State of New York, Respondent, v. Michael JACKSON, Defendant-Appellant.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, MONTOUR, OGDEN, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of stolen property in the third degree ( Penal Law § 165.50 ), criminal possession of stolen property in the fourth degree (§ 165.45 [5]), unauthorized use of a vehicle in the third degree (§ 165.05 [1]), and endangering the welfare of a child (§ 260.10 [1]).
Viewing the evidence in light of the elements of the criminal possession counts as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention that the verdict with respect to those counts is against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
We agree with defendant, however, that Supreme Court violated his right to counsel when it failed to conduct a sufficient inquiry into defendant's complaint that his assigned counsel accepted payment from his family. "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 [1978] ; see US Const 6th Amend; NY Const, art I, § 6 ; People v. Linares , 2 N.Y.3d 507, 510, 780 N.Y.S.2d 529, 813 N.E.2d 609 [2004] ). Consistent with that guarantee, trial courts have the "ongoing duty" to " ‘carefully evaluate serious complaints about counsel’ " ( Linares , 2 N.Y.3d 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 [1990] ).
"Whether counsel is substituted is within the ‘discretion and responsibility’ of the trial judge ..., and a court's duty to consider such a motion is invoked only where a defendant makes a ‘seemingly serious request[ ]’ " ( People v. Porto , 16 N.Y.3d 93, 99-100, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010] ). "[I]t is incumbent upon a defendant to make specific factual allegations of ‘serious complaints about counsel’ " ( id. at 100, 917 N.Y.S.2d 74, 942 N.E.2d 283 ; see People v. Gibson , 126 A.D.3d 1300, 1301-1302, 6 N.Y.S.3d 198 [4th Dept. 2015] ). If such a showing is made, "the court must make at least some minimal inquiry to determine whether the defendant's claims are meritorious" ( People v. Tatum , 204 A.D.3d 1400, 1401, 166 N.Y.S.3d 764 [4th Dept. 2022], lv denied 38 N.Y.3d 1074, 171 N.Y.S.3d 439, 191 N.E.3d 391 [2022] ; see Porto , 16 N.Y.3d at 100, 917 N.Y.S.2d 74, 942 N.E.2d 283 ).
Here, defendant sent a letter to the court alleging, inter alia, that his assigned counsel was being paid by his family, which is a serious complaint involving unethical and illegal conduct (see generally County Law § 722-b [4] ). Although the court began to engage defense counsel in a discussion concerning defendant's letter, before defense counsel was able to address the concerns raised by defendant in the letter, the court interjected and said, "You are going to represent [defendant] at trial." The court then addressed defendant directly and concluded its comments to him by stating, inter alia, "You are not going to get another attorney." At no time did the court make any inquiry into defendant's allegation that his family had paid defense counsel to represent him. Under the circumstances here, we conclude that the court violated defendant's right to counsel by failing to make a minimal inquiry concerning his serious complaint (see generally Sides , 75 N.Y.2d at 825, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ).
Contrary to the People's assertion, we cannot conclude on this record that defendant abandoned his request for new counsel (cf. People v. Molina , 208 A.D.3d 1641, 1642-1643, 175 N.Y.S.3d 651 [4th Dept. 2022], lv denied 39 N.Y.3d 964, 179 N.Y.S.3d 160, 200 N.E.3d 105 [2022] ; see also People v. Rodriguez , 46 A.D.3d 396, 397, 848 N.Y.S.2d 94 [1st Dept. 2007], lv denied 10 N.Y.3d 844, 859 N.Y.S.2d 402, 889 N.E.2d 89 [2008] ; see generally People v. Mezon , 80 N.Y.2d 155, 161, 589 N.Y.S.2d 838, 603 N.E.2d 943 [1992] ).
We therefore reverse the judgment and grant a new trial (see Gibson , 126 A.D.3d at 1301, 6 N.Y.S.3d 198 ; People v. Bryan , 31 A.D.3d 295, 295, 818 N.Y.S.2d 217 [1st Dept. 2006] ). In light of our determination, we do not address defendant's remaining contentions.