Opinion
CA2016-001539
06-12-2017
In the Matter of the Application for Discharge of Wayne J., Consec. No. 127873, From Central New York Psychiatric Center Pursuant to MHL § 10.09, Petitioner, v. The State of New York, The New York State Office of Mental Health and The New York State Department of Corrections and Community Supervision, Respondents.
Wayne J., pro se Benjamin Coffin, Esq. Appointed Counsel for Wayne J. State of New York Office of the Attorney General Eric T. Schneiderman, Esq., Attorney General By: Christopher W. Schlecht, Esq. Assistant Attorney General Counsel for Respondents
Wayne J., pro se Benjamin Coffin, Esq. Appointed Counsel for Wayne J. State of New York Office of the Attorney General Eric T. Schneiderman, Esq., Attorney General By: Christopher W. Schlecht, Esq. Assistant Attorney General Counsel for Respondents Louis P. Gigliotti, J.
Pending before the Court is a motion by Petitioner Wayne J. to have new counsel appointed or to proceed with his Mental Hygiene Law (MHL) article 10 annual review hearing pro se. By Order dated April 14, 2016, Benjamin Coffin, Esq. was appointed to represent Wayne J. following a motion by Mental Hygiene Legal Service (MHLS) to withdraw from representation, to which relief Wayne J. consented. In a pro se letter dated March 12, 2017, Wayne J. asked to be relieved of counsel. He claimed that Mr. Coffin failed to file a petition for an annual review hearing and failed to return phone calls and letters. The Court chose to treat Wayne J.'s letter as a motion and set forth a briefing schedule in a letter dated March 27, 2017.
By letter dated March 28, 2017, Assistant Attorney General Christopher W. Schlecht indicated the State was not taking any position on whether Wayne J. should be represented by Mr. Coffin or another attorney, or whether he should be allowed to represent himself. Mr. Schlecht did indicate however, that if the Court were inclined to permit Wayne J. to proceed pro se, the Court should first conduct a "searching inquiry" in the courtroom and on the record, in accordance with cited caselaw. Mr. Schlecht offered to provide questions and a waiver form for the Court's use.
In a letter addressed to the Principal Court Attorney, dated April 12, 2017, Wayne J. asked that a particular attorney from MHLS be assigned to represent him.
By letter dated April 28, 2017, Mr. Coffin denied the allegations made by Wayne J. that he was not responsive to his case. He countered that he did file an annual review petition on Wayne J.'s behalf, but to avoid application of the mootness doctrine, sought to postpone a hearing date while Wayne J. had appeals pending from prior MHL article 10 proceedings. He noted that he had obtained court appointment of an independent psychiatric examiner. Mr. Coffin affirmed that he is not seeking to withdraw as counsel. He pointed to Wayne J.'s history of adverse relations with attorneys and opined that changing counsel at this time would not only be difficult in terms of finding appropriate representation, but also counterproductive to Wayne J.'s interests.
The letter mistakenly refers to the year as 2016.
The Court, in its letter setting forth the briefing schedule, explained to Wayne J. that he could file papers replying to submissions received from the State and Mr. Coffin. His reply was to be postmarked no later than May 12, 2017. He was instructed to mail said papers to the Oneida County Supreme Court Clerk's Office. Although the Court has received letters from Wayne J. that postdate Mr. Coffin's response, none of those letters addresses Mr. Coffin's correspondence.
Notably, in correspondence dated April 26, 2017, Wayne J. advised the Court that staff at Central New York Psychiatric Center (CNYPC) told him that he could not send any more letters directly to the Court. For purposes of filing reply papers however, the Court in its letter of March 27, 2017 gave Wayne J. the address for the Oneida County Supreme Court Clerk's Office and instructed him to mail his papers there. No such reply has been forwarded by that office. Moreover, after April 26, 2017, the Court directly received three more letters from Wayne J., despite the prohibition. --------
To succeed on his motion, Wayne J. must show good cause to substitute counsel. (See Matter of Brooks v. State of New York, 120 AD3d 1577, 1578-79 [4th Dept 2014]). "Good cause" can consist of a conflict of interest or an irreconcilable conflict with one's attorney. (See People v. Sides, 75 NY2d 822, 824 [1990]). The right to services of court-appointed counsel "does not encompass a right to appointment of successive lawyers at [the client's] option." (Id.).
Wayne J. has failed to set forth any basis for the Court to find good cause to assign new counsel. According to the Court's file, the Oneida County Supreme Court Clerk's Office received a Notice of Petition and Petition for an annual review hearing, prepared by Mr. Coffin, on December 7, 2017. Mr. Coffin's cover letter to the Supreme Court Clerk's Office lists Wayne J. as a carbon copy recipient, such that Wayne J. would have known about Mr. Coffin's actions on his behalf more than three months before his pending letter motion of March 12, 2017.
With regard to Mr. Coffin's advice to Wayne J. to delay the annual review hearing until all appeals from his original confinement proceedings were decided, such advice is grounded in caselaw. (See Matter of Holmes v. State of New York, 125 AD3d 520, 520 [4th Dept 2015] [noting that mootness doctrine did not apply when underlying annual review proceedings were stayed]; see also Matter of Ernest V. v. State of New York, 2017 NY Slip Op 03818, at *2 [3d Dept 2017] [applying mootness doctrine to dismiss appeal from a confinement order, when a subsequent order for continued confinement was issued following an annual review hearing]; Matter of Martinek v. State of New York, 108 AD3d 1048 [4th Dept 2013][dismissing appeal from a civil confinement order, following entry of a subsequent order continuing confinement after an annual review hearing]). Wayne J. has communicated to the Court through multiple letters prior to March 12, 2017 that he disagrees with this strategy. Disagreement over tactics however, does not require substitution of counsel. (See People v. Walton, 14 AD3d 419, 419 [1st Dept 2005], lv. denied, 5 NY3d 796 [2005]). While the Court expresses no opinion as to the correctness of Mr. Coffin's advice, the Court can conclude it is not without merit.
The MHLS lawyer requested by Mr. Coffin in his April 12, 2017 letter is said to have represented another CNYPC resident at an annual review hearing while an appeal was pending. The Court cannot comment on whether Wayne J.'s circumstances are comparable to this other resident or whether the trial tactic followed in that case would make sense in Wayne J.'s case. MHLS previously represented Wayne J. until both he and MHLS consented to MHLS withdrawing from such representation, which in turn led to Mr. Coffin's appointment. Wayne J. will not be permitted to pick and choose attorneys on a whim.
Nor has Wayne J. put forth a meritorious argument that he should be allowed to proceed pro se. Even if this Court were to set aside a decision by a sister court that an individual civilly confined under MHL article 10 has no right to self-representation (see Matter of Charles B., 33 Misc 3d 769, 773 [Sup Ct, Oneida County 2011]), the Court has no reason to believe that Wayne J. is capable of representing himself. In accordance with Matter of State of New York v. Raul L., 120 AD3d 52, 61-62 [2d Dept 2014], and in the event Wayne J. still wished to proceed pro se after receiving Mr. Coffin's and the State's responses, the Court in its March 27, 2017 letter asked him to disclose his age, education, occupation prior to confinement, access to legal resources and the extent of his personal involvement in prior legal proceedings. The Court also asked for a generalized statement of strategy relative to conducting the annual review hearing, to ensure self-representation would not disrupt or prevent orderly conduct of the proceeding. (See Matter of State of New York v. Timothy BB., 113 AD3d 18, 21 [3d Dept 2013]). Wayne J. has not provided any of this information.
According to Mr. Coffin's April 28, 2017 response letter, the appellate courts have resolved Wayne J.'s pending appeals. It would appear then, that Mr. Coffin can proceed with preparing for Wayne J.'s annual review hearing. Since Mr. Coffin has asserted his willingness and readiness to continue representing Wayne J., and since Wayne J. has not provided a sufficient basis for substitution of counsel, it is hereby
ORDERED that Wayne J.'s motion is DENIED in its entirety.
IT IS FURTHER ORDERED, that Benjamin Coffin, Esq. is to file this original Decision and Order with the Oneida County Clerk's Office and serve a copy of same upon Wayne J. and Christopher W. Schlecht, Esq., Assistant Attorney General, with Notice of Entry thereon.
This constitutes the Decision and Order of the Court. Dated: June 12, 2017 ENTER: Hon. Louis P. Gigliotti, AJSC