Opinion
2002BX061993.
Decided March 31, 2008.
In a felony complaint dated November 14, 2002, defendants were charged with Criminal Possession of Marijuana in the First Degree (PL § 221.30), a Class C felony, and other related charges, while acting in concert with each other and with defendant Carlos Huertas.
On March 10, 2003, defendants entered pleas of guilty to the crime of Criminal Possession of Marijuana in the Fourth Degree (PL § 221.15), a Class A misdemeanor, with the understanding that their pleas would be in full satisfaction of the charges originally contained in the felony complaint. On the same date, in accordance with the plea agreements, I sentenced each defendant to time served.
Defendants now move pursuant to CPL § 440.10 to vacate their convictions on the ground that they were denied meaningful representation by their attorney, Peter Batalla, Esq. More specifically, defendants contend that their right to meaningful representation was compromised by the fact that the same counsel represented both defendants. Consequently, argue defendants, their attorney could not provide them with representation free of conflict of interest. Furthermore, both defendants argue that counsel never advised them of the possible risks of multiple representation. Defendants also argue that no independent inquiry was made by the court to insure that defendants perceived the potential inherent risks, or at least the significant possibility thereof, of multiple representation. Because of this absence of a proper inquiry, defendants argue that their decision to proceed with their attorney and enter into guilty pleas was not knowingly, intelligently and voluntarily made.
Defendants argue that had such inquiry been made it would have established that defendants' interests were in conflict due to counsel simultaneously representing multiple defendants who were not in the same position. Defendants alleged that a significant possibility of a conflict of interest existed by the joint representation as follows: On November 13, 2002, the police executed a search warrant at 2210 University Avenue, Bronx, New York; the targets of the warrant were running a marijuana manufacturing operation at the premises. Neither defendant was a target of that investigation and neither was arrested prior to that date nor has since been. Both defendants arrived at the premises late in the morning, as requested by a Mr. Pereyra, the homeowner of 2210 University Avenue, to perform house cleaning services. Both were housewives and were waiting outside for instructions when they were arrested along with the people who had been working in the marijuana operation inside the house, including Mr. Pereyra, Carlos Huertas, Elizabeth Estrella and Pedro Taveras. The police recovered several pounds of marijuana inside the premises. Nothing was found inside the premises that connected defendants with that residence or with that marijuana operation. Once they were brought to the Bronx Criminal Court, defendants discovered that someone had retained counsel for them. They were unaware as to who had paid for a lawyer.
The People have filed an affirmation in opposition to defendants' motion asserting that defendants' claims are procedurally barred and in any event without merit. They contend that Elliot Fuld, then of Goldstein, Weinstein and Fuld (and defendants' attorney on this motion), was retained to represent six defendants, including defendants Estrella and Ventura. On November 14, 2002, Michael Nedick, Esq. substituted for Mr. Fuld and appeared for all six defendants at their arraignment. According to an affidavit submitted by Mr. Nedick, he informed defendants Estrella and Ventura that Mr. Fuld had been retained to represent them and who it was that retained Mr. Fuld. According to Mr. Nedick and Mr. Batalla, the other codefendants (three males) were going to be indicted and Mr. Fuld planned to represent one of them. Concerned about a potential conflict of interest, Mr. Fuld contacted Mr. Batalla and referred defendants and codefendant Elizabeth Estrella to him for representation. Mr. Battalla stated that Mr. Fuld believed that the District Attorney's Office was going to extend a non-felony plea offer and that defendants would accept such a plea. On January 23, 2003, Batalla appeared on behalf of defendants. Batalla also submitted an affidavit in the present proceeding wherein he swore that he discussed with each of them individually the "circumstances of their arrest and the Felony complaint." He informed defendants "that they each had the right to have their own separate attorney and that if they couldn't afford their own attorney the Court would appoint an attorney for each of them."
The People argue that whether this court advised defendants of their right to have individual attorneys represent them is necessarily a record-based claim and since defendants failed to take or perfect an appeal that pursuant to CPL § 440.10 (2) (c) this part of defendants' motion should be denied. The People further argue that defendant's motion should be denied as unsubstantiated because (1) defendants did not provide the minutes for the adjourn dates; (b) despite numerous court appearances defendants never called into question their joint representation; (c) the court afforded them an opportunity to make a statement and each declined; and (d) Batalla did, in fact, advise defendants of the potential risks involved in joint representation.
Both defendants challenge the veracity of Batalla's affidavit, alleging that counsel never consulted them concerning the issue of joint representation. Because this court finds no conflict from the joint representation, it need not resolve this factual dispute. In rejecting the People's remaining arguments, this court notes that a trial judge owes a duty independent of counsel "to protect the right of an accused to effective assistance of counsel." People v Mattison, 67 NY2d 462 (1986). Moreover, a court has a duty to ensure that a defendant understands the effect of her guilty plea. People v Ford, 86 NY2d 397 (1995). Furthermore, a prosecutor is also obliged to alert the court when he or she possess knowledge of facts from which apparent conflict can be inferred.
A review of the record relating to the arraignment, the subsequent adjourn dates, the plea and sentencing of defendants reveal that there was no inquiry by the trial court or comment by the attorney or either accused regarding representation by the same attorney. The failure to conduct a Gomberg [ People v Gomberg, 38 NY2d 307 (1975)] inquiry was error. However, the question remains as to whether the error warrants a vacatur of defendants' convictions.
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. To establish her entitlement to vacatur based on joint representation, a defendant must first show the existence of a potential conflict of interest or a significant possibility of a conflict of interest existed and then must show that "the conduct of [her] defense was in fact affected by the operation of the conflict of interest." People v Bones, 309 AD2d 1238 (4th Dept 2003); People v Harris, 99 NY2d 202 (2002); People v Rowe, 277 AD2d 403 (2nd Dept 2000); People v Allen, 88 NY2d 831(1996); People v Lasage, 221 AD2d 1006 (4th Dept 1995); People v Jordan, 190 AD2d 990 (4th Dept 1993); People v Adams, 185 AD2d 680 (4th Dept 1992); People v Ortiz, 76 NY2d 652 (1990); People v Recupero, 73 NY2d 877 (1988); People v McDonald, 68 NY2d 1, 9 (1986); People v Mattison, 67 NY2d 462 (1986). This significant possibility of a conflict must be greater than a potential conflict; it must do more than exist, it must have "operated." People v Alicea, 61 NY2d 23 (1983). In other words, in order to be entitled to a vacatur of conviction where there has been a failure to make the inquiry, the defendant must demonstrate not only that there has been such a failure but also that an actual conflict of interest [ People v Allah, 80 NY2d 396 (1992); People v Martin, 145 AD2d 440 (2nd Dept 1988); People v Lyon, 141 AD2d 851 (2nd Dept 1988)] or a significant possibility of a conflict of interest [ People v Recupero, 73 NY2d 877 (1988); People v Hall, 61 NY2d 654 (1983)] had operated as a denial of the effective assistance of counsel.
Although the issue usually arises in a trial context, the right to non-conflicting joint representation is equally applicable to plea hearings. See People v Monroe, 54 NY2d 35 (1981); People v Recupero, 73 NY2d 877 (1988).
Here, this court concludes that defendants have not demonstrated their right to relief. Implicit in the right to effective assistance of counsel is that the attorney will represent defendant's interest, and not that of others. Defendants have failed to meet their burden that a conflict existed in their joint representation. The record does not establish that a conflict existed, or that it operated to defendants' detriment or had a substantial relation to the conduct of their defense. See also Cuyler v Sullivan, 446 US 335 (1980); People v Harris, 99 NY2d 202 (2002).
Nothing in the plea suggests that either defendant pleaded guilty to protect someone else or that their pleas were induced by any consideration other than their own best self-interest. Here, the nature of the evidence against each defendant did not suggest that there could be different theories and tactics for each defendant such that the potential for conflict actually operated. See People v Baffi, 49 NY2d 820 (1980). Their defenses were not inconsistent: defendants' moving papers contend that both defendants were outside the premises, both were charged with possessory crimes, both pleaded guilty to the same crime and both were sentenced to the same punishment of time served.
This is not case where the attorney might have had divided loyalty and might have attempted to shift the blame to either one of the codefendants so as to impair the ability of counsel to represent each defendant most effectively. There was no difference in the level of culpability between the two defendants or a possibility that one may have been coerced by the other. Since there was no disparity in their punishment, there is not the slightest basis to conclude that the defense of one could have implicated the other. Indeed, defendants have not suggested any instance in which a potential conflict existed or could have arisen. Moreover, it is significant that defendants' motion is silent as to what defendant Aely Estrella would have testified to with respect to her defense and how any such testimony would have been in conflict with the defense of defendant Ventura or that of defendant Elizabeth Estrella. Significantly, the most defendants could offer in support of their motion is that "defendants had clear defenses to the charges that the other defendants did not." (See Fuld affirmation, ¶ 21). Tellingly, defendants do not state how the alleged conflict of interest affected counsel's strategic decisions. People v Henderson , 11 AD3d 366 (1st Dept 2004).
Here, the indicia of a "significant possibility" of a conflict is that Mr. Batalla represented both defendants. Mere conflict of interest, standing alone, does not constitute error requiring vacatur. People v Allen, 88 NY2d 831 (1996). Furthermore, there is no per se rule requiring vacatur of a defendant's conviction any time the codefendants are represented by the same counsel when the trial judge fails to make an inquiry as to whether each defendant represented by the same attorney had an awareness of the potential risks involved in that course of action and had knowingly chosen it. People v Recupero 73 NY2d 877 (1988). Defendants' claim rests on the erroneous assumption that any possibility of conflict is sufficient to meet the burden of establishing significance.
In sum, defendants have done no more that suggest a theoretical conflict of interest and have pointed to no divergence of interest that caused a "divided loyalty" on counsel's part, and "operated on" their representation. People v Cardoza , 22 AD3d 428 (1st Dept 2005); People v Harris, 99 NY2d 202 (2002); People v Ortiz, 76 NY2d 652 (1990). Even more to the point, while defendants claim that they were prejudiced by the multiple representation, it appears that Mr. Batalla was able to negotiate a favorable plea agreement for defendants which avoided the possibility of any jail time, fine or even a conditional discharge. See People v Mainello, 29 AD2d 1175 (3rd Dept 2006) [trial court's failure to make inquiry into whether defendant's decision to proceed with counsel's joint representation of both her and her mother was made knowingly and did not require vacation of guilty plea where defendant and her mother both received favorable plea].
Lastly, this court's examination of the minutes of defendants' plea allocution revealed the defendants' pleas were knowingly, voluntarily, and intelligently entered.
Accordingly, there is no basis to vacate defendants' pleas. People v Fryar, 198 AD2d 298 (2nd Dept 1993); People v Recupero, 73 NY2d 877 (1988). Defendants' motion to vacate is denied in its entirety.
This constitutes the decision and order of the court.