Opinion
2015–06418 Ind. No. 1095–12
12-06-2017
The PEOPLE, etc., respondent, v. Shawn LAWRENCE, appellant.
Laura Solinger, Southold, NY, for appellant. Emily Constant, Acting District Attorney, Riverhead, N.Y. (Marion Tang of counsel), for respondent.
Laura Solinger, Southold, NY, for appellant.
Emily Constant, Acting District Attorney, Riverhead, N.Y. (Marion Tang of counsel), for respondent.
SHERI S. ROMAN, J.P., JOSEPH J. MALTESE, HECTOR D. LASALLE, BETSY BARROS, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the County Court, Suffolk County (Condon, J.), rendered February 22, 2016, convicting him of murder in the second degree, attempted murder in the second degree (two counts), and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, on the law, and a new trial is ordered.
The defendant was charged with murder in the second degree, attempted murder in the second degree (two counts), and criminal possession of a weapon in the second degree in connection with a shooting in Amityville, Suffolk County. Prior to the defendant's trial, the People alerted the County Court to the fact that defense counsel was a potential witness in the case because he had interviewed the People's main witness who had identified the defendant as a shooter, and in that interview the witness had recanted the identification. That interview was not witnessed by anyone else. As a concession, defense counsel agreed to forgo cross-examination of the witness regarding the interview. The defendant was informed of the issue and independent counsel was appointed to advise him on the issue. When court reconvened days later, the defendant indicated that he wished for his attorney to continue to represent him but refused to waive any conflict. At that point, the People sought to have defense counsel relieved. The court declined. The defendant was convicted of murder in the second degree, two counts of attempted murder in the second degree, and criminal possession of a weapon in the second degree.
A determination to substitute or disqualify counsel falls within the trial court's discretion (see People v. Carncross, 14 N.Y.3d 319, 330, 901 N.Y.S.2d 112, 927 N.E.2d 532 ; People v. Tineo, 64 N.Y.2d 531, 536, 490 N.Y.S.2d 159, 479 N.E.2d 795 ). "That discretion is especially broad when the defendant's actions with respect to counsel place the court in the dilemma of having to choose between undesirable alternatives, either one of which would theoretically provide the defendant with a basis for appellate review" ( People v. Tineo, 64 N.Y.2d at 536, 490 N.Y.S.2d 159, 479 N.E.2d 795 ; see People v. Carncross, 14 N.Y.3d at 330, 901 N.Y.S.2d 112, 927 N.E.2d 532 ; People v. Robinson, 121 A.D.3d 1179, 1180, 994 N.Y.S.2d 711 ). Criminal courts faced with counsel who allegedly have a conflict of interest must balance two conflicting constitutional rights: the defendant's right to effective assistance of counsel, and the defendant's right to be represented by counsel of his or her own choosing (see US Const Sixth Amend; People v. Carncross, 14 N.Y.3d at 327, 901 N.Y.S.2d 112, 927 N.E.2d 532 ; People v. Gomberg, 38 N.Y.2d 307, 312–313, 379 N.Y.S.2d 769, 342 N.E.2d 550 ).
Courts should not arbitrarily interfere with the attorney-client relationship, but must protect the defendant's right to effective assistance of counsel (see People v. Carncross, 14 N.Y.3d at 327, 901 N.Y.S.2d 112, 927 N.E.2d 532 ; People v. Gomberg, 38 N.Y.2d at 313, 379 N.Y.S.2d 769, 342 N.E.2d 550 ; see also Wheat v. United States, 486 U.S. 153, 159–160, 108 S.Ct. 1692, 100 L.Ed.2d 140 ). Thus, the court must satisfy itself that the defendant has made an informed decision to continue with counsel despite the possible conflict, yet avoid pursuing its inquiry too far so as not to intrude into confidential attorney-client communications or discussions of possible defenses (see People v. Gomberg, 38 N.Y.2d at 313, 379 N.Y.S.2d 769, 342 N.E.2d 550 ; see also Holloway v. Arkansas, 435 U.S. 475, 487, 98 S.Ct. 1173, 55 L.Ed.2d 426 ). The presumption in favor of a client being represented by counsel of his or her choosing may be overcome by demonstration of an actual conflict or a serious potential for conflict (see Wheat v. United States, 486 U.S. at 164, 108 S.Ct. 1692 ).
Here, defense counsel's actions of interviewing the prosecution's main witness alone and being the only person who could testify to the witness's recantation of his identification of the defendant as a shooter created an actual conflict of interest. Defense counsel was faced with the choice of testifying on behalf of his client, which would result in his disqualification, or not presenting evidence of an exculpatory statement (see United States v. Kliti, 156 F.3d 150 [2d Cir.] ). Under the circumstances, especially in light of the defendant's refusal to waive any conflict, the County Court erred in denying the People's application to relieve defense counsel.
Accordingly, the defendant is entitled to a new trial.
ROMAN, J.P., MALTESE, LASALLE and BARROS, JJ., concur.