Opinion
49 KA 16–01229
03-20-2020
The PEOPLE of the State of New York, Respondent, v. Thomas SEARS, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated, and the matter is remitted to Onondaga County Court for further proceedings on the indictment.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of burglary in the third degree ( Penal Law § 140.20 ), grand larceny in the fourth degree ( § 155.30[1] ), and criminal possession of stolen property in the fourth degree ( § 165.45[1] ). At the time defendant committed those felony offenses, he was participating in a drug treatment court program in connection with three other misdemeanor charges. Defendant entered into a plea agreement whereby he agreed to plead guilty to the felony charges and to continue his participation in drug treatment court. Defendant failed to successfully complete the drug treatment court program, and the court sentenced defendant on the felony charges to a term of imprisonment and dismissed the misdemeanor charges "as being satisfied by the plea and sentence." Defendant contends that the judgment of conviction must be reversed because the court-assigned attorney who represented him in the preliminary stages with respect to the misdemeanor charges later joined the Onondaga County District Attorney's Office and was assigned to the drug treatment court while defendant's cases were pending there. We agree.
It is well established that a criminal defendant's right to counsel is violated when a defense attorney who actively participated in the preliminary stages of the defendant's defense becomes employed as an assistant district attorney by the office that is prosecuting the defendant's ongoing case (see People v. Shinkle, 51 N.Y.2d 417, 420–421, 434 N.Y.S.2d 918, 415 N.E.2d 909 [1980] ; People v. Good, 62 A.D.3d 1041, 1042, 877 N.Y.S.2d 766 [3d Dept. 2009] ; People v. Gaines, 277 A.D.2d 900, 900, 716 N.Y.S.2d 207 [4th Dept. 2000] ; see also People v. Herr, 86 N.Y.2d 638, 641, 635 N.Y.S.2d 159, 658 N.E.2d 1032 [1995] ). In those circumstances, the defendant and the public are given "the unmistakable appearance of impropriety and [the situation] create[s] the continuing opportunity for abuse of confidences entrusted to the attorney during the [period] of his [or her] active representation of defendant" ( Shinkle, 51 N.Y.2d at 420, 434 N.Y.S.2d 918, 415 N.E.2d 909 ; see Good, 62 A.D.3d at 1042, 877 N.Y.S.2d 766 ; Gaines, 277 A.D.2d at 900–901, 716 N.Y.S.2d 207 ). Disqualification is required when there is "the appearance of impropriety and the risk of prejudice attendant on abuse of confidence, however slight" ( Shinkle, 51 N.Y.2d at 421, 434 N.Y.S.2d 918, 415 N.E.2d 909 ). "The rule is necessary to prevent situations in which [a] former client[ ] must depend on the good faith of [his or her] former [attorney] turned adversar[y] to protect and honor confidences shared during the now extinct relationship. In those situations the risk of abuse is obvious" ( Herr, 86 N.Y.2d at 641, 635 N.Y.S.2d 159, 658 N.E.2d 1032 ; see Good, 62 A.D.3d at 1042, 877 N.Y.S.2d 766 ).
Here, we conclude that defendant's right to counsel was violated (see Gaines, 277 A.D.2d at 901, 716 N.Y.S.2d 207 ). The People concede that the attorney who had represented defendant with respect to the misdemeanor charges was employed by the District Attorney's Office at the time defendant entered into the plea agreement that resolved those misdemeanor charges as well as the felony charges. Thus, on this record, we conclude that there is an "appearance of impropriety and ... risk of prejudice attendant on abuse of confidence" ( Shinkle, 51 N.Y.2d at 421, 434 N.Y.S.2d 918, 415 N.E.2d 909 ), and defendant should not have been required to "depend on the good faith of [his] former [attorney] turned adversar[y] to protect and honor confidences shared during the now extinct relationship" ( Herr, 86 N.Y.2d at 641, 635 N.Y.S.2d 159, 658 N.E.2d 1032 ; see Gaines, 277 A.D.2d at 901, 716 N.Y.S.2d 207 ). Therefore, the judgment of conviction must be reversed, the plea vacated and the matter remitted to County Court for further proceedings on the indictment.
Defendant also contends that the court failed to conduct an adequate inquiry into his request for substitution of the counsel who represented him at the time that he entered the guilty plea. Inasmuch as there is no indication in the record that the court ruled on that request, we direct the court on remittal to rule on defendant's request for substitution of counsel (see People v. Morris, 176 A.D.3d 1635, 1636, 107 N.Y.S.3d 924 [4th Dept. 2019] ; see generally People v. LaFontaine, 92 N.Y.2d 470, 474, 682 N.Y.S.2d 671, 705 N.E.2d 663 [1998], rearg. denied 93 N.Y.2d 849, 688 N.Y.S.2d 495, 710 N.E.2d 1094 [1999] ).
In light of our determination, defendant's remaining contentions have been rendered academic.