Opinion
CR-1263-20, CR-1278-20
06-24-2021
PEOPLE of the State of New York v. Patrick TULLY, Defendant.
Hon. Jason M. Carusone, Warren County District Attorney, Robert P. McCarty, Assistant District Attorney, of counsel Law Offices of Andrew DeLuca, Andrew DeLuca, Esq., of counsel for the Defendant
Hon. Jason M. Carusone, Warren County District Attorney, Robert P. McCarty, Assistant District Attorney, of counsel
Law Offices of Andrew DeLuca, Andrew DeLuca, Esq., of counsel for the Defendant
Gary C. Hobbs, J.
On June 15, 2021, Counsel for the Defendant, Andrew DeLuca, Esq., filed a second motion seeking to be relieved as counsel for the defendant, Patrick Tully. Counsel's second motion is supported by an affirmation of Andrew DeLuca, Esq., dated June 10, 2021, together with an affidavit of service by regular mail of said motion on the defendant on June 11, 2021.
Procedural History
This Court received a motion dated March 5, 2021, from Andrew DeLuca, Esq., counsel for the Defendant, seeking leave to withdraw as counsel. Attorney DeLuca's affirmation in support of the motion alleged, in conclusory fashion, that on March 3, 2021, the defendant "indicated that he would like to seek alternate counsel for continued representation in these matters." [DeLuca Affirmation ¶3]. The motion further alleges that the "attorney client relationship between myself and the defendant needed to proceed forward in these cases, has broken down irretrievably, to such an extent that I believe that a conflict of interest exists in my continuing to represent the defendant." [DeLuca Affirmation ¶4]. No further factual basis is given supporting the assertion that the attorney-client relationship has irretrievably broken down. Furthermore, there was no affidavit of service of the motion on the defendant.
Contrary to attorney DeLuca's assertion, the motion was not granted. Instead, by Order dated March 10, 2021, the motion to withdraw was denied based on the facial insufficiency of the conclusory statements.
After this Court issued its March 10, 2021 Order denying the motion to withdraw, the matter was scheduled for further proceedings on April 15, 2021. The defendant appeared, but counsel failed to appear. At that appearance, the defendant did not request new counsel, nor did he make any indication that he could not or would not communicate with Mr. DeLuca. The matter was then rescheduled to May 25, 2021. The defendant and counsel appeared in Court on May 25, 2021, and attorney DeLuca sought to reargue his motion. During the May 25, 2021, appearance, Mr. DeLuca argued that a court must grant a motion to be relieved whenever the attorney claims that there is a breakdown in communication. This Court indicated that it was not going to change the Court's decision based on Mr. DeLuca's oral argument and advised Mr. DeLuca that he could file a motion for the court to reconsider the motion to withdraw as counsel.
By letter dated May 27, 2021, defense counsel requested that this Court reconsider the original motion seeking to withdraw. There is no Notice of Motion or affirmation or affidavit supporting this request. There is no affidavit of service on the defendant. In his May 27, 2021, letter, Mr. DeLuca claimed that, "as set forth in my motion," Mr. Tully "refuses to communicate with me," and that his last correspondence with Mr. Tully occurred on or about March 1, 2021, and that "I have attempted to reach him by telephone and he has not responded to me." Contrary to Mr. DeLuca's May 27, 2021 letter, none of these facts were alleged in Mr. DeLuca's affidavit supporting his motion to withdraw. In fact, no new facts in evidential form had been submitted to this Court. Thus, this Court was still left with only the conclusory statements made in Mr. DeLuca's March 5, 2021, affirmation. In a Decision and Order dated June 3, 2021, this Court again denied Mr. DeLuca's letter application to be relieved.
In his present motion, Mr. DeLuca finally outlines, in detail, the nature of the breakdown in communication with the defendant, his attempts to initiate and facilitate communication with the defendant, and the failure or refusal of the defendant to communicate with Mr. DeLuca [DeLuca June 10, 2021, affirmation ¶s 4-17].
Analysis
It is well settled that once "a client has employed an attorney who has entered an appearance, the attorney shall not withdraw or abandon the case without (i) justifiable cause, (ii) reasonable notice to the client, and (iii) permission of the court." 22 NYCRR 604.1(6). A motion seeking to be relieved as counsel cannot be supported by mere conclusory assertions of disagreements or allegations of ineffectiveness of counsel, and the Court should not grant a motion to withdraw that is facially insufficient. S ee, People v. Porto , 16 NY3d 93, 100–101, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010] ; People v. Lewicki , 118 AD3d 1328, 1329, 987 N.Y.S.2d 755 [4th Dept. 2014], lv. Denied, 23 NY3d 1064, 994 N.Y.S.2d 323, 18 N.E.3d 1144 [2014] ; People v. Benson , 265 AD2d 814, 814–815, 697 N.Y.S.2d 222 [4th Dept. 1999], lv. Denied, 94 NY2d 860, 704 N.Y.S.2d 535, 725 N.E.2d 1097 [1999], cert. denied, 529 U.S. 1076, 120 S.Ct. 1694, 146 L.Ed.2d 499 [2000] ; cf. People v. Sides , 75 NY2d 822, 824–825, 552 N.Y.S.2d 555, 551 N.E.2d 1233 (1990).
In People v Hoff , 201 AD2d 953, 953-54 [4th Dept. 1994], the Appellate Division, Fourth Department, held that the defendant's claim "that he could no longer communicate with his attorney and that he was concerned about defense counsel's recommendation to accept a plea offer" was legally insufficient to warrant substitution of counsel. People v Hoff , 201 AD2d 953, 953-54 [4th Dept. 1994], citing , People v. Willis , 147 AD2d 727, 728, 538 N.Y.S.2d 71, lv. dismissed , 74 NY2d 670, 543 N.Y.S.2d 413, 541 N.E.2d 442 ; People v. Thornton , 167 AD2d 935, 562 N.Y.S.2d 900, lv. denied , 78 NY2d 1082, 577 N.Y.S.2d 245, 583 N.E.2d 957 ). Thus, contrary to Mr. DeLuca's oral argument on May 25, 2021, this Court was not required to grant his request to withdraw simply because he was asserting that Mr. Tully will not talk to him. Instead, counsel needed to demonstrate that he or she has tried, without success, to communicate with the defendant and/or to repair the communication problems.
In the present case, Mr. DeLuca's original March 5, 2021 affirmation and his May 27, 2021 letter failed to demonstrate a factual basis to demonstrate that the communication problems between the defendant and counsel have resulted in an irreconcilable conflict warranting a withdrawal from the case. S ee, People v. Smith, 18 NY3d at 593, 942 N.Y.S.2d 5, 965 N.E.2d 232 ; People v. Linares, 2 NY3d at 511, 780 N.Y.S.2d 529, 813 N.E.2d 609 ; People v. Breedlove, 61 AD3d 1120, 1121, 878 N.Y.S.2d 465 [2009], lv. denied 12 NY3d 913, 884 N.Y.S.2d 694, 912 N.E.2d 1075 (2009). Instead, a proper motion to withdraw as counsel requires a supporting affidavit or affirmation, with proof of service on the defendant, that sets forth a non-conclusory factual basis for the assertion of a breakdown in the attorney-client relationship, outlining what attempts, if any, the attorney has made to communicate with his client and the defendant's general response (i.e., whether the client has agreed to meet or he has failed or refused his attorney's requests to discuss his case).
In his present motion, Mr. DeLuca has finally outlined his attempts to communicate with the defendant, his attempts to repair his relationship with the defendant, and the defendant's failure and refusal to communicate with Mr. DeLuca. Counsel's motion to withdraw as counsel is granted.
Based on the foregoing, it is
ORDERED , that Defense Counsel's motion to withdraw is granted; and it is further
ORDERED , that Andrew DeLuca, Esq., be and he hereby is relieved as counsel for the defendant; and it is further
ORDERED , that defense counsel is directed to comply with all requirements of the Rules of Professional Conduct concerning withdrawal as counsel to protect the defendant's rights, and it is further
ORDERED, that the above captioned matter remains scheduled for July 29, 2021, at 9:00 a.m., for a personal appearance, to allow the defendant an opportunity to obtain substitute legal representation or to apply for assigned counsel, and the defendant is required to appear in person with counsel prepared to proceed .