Opinion
No. 2569/04.
2012-07-9
The PEOPLE of the State of New York v. Andrew GARGUILIO, Defendant.
Steven R. Kartagener, Esq., New York City, for the Defendant. Camille O'Hara Gillespie, Esq., Kings County District Attorney's Office, Brooklyn, NY, for the People.
Steven R. Kartagener, Esq., New York City, for the Defendant. Camille O'Hara Gillespie, Esq., Kings County District Attorney's Office, Brooklyn, NY, for the People.
MARK R. DWYER, J.
Defendant Andrew Garguilio stands convicted of Murder in the Second Degree, and he is serving a prison term of from 15 years to life. He has moved to vacate the judgment pursuant to CPL Section 440.10. Defendant's theory is that one of his trial attorneys expected to receive a contingency fee if defendant were acquitted, and that the resultant conflict of interest may have changed the outcome of the case. This court held a hearing on the motion at which defendant testified and presented three other witnesses. For reasons that follow, defendant's motion is denied.
I
Defendant's murder case was not his first criminal case. Most significantly, he was convicted of Enterprise Corruption in 1994 for having run a major bookmaking operation. Defendant forfeited $1.5 million as a result of his conviction, and has acknowledged that this amount was a small percentage of what the criminal enterprise made. Also in 1994, defendant was convicted of perjury.
Defendant asserts that his gambling operation was independent of New York's organized crime families, and in particular of his acquaintances in the Genovese family.
But defendant has expressed uncertainty about the relationship to organized crime of the victim in this case, defendant's brother-in-law Preston Geritano. In any event, defendant considered Geritano to be a violent man, “possibly a known killer.” Defendant had for years helped Geritano and his son with money, a job, rent, and cars. But Geritano repaid the favors with threats and curses, and defendant feared him.
According to defendant, over the days before Geritano's death, Geritano threatened to kill him. Then, on April 21, 2004, Geritano's wife warned defendant that “the next time Preston sees you, he's going to kill you.” Defendant's view is that Geritano believed that defendant had intervened to Geritano's detriment in a dispute between Geritano and another man. On April 22, 2004, Geritano called defendant, cursed him, and again threatened to kill him.
Later that day, the 65 year old defendant visited Amici's, a restaurant in Bay Ridge in which he had a financial interest. The more youthful Geritano appeared and banged on the establishment's door with a stickball bat. Over the next several minutes, Geritano and defendant were engaged in a violent confrontation. Geritano struck defendant with the bat and defendant inflicted over a score of knife wounds on Geritano, killing him. The trial jury ultimately rejected defendant's self-defense claim and convicted him of murder—presumably because of the testimony of neutral witnesses that at one point in the fight defendant dragged the fleeing Geritano from a car and repeatedly stabbed him. Defendant conceded at the hearing that, in his trial testimony, he falsely denied that he had gone near the car. He claimed that he lied at the direction of Ronald Aiello, one of his attorneys.
II
The trial defense was conducted by two Brooklyn criminal justice veterans, Ronald Aiello and Albert Brackley. Aiello was hired first, after he had already represented defendant at the Supreme Court arraignment. Defendant testified that he agreed to pay Aiello $100,000, and another $100,000 if the case went to trial. According to defendant, Aiello asked him, “And what if we win the trial, what do I get.” When defendant asked, “What do you want,” Aiello replied “75,000.” Defendant agreed, thinking he was getting a bargain: a prominent Manhattan lawyer had said he would charge defendant $500,000. Defendant paid the $200,000 before trial, and Aeillo thereafter reminded him about the possible additional $75,000.
Brackley joined the team later. He was to be paid $100,000 for his services. Brackley understood that he would be the point man as to the facts of the case, and that Aiello would take the lead on “legal” matters. Brackley testified in this post-judgment proceeding that he was not aware of any contingent fee arrangement between defendant and Aiello.
Relations between Aiello and Brackley were not always smooth. For example, Brackley was afraid a justification defense would fail, and believed that a mental defense of some sort might be appropriate—perhaps the defense of extreme emotional disturbance. To that end, he set up a mock jury proceeding so that defendant could receive feedback on whether his justification defense was credible. Aiello had told the court at defendant's arraignment that an extreme emotional disturbance defense might be considered. Aiello also filed notice that a psychiatric defense might be presented. But Aiello, on now learning that Brackley was considering an extreme emotional disturbance defense, objected to Brackley that defendant “would be convicted of extreme emotional distress in a minute.” Aiello then told defendant and his family to cancel the jury exercise, advising them that the mock jurors could be subpoenaed by the prosecution as trial witnesses. Brackley disputed that, but the family followed Aiello's advice.
At trial Aiello and Brackley disagreed again, as to what charges should be submitted to the jury. Aiello wanted the jury to consider only the murder charge. Brackley objected to this “all or nothing” approach. While the judge might have submitted at least the lesser offense of Manslaughter in the First Degree in any event, Brackley insisted that the jury consider the lesser included offenses of Manslaughter in the First and Second Degrees, on theories that defendant intended to cause only serious injury or that he recklessly killed Geritano. Brackley also believed that Aiello, who gave the defense opening statement, had with that statement limited the defense options: in the opening Aiello stated that defendant would testify, but said nothing about an extreme emotional disturbance defense. Ultimately, no request for a charge on the defense was made at trial. Defendant was convicted of murder.
The jury also considered the charge of Criminal Possession of a Weapon in the Third Degree.
The extreme emotional disturbance defense assumes that the defendant intended to kill the victim, but asserts that mitigating circumstances exist. If accepted, the defense results in a conviction of Manslaughter in the First Degree. Compare Penal Law Section 125.25(1)(a) with Penal Law Section 125.20(2). As noted, the first degree manslaughter charge submitted at trial was instead based on a theory that defendant intended to injure Geritano, not kill him. See Penal Law Section 125.20(1).
III
Defendant's motion to vacate the judgment is based on an assertion that he was denied the effective assistance of counsel at trial. Defendant's theory is that Aiello's solicitation of a fee of $75,000, to be paid only if defendant should be acquitted completely, created a conflict of interest. As defendant sees it, the desire to gamble on a complete acquittal caused Aiello not to interpose a meritorious affirmative defense, extreme emotional disturbance, which would very likely have led the jury to convict defendant of first degree manslaughter rather than murder.
Defendant is certainly correct that, if a contingency fee was agreed upon, it created a conflict of interest. People v. Winkler, 71 N.Y.2d 592 (1988). An attorney will normally at least consider requesting that lesser included offenses be charged to the jury. A jury inclined to reject the top charge might still hesitate simply to acquit, and the chance to convict on lesser charges might make it easier for the jury to declare the defendant not guilty of the most serious charge. Moreover, a few defenses will provide a jury that is about to convict on the top count with a legal reason to convict on a lesser offense; the extreme emotional disturbance defense is one of these. If an attorney agrees to accept a contingent fee that will be paid only upon a complete acquittal, that attorney's personal financial interest in an acquittal would militate against his requesting the submission of lesser charges at least in the first of these two situations, even if submission of lesser charges might be in the client's interest. The legal question is so clearly settled that the People do not contest that a contingency agreement creates a conflict of interest.
Nor do the parties quarrel over the standards governing whether a defendant has received the effective assistance of counsel. As a general matter, a defendant is entitled to an attorney who provides “reasonably competent” representation. A defendant receives ineffective assistance in violation of his federal right to counsel if his attorney performs at a lower level than that, and there is a reasonable probability that, but for counsel's inadequacy, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668 (1984). Under New York law, a defendant may claim a new trial if counsel was not reasonably competent and his failings resulted in the proceedings being unfair. People v. Stultz, 2 NY3d 277 (2004); People v. Baldi, 54 N.Y.2d 137 (1981).
That general test as to effective assistance is complemented by one that specifically addresses whether a conflict of interest based on a contingent fee agreement has resulted in a denial of effective representation. The Court of Appeals has held that if (1) a contingent fee agreement existed, and (2) “it affected the manner in which his attorney conducted the defense prejudicially to the defendant,” then the defendant has been denied the effective assistance of counsel. People v. Winkler, 71 N.Y.2d at 597. The defendant bears the burden of proof on both questions. Id.
The United States Court of Appeals for the Second Circuit articulated a somewhat different standard in collateral litigation in the Winkler case. Winkler v. Keane, 7 F.3d 304 (2d Cir.1993). Citing Cuyler v. Sullivan, 446 U.S. 335 (1980), the circuit court concluded that a contingency fee agreement per se creates an “actual” conflict of interest; that it will be “presumed” that an actual conflict of interest prejudices the defendant; but that the defendant must show that the conflict in fact prejudiced the defense.
This court will of course follow applicable rulings of the New York Court of Appeals, even as to federal constitutional issues, where that Court and the circuit court disagree. See, e.g., People v. Kin Kan, 78 N.Y.2d 54, 59–60 (1991). In this case, however, the two appellate courts have articulated very similar standards. In this court's view, the same result follows under both rules.
This court believes that defendant has met his burden of proving that a contingent fee agreement existed, and thus that a conflict of interest existed. The People, naturally enough, had no proof to offer as to whether defendant promised Aiello a “bonus” if there should be a complete acquittal. Defendant testified that the agreement existed. Given defendant's interest in the matter, his prior perjury conviction, and his admission that he lied on at least one subject at trial, his testimony alone would not likely have persuaded the court. But defendant offered more proof.
First, two attorneys testified to hearing conversations strongly corroborating defendant's account. John Serpico, a civil attorney with over 25 years of experience at the time of the hearing, was the son of a lawyer who had represented defendant in civil matters. The younger Serpico “inherited” defendant as a client—and, it must be noted, received a monthly $500 retainer from defendant's wife. Serpico testified that defendant and Aiello met with him in Serpico's office before trial to review documents, including those concerning defendant's legal interests in the restaurant where defendant's fight with Geritano began. According to Serpico, he was a participant in a discussion about defendant paying Aiello “additional fees, money, bonus if he won the case.” (H 158). Serpico added,
I remember coming away from the conversation knowing that it was an extra fee if he won the trial. I remembered thinking that ... was quite a substantial amount of money, and I thought criminal attorneys make more than I do....
(H 159).
The second attorney to testify at the hearing was Jeffrey Rabin. By the time of the hearing, Rabin had been a lawyer for over 40 years. He knew Aiello when they both were Assistant District Attorneys in Kings County, and when Aiello was a judge. When Aiello left the bench he and Rabin were friends and colleagues, and they shared office space. Rabin had represented defendant when defendant pleaded guilty to a perjury charge, but did not remember the case. Rabin did recall that, during the course of the homicide prosecution against defendant, Aiello told him that “you know, if I win this case I will make more money.”
Rabin also had conversations with Aiello in which Aiello stated that he was exploring the defense of extreme emotional disturbance.
We will never know for certain whether defendant and Aiello actually agreed that Aiello would be paid an extra $75,000 if defendant should be acquitted. But on the evidence presented at the hearing, including the testimony of two attorneys who have, if anything, an interest in protecting Aiello's reputation, this court concludes that defendant has shown by a preponderance of the evidence that the contingent fee agreement was made.
IV
Under Winkler, the next question for this court is whether the conflict of interest created by the contingent fee agreement prejudicially affected the manner in which defendant's attorney conducted the defense or otherwise rendered the proceedings unfair. Defendant's theory is that he had a meritorious extreme emotional disturbance defense to the murder charges; that interposition of the defense would likely have led to a conviction of first degree manslaughter rather than murder; and that Aiello refused to allow the defense to be submitted because he would be paid his contingent fee only if defendant were completely acquitted. On this front, at the hearing the defense presented the testimony of a third attorney, Brackley. The court entirely credits Brackley's testimony, including his account of Aiello's hostility to the proposed mock-juror experiment as to how persuasive defendant's justification defense would be. The court also accepts that Aiello was hostile to the suggestion that a “mental” defense might sensibly be interposed, and to the submission of any offenses other than Murder in the Second Degree. This court cannot understand Aiello's objection to the experiment, which caused defendant's family to cancel the exercise on the spurious theory that the “jurors” could have been called as trial witnesses by the prosecution.
Notably, defendant's “prejudice” claim is not defeated by the fact that, with Brackley's encouragement, the trial court submitted lesser included offenses on theories unrelated to extreme emotional disturbance. The jury rejected the theories that defendant killed Geritano while intending to cause serious injury rather than death, and that defendant killed Geritano recklessly. That does show that the jury was not interested in a compromise as a way to avoid simply acquitting defendant of the top charge. But the jury finding that defendant intended to kill Geritano is entirely consistent with the extreme emotional disturbance defense, which assumes an intent to kill but reduces the otherwise certain conviction to one for first degree manslaughter. An honest jury could accept the defense on a proper showing, even while rejecting other theories that defendant was guilty of a lesser included offense. The failure to present the extreme emotional disturbance defense for illegitimate reasons could therefore have prejudiced defendant.
Nor could it be successfully maintained that the extreme emotional disturbance defense was not colorable. There is no need for this opinion to belabor the details: defendant's trial testimony, supported by witnesses who recounted his dealings with Geritano and witnesses who observed him after the killing, would have given any juror pause as to the defense. There was an eminently reasonable view of the evidence that defendant “snapped” after extended, irrational abuse by his brother-in-law, and after the younger man initiated an assault on defendant with a stickball bat. The jury could have found that defendant got the upper hand and was not justified when he fatally stabbed Geritano, but that he was affected by an extreme emotional disturbance when he did so.
Defendant's position is flawed, however, in that he cannot show, as he must, that the conflict of interest created by the contingent fee agreement was the reason for his attorney's decision not to interpose the extreme emotional disturbance defense. Important to that conclusion is a critical difference between Manslaughter in the First Degree based on this affirmative defense, on the one hand, and the typical lesser included offense, on the other. Submission of a typical lesser included offense may help the defendant if the jury would otherwise hesitate to acquit the defendant for a failure of proof on the top count. An attorney with a bonus fee arrangement contingent on a complete acquittal has a financial incentive to oppose submission of such a lesser offense, since the jury also might convict of that offense rather than acquit. But the extreme emotional disturbance defense can be accepted, and help the defendant, only if the jury has already found all the elements of Murder in the Second Degree and is faced with the obligation to convict. That is, the jury must first find that the defendant intentionally caused the death of the victim, and only then consider whether he was acting under an extreme emotional disturbance when he did so. In these circumstances, there can be no prospect of an acquittal, and an attorney with a financial interest in an acquittal has no rational basis to forgo the defense.
In this case Aiello considered interposing an extreme emotional disturbance defense, and there are plausible legitimate explanations for his decision not to do so. The defense was arguing both that defendant was justified in his actions and that he did not intend to kill. To add another alternative defense—one that assumed that defendant was unjustified, and did intend to kill, but claimed that there were mitigating circumstances—would be to test the jurors' sophistication in ways that many reasonable defense attorneys would find unwise. Beyond that, the sentencing range for a predicate felon convicted of first degree manslaughter extended from nine to twenty-five years, which for an elderly defendant meant that a conviction of that “lesser” crime could still readily result in a “life” sentence.
Defendant could respond that Aiello's hostility to the extreme emotional disturbance defense and his failure to mention it in the defense opening killed in advance any chance that the defense could be presented at trial. But the relevant testimony was presented, and presented effectively. Indeed, defendant's appellate counsel thought the pertinent testimony so powerful that it justified an appellate remedy in the interest of justice even though the defense was not submitted to the jury. All that was needed was a summation argument and a request to charge. Aiello's opposition to the defense no doubt contributed to the defense failure to put the defense to the jury, but Aiello's earlier opposition to the defense would not have prevented its submission had he changed his mind. And, as noted, the reason for his opposition is logically unrelated to the contingent fee agreement, as submission of the defense could not have prevented an acquittal.
Aiello's pretrial opposition to use of the defense included odd behavior, in his insistence that the mock jury exercise be cancelled lest the mock jurors be called as prosecution witnesses. Still, the defendant bears burden of showing that this opposition was based on a personal financial motive. Here, the defense could only have reduced the level of what would otherwise be a conviction anyway, and thus did not provide a logical reason for Aiello to oppose the defense. And Aiello had other reasons not to pursue the defense. This court concludes that defendant has not met his burden of showing that the conduct of his defense was prejudicially affected by the conflict of interest resulting from the contingent fee arrangement.
V
The court will add a final word about the remedy it would have chosen, had it reached the conclusion that defendant was prejudiced. CPL Section 440.10(1) states that if a conviction was entered in violation of a defendant's constitutional rights, the court “may” vacate the judgment. As pertinent here, Section 440.10(4) states that the court must vacate the judgment, dismiss the accusatory instrument, order a new trial, “or take such other action as is appropriate in the circumstances.” That language indicates that the court has some discretion in providing a remedy.
Defendant was convicted of Murder in the Second Degree. His claim is not that he lost a chance at a complete acquittal, but that he lost a chance at a conviction only on a lesser charge—Manslaughter in the First Degree. If defendant were correct, he would be “made whole” even if the only remedy he received were a reduction of his conviction to one for Manslaughter in the First Degree. A vacatur of the conviction and a new trial could result in an acquittal, or in a second conviction for murder, if a new jury should reject the extreme emotional disturbance defense.
The court does not believe that a choice between these remedies would be due to defendant even if his position on the merits were accepted. Where a defendant has wrongly been denied the submission of a lesser included offense, the People should be allowed to elect whether a new trial will be held on the top charge, or whether they will agree to a reduction of the conviction to one for the lesser offense. Cf People v. Bayard, 32 AD3d 328, 330–34 (1st Dept.2006) (McGuire.J., dissenting). Here, that would mean that the People would have had the option of a retrial on the murder count, or agreement that defendant's conviction be reduced to one for manslaughter under Penal Law Section 125.20(2).
* * *
For the reasons stated above, defendant's motion is denied.