The People, Respondent,v.Tyrone Prescott, Appellant.

Brief

N.Y.March 21, 2013

To be ørgued by: Thomas F. Gleason, Esq. Time Requesled: 20 Minutes STATE OF ¡,tøW YORK COTTRT OF APPEAT.S TFIE PEOPLE OF THE STATE OF NEW YORK, Respondents- Respondents, -- against-- TYRONE PRESCOTT, P etiti oner-App ellant. PETITIOIIER.APPELLAIIT' S BRIEF GLEASON, nUtIN, \ilALSH & O'SHEA Attomeys for Petitioner-Appellant Office and Post Off,rce Address 40 Beaver Street Albany, New York 12207 Telephone: (518) 432-7 5ll Facsimile: (5 18) 432-5221 Appellate Division, Fourth Department Case No. 05-01142 Erie County Index No. 2004-0711 Dated: October 1,2012 0RtGtltA[ TABLE OF CONTENTS Table ofAuthorities Jurisdictional Statement Questions Presented Factual Background POINT I Conclusion l1 1 1 1 A WRIT OF ERROR CORAM NOBIS SHOULD HAVE ISSUED FROM TI{E COURT BELOW BECAUSE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL AS A MATTER OF LAW .....................6 The Actual Conflict of Interest............ ........7 This Court's Decision in People v. V/andell Required Both Counsel to Notiff the Appellate Division of the Conflict ..........8 The Failure to Notiff the Appellate Division of the Conflict is Not Remedied by a Harmless ErrorApproach A. B. C. D. E. F. G The Frustration of a Defendant's Right to Choice of Counsel 12 t3Necessarily Affects the Representation A Conflict "Operates" on the Representation'When There is a Nexus Between the Conflict and the Representation.............16 The Appellant's Coram Nobis Application Shows that a Conflict of Interest Operated on Appellant's Representation in His Appeal of His Conviction............. ...................20 The Appellant's Coram Nobis Application was Suffrcient to Require Reversa1.............. .......21 23 TABLE OF AUTHORITIES CASES People v. Bachert, 69 NY2d 593 (1937)..... ..................7 People v. Baldi, 54 NY2dl37 (1981) 6 People v. Carncross, 14 NY3d 319 (2010)............. .13,14,15, 16 People v. Gomberg, 38 NY2d307 (1975) passim People v. Harris, 99 NY2 d 202 (2002) 12, 16, 17,22 People v. Lombardo, 61 NY2d97 (1984) People v Macerola,4T l{Y2d257 (1979) rl,13,21 People v. Mattison, 67 NY2 d 462...... . ... .. . .. . 1 6 People v. Mattison,6T NY2d462 (1986).... ...10, 12,21 10 10People v. McDonald, 68 NY2d 1 (1986) Peoplev. Ortiz,76NY2d652,(1990).... ...................17 People v. Prescott, 13 NY3d 909......... .........2 People v. Prescott, 66 AD3d 1357 (4th Dept) 2 People v. Recupero, 73 NY2d877 (1983).... ..10,16,21 People v. stultz,2 NY3d 277 (2004).. ........... ........7,23 People v. Wandell, 151 AD2d923 [3dDept] (1989), revd75 NY2d 951 (1990) '....'.......8,9, 10 People v. V/andell, 75 NY2d 951 (1990) passrm United States v. Gonzales-Lopez, 548 US 140... .......15 STATUTES 2002N.Y. Laws 498........ ..........-....7 Criminal Procedure Law $440.10........... ...................19 11 Criminal Procedure Law $450.9 7 JURISDICTIONAL This is an appeal pursuant to Criminal Procedure Law $460.20, by permission of an Associate Judge of the Court of Appeals pursuant to a Certificate Granting Leave dated May 15, 2012, from an order of the Appellate Division, Fourth Department, entered September 30, 2011, denying Petitioner-Appellant's (hereinafter "Appellanf') motion for a writ of elror Coram Nobis. The Certificate Granting Leave certified that questions of law are involved which ought to be reviewed by the Court ofAppeals. OUESTIONS PRESENTEI) 1. Whether a criminal appellant is deprived of his constitutional right to effective assistance of appellate counsel when such appellate counsel had represented a witness against the appellant at frial, and the appellant was not, prior to the appellate representation, afforded aîy opportunity to expressly and knowingly waive the conflict of interest resulting from the representation of that witness? The Court below, in rejecting Appellant's application for a writ of error Coram Nobis, implicitly answered this question in the negative. F'ACTUAL ROUNI) Appellant was convicted at a non-jury trial on March 7,2005, of the crimes of gang assault in the first degree (see, Penal Law $ 120.07) and assault in the first I degree (Penal Law $ 120.1). The convictions were based on an indictment that also had charged appellant with attempted murder in the second degree (Penal Law ç125.25) and liability as an accessory to others (Penal Law $20.00). (R. 20)t. Appellant thereafter appealed his conviction to the Appellate Division, Fourth Department, which, on October 2, 2009, affirmed the judgment of conviction, rejecting the arguments that the verdict was against the weight of the evidence, and that the Appellant was denied due process at sentencing (People v Prescott, 66 AD3d 1357 [4th Dept]). On December 28,2009, this Court denied leave to appeal (peopte v prescott, 13 NY3d 909). On July lI, 2011, Appellant submitted his pro se motion for a writ of error Coram Nobis to the Appellate Division, Fourth Department, seeking, inter alia,"an order granting [Appetlant] his appeal anew, with the assignment of counsel" on the ground that Appellant had been provided ineffective assistance of counsel by his attomey on the appeal of his March 7, 2005 conviction to the Appellate Division. Appellant specifically alleged that his appellate counsel had not made Appellant aware that he had represented at sentencing one of his co-defendants, one Calvin Martin (R. 8-13). Appellant attached several exhibits to his Coram Nobis application, including minutes of the August 3I,2005 sentencing of Calvin Martin, at which I R. are references to the Record onAppeal herein 2 proceedings the defendant Martin was represented by Appellant's counsel on his appeal to the Appellate Division. In those minutes, counsel sought an adjoumment of sentencing based on the defendant Martin having testified against Appellant, and having been prepared to testiff in another trial. (R. 19). Counsel argued for leniency in light of the risks undertaken by defendant Martin, and that he was "...ready, willing and able to testiff and put [his] life on the line and be labeled a snitch particularly in certain demographics of this community where it's extremely dangerous ... (R. 20-21). Counsel expressly and repeatedly argued on behalf of defendant Martin for an adjournment to present fuither argument for leniency, based on defendant Martin's cooperation with the People. (R. 8). The District Attorney opposed the adjournment, but he acknowledged that "I don't have a personal grudge against Mr. Martin. I worked with him on his case, I worked with im when he testified for me on the trial of his codefendants." (R. 27 lemphasis added]). The Appellant also attached to his Coram Nobis application the apparently misdated September 6, 2006letter to Appellant from his appellate counsel, which referenced a September 26,2006letter from Appellant conceming the issues to be raised on appeal. Neither letter mentions counsel's representation of defendant J Martin at his sentencing. The People submitted the Affidavit of Matthew B. Powers, Esq. (hereinafter "Powers Affidavit") in opposition to the Coram Nobis application (R. 42), which notes that Appellant's appellate counsel had been counsel for Appellant since 2005 (R. 43). Exhibit A to that affidavit is an August 5, 2005 order of the Appellate Division, Fourth Department, which references a Substitution of Counsel Stipulation dated by Appellant's appellate counsel on June 27,2005, and swom to by Appellant on JuIy 4, 2005. Thus, the record demonstrates that Appellant's counsel was simultaneously representing both Appellant and defendant Martin, at the time of defendant Martin's August 31, 2005 sentencin5, at which defendant Martin's testimony againstAppellant was argued as a ground for leniency The Powers Affrdavit also attached the brief that Appellant's counsel had filed in the Appellate Division on Appellant's appeal from his March 7, 2005 conviction. (R. 48-65). That brief raised only two issues on the appeal: first, that Appellant had been denied due process at sentencing due to lack of access to a pre- sentence report for a prior conviction (despite the People's access to the report), and second, that the verdict convicting Appellant was against the weight of the evidence (see, Criminal Procedure Law $470.15[5]). The latter argument depended on a Statement of Facts describing testimony at trial concerning an early morning assault on April II, 2004. (R. 54-56). The cited testimony involved an incident that allegedly occurred outside Jim's Steak 4 Out in the City of Buffalo, when an assault and severe injury to the victim, David Brown, occurred. The cited testimony described the alleged involvement of four persons: Jermain Martin, Larashai Burton, Calvin Martin and Appellant. The appellate brief describes the indictment and conviction of the Appellant and these other three persons. With respect to defendant Martin, he is described as having pleaded guilty and receiving a sentence "...based on his cooperation as a witness for the People." (R. 56). The brief describes Calvin Martin as "the final eye-witness" at trial, and his trial testimony against the Appellant is summarized in the briet along with the testimony of several other wiüresses. The brief describes the testimony of Calvin Martin as including alleged threats by Appellant against Martin, and the assertion that Martin had lied under oath. (R. 61). Appellant submitted a Reply Affidavit on August I1,2011, which attached a June 14, 2005 letter from appellate counsel to Appellant concerning the planned appeal, and notingthat counsel had been retained by Appellant's family. This letter also referenced a planned application for "partial poor person relief to obtain the stenographic transcript and record production. It mentions nothing about the representation of Martin (R. 72). Appellant reiterated in his reply afflrdavit his argument that "counsel failed to divulge to fA]ppellant that a potential conflict existed... ." (R. 69). 5 As noted above, on September 30, 2011, the Appellate Division, Fourth Department denied Appellant's pro se motion for a writ of effor Coram Nobis. On October 27,2011, Appellant submitted his Notice of Motion seeking permission to appeal to this Court and on May 12, 2012, the Certificate Granting Leave was issued. On May 16,2012, this Court requested that the Appellate Division forward the complete file pertaining to Motion No. 1009/09 (R. 4) and on May 25,2012, record materials were sent by the Appellate Division to this Court.2 ARGUMENT POINT I AWRIT OF ERRORCORAM NOBIS SHOULD HA\rE ISSUED FROM THE COURT BELOW BECAUSE APPELLAIIT \ilAS DENIED EFF'ECTIVE ASSISTANCE OF APPELLATE COUNSELAS A MATTER OF LAW This Court has long recognized that defendants in criminal cases have a constitutional right to effective assistance of counsel (see, e.g., People v. Baldi, 54 NY2d 137 [1981]; US Const. 6ú Amend; NY Const. Art 1, $6), and that the right 2 The record materials forwarded by the Court do not include the record on appeal from the initial March 7,2005 conviction. However, the trial transcript and related materials were sent to this Court after the order of the Appellate Division presentþ under review by counsel for the People on May ll,2012 and received by this Court on May 14,2012. Such documents apparently were not part of the file at the Appellate Division or record on the Coram Nobis application. 6 includes effective assistance on appeals (People v. Stultz, 2 NY3 d 277, 279 l2oo4D.3 A. The Actual Conflict of Interest In the instant case, Appellant's attorney undertook to appeal his conviction in late June 2005, when that attorney was about to represent Calvin Martin at Mr Martin's sentencing for the same criminal transaction, which sentencing occurred on August 31, 2005 (R. 17). Therefore, from the very outset of the representation of Appellant on his appeal a conflict of interest was manifest. His counsel argued-4ftq being retained by Appellant's family (R. 72lfor leniency for Martin based on his testimony against Appellant (R. 20-21). In addition, any substantive argument against Appellant's guilt on appeal would require a direct challenge to the truth of Martin's testimony, and the equivalent of an accusation that Martin had perjured himself at Appellant's trial (R. 59-61). Clearly, the Appellant was entitled to weigh such facts in his selection of counsel, and there was need of court participation if Appellant was to make a knowing choice to accept such conflicted counsel: 3 In People v. Bachert (69 NY2d 593 lI987l), this Court also recognizedthat a defendant (as the Appellant here) who claims to be aggrieved by appellate counsel's failures could proceed by writ of error Coram Nobis before the appellate court where the allegedly deficient representation occurred. (Id. at 599). Further, in People v. Stultz (supra, 2 NY3d 277, 28I), this Court recognized that CPL $450.9, as amendedin2002 (L.2002, ch. 498), authorized appeals to this Court by permission from orders granting or denying Coram Nobis relief. 7 While a defendant may choose to retain his attorney, [footnote omitted] such choice may be made only after the defendant is informed of the oossible ramifications which ioint reoresentation mieht spawn when conflictins interests arquably exist. Onlv after sufficient admonition bv the trial court of the potential oitfalls of ioint reoresentation can it be said that a defendant's risht to the effective assistance of counsel is adequately safeguarded. If such admonition does appear on the record, appellate courts are able to determine whether a defendanfs decision to retain his attomey is indeed an informed choice. (peopte v Vtacerota,4T NY2d257,263 ll979l [emphasis added]). B. This Court's I)ecision in Peonle v. Wandell Required Both Counsel to Notify the Appellate Division of the Conflict The instant case presents facts strikingly similar to People v. Wandell (75 NY2d 951 [1990]), a conflicted-counsel, ineffective assistance case in which the defendant argued that in the absence of knowing waiver, he was denied effective assistance of counsel. The conflict in Wandell arose because of defendant's counsel's concurrent representation of the prosecution's primary witness, on an unrelated civil matter. In 'Wandell the defendant had been charged with arson and assault, for allegedly smashing a glass bottle of gasoline with a lit wick against the door of the home of a City of Elmira Police detective. (See, People v. V/andell, 151 AD2d923 [3d Dept], revd 75 NY2d 951). The defendant's brother was a witness for the prosecution, and he testified attrial that he heard the defendant threaten to "torch" the detective's house; that defendant had looked up the residence address in a 8 t telephone book in the brother's presence; and that defendant had admitted to the brother that he had thrown the firebomb (151 AD2d 923,924). The defendant was convicted of arson in the first degree and assault in the second degree. (Id.) Prior to sentencing, the defendant in Wandell moved for substituted counsel on the ground that his trial counsel had been concurrently representing the brother on another matter. Substitute counsel was appointed, and on defendant's motion to vacate the judgment a hearing was held. At that hearing the brother testified that defendant's trial counsel had been retained by the brother prior to the criminal trial, in connection with a workers' compensation and possible personal injury claim. (151AD2d923,923). The defendant testified at the hearing (in contradiction of the testimony of trial counsel that the representation of the brother had been discussed with the defendant) that he had not been aware that trial counsel represented his brother, and that had he known he would not have wanted that attorney to represent him. The County Court denied the defendant's motions, and on appeal the Appellate Division affrrmed (1 5 1 AD2 d 923, 926). The Appellate Division reasoned that the representation of the prosecution witness was not related to the criminal charges against the defendant and further that reversal was not mandated by this Court's precedents, because trial counsel had conducted an "extensive and vigorous cross examination," and provided a 9 "reasonably competent defense" ( 1 5 1 AD2d 923, 925). Citing among other cases this Court's opinion in People v. Recupero (73 NY2d 877, 879 [1988]), the Appellate Division concluded that the defendant had failed"... to establish the existence of a significant possibility of a conflict of interest which bears a substantial relationship to the conduct of the defense." (151 4D2d923,925). On appeal, this Court rejected this harmless error approach and unanimously reversed, calling the failure of both counsel to bring the conflict to the Court's attention "inexcusable". The Court further explained its holding as follows: As a threshold, the principles of People v Gomberg (supra) and People v Macerola (supra) apply to the potential conflicts that arise from a defense counsel's representation of an important prosecution witness, as well as to counsel's representation of a codefendant (see, e.g., People v Lombardo,6l NY2d 97, 102 [representing defendant and People's chief witness]; People v McDonald, 68 NY2d 1 [representing defendant and victim]). Additionally, both the prosecution and defense counsel are under a mandatory affirmative obligation both to recognize the existence of a potential conflict and to alert the court to the facts and circumstances surrounding that potential conflict (see, People v McDonald, supra, at 8), so that the Trial Judge can conduct a record inquiry and be satisfied that the defendant "has an awareness of the potential risks involved in that course and has knowingly chosen it" (People v Gomberg, supra, af 313-314; see, People v Macerola, supra, at 262-263; People v McDonald, lupffi, at 8-9). This inquiry is vital "because defendants may not always sense when a conflict exists or perceive how it might undermine effective representation" (People v Mattison, 67 NY2d 462,468). None of these things were done in this case. (People v. Wandell, 75 NY2d 951 , supra at952-953). 10 The above-cited quote from this Court's opinion confirms several important points, all of which are squarely applicable to the instant case. First, under the principles of People v. Gomberg (38 NY2d 307) and People v. Macerola (47 NY2d 257 ll979l), potential conflicts of interest arise from a defense counsel's representation of an important prosecution witness or a co-defendant. Here, appellate counsel also represented Calvin Martin, who was both. Second, this Court confîrmed in Wandell that both prosecution and defense counsel "...ate under a mandatory affirmative obligation" to (a) recognize the existence of a potential conflict of interest, and (b) alert the Court to "the facts and circumstances sulrounding that potential confl ict. " The record reflects that in the instant case that mandatory obligation arose, at the latest by August 5, 2005, upon the entry of the Appellant Division order rccogniztng Appellant's new counsel and relieving Appellant's prior appellate counsel. (R. 48). Clearly, the Appellant's counsel was aware of the conflicted representation, and the People were as well, having resisted counsel's arguments for Martin at Martin's sentencing. (R. 27-28). Third, this Court reiterated in People v. 'Wandell the purpose of counsel's obligation to provide notice to the Court-to allow the Court to determine, on the record, that the defendant "has an awareness of the potential risks involved in that course and has knowingly chosen it." (See, People v. Macerola, supra) 14 NY2d 1l 257,263 [1979D. This Court described this process as a"vítal inquiry" by which the Court examines and then determines whether the defendant has made an actual and knowing agreement to the conflicted representation. This Court has emphasized that the inquiry by the Court is necessary because "defendants may not always sense when a conflict exists or perceive how it might undermine effective representation." (peopte v. Wan¿ett, supra, 75 NY2d 951, 952-953 [1990]; see, People v. Mattison, 67 NY2d462,468 [1986]). C. The Failure to Notify the Appellate Division of the Conflict is not Remedied by a Harmless Error Approach Significantly, this Court was unpersuaded in Wandell by the reasoning of the Appellate Division, which had relied on a review and evaluation of the representation and the cross-examination by conflicted counsel. Despite the lower court's determination that such cross-examination was "extensive and vigorous," this Court unanimously rejected the retrospective determination that vigorous advocacy had expunged the conflict's taint. Rather, as was the case in People v. Gomberg (38 NY2d307, supra), this Court apparently concluded that"...once a conflict is clearly established, the courts will not enter into nice calculations as to the amount of prejudice resulting from the conflict." (Id., at 312). In such circumstances of actual conflict, "prejudice is presumed." (See, People v. Harris, 99 NY2d 202,210). t2 D. The Court's rejection of the harmless error approach on the Wandell facts emphasized the importance of the client's constitutional right to free and knowing choice of counsel. (See, People v. Macerola, sLtpre,47 NY2d 257, 262 lI979D. The force of that right, when balanced against the court's independent obligation to ensure that the defendant's right to effective representation was not impaired...", is so significant that it divided this Court in People v. Carncross (14 NY3d 3 le [201 0]). The Frustration of a Defendant's Right to Choice of Counsel Necessarily Affects the Representation In People v. Carncross this Court recognized that a court ffiãy, in protecting a defendant's Sixth Amendment rights, even go so far as disqualiffing counsel of defendant's choosing due to actual or potential conflicts, notwithstanding the defendant's waiver of such conflicts (14 NY3d,3I3,323). While the majority and dissent split in Carncross over the deference to be afforded a defendant who insists on proceeding with conflicted counsel, both opinions of this Court recognize the critical importance of the defendant's constitutional right to choose counsel, and the "vital" function of the court in ensuring the choice is a knowing one. In People v. Carncross defendant had been accused of causing the death of a State Trooper who had died in an accident while in hot pursuit of defendant's motorcycle, and when the case was presented to a grandjrrry the prosecutor called t3 the defendant's father and girlfriend as witnesses. They recounted inculpatory statements made to them by defendant shortly after the accident. After indictment, and at defendant's trial, the People moved to disqualiff defendant's trial counsel, because that counsel also had represented the father and girlfriend before the grand jrrry and they were expected to be prosecution witnesses attrial The defendant opposed the motion and stated in open court that he was willing to waive the resulting conflict. The trial court appointed an independent attomey to consult with and advise the defendant, who reported to the court that the defendant understood the conflict and was willing to waive it. Nevertheless, the trial court granted the People's motion to disqualiff, and the defendant after conviction raised the disqualification as grounds for reversal. The Appellate Division rejected this argument and on appeal this Court affirmed (People v. Carncross, 14 NY3d 3I9 Í2010], supra). In doing so this Court noted that the trial court had "... carefully balanced the defendant's right to counsel of his own choosing against his right to effective assistance of counsel." This Court then deferred to the trial court determination that allowing that counsel to continue would "severely undermine [defendant's] ability to prevent a cogent defense," and declined to make the defendant's choice of counsel determinative. t4 In dissent, Judge Pigott emphasized the importance of the federal and state constitutional right to counsel, and that [w]hen a defendant is wrongly deprived of the right, the deprivation is complete at the time the defendant is erroneously prevented from being represented by the counsel of his choice, and such error is considered a 'structural' one not subject to harmless effor analysis. (14 NY3d 319, 333 [citing tates v. Gonzales- 548 US r40, 148, 1s0l). This "structural analysis," recognized by Judge Pigott is fully consistent with the approach this Court took in Wandel! (supra), and in Carncross that approach was not rejected by the majority. Instead, the majority disagreed that the deprivation of the unfettered right to choose counsel was wrongful, noting the difficult balance necessary to protect defendants' rights : Indeed, the circumstances of this case highlight that trial courts faced with a defendant willing to waive a conflict are often placed in the very difficult position of having their decision challenged regardless of the outcome. As the Supreme Court in Wheat explained, if the court honors the waiver, the defendant can later claim he was denied the effective assistance of counsel (seg id. at 161, 108 S. Ct. 1692). On the other hand, if the trial court refuses to honor the waiver, a defendant may well raise a challenge like the one presented here (see id.). (peopte v. Camcross, supra,14 NY3d 319, 330). Despite the division on this Court in Carncross, both opinions emphasized two critical lines of analysis-the importance of the court's role in guarding 15 t against prejudice to the defendant from conflicted representation; and the critical importance of the defendant's free choice respecting counsel E A Conflict "Operates" on the Representation When There is a Close Nexus Between the Conflict and the Representation While the majority and dissenting opinions in Carncross disagreed respecting the precise outcome of the balance in that case, the principles emphasized in both opinions support reversal in the instant case, because the Appellate Division and the Appellant \ryere deprived of input concerning the impact of an obvious conflict, and because both counsel failed to raise the issue (see, People v. \Mandell, supra; People v. Mattison, 67 NY2d 462). The question presented on this appeal is whether such errors, which eliminate client consent and court participation in the face of actual conflict, also "operated on the representation" as that requirement has been articulated by this Court. (See, Peoole v Harris- 99 NY2d 202, 2lI 120021). Appellant respectfully submits that such operation is clear. In People v. Recupero (73 NY2d 877), this Court held that it would not adopt a per se rule of reversal when a court fails to make a Gomberg inquiry on the record (to determine the defendant's knowing waiver of a conflict of interest), and the People will no doubt argue on the instant appeal that the failure to conduct such an inquiry is not fatal in the context of a Coram Nobis application. The People also will no doubt argue that in determining whether particular acltal and potential I6 conflicts merit reversal, this Court has examined how the conflict of interest "operated" on the representation (see, People v. Ortiz, 76 NY2d 652,657 11990]), and has required the defendant to demonstrate that the conflict did "operate on defense counsel's representation" (peopte v. garris, sttpra, 99 NY2d 202, 2lI l2oozD.4 This Court has not held that the "operation" of the conflict is a results- oriented process that examines whether the ultimate outcome of the case was necessarily affected. Nor has any decision of this Court eliminated the requirement of a defendant's express or implied consent to conflicted representation (see, People v. Konstantinides, 14 NY3d 1 [2009]), nor excused both counsels'knowing failure to disclose to the Court the facts clearly indicating a potential conflict. Similarly, no decision of this Court approves of counsel waiting to evaluate how the conflict plays out, before involving the Court in the Gomberg inquiry. This Court's opinion in People v. Konstantinides (14 NY3d 1 [2009]), supports this interpretation that "to operate the representation" means a substantial nexus with the actual representation. It is submitted that such a nexus can include the right of the client to consider facts that directly impact appellate arguments. While this Court again held in Konstantinides that the trial Court's failure to hold a Thus, in Harris, there was no reversal when defense counsel had represented before lrial a person who turned out to be an informant against the defendant, but defense counsel was unaware of the conflict. In V/andell the reversal ensued notwithstanding the Appellate Division determination that the defendant's conflicted counsel had "vigorously" cross-examined his other client, and provided "meaningful representation." t7 an on the record Gomberg inquiry was not in-and-of-itself grounds for reversal, this Court pointedly referenced facts indicating the defendant's awareness of the allegations causing the conflict, and his free choice to continue. Such facts clearly distinguish Konstantinides from the instant case. In Konstantinides, the defendant was represented at trial by two counsel, only one of whom was allegedly conflicted. The conflict between defendant and counsel arose after the District Attorney revealed to the court during the trial that he was in receipt of a first-hand report of subornation of perjury and attempted bribery of a witness by defendant and the conflicted counsel.s The majority and dissent in Konstantinides agreed that this conflict, though significant, was not sufficient to merit a per se rule of reversal, because it could not be said that there were no circumstances in which such a conflict could be knowingly waived and still result in a fair trial. However, the majorþ of this court did not find grounds for reversal because the defendant was "fully informed of the potential conflict," simultaneously was represented by unconflicted counsel, and s The allegation involved the wife of a key prosecution witness-a wiûress who had been the driver of the vehicle in which the defendant's alleged crimes began. The District Attomey reported to the Court (in the presence of the defendant) that the wife of the witness had been contacted by defendant and his counsel, while her husband was incarcerated. The contact apparently was to inquire if her husband would be willing to testifr that the gun used in the crime Jctually belonged to the husband and not the defendant. Apparently, threats and a possible bribe also were mentioned. The wife reportedly said her husband would not do so, because it was not true. 18 because the defendant was unable to show that that conflict actually "operated on the defense." (14 NY3d l,14).6 The point that divided this Court in Konstantinides was the effect of the trial court's failure to place a Gomberg inquiry on-the-record. This Court held that this failure did not require reversal, though it "...surely would have been better practice...," because the failure occurred in the context of "...the follow-up discussions that must have taken place after the prosecutor's application..." to disquali$, defendant's counsel. This Court noted that the defendant had failed to meet a relatively "minimal" standard of connecting the conflict to the representation, as follows: Under our precedent, a defendant does not have to establish that the conflict affected the outcome of the proceedings; a defendant must only show that the conflict operated on the defense. Here, defendant failed to make even this minimal showing. (14 NY3d t, t4). 6 The unconflicted counsel in Konstantinides had represented the defendant for the eight months preceding trial, and had conducted the voir dire, delivered the opening statement, cross-examined all the People's witnesses and delivered the closing statement. The defendants claim that the conflict "operated" on the defense was therefore viewed by this court as an "entirely speculative and unsubstantiated" argument and based on an assumption that conflicted counsel failed to present evidence that would have been helpful to the defense. This court noted that nothing prevented the defendant, even after trial, from pointing to such actual evidence in a post-trial ineffective assistance of counsel motion under a Criminal Procedure Law $440.10 motion, which the defendant failed to do. t9 F. The Appellant's Coram Nobis Application Shows tha;t a Conflict of Interest Operated on Appellant's Representation in His Appeal of His Conviction In opposition to the Coram Nobis application below, the People contended that no conflict of interest existed at all, supposedly because appellate counsel had argued to the Appellate Division: ...that Martin-given his prior criminal history and the lact that portions of his testimony were at odds with the testimony of other witnesses-was unworthy of belief. It is difficult to imagine how such an argument could be advanced if counsel was truly conflicted. (R. 46). This argument is not a demonstration of the absence of a conflict, nor a showing that conflicted counsel owed no duty to his former client and witness against Appellant. To the contrary in order to represent Appellant counsel claimed in essence that Martin committed perjury in testiffing againstAppellant. As it may be presumed that counsel had the benefit of confidential communications with Martin, it is clear that this argument respecting Martin's veracity unavoidably involved confl icting interests. Similarly, after counsel was retained to represent Appellant, he argued for leniency at Martin's sentencing, based on Martin's willingness despite personal risk to provide (presumably) truthful testimony against Appellant. This contention on behalf of Martin directly contradicted a substantive argument counsel later made in Appellant's brief. Therefore, the conflict had a clear and direct nexus to 20 the appellate arguments, and Appellant had the prospective right to choose whether this attorney could be relied on to present those arguments, or perhaps other arguments, in support of reversal of his conviction. The argument of the People-in essence that counsel supposedly overcame the conflict despite its operation-fails to distinguish a retrospective argument over the final outcome, from the necessary refutation that the conflict operated during the course of the appeal. Here that operation occurred by interference with Appellant's choice----either a defendant has an absolute constitutional right to choose whether to accept conflicted counsel or he does not. The decisions of this Court clearly state that a criminal defendant has that choice. (See, People v. Gomberg, 38 NY2d307 Il975l; People v. Macerola,4T l:{Y2d257 Í19791; People v. Wandell, 75 NY2d 951 [1990]; People v. Recupero, 73 NY2d 877 [1988]; and People v. Mattison, 67 NY2d 462 U9861). G. The Appellant's Coram Nobis Application was Sufficient to Require Reversal In this case, the Defendant never had unconflicted counsel on his appeal and he did not submit the record from his trial and conviction, on his pro se Coram Nobis application. Even if he had, without the assistance of counsel he could not as a pro se applicant have supplied the substantive appellate knowledge necessary to evaluate the record and legal principles involved. Because Appellant had the constitutional right to assistance of counsel on his appeal, the Appellate Division 2t should have granted a writ of error Coram Nobis outright, so that assistance of counsel could be provided on a ne\¡/ appeal to allow unconflicted counsel to evaluate the fulI record. Alternatively, the court could appoint counsel for the Coram Nobis application, to allow for full review of the trial record, but this would essentially duplicate the process of a new appeal.T This Court has held that the manner in which the alleged conflict operated on a trial defense is a mixed question of law and fact, which this Court will not review unless there is no record support for an Appellate Division conclusion on the point (see, People v. Harris, 99 NY2d202,210 120021). On the instant record, howeveE the Appellant had no capacity to evaluate the legal principles on which his appeal depended, ffid so the actual conflict of his counsel presents an operation of the conflict on the representation as a matter of law. On the instant Coram Nobis applicatioî, a pro se defendant could do no more than Appellant did: He clearly did not have the capacity (else he would not have needed counsel at all on his appeal) to analyze the record, and supply to the Appellate Division particular arguments on the manner in which the appeal should have been handled.s To impose a greater burden or: a pro se movant such as the 7 This further supports the proposition that based on People v. V/andell (supra), reversal of the order affrrming the conviction was the proper determination by the Appellate Division on the Coram Nobis application. 8 Such as for example, by arguing against the legal suffrciency of the proof on Gang Assault in the frst degree, which crime involved aid to his Appellant's counsel's other client. 22 Appellant, would require the client in a conflicted representation to be a lawyer in order to show why he needed an unconflicted lawyer on the appeal. This, it is respectfully submitted, would contravene Appellant's constitutional right to appellate counsel. (See, People v. Stultz, supra, 2 NY3d 277,279 120041). c ON The Order appealed from should be reversed and Appellant granted a new appeal from his conviction with new appellate counsel. Alternatively, Appellant should be grante d a Coram Nobis hearing with appointed non-conflicted counsel. Dated: Albany, New York October I,2012 Yours, etc. GLEASON, DUNN, & O'SHEA By: F.G Attorneys for Petitioner-Appellant Office and Post Offrce Address 40 Beaver Street Albany, New York 12207 Telephone: (5 18) 432-7 5ll Facsimile: (5 18) 432-5221 23 STATE OF NEV/ YORK COURT OF APPEALS TI{E PEOPLE OF TFIE STATE OF NEW YORK, -- against-- TYRONE PRESCOTT, Respondents- Respondents, Petitioner-Appellant. AFFIDAVIT OF SERVICE Appellate Division Case No. 05-01142 Erie County Index No. 2004-0711 STATE OF NEW YORK COUNTY OF ALBANY ANNE ASCENZI, being duly swom, deposes and says she is over the age of 18 years old and that she is not a party to the within action; that on the ls day of October, 2012, she served the three (3) copies Petitioner-Appellant's Brief and three (3) copies of the Record on Appeal upon the following persons in the following manner: Hon. Frank Seditâ, III Erie County District Attomey Attn: Matthew B. Powers, Esq. 200 Erie County Hall, 25 Delaware Avenue Buffalo, New York 14202 via regular first-class mail by depositing a true and correct copy of the same properly enclosed in a post-paid wrapper in the Official Depository maintained and exclusively conÍolled by the United States Post Offrce at45 Hudson Avenue, New York directed to said persons at said address, that being the last known address in the state designated for that purpose upon the last papers served in this ) ) SS I action or the places where the above then resided or kept offices, according to the best information which can be ASCEN Sworn to before me this 1't day of October,2012. /'u Cø¿u!r-- otary Public PAULA M CASSALA k cJI 2