The People, Respondent,v.Robert Mitchell, Appellant.BriefN.Y.May 2, 2013To be argued by RICHARD J. RAMSAY COURT OF APPEALS State of New York _______ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ROBERT MITCHELL, Defendant-Appellant. _____________________________________________________ R E S P O N D E N T’ S B R I E F _____________________________________________________ ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent Bronx, New York 10451 718-838-6693 ramsayr@bronxda.nyc.gov JOSEPH N. FERDENZI PETER D. CODDINGTON RICHARD J. RAMSAY Assistant District Attorneys Of Counsel PRINTED ON RECYCLED PAPER TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii STATEMENT ............................................................................................................ 1 QUESTIONS PRESENTED ...................................................................................... 2 THE FACTS .............................................................................................................. 3 THE INDICTMENT .............................................................................................. 3 THE PRE-TRIAL SUPPRESSION HEARING ........................................................... 4 PLEA DISCUSSIONS ........................................................................................... 6 THE GUILTY PLEA ............................................................................................ 7 DEFENDANT’S PRO SE MOTION TO WITHDRAW HIS GUILTY PLEA .................10 DEFENDANT’S MOTION TO WITHDRAW (CONTINUED) AND SENTENCE ...........17 DEFENDANT’S DIRECT APPEAL .......................................................................20 ARGUMENT ...........................................................................................................21 POINT ONE DEFENDANT’S CONSTITUTIONAL CLAIMS ARE UNREVIEWABLE AND UNPRESERVED .................................................................................21 POINT TWO THE TRIAL COURT, HAVING DETERMINED THAT DEFENDANT’S GUILTY PLEA WAS KNOWING, INTELLIGENT, AND VOLUNTARY, PROPERLY DENIED HIS MOTION TO WITHDRAW HIS PLEA, WHICH THE APPELLATE DIVISION UPHELD AS SUPPORTED BY THE RECORD .......................................................................................................27 CONCLUSION ........................................................................................................38 ii TABLE OF AUTHORITIES CASES In re Military Contrs. (Marrano/Marc Equity Corp.), 2 A.D.3d 1382 (4th Dept. 2003) ..............................................................................................................26 People v. Alexander, 97 N.Y.2d 482 (2002) ..................................................... 27, 28 People v Brown, 14 N.Y.3d 113 (2010) ........................................................... 27, 28 People v. Bryant, 22 A.D.3d 676 (2d Dept. 2005) ..................................................37 People v. Caccavale, 305 A.D.2d 695 (2d Dept. 2003) ..........................................36 People v. Coleman, 294 A.D.2d 843 (4th Dept. 2002) ............................................36 People v. Frederick, 45 N.Y.2d 520 (1978) .................................................... passim People v. Gruttadauria, 40 A.D.3d 879 (2d Dept. 2007) ........................................36 People v. Huntley, 15 N.Y.2d 72 (1965) ................................................................... 4 People v. Konstantinides, 14 N.Y.3d 1 (2009) ........................................................23 People v. Linares, 2 N.Y.3d 507 (2004) ..................................................................35 People v. Louree, 8 N.Y.3d 541 (2007) ...................................................................24 People v. Martin, 19 N.Y.3d 914 (2012) .................................................................23 People v. Mitchell, 89 A.D.3d 628 (1st Dept. 2011) ...........................................1, 20 People v. Modica, 64 N.Y.2d 828 (1985) ................................................................22 People v. Porto, 16 N.Y.3d 93 (2010) .............................................................. 31, 34 People v. Ramos, 13 N.Y.3d 881 (2009) .................................................................24 iii People v. Rodriguez, 10 A.D.3d 540 (1st Dept. 2004), lv. denied, 3 N.Y.3d 742 (2004) .............................................................................................................31 People v. Santana, 156 A.D.2d 736 (2d Dept. 1989) ..............................................36 People v. Seaberg, 74 N.Y.2d 1 (1989) ...................................................................22 People v. Sides, 75 N.Y.2d 822 (1990) ............................................................. 34, 35 People v. Stephens, 84 N.Y.2d 990 (1994) ..............................................................24 People v. Tinsely, 35 N.Y.2d 926 (1974) .................................................................32 People v. Tutt, 38 N.Y.2d 1011 (1976) ....................................................................24 People v. Vasquez, 70 N.Y.2d 1 (1987) ...................................................................36 People v. Washington, 28 A.D.3d 383 (1st Dept. 2006), lv. denied, 6 N.Y.3d 899 (2006) ............................................................................................................... 3 People v. Wilson, 15 N.Y.2d 634 (1964) .................................................................35 United States v. Wade, 388 U.S. 218 (1967) ............................................................. 4 STATUTES Criminal Procedure Law § 220.60 ...........................................................................27 Criminal Procedure Law § 470.05 ...........................................................................24 Penal Law § 125.25 ................................................................................................1, 3 Penal Law § 140.30 .................................................................................................... 3 Penal Law § 160.15 .................................................................................................... 3 Penal Law § 265.03 .................................................................................................... 3 COURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK Respondent, -against- ROBERT MITCHELL, Defendant-Appellant. --------------------------------------------------------------------X RESPONDENT’S BRIEF STATEMENT By permission of the Honorable Theodore T. Jones, Associate Judge of this Court, granted June 1, 2012, Robert Mitchell appeals from an order of the Supreme Court of the State of New York, Appellate Division, First Department, entered November 29, 2011, unanimously affirming a judgment of the Supreme Court, Bronx County (Tallmer, J.), rendered on November 19, 2007. People v. Mitchell, 89 A.D.3d 628 (1st Dept. 2011). Defendant pled guilty to two counts of Murder in the Second Degree (Penal Law § 125.25[2]) and was sentenced to two concurrent prison terms of 25 years to life. Defendant is presently incarcerated pursuant to this judgment. 2 QUESTIONS PRESENTED 1. Whether this Court is constrained from reviewing (a) mixed questions of law and fact, that defendant’s guilty plea to second-degree murder was involuntary and that his plea attorney created an operative conflict of interest by opposing his pro se motion to withdraw his plea; and (b) defendant’s contention that his due process rights were violated by the trial court’s alleged failure to conduct a proper inquiry into the merits of both claims before denying his withdrawal application. Defendant failed to raise his due process and conflict of interest challenges before the trial court. The Appellate Division, First Department found that the trial court properly exercised discretion in denying defendant’s motion. 2. Whether the trial court exercised sound discretion when it denied defendant’s boilerplate motion to withdraw his guilty plea where, even after the court assigned substitute counsel to represent him, defendant was unable to substantiate his claim that his plea attorney forced him to plead guilty. After conducting a thorough plea allocution and after affording defendant multiple opportunities to present his claims, both orally and in writing, and with the assistance of new counsel, the trial court denied defendant’s plea withdrawal application. The Appellate Division, First Department, unanimously upheld the decision, finding defendant’s plea was knowing, intelligent and voluntary. 3 THE FACTS THE INDICTMENT By Indictment No. 1791/2004 filed on or about April 15, 2004, the Grand Jury of Bronx County charged defendant, while acting in concert with several accomplices, 1 with the crimes of Murder in the Second Degree (Penal Law § 125.25[1] and [3]) (two and four counts, respectively), Robbery in the First Degree (Penal Law § 160.15[2] and [3]) (two counts each), Burglary in the First Degree (Penal Law § 140.30[1] and [3]) (one count each), and Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03) (A. 4-11). 2 1 Kevin Washington, Keisha Washington and Denise Henderson were separately indicted under Indictment No. 3438/2001 for, inter alia, Murder in the Second Degree. Ms. Washington and Ms. Henderson pled guilty to Robbery in the First Degree and, on April 15, 2004 and April 21, 2004, respectively, each received a prison sentence of 6 to 12 years. Neither filed a Notice of Appeal. On April 14, 2004, Mr. Washington was convicted, after a jury trial (Tallmer, J.), of four counts of Murder in the Second Degree (Penal Law § 125.25[1] [two counts] and [3] [two counts]), and two counts of Robbery in the First Degree (Penal Law § 160.15[1], [2]). He was sentenced to a combination of consecutive and concurrent prison terms totaling 50 years to life. On April 25, 2006, the Appellate Division unanimously affirmed Mr. Washington’s conviction, and on May 31, 2006, former Chief Judge Kaye of this Court denied Mr. Washington’s application for leave to appeal. People v. Washington, 28 A.D.3d 383 (1st Dept. 2006), lv. denied, 6 N.Y.3d 899 (2006). 2 Parenthetical references preceded by “A.” refer to the Appellant’s Appendix, which include the minutes of plea negotiation discussions that took place on October 17, 2007; the plea minutes of October 22, 2007; and sentencing minutes from November 14, 2007 and November 19, 2007. References preceded by “RA.” refer to Respondent’s Supplemental Appendix, which contains the minutes from the Huntley hearing that took place on September 5-6, 2007. 4 THE PRE-TRIAL SUPPRESSION HEARING Defendant was arrested on or about April 14, 2004 for brutally murdering Esteban “Tony” Martinez and Linda Leon in the presence of their three young children. A Huntley 3 hearing was held on September 5 and 6, 2007, before The Honorable Michael A. Gross, to determine the admissibility of statements he made to police regarding his role in the double homicide. During preliminary discussions, defendant’s attorney, Caesar Gonzalez, Esq., indicated that he had been “engaging [defendant] in constructive dialogue relative to a disposition” and asked the court for additional time to allow defendant to “make up his mind with respect to possible disposition” (RA. 6). After a lunch recess, counsel informed the court that he had “spen[t] the better part of this morning and this afternoon speaking to [his] client” and that defendant decided he would not avail himself of an offer that “at best” would span 25 years to life (RA. 7-8). Thereafter, the People called Detective Wendell Stradford to testify about his post-Miranda interview of defendant (RA. 21-22, 87). During the interview, Detective Stradford learned that defendant knew Mr. Martinez from having purchased cocaine from him, and that at some point during their relationship Mr. Martinez began selling him defective drugs. In response, he and several 3 People v. Huntley, 15 N.Y.2d 72 (1965). A hearing pursuant to United States v. Wade, 388 U.S. 218 (1967), had also been ordered, but defendant withdrew his request because a prior relationship had existed between defendant and one of the decedents’ children, who identified him in a single photo array (RA. 77-78). 5 acquaintances planned to a trip to New York City to rob Mr. Martinez. Upon arriving at Mr. Martinez’s apartment, defendant bought drugs from Mr. Martinez and watched as Kevin Washington, who was brandishing a gun, tape and handcuff Mr. Martinez and Ms. Leon while Keisha Washington and Denise Henderson confined the couple’s children, who had begun screaming, in a nearby bedroom. Meanwhile, Ms. Leon also began screaming as Mr. Washington stuck a knife inside her ear and “started trying to cut her neck with it.” Eventually, Mr. Washington moved her to a different room and returned with “blood and ‘shit’ all over his shoes and pants.” When the time came to leave the apartment, defendant carried a bag with him and “heard a bunch of shots” as he made his exit. Upon returning to Maryland, defendant, Mr. Washington and the other participants divided the money they stole from the apartment (RA. 55-59). 4 The remainder of defendant’s confession was memorialized in a 40-minute audiotape, which the People played for the court. Justice Gross summarized its contents as follows: He [defendant] specifically indicates that he came into Bronx County to buy drugs from Tony. He came in the company of three other individuals. He claimed . . . to have been surprised by the production of both a gun and a knife by his accomplice. He further claims in the audiotape to have paid forty-five hundred dollars to Tony for a quarter of a brick of cocaine. He claims to have 4 Detective Stradford’s DD-5 was admitted into evidence as People’s Exhibit 3 and read into the record (RA. 54). 6 been a witness to the tortured murder of the two individuals of not [sic] he claims to have actually been in the room when either Miss Leon or Mr. Martinez was tortured and murdered. (RA. 88). The court found that the recording established “beyond any reasonable question that Mr. Mitchell was speaking voluntarily absent any coercion,” denied defendant’s motion to suppress, and adjourned the case for a jury trial (RA. 87). No issues are raised on appeal with respect to this hearing. PLEA DISCUSSIONS In an off-the-record discussion during pre-trial proceedings on October 17, 2007, defendant expressed an interest in pleading guilty and proposed a disposition that included a determinate sentence of 30 years, which the People rejected (A. 14- 15). 5 Having presided over the trial of defendant’s accomplice, Kevin Washington, The Honorable Megan Tallmer noted for the record, inter alia, that if convicted of the top counts of the indictment, defendant faced a minimum aggregate sentence of 80 years to life or a maximum aggregate sentence of 140 years to life (A. 13-14, 19). The prosecutor, Nancy Borko, informed the court that although she had offered defendant a sentence of 30 years to life, “if counsel told [her] that the defendant would take 25 to life, that would be something [the People would] consider” (A. 16, 55). 5 At sentencing on November 19, 2007, the prosecutor informed the court that defendant’s initial proposal was a prison term of 20 years (A. 55-56). 7 Thereafter, defendant interrupted the proceedings, pulled at Mr. Gonzalez’s sleeve and told him that he was prepared to accept an offer of 25 years to life (A. 48, 56). Mr. Gonzalez, in turn, advised the court of this development and asked defendant to confirm on the record whether this was, in fact, his own decision (A. 16). Defendant answered “yes” without equivocating (A. 16). Mr. Gonzalez then recapitulated the court’s calculation of potential consecutive sentences if defendant were convicted at trial, and added that he had advised defendant of this exposure (A. 17). Additionally, he informed the court that he gave defendant a copy the Appellate Division’s decision affirming Mr. Washington’s conviction and explained the impact that decision could have on his own case (A. 18). The court then asked defendant if he would accept a 25 years-to-life sentence, to which defendant responded, “Yes” (A. 18). Upon the People’s request for time to speak with the decedents’ family about the proposal, and Mr. Gonzalez’s request for time to allow defendant to discuss the plea with his family, the court adjourned the proceedings for five days (A. 18-23). THE GUILTY PLEA On October 22, 2007, defendant indicated that he wished to withdraw his plea of “not guilty” and plead guilty to two counts of second-degree murder. Mr. Gonzalez informed the court that defendant was prepared to waive “any right to 8 appeal,” including the right to appeal the hearing court’s decisions. The court then instructed counsel to have defendant review the written appeal waiver “word for word” and sought confirmation from him that defendant “actually read” it and understood its terms, which counsel provided. Both Mr. Gonzalez and defendant signed the waiver in open court (A. 26-27). Defendant then swore to speak truthfully. He acknowledged that he was withdrawing his “not guilty” plea and pleading guilty to the first and second counts of the indictment, intentional murder of Mr. Martinez and Ms. Leon, with the understanding that he waive his right to appeal, serve concurrent prison sentences of 25 years to life, and submit to a permanent order of protection in favor of the decedents’ three children (A. 27-29). When the court asked defendant if he had sufficient time to discuss the guilty plea with Mr. Gonzalez and whether he was satisfied with the services he provided, defendant replied, “Yes” (A. 29). Defendant stated that no one had forced him to plead guilty and that, besides the sentence promised by the court, he received no other promise from anyone to induce his plea (A. 29). Defendant also acknowledged that he understood that his guilty plea would have the same legal effect as a guilty verdict at trial (A. 29-30). He then confirmed that he understood the terms of the written appeal waiver he executed (A. 30). 9 Next, defendant indicated that he understood that by pleading guilty, he was giving up his right to go to trial and to make the People prove his guilt to a jury beyond a reasonable doubt (A. 30). Specifically, he acknowledged that he understood that he was giving up his right against self-incrimination, and his right to cross-examine witnesses called to testify against him, to call his own witnesses, and to testify on his own behalf (A. 30-31). When the court asked defendant if it was true that on or about December 15, 1996 he, acting in concert with others, caused the deaths of Tony Martinez and Linda Leon by shooting them in the head with a loaded handgun, defendant responded, “No” (A. 31). Ms. Borko then explained that while defendant “did pull a trigger as to one of the deceased[,] . . . it is an acting in concert [theory] because we . . . never had an independent witness to say who killed whom, but we do have a gun in [defendant’s] hand” (A. 31-32). The court, in turn, defined the term “acting in concert” and asked defendant whether, based on that definition, he “acted in concert with Kevin Washington . . . to assist him and promote his causing the death of these two people by shooting them” (A. 32). Additionally, the court advised, “If you didn’t do it, we’ll have a trial, sir. If you did do it, then you can plead guilty to it, but I’m not interested in taking a plea from somebody who cannot allocute to this in good faith . . . or truthfully” (A. 32-33). Defendant 10 responded by admitting that he and others intentionally murdered Tony Martinez and Linda Leon (A. 33). Following this admission, the court explained to defendant the conditions he had to meet in order to receive the promised sentence, which included refraining from committing any crimes between the plea and sentence dates, and not denying his guilt after admitting it under oath. At the court’s request, Mr. Gonzalez and defendant conferred. Counsel thereafter reported that he explained to defendant the significance of those conditions and that defendant understood the terms (A. 33-34). When the court asked defendant if he had any questions about his plea, defendant replied, “No” (A. 34). The court further inquired, “Is there any question at all in your mind that you did commit the acts that are charged here and you are pleading guilty to acting in concert with another person or persons?” (A. 34). Again, defendant responded, “No” (A. 34). When Ms. Borko affirmed that she was satisfied with the allocution, the court adjourned the sentencing proceedings for two weeks, which included time for defendant to meet with his family (A. 34- 38). DEFENDANT’S PRO SE MOTION TO WITHDRAW HIS GUILTY PLEA On November 14, 2007, defendant appeared for sentencing. Before the court and attorneys reviewed the pre-sentence report, Mr. Gonzalez informed the 11 court that defendant had presented to him an application to withdraw his guilty plea. 6 Counsel stated that one of the allegations that concerned him was defendant’s claim that he had coerced defendant into pleading guilty. Justice Tallmer asked Mr. Gonzalez whether he was responding to the allegations, to which counsel replied, “I am somewhat barred from responding to these particular allegations per se.” The court then considered its obligation to assign new counsel if, in fact, counsel intended to oppose defendant’s motion (A. 40-42). Before asking Mr. Gonzalez to take a position on the application, the court reviewed it and summarized its contents: I would just note that this is, I guess, the Riker’s equivalent of a boilerplate motion where paragraph 4 has lines to insert the date, which he put in. The word ‘coerced’ is already in the affidavit. It’s underlined, and then there seems to be already placed, ‘I was coerced into pleading guilty by the Court, prosecutor, and my defense attorney’ and those appear to be inserts or are already in the boilerplate. (A. 42). Ms. Borko noted that Paragraph 7 characterized the motion as one for reargument. The court stated in agreement: Paragraph 7 cites, ‘[o]n or about November 6, 2007, defendant’s’—I’m reading verbatim—‘motion to withdraw his plea of guilty was denied. He now submits this motion for reargument upon the grounds that his plea of guilty, again, was coerced.’ Here again that word is 6 The court marked the motion as “Court’s Exhibit 1” (A. 45-46), but the record on appeal does not contain it. In footnote 3 of defendant’s brief to the Appellate Division, First Department, appellate counsel indicated that he made efforts to locate the motion but could not find it. 12 underlined either because it’s already in the boilerplate or because it’s to be inserted by the defendant. (A. 42). When Justice Tallmer asked defendant if he had anything to add to his written application, defendant stated, “Yes. I have been sitting in Riker’s Island for four years, and from day one I said I was not guilty” (A. 42-43). In response, the court reminded defendant of the prior plea proceedings and denied defendant’s motion: THE COURT: You remember, sir, that we spent a long time talking about this disposition. I tried the earlier case, so I was familiar with the facts and, sir, I know that I took a very full allocution from you in which I expressly asked you if anybody had pressured you, threatened you, coerced you in any way into pleading guilty, whether any promises had been made to you other than my sentence promise in which you unequivocally and under oath told me, sir, that no other promises had been made and no one had pressured or coerced you into taking the plea. Is that your recollection, People? MS. BORKO: It certainly is, your Honor. THE COURT: So, sir, I’m sure that we discussed this at length, sir, and I believe I indicated that given my prior knowledge of the case I was only really receptive to this disposition because the People were urging it; that you know well what would have been your codefendant, Mr. Washington, received consecutive sentences of 25 to life for a total of 50 to life. That was affirmed by the Appellate Division. As far as I know, that has not been appealed to the Court of Appeals and is now the final disposition. 13 MR. GONZALEZ: Leave was denied, your Honor. THE COURT: Leave was denied. In other words, sir, I had to be convinced to take this disposition, so I know, sir, that the allocution was thorough; that I took you over all the rights that you were giving up, the fact that you were not being threatened, that nobody made you any promises, that you weren’t under the influence of any type of drugs; that you understood all the constitutional rights you were giving up and you allocuted, sir, under oath to the facts of the crime. . . . Sir, as I said, this is a totally boilerplate motion. It’s not in any way adapted to the particulars of your case. You know, you filled in a couple of blanks here. Really, the only blanks you filled in were the dates, sir, and the nature of the charges. So, there is no meat to this is what I’m trying to say, sir. The fact that you may have maintained your innocence at one point, a lot of defendants maintain their innocence, sir, until they plead guilty, and they plead guilty because they are guilty and they have changed their mind about asserting that they are innocent. So, that mere switching of innocence unbacked by anything else in the face of what I know, sir, had to have been a very thorough allocution, sir, it’s just not a basis for withdrawing your plea; and given the fact that counsel has not in any way disputed any allegations, there is not a basis here to appoint a new attorney or to hold any type of hearing. All you have said to me is you previously said you were innocent. Well, you told me under oath, sir, that you were not innocent; that you, in fact, were guilty. So, I’m denying this motion to withdraw your plea. (A. 44-45). 14 When defendant asked to speak, Justice Tallmer reminded him that he was still represented by counsel, “a very, very competent attorney,” and advised him that he should speak through his attorney. Mr. Gonzalez and defendant then had a discussion off the record (A. 45). Thereafter, without disputing the allegations contained in defendant’s motion, Mr. Gonzalez informed the court that he “did not adopt” the motion and requested an opportunity to be heard at the bench, which the court obliged and subsequently summarized for the record: THE COURT: We have spoken at the bench. Counsel is concerned that if he does not respond to the defendant’s allegations, however boilerplate and meritless they may be, that he may in some way be implicitly acknowledging that there is any truth to them or any merit to them. I understand his reluctance to do that, even though at this point that would place him in a position adverse to his client’s and I’d have to assign new counsel. MR. GONZALEZ: Yes, your Honor. THE COURT: When I say I have to assign new counsel, I’m not sure that the law requires me to do that, but I think out of prudence, if we are going to take this step, it makes sense to assign him a new counsel. Do you agree, Ms. Borko? MS. BORKO: Yes, your Honor. THE COURT: So, then, do you want to respond to his allegations in this boilerplate motion that you somehow coerced him to plead guilty against his will, Counsel? 15 MR. GONZALEZ: Judge, obviously, I take a position contrary to [defendant] with respect to the assertion or the motion that he was coerced. I have spoken to [defendant] here in court relative to some of the things that he is alluding to as forming the basis for his belief that he was coerced and— THE COURT: You actually showed him a copy of the decision in Washington[,] correct? MR. GONZALEZ: That’s correct, Judge. (A. 46-47). Ms. Borko then reminded the court that the case had been adjourned for several days for defendant to consider the offer. She further recalled the chronology of discussions that led to defendant accepting a bargain of 25 years to life and reminded the court that defendant “pulled on Mr. Gonzalez’[s] sleeve and said, ‘I’ll take the plea,’ which was not what any of us expected at that point” (A. 47-49). The court then inquired of Mr. Gonzalez: THE COURT: Is that your recollection as well, Counsel? MR. GONZALEZ: It certainly mirrors my recollection of it, Judge. But be that as it may, the point is now [defendant] is claiming my conduct resulted in him being unduly influenced into taking a plea for [offenses] which he now maintains that he did not do. It’s a position I can’t adopt. In fact, in certain respects, some of the things that he’s alleging to the Court now are at odds. 16 THE COURT: Are you expressly denying that you in any way coerced this plea from him? MR. GONZALEZ: No, I did not. THE COURT: You told him what his options were? MR. GONZALEZ: I believe I fulfilled my professional obligations under the law to give him a perspective as to what possible consequences may flow in the event things didn’t go his way. THE COURT: You discussed what you believed to be the strengths of the People’s case, the weaknesses, what happened to Mr. Washington when he went to trial with essentially the same, I think, proof on the part of the People. You discussed all that with him; correct? MR. GONZALEZ: Yes, your Honor. THE COURT: So, sir, I would have to agree at this point, since your attorney has flatly denied your allegations, again, no matter how meritless or boilerplate they may be, it’s more prudent to give you yet another attorney to represent you, sir, who can take a look at this application and decide whether he or she believes there is anything to go forward with, sir. (A. 48-49). In preparation for reconsidering defendant’s motion, the court relieved Mr. Gonzalez and advised the parties it would order the plea minutes (October 22, 2007) as well as the minutes when record discussions of sentence exposure first took place (October 17, 2007) (A. 51-52). The court then adjourned the matter for substitute counsel to be assigned. 17 DEFENDANT’S MOTION TO WITHDRAW (CONTINUED) AND SENTENCE On November 19, 2007, newly assigned counsel, Kyle Watters, Esq., appeared on defendant’s behalf. Justice Tallmer explained that defendant had submitted a pro se motion to withdraw his plea containing allegations that Mr. Gonzalez pressured him to plead guilty even though he was innocent and that Mr. Gonzalez “told him the Judge would see to it that he receive the maximum amount of time if he was convicted again.” She further pointed out that defendant’s submission was a “boilerplate form” with handwritten entries “that simply have the dates applicable to the defendant” (A. 54). Ms. Borko followed by recounting the history of plea negotiations, noting specifically that defendant had “plenty of time . . . to speak to whomever he needed to” before admitting guilt under oath. In her concluding remarks, she reasserted the People’s opposition to defendant’s motion (A. 55-57). Next, Mr. Watters informed the court: . . . [Defendant] has detailed to me issues related to his representation by Mr. Gonzalez [and] that if they are actually true and factually accurate may be a basis for an ineffective assistance of counsel claim. I’m not making an assessment of whether or not it is truthful or not. I was not present and have any acquaintance with Mr. Gonzalez or Mr. Mitchell at the time he was representing him. I only know that, I believe there is some merit to a claim of ineffective assistance of counsel if, in fact, the allegations are accurate. (A. 57-58). 18 Then, stating his familiarity with the case’s procedural history, Mr. Watters explained that he advised defendant that the court was inclined to go forward with sentencing even though it was his (counsel’s) belief that defendant raised a valid ineffective assistance of counsel claim. He also summarized what he understood to be the bases underlying defendant’s complaint: defendant’s previous attorney never visited him, never discussed the merits or potential defenses of his case, and never counseled him except to advise him to “take whatever plea he could get, otherwise he would never get out” (A. 58). 7 Having heard counsel’s argument and relying on the minutes from the prior plea discussions and the plea allocution itself, the court denied defendant’s motion, characterizing it as “still entirely conclusory and boilerplate” (A. 58-59). The court reasoned that defendant had ample opportunity, including an extended weekend, to consider the offer and consult with his attorney. The court also recalled that defendant, himself, had proposed the very life sentence he was now seeking to eschew. The court further noted “its [initial] reluctance to accept that plea in light of the [c]ourt’s knowledge of the case from having tried Mr. Washington” and its awareness that even stronger evidence might exist with respect to defendant’s guilt than the evidence admitted at Mr. Washington’s trial (A. 59). In summary, Justice Tallmer stated: 7 For reasons not stated on the record, counsel did not endorse defendant’s allegations (A. 57-58). 19 [T]his [wa]s a solid plea allocution. I specifically asked whether he was satisfied with his attorney’s services. He said he was. I specifically ask[ed] whether anybody forced him, whether anybody made him any promises. He was under oath and answered no to each of those questions. This was a very clear[,] thorough plea allocution. I made sure he read the waivers of the right to appeal, word for word. We had discussions earlier about his potential exposure. All of that was a matter of record. So counsel, certainly from my own observations, and from the plea minutes themselves, there simply cannot be anything here to sustain a claim of coercion or any type of ineffective assistance of counsel in connection with his plea. If he has some other basis for making an ineffective assistance of counsel [claim], not related to his plea counsel, then he’s free to do that, but there is nothing here other than pure boilerplate and pure conclusory language, so I’m denying the motion to vacate the plea . . . (A. 60). Thereafter, the court proceeded to the sentencing arraignment without protest from defendant or a request by him for a formal hearing. The People were given an opportunity to make a statement, at which time the prosecutor reminded the court of how defendant and his accomplices robbed and murdered Tony Martinez and Linda Leon (A. 61-69). When Ms. Borko concluded, Mr. Watters stated, “I reiterate the issue my client has raised as far as taking the plea back, and there is no other legal basis for not going forward with the sentence” (A. 69). Defendant also made a statement, expressing remorse for the death of his “friends” 20 and their children. The court then sentenced defendant to two concurrent prison terms of 25 years to life and imposed a permanent order of protection (A. 69-72). DEFENDANT’S DIRECT APPEAL Defendant appealed his conviction to the Appellate Division, First Department. The Appellate Division unanimously affirmed, finding that (1) the trial court “afforded defendant a full opportunity to present his claims both orally and in writing, and with the assistance of newly appointed counsel;” (2) defendant’s ineffective assistance of counsel claim was “conclusory, unsubstantiated and contradicted by the record;” and (3) the trial court properly concluded that defendant’s plea was knowing, intelligent and voluntary based on its familiarity with the plea allocution and prior proceedings (A. 2-3). People v. Mitchell, 89 A.D.3d 628 (1st Dept. 2011). 21 ARGUMENT POINT ONE DEFENDANT’S CONSTITUTIONAL CLAIMS ARE UNREVIEWABLE AND UNPRESERVED. Defendant pled guilty to two counts of murder in the second degree after the suppression court heard and admitted into evidence his audiotaped confession that he helped brutally murder Tony Martinez and Linda Leon, in the presence of their young children. Defendant knew that the People would present the same evidence proffered at Kevin Washington’s trial, that the People had additional evidence linking him to the crime scene, and that Mr. Washington had been sentenced to a prison term of 50 years to life. He also knew that if found guilty of the top counts, he faced maximum consecutive sentences totaling 140 years to life. Against these daunting odds, defendant, unprompted by his attorney, accepted a 25 year-to-life sentence even though he believed his guilty plea was worth only 30 years in prison (A. 13-17). At his plea allocution and under oath, defendant unequivocally admitted that he acted in concert with others and intentionally caused the deaths of Mr. Martinez and Ms. Leon by shooting them in the head. Before sentencing, however, defendant had a change of heart and, using an incomplete, fill-in-the-blank form, moved the court to withdraw his plea of guilty (currently not part of the record on appeal) based on conclusory allegations that Mr. Gonzalez, his plea attorney, 22 forced him to plead guilty, and that Mr. Gonzalez failed to provide adequate representation prior to the plea. Although Justice Tallmer gave defendant a chance to substantiate his application, defendant took the opportunity to state only that he had been sitting in Riker’s Island for four years and had maintained his innocence since the inception of his prosecution (A. 42-43). In an abundance of caution, the court relieved Mr. Gonzalez, appointed Mr. Watters as new counsel, and afforded defendant a second opportunity to demonstrate coercion by Mr. Gonzalez. Defendant, through Mr. Watters, articulated nothing that the court conceivably could have construed as coercive conduct, however (A. 69). When, prior to sentencing, the court denied defendant’s motion, defendant voiced no protest nor did he demand a formal hearing. Instead, he chose to wait until his appeal, before the Appellate Division and now this Court, to claim that under the Due Process clauses of the state and federal constitutions, he was entitled to a more “meaningful opportunity to speak for himself” and that the court should have “engage[d] in additional inquiry into the circumstances surrounding [his] claim” (Appellant’s Br. 16, 18). 8 Defendant’s claims are unreviewable as matters of law. His assertion that his attorney coerced his plea falls squarely within the purview of the holding in People v. Modica, 64 N.Y.2d 828 (1985), that the voluntariness of a plea is a 8 Although defendant executed a valid written waiver of appeal (RA. 91), his appellate claim that his plea was involuntary survives such a waiver. People v. Seaberg, 74 N.Y.2d 1, 9 (1989). 23 mixed question of law and fact which, if supported by the record, is beyond the review powers of the Court. People v. Martin, 19 N.Y.3d 914, 915 (2012) (mixed questions of law and fact beyond Court’s review power if evidence exists in record to support Appellate Division determination). As set forth in greater detail infra Point Two, the record shows that defendant personally initiated negotiations for a plea deal after losing a Huntley hearing; he interrupted pre-trial proceedings to express his desire to plead guilty in exchange for a more forgiving life sentence; and he told the court that he was freely taking responsibility for his part in causing the death of two people. On this robust record, the Appellate Division found that defendant’s plea was entirely voluntary. Defendant also raises a conflict-based claim of ineffective assistance of counsel that is unreviewable for the same reason. According to defendant, Mr. Gonzalez did not “fulfill his professional obligations” to defendant when he took an adverse position to his motion before being relieved as his lawyer (see Appellant’s Br. 18-23). Even if this Court were to find that this alleged conflict was colorable, it would then have to determine whether the conflict “operate[d] on the defense,” an issue that raises a mixed question of law and fact which, of course, defendant urges the Court to find in his favor (see Appellant’s Br. 21-24). People v. Konstantinides, 14 N.Y.3d 1, 10-11 (2009) (conflict-based claim of ineffective assistance of counsel involves mixed question of law and fact subject to limited 24 appellate review). In any event, the record shows that the trial court properly interrogated Mr. Gonzalez, not about what facts might underlie defendant’s coercion claim, but about what information he provided to enable defendant to make an intelligent decision about the plea deal he was offered. Afterwards, when counsel expressly disputed the coercion allegation, the court replaced him with Mr. Watters, a decision that not only resolved the conflict, but extinguished it altogether. Reviewability notwithstanding, defendant defaulted on his claims. See CPL § 470.05(2); People v. Stephens, 84 N.Y.2d 990, 992 (1994) (“The general rule requiring a defendant to preserve his claims for appellate review ordinarily applies to claims of error involving State and Federal constitutional rights.”); see also People v. Ramos, 13 N.Y.3d 881 (2009) (ex post facto and due process challenges deemed unpreserved). In order to preserve his constitutional challenge, defendant was required to raise it before Justice Tallmer, who could have addressed the alleged error(s) and taken corrective measures. See People v. Louree, 8 N.Y.3d 541, 545 (2007) (“[F]ailure to make the appropriate motion denies the trial court the opportunity to address the perceived error and to take corrective measures.”); People v. Tutt, 38 N.Y.2d 1011, 1013 (1976) (preservation lacking where defendant failed to challenge even a “narrow aspect” of conduct claimed to be constitutionally required). 25 Defendant did not satisfy this preservation requirement. When the trial court adjourned the case for sentencing, it gave defendant more than one opportunity to say anything he wanted to say about his allegation of coercion or about the court’s chosen method of evaluating it. Additionally, the court ensured that conflict-free counsel was available to assist him every step of the way. Even when it denied his withdrawal application upon reconsidering it sua sponte, the court continued to withhold entry of judgment until defendant made it clear that he had nothing left to argue, not only with respect to his application, but also with respect to any other issue (A. 59-69). Mr. Watters simply “reiterate[d]” defendant’s position that withdrawal was appropriate, then emphasized that “there is no other legal basis for not going forward with the sentence” (A. 69). Defendant’s complaint on appeal cannot overcome his choice to remain silent relative to his claim of coercion. In fact, if defendant knew how to complain about Mr. Gonzalez’s pre-plea performance, he cannot be excused for failing to alert the sentencing court about the inadequate representation he believed he received after pleading guilty. Ultimately, however, the adequacy of Mr. Gonzalez’s advice at that juncture implicates matters dehors the record and thus not suitable for review by this Court. 9 9 Any ineffective assistance claim not related to counsel on the record at the guilty plea should be addressed in a CPL § 440 motion. 26 Equally unpreserved is defendant’s untimely conflict-based ineffective assistance of counsel claim. After Mr. Gonzalez denied the allegation of coercion, the court assigned Mr. Watters to evaluate defendant’s pro se claims and carved out more time for defendant to articulate the relevant underlying facts. Instead of raising the requisite objection needed to preserve the issue he now takes with Mr. Gonzalez and the adverse position he took with respect to his motion, defendant used the opportunity to convey information germane only to Mr. Gonzalez’s conduct before he tendered his guilty plea. Finally, defendant’s motion is missing from the record of appeal, an issue that creates an additional impediment to judicial review. Although the court had marked the withdrawal application as its own Exhibit 1 (A. 45-46), as noted by appellate counsel below, the motion could not be located (Def.’s Appellate Division Br. 7 n.3). Without the motion, review of defendant’s claim should be precluded. See In re Military Contrs. (Marrano/Marc Equity Corp.), 2 A.D.3d 1382 (4th Dept. 2003) (where record on appeal was incomplete, court declined review of respondent’s claim). 27 POINT TWO THE TRIAL COURT, HAVING DETERMINED THAT DEFENDANT’S GUILTY PLEA WAS KNOWING, INTELLIGENT, AND VOLUNTARY, PROPERLY DENIED HIS MOTION TO WITHDRAW HIS PLEA, WHICH THE APPELLATE DIVISION UPHELD AS SUPPORTED BY THE RECORD. Should this Court address the merits of defendant’s claim, it should affirm the judgment because the record demonstrates that the trial court exercised sound discretion in denying defendant’s motion. See CPL § 220.60(3); People v Brown, 14 N.Y.3d 113, 116 (2010) (“When a defendant moves to withdraw a guilty plea, the nature and extent of the fact-finding inquiry rest[s] largely in the discretion of the Judge to whom the motion is made and a hearing will be granted only in rare instances.” [internal quotation marks omitted]). A defendant’s guilty plea “generally marks the end of a criminal case and is not a gateway to further litigation.” People v. Alexander, 97 N.Y.2d 482, 485 (2002) (internal quotation marks omitted). A motion to withdraw a guilty plea, therefore, will not be “granted merely for the asking.” Id. After affording a defendant a reasonable opportunity to advance his claims, a trial judge may, without conducting independent fact-finding procedures, deny the motion if the defendant fails to show that his plea was baseless and if the record of prior court proceedings demonstrates that the defendant understood the 28 consequences of his guilty plea. See Brown, 14 N.Y.3d at 116; Alexander, 97 N.Y.2d at 486; People v. Frederick, 45 N.Y.2d 520, 525 (1978) (“After a showing that defendant’s plea was baseless, the Judge to whom the motion is addressed must be entitled to rely on the record to ascertain whether any promises, representations, implications and the like were made to the defendant.”). Because the trial court is “able firsthand to assess whether [a] defendant was alert and knowledgeable enough to plead guilty voluntarily,” on appeal, its decision to deny a withdrawal application may be reviewed only for abuse of discretion. Alexander, 97 N.Y.2d at 485-86. Here, Justice Tallmer properly denied defendant’s motion after inquiring of defendant multiple times, before and after she accepted defendant’s plea. In Frederick, this Court upheld a conviction where the trial judge summarily denied a defendant’s plea withdrawal application after taking “painstaking measures to insure that the defendant fully understood the consequences of his guilty plea.” Frederick, 45 N.Y.2d at 525-26. The question there was whether the defendant was entitled to an evidentiary hearing based on a representation by his attorney which allegedly induced him to plead guilty. During its “detailed” colloquy, as this Court described it, the trial court advised the defendant of his sentencing exposure and inquired of any off-the-record promises which may have been made to convince him to plead guilty. Later, at sentencing, the court reviewed 29 documentation submitted by the defendant in support of his withdrawal application, as well as the complete transcript of the plea minutes. This Court found that, armed with a supplemented application and the plea transcript, the trial judge “had the essential resources upon which to evaluate fairly and completely the merits of [the] defendant’s contentions,” in satisfaction of the procedural standard. Id. at 528. Like the trial judge in Frederick, Justice Tallmer conducted a thorough plea colloquy and relied on both the transcript of that colloquy and defendant’s written motion before deciding to deny his withdrawal request. Immediately after reviewing the motion and determining that it was insufficient, the court invited defendant to supplement his application. Rather than supporting the motion with additional documentation or even an oral explanation containing relevant facts, defendant reminded the court of his previous “not guilty” plea (A. 42-43). The inadequacy of his response did not distract the court from addressing the looming predicament made apparent from Mr. Gonzalez’s decision not to adopt defendant’s motion, however. Once counsel denied the allegation of coercion, the court relieved him and assigned new counsel. Notwithstanding these cautionary measures, defendant would have this Court believe that the trial judge gave his motion “short shrift” and dismissively “urged him to speak only through his [original] attorney,” thereby steam-rolling 30 over his constitutional rights (Appellant’s Br. 18, 24). Even a cursory reading of the record reveals that Justice Tallmer was nothing but single-minded in her commitment to safe-guarding his rights. On November 14, 2007, when defendant asked for a second opportunity to speak after moving to withdraw his plea, she expressed this commitment by advising him as follows: THE COURT: Well, sir, let me just say this: You still have an attorney here. He’s still your attorney. It’s generally not a good idea for you to speak in open court. It’s generally a good idea for you to speak through your attorney, sir. If for any reason this case were to proceed, then anything you are about to say to me right now, sir, is being taken down by the reporter and can and will be used against you if the case proceeds. So, I would urge you. Mr. Gonzalez is still your attorney. He is a very, very competent attorney, sir. If you want to say something, I suggest that you run it by him first because you could be prejudicing yourself. (Discussion off the record between the defendant and his attorney.) (A. 45). Defendant, although free to ignore the court’s advice and foresight, made the wiser choice to allow his attorney to continue to speak on his behalf. After appointing new counsel, the court exercised sound discretion in affording defendant a new opportunity to substantiate his withdrawal application, to his satisfaction. Defendant abandoned the opportunity, however. Unlike the defendant in Frederick, defendant chose not to submit additional materials to support his claims. Neither did he take the opportunity to “speak for himself” and 31 provide the court with facts to establish a prima facie case of attorney coercion (Appellant’s Br. 18). Instead he stated, through Mr. Watters, that his previous attorney did not visit him, did not discuss the merits or potential defenses of the case, nor did he (Mr. Gonzalez) adequately counsel him except to advise him to “take whatever plea he could get” to avoid a lifetime in jail. 10 Defendant’s contention that the trial court denied his withdrawal application without giving him a reasonable opportunity to defend it, therefore, is without merit. Evidently, defendant would have preferred that Justice Tallmer steer a fishing expedition into his conclusory remarks by conducting a form of interrogation that conformed to his own specifications (see Appellant’s Br. 17). The trial court was under no obligation to assist defendant in drumming up a factually supportable coercion claim, however, nor was it required to conduct a fact-finding procedure that satisfied defendant. Cf. People v. Porto, 16 N.Y.3d 93, 100 (2010) (rejecting rule of law proposed by defendant to require courts, before deciding pro se motions, to pose questions directly to every complaining defendant represented by counsel). Moreover, defendant made no factual assertions at sentencing—even with the assistance of new counsel—to support his claim of 10 Even if it were true that trial counsel told defendant “to take whatever plea he could get, otherwise he would never get out” (A. 58), this appears to be nothing more than sound legal advice. Counsel’s purported recommendation merely reflected the dismal realities facing defendant in the wake of the suppression hearing. Indeed, “there was nothing coercive about counsel’s evaluation of the strength of the People’s case and sound advice to defendant to accept a favorable plea offer.” See People v. Rodriguez, 10 A.D.3d 540 (1st Dept. 2004), lv. denied, 3 N.Y.3d 742 (2004). 32 innocence to bring his case, as he maintains, within the reach of People v. Tinsely, 35 N.Y.2d 926 (1974) (Appellant’s Br. 16-17). In that case, this Court vacated a sentence where a defendant claimed to have pled guilty because he was under duress; he had no witnesses to testify on his behalf; he was dissatisfied with his assigned counsel; and because the court threatened him with a hefty sentence if he rejected the plea offer. Tinsely, 35 N.Y.2d at 927-28. Absent a factual showing that defendant’s plea was involuntary, the trial court properly turned to the plea record to assess the sufficiency of the allocution and to inform her disposition of the pending motion (A. 58-60). See Frederick, 45 N.Y.2d at 525. The minutes show that defendant, under oath, systematically relinquished each of his trial rights (A. 30-31). In addition, they record the responses defendant gave to assure the court that he had sufficient time to discuss the plea with his attorney and was satisfied with his attorney’s services; that no one forced him to plead guilty; and that, other than the negotiated sentence, no promises had been made to him to induce him to plead guilty (A. 29-30). The minutes further memorialize defendant’s admission of guilt, including the court and prosecutor’s efforts to clarify a legal term that initially caused defendant to deny guilt, and the steps the court took to guarantee that defendant was capable of freely tendering an honest plea and one that he would not later regret (A. 31-34). 33 The circumstances that preceded defendant’s guilty plea further belie his claim of coercion and thus are relevant to the instant appellate challenge. Defendant did not plead guilty suddenly or in a vacuum. Hardly fortuitous, he made himself available for negotiation and, to that end, attempted to curry the prosecutor’s favor (A. 14-16) after witnessing his confession played for the hearing court and admitted into evidence just a few weeks earlier. Defendant also heard, in open court, the unforgiving sentence his accomplice received as well as his own potential exposure to maximum consecutive life sentences if convicted at trial, and the strength the People’s case (A. 13-14, 19). Evidently deterred from proceeding to trial, he actively participated in plea negotiations, initiated his own plea proposal and, with a tug of Mr. Gonzalez’s sleeve followed by an express repudiation of his prior “not guilty” plea, accepted a plea offer of concurrent sentences of 25 years to life (A. 14-16, 18). Then, equipped with this information, defendant requested time to consult his family about the plea offer, which the court took into account when it decided to adjourn the matter for five days (A. 19-22). These circumstances, coupled with Justice Tallmer’s “tedious questioning” of defendant, the conversations she observed between defendant and Mr. Gonzalez throughout the proceedings, and defendant’s decision to withhold details about Mr. Gonzalez’s alleged coercive conduct (A. 26-27, 34, 45), provided the court with more than 34 enough information to make an “informed and prudent” decision about his application. See Frederick, 45 N.Y.2d at 525. Finally, defendant berates the trial court for permitting—indeed, inviting— Mr. Gonzalez to state for the record his opposition to defendant’s motion before relieving him, citing the New York Rules of Professional Conduct and a series of readily distinguishable cases in support of his claim (Appellant’s Br. 18-24). According to him, “[Mr. Gonzalez]’s statements were improper” at that stage of the proceedings “even if [Mr. Gonzalez] did, in fact, believe that [he] had no grounds to withdraw his plea” (Appellant’s Br. 20). By his calculation, Mr. Gonzalez should have followed his “initial instincts—that he was ‘somewhat barred from responding to [the] allegations’” and the court should have refrained from eliciting what he calls “adverse information” while Mr. Gonzalez continued to represent defendant (Appellant’s Br. 22-23). Defendant’s position does not comport with the approach this Court took in People v. Sides, 75 N.Y.2d 822 (1990), and People v. Porto, 16 N.Y.3d 93 (2010). Once a defendant makes a serious and factually supportable complaint about counsel, Sides and Porto require a trial court to make a minimal inquiry into the nature of the complaint or its potential for resolution before denying a defendant’s request for substitute counsel. See Porto, 16 N.Y.3d at 99-100 (judgment affirmed where trial court engaged in a colloquy with defense even though defendant’s pro 35 se motion for new counsel “failed to proffer specific allegations of a ‘seemingly serious rest’ that would require the court to engage in a minimal inquiry”); Sides, 75 N.Y.2d at 824-25 (judgment vacated and matter remanded where trial court denied motion for substitute counsel without inquiring about apparent rift counsel acknowledged concerning attorney-client relationship). Here, Justice Tallmer, faced with a generic plea withdrawal application and the opposing positions taken by defendant and Mr. Gonzalez on the question of coercion, followed the example of the trial court affirmed in Porto and questioned counsel about advice he provided relative to defendant’s ability to make an informed decision about the plea offer. The court stopped short of delving into the underlying details of coercion, for obvious reasons. Diligent about repairing the momentary constitutional breach caused when Mr. Gonzalez finally denied defendant’s allegations, the court took the cautionary step of assigning new counsel. See People v. Linares, 2 N.Y.3d 507, 510-11 (2004) (courts have discretionary power to substitute counsel). 11 11 In People v. Wilson, 15 N.Y.2d 634, 637 (1964) (Scileppi, J., dissenting), where defense counsel made adverse remarks that called into question the veracity of the claims raised in a defendant’s plea withdrawal motion, Judge Scileppi summarized the quandary faced by similarly situated defense attorneys as follows: As I perceive it, an attorney, when faced with the circumstances presented here, has one of three choices. He may, as was done here, call the court’s attention to the facts as he knows them. He may, as has been suggested, ask to withdraw from the case, but on analysis this is no different from his first option since he most certainly will be requested to disclose his reasons for so doing to 36 Defendant conveniently neglects to point out that the presiding tribunals in the cases he references in support of his preferred remedy all agree that where a defense attorney takes a position adverse to that of his client, the proper recourse is to assign new counsel before deciding the underlying issue. See People v. Caccavale, 305 A.D.2d 695 (2d Dept. 2003) (where defense refuted defendant’s allegation of attorney coercion, trial court should have first assigned new counsel before deciding plea withdrawal motion); People v. Coleman, 294 A.D.2d 843, 844 (4th Dept. 2002) (where trial attorney took adverse position to defendant’s motion to set aside verdict, court erred when it denied motion without assigning new counsel); People v. Santana, 156 A.D.2d 736, 737 (2d Dept. 1989) (“[O]nce counsel took a position adverse to the defendant, the court should not have proceeded to determine the motion without first assigning the defendant new counsel.”); see also People v. Vasquez, 70 N.Y.2d 1 (1987) (where appellate counsel disparaged arguably frivolous claims, case remitted for de novo review of appeal with instructions to assign substitute counsel); People v. Gruttadauria, 40 A.D.3d 879 (2d Dept. 2007) (where defense opposed pro se motion, case remitted the court. Thus, in both instances, his ‘adverse’ position will be made known to the court. His third choice is to remain silent while his client bears false witness. I cannot, however, conceive of this behavior by an officer of the court as the preferable choice. In the final analysis the attorney must disclose or conceal. Here counsel chose to reveal his knowledge to the court and, far from being questionable, his conduct represented, at the very least, the selection of the acceptable choice. 37 for de novo determination of claims and appellate counsel assigned in substitution); People v. Bryant, 22 A.D.3d 676 (2d Dept. 2005) (same). By appointing substitute counsel, the trial court avoided the fundamental pitfall that caused the appellate courts to reverse the rulings challenged in these cases. In sum, defendant seeks review of claims that are either unreviewable or unpreserved. On the merits, Justice Tallmer’s decision to deny defendant’s (missing) application to withdraw his guilty plea is amply supported by the record. Defendant proffered no factual allegations to justify a more searching inquiry into his claim of attorney coercion than the inquiries Justice Tallmer made and the multiple opportunities she afforded defendant sua sponte. His continued inability to aver a single rational or persuasive reason to warrant remanding the case for a hearing is reflected in the instant appeal. The judgment and order of the Appellate Division, therefore, should be affirmed. 38 CONCLUSION THE JUDGMENT SHOULD BE AFFIRMED IN ALL RESPECTS. Respectfully submitted, ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent JOSEPH N. FERDENZI PETER D. CODDINGTON RICHARD J. RAMSAY Assistant District Attorneys Of Counsel NOVEMBER 14, 2012