The People, Respondent,v.Robert Mitchell, Appellant.

Brief

N.Y.May 2, 2013

To be argued by: REBEKAH J. PAZMIÑO, Esq. (Counsel requests 20 minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ROBERT MITCHELL, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT RICHARD M. GREENBERG Attorney for Defendant-Appellant By: REBEKAH J. PAZMIÑO Staff Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 (212) 402-4100 December 4, 2012 i TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 POINT I THE COURT BELOW ERRED IN FAILING TO CONDUCT MEANINGFUL INQUIRY INTO ROBERT MITCHELL’S CLAIMS THAT HIS PLEA WAS INVOLUNTARY AND THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL (Replying to Respondent’s Brief at 27-37). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. At the Pre-Sentencing Proceeding, the Court Never Provided Mr. Mitchell With the Kind of Reasonable Opportunity Required by Precedent to Advance the Claims He Initially Set Forth in His Pro Se Plea Withdrawal Motion.. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. By Actively Questioning Initially-Assigned Defense Counsel About What Actions He Supposedly Took During the Representation, the Court Was Obtaining Information That Was Adverse to Mr. Mitchell’s Claim of Attorney Coercion and Thereby Created a Conflict of Interest Between Counsel and Mr. Mitchell.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 C. The Court Improperly and Summarily Dismissed the Substantive Allegations Raised by Newly-Appointed Counsel at the Sentencing Proceeding That Prior Counsel Was Ineffective.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 ii POINT II MR. MITCHELL’S CLAIMS ON APPEAL ARE PRESERVED QUESTIONS OF LAW AND THUS, CONTRARY TO RESPONDENT’S CONTENTIONS, ARE PROPERLY REVIEWABLE BY THIS COURT (Replying to Respondent’s Brief at 21-26). . . . . . . . . . 15 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 iii TABLE OF AUTHORITIES CASES Estelle v. Gamble, 429 U.S. 97 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Hurrell-Harring v. State, 15 N.Y.3d 8 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 People v. Frederick, 45 N.Y.2d 520 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4, 14 People v. Gonzalez, 171 A.D.2d 413 (1st Dep’t 1991) . . . . . . . . . . . . . . . . . . . . . 1 People v. Kinchen, 60 N.Y.2d 772 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 People v. Konstantinides, 14 N.Y.3d 1 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 People v. Louree, 8 N.Y.3d 541 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 People v. Mitchell, 89 A.D.3d 628 (2011) . . . . . . . . . . . . . . . . . . . . . . . . 15, 16-17 People v. Porto, 16 N.Y.3d 93 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7 People v. Rozzell, 20 N.Y.2d 712 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 People v. Sides, 75 N.Y.2d 822 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7 People v. Tinsley, 35 N.Y.2d 926 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 People v. Vasquez, 70 N.Y.2d 1 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 People v. Wilson, 15 N.Y.2d 634 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Pehzman v. City of New York, 29 A.D.3d 164 (1st Dep’t 2006) . . . . . . . . . . . . . 11 Rovello v Orofino Realty Co., 40 N.Y.2d 633 (1976) . . . . . . . . . . . . . . . . . . . . . 11 iv CONSTITUTIONAL PROVISIONS N.Y. Const. art. I, § 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 9 U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 9 STATUTES N.Y, Crim. Proc. Law § 470.05 (McKinney 2009) . . . . . . . . . . . . . . . . . . . . . . . . 16 N.Y. Crim. Proc. Law § 470.35 (McKinney 2009) . . . . . . . . . . . . . . . . . . . . . . . . 16 N. Y. Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.3 comment [1] (Jul. 12, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 N.Y. Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.4 (Jul. 12, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 N.Y. Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7 comment [1] (Jul. 12, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 1 ARGUMENT POINT I THE COURT BELOW ERRED IN FAILING TO CONDUCT MEANINGFUL INQUIRY INTO ROBERT MITCHELL’S CLAIMS THAT HIS PLEA WAS INVOLUNTARY AND THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL (Replying to Respondent’s Brief at 27-37). The record in this case demonstrates a complete failure by the court below to properly consider the serious allegations underlying Robert Mitchell’s plea withdrawal motion by providing him with a “reasonable opportunity to advance to his claims.” People v. Frederick, 45 N.Y2d 520, 524-25 (1978). Because the court failed to pursue a meaningful inquiry into Mr. Mitchell’s claims, instead merely conducting a superficial examination, it did not make the kind of informed determination required by precedent, thereby violating Mr. Mitchell’s constitutional rights. See U.S. Const. amends. V, XIV; N.Y. Const. art. I, § 6; see also People v. Rozzell, 20 N.Y.2d 712, 713 (1967); People v. Gonzalez, 171 A.D.2d 413, 413-14 (1st Dep’t 1991). Accordingly, this Court should vacate Mr. Mitchell’s plea and reverse his conviction or, in the alternative, remand the matter for proper inquiry into the bases for Mr. Mitchell’s plea withdrawal motion. 1 In his brief statement, later expanded upon at sentencing by newly-appointed counsel, S. 6 (A. 58), Mr. Mitchell did assert his innocence, stating that he had “been sitting in Riker’s island for four years, and from day one I said I was not guilty.” PS. 5 (A. 43). Contrary to Respondent’s contention, Mr. Mitchell did not “freely take[ ] responsibility,” Resp. Br. at 23, nor were his admissions “unequivocal [ ],” Resp. Br. at 21. Rather, the transcript from the plea proceeding plainly shows that Mr. Mitchell initially hesitated when asked if he caused the decedents’ deaths by shooting them and, only after the court provided an expanded definition of acting in concert, did Mr. Mitchell actually assent to the factual allocution. See P. 20-22 (A. 31- 33). As the discussion of Mr. Mitchell’s prior statements at the Huntley hearing further clarifies, while Mr. Mitchell did admit to being present at the time of the murders, at no point did he suggest that he had any prior knowledge of the co-defendants’ plans to kill the decedents or that he personally participated in the torture or murders that occurred. See RA. 56-58, 87-88. Thus, Respondent’s claim that, in a taped confession, Mr. Mitchell admitted to “help[ing] brutally murder [the decedents],” Resp. Br. at 21, is a gross mischaracterization of the record. 2 A. At the Pre-Sentencing Proceeding, the Court Never Provided Mr. Mitchell With the Kind of Reasonable Opportunity Required by Precedent to Advance the Claims He Initially Set Forth in His Pro Se Plea Withdrawal Motion. Contrary to Respondent’s contention, the court did not “properly den[y Mr. Mitchell’s] motion after inquiring of [him] multiple times.” See Resp. Br. at 28. Indeed, at the pre-sentencing proceeding, Mr. Mitchell was never given any meaningful opportunity to substantiate his claims. Instead, after asking Mr. Mitchell if he had anything to say, the court only allowed him to get out one sentence before it interrupted him to make its own assertions. PS. 4-5 (A. 42-43).1 After the court finished its discussion of the situation, Mr. Mitchell explicitly requested an opportunity to speak. PS. 7 (A. 45). However, the court preemptively denied the withdrawal motion and then prevented Mr. Mitchell from saying anything, instructing 2 While Respondent argues that Mr. Mitchell, 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,” Resp. Br. at 30, this completely ignores the fact that Mr. Mitchell followed the court’s instructions to his own detriment. 3 him that he was still represented by counsel and should speak only through his attorney, adding that, if he wished to say something, “I suggest that you run it by [counsel] first because you could be prejudicing yourself.” Id. The record indicates that some discussion then took place between Mr. Mitchell and Mr. Gonzalez, but when subsequently back on the record and asked by the court if he had anything to say on Mr. Mitchell’s behalf, Mr. Gonzalez made clear “[o]nly that” he was “not adopt[ing] the merits or factual assertions relative to this [motion].” PS. 8 (A. 46). Mr. Gonzalez proceeded to make self-serving statements that were wholly adverse to his client’s interests without saying anything about the reasons why Mr. Mitchell believed he had been coerced into pleading guilty. See PS. 9-11 (A. 47-49).2 The record thus makes clear that, at no point, even after discussing the matter with Mr. Mitchell, did Mr. Gonzalez ever put forth any of the factual bases for the claims Mr. Mitchell made in his pro se plea withdrawal motion. Nor, at any later point, did the court ever obtain from Mr. Mitchell the bases for his claims. Thus, by the time that the court had adjourned the case for sentencing, it had not given Mr. Mitchell “more than one opportunity to say anything he wanted to say about his 4 allegation of coercion or about the court’s chosen method of evaluating it,” as Respondent has claimed. See Resp. Br. at 25. In fact, the court did not give Mr. Mitchell even one “reasonable opportunity to advance his claims,” as precedent by this Court requires. Frederick, 45 N.Y2d at 524-25. B. By Actively Questioning Initially-Assigned Defense Counsel About What Actions He Supposedly Took During the Representation, the Court Was Obtaining Information That Was Adverse to Mr. Mitchell’s Claim of Attorney Coercion and Thereby Created a Conflict of Interest Between Counsel and Mr. Mitchell. While Respondent argues that the court below “interrogated Mr. Gonzalez, not about what facts might underlie [Mr. Mitchell’s] coercion claim, but about what information he provided to enable [Mr. Mitchell] to make an intelligent decision about the plea deal he was offered,” Resp. Br. at 24, this argument is unavailing. The record plainly shows that the court expressly elicited information from Mr. Gonzalez that was adverse to Mr. Mitchell’s coercion claim. First, when asked by the court if he “want[ed] to respond to [Mr. Mitchell’s] allegations in this boilerplate motion that you somehow coerced him to plead guilty against his will,” Mr. Gonzalez informed the court, in no uncertain terms, that he was taking a position that was directly “contrary to Mr. Mitchell with respect to the assertion or the motion that he was coerced.” PS. 9 (A. 47). Mr. Gonzalez added that he had “spoken with Mr. Mitchell 5 in court relative to some of the things that he is alluding to as forming the basis for his belief that he was coerced.” Id. (emphasis added). By this statement, Mr. Gonzalez was plainly addressing the issue of whether he coerced Mr. Mitchell into pleading guilty. To claim otherwise, defies logic. After subsequently obtaining an “express[ ]” claim of denial from Mr. Gonzalez that he had coerced his client into pleading guilty, the court inquired as to whether Mr. Gonzalez had told Mr. Mitchell “what his options were,” and discussed his assessment of the strengths and the weaknesses of the prosecution’s case, in addition to the outcome of the co-defendant’s trial. PS. 10-11 (A. 48-49). By doing so, the court was clearly soliciting details about Mr. Gonzalez’s representation which it believed would refute the claim of attorney coercion. Thus, the court hardly “stopped short of delving into the underlying details of coercion,” as Respondent has claimed. See Resp. Br. at 35. Moreover, by providing Mr. Gonzalez, and only Mr. Gonzalez, with the opportunity to provide his own self-serving version of events, and never taking the time to elicit, let alone assess, Mr. Mitchell’s position, the court cannot be said to have shown any sort of “single-minded” “commitment to safeguarding [Mr. Mitchell’s] rights.” See Resp. Br. at 30. There can be no dispute that Mr. Gonzalez’s statements placed him in direct conflict with his own client. See Resp. Br. at 34-35. Indeed, Respondent even 3 While Respondent subsequently relies, see Resp. Br. at 35, n. 11, on the dissenting opinion in People v. Wilson, 15 N.Y.2d 634 (1964) (Scileppi, J., dissenting), for a discussion of the “quandary” faced by defense attorneys in these situations, such reliance is misplaced. The Wilson dissent seemed to believe that, under these circumstances, it is virtually inevitable that defense counsel’s adverse position would be disclosed. Id. at 637-38. However, counsel need not do anything more than inform the court that he does not adopt the client’s position. This is precisely what the defense attorney did in People v. Porto, 16 N.Y.3d 93, 98 (2010) (cited in Resp. Br. at 34-35). If, by citing to the dissent in Wilson, Respondent is attempting to suggest that Mr. Gonzalez was somehow obligated to say anything more than he initially did – which was that he was not adopting Mr. Mitchell’s motion and was “barred from responding to these particular allegations,” PS. 3, 8 (A. 41, 46) – this is not only disconcerting, but patently incorrect. See People v. Vasquez, 70 N.Y.2d 1, 3 (1987) (chastising defense counsel for “affirmatively undermin[ing] arguments his client wished the court to review,” and remitting the matter for de novo appellate review of the issues with new counsel). 6 concedes that Mr. Gonzalez’s statements at this juncture rose to the level of a constitutional violation. See Resp. Br. at 35.3 Even more significantly, however, the court personally elicited these self-serving statements from Mr. Gonzalez while he was still representing Mr. Mitchell. See PS. 12 (A. 50) (relieving Mr. Gonzalez as counsel at the very end of the day’s proceedings). Given that the court had at least some prior knowledge of how Mr. Gonzalez was going to respond to Mr. Mitchell’s involuntariness claim, in light of the bench conference which immediately preceded his adverse statements, see PS. 12 (A. 46), the court’s actions ran contrary to its own explicit acknowledgment that, once Mr. Gonzalez took a position adverse to his client, the court would have to assign substitute counsel. Id. Respondent’s reliance on People v. Porto, 16 N.Y.3d 93 (2010), and People v. Sides, 75 N.Y.2d 822 (1990), 7 see Resp. Br. at 34-35, to claim that the court did not act improperly here, is thus misplaced, given that those cases concern the denial of a motion for new counsel. In any event, these cases would not support Respondent’s position. In Porto, after defense counsel relayed to the court the defendant’s “general complaint” of attorney coercion, the court took it upon itself to speak “directly with defendant” about his allegations before denying his motion for substitute counsel. 16 N.Y.3d at 98-99. Here, the court made no such direct inquires of Mr. Mitchell. In addition, unlike the defense attorney in Porto, who “felt constrained by ethical considerations from fully explaining” details about the coercion claim, id. at 98, Mr. Gonzalez took a position that was completely adverse to his client in direct response to the court’s inquiries. Thus, there was an even greater need than in Porto for the court to obtain Mr. Mitchell’s verison of the facts before denying his motion. Respondent’s reliance on Sides is not only equally misplaced, but this decision actually supports Mr. Mitchell’s position. In Sides, this Court held that, where the “[d]efendant’s request [for new counsel] on its face suggested a serious possibility of irreconcilable conflict with his lawyer,” the court was obligated “to make some minimal inquiry and it erred by failing to ask even a single question about the nature of the disagreement or its potential for resolution.” 75 N.Y.2d at 824-25. Although Sides concerned the premature denial of a request for substitute counsel, the same 8 principle applies: when serious concerns about an attorney’s representation are brought before the court, as newly-appointed counsel did here at sentencing, at least some additional inquiry by the court is necessary it makes a decision on the defendant’s motion. C. The Court Improperly and Summarily Dismissed the Substantive Allegations Raised by Newly-Appointed Counsel at the Sentencing Proceeding That Prior Counsel Was Ineffective. With respect to the sentencing proceeding, it simply cannot be said that the court considered the serious allegations Mr. Mitchell raised through his new attorney, Mr. Watters. While Respondent claims that Mr. Mitchell “abandoned the opportunity” to substantiate his motion, Resp. Br. at 30, the substantive deficiencies in prior counsel’s representation to which Mr. Watters pointed were sufficient to trigger the court’s duty to conduct further inquiry. Here, Mr. Watters specifically relayed that Mr. Mitchell had informed him that prior counsel had neglected to visit, had failed to discuss the merits of the case or any potential defenses and had, instead, advised Mr. Mitchell only to “take whatever plea he would get” to avoid spending the rest of his life in prison. S. 6 (A. 58). Even more significantly, Mr. Watters, an officer of the court with his own obligations to be truthful, explicitly stated on the record that, if these allegations were true, they could constitute a viable claim of 4 While Respondent is correct in noting that no additional written materials were submitted by newly-appointed counsel at this time, see Resp. Br. at 30, the record shows that Mr. Watters met Mr. Mitchell for the first time on the day of the sentencing proceeding, S. 5 (A. 57), and was only given the transcripts of two prior proceedings, but not the pre-sentencing proceeding, PS. 13 (A. 51), where prior counsel had made the adverse statements now being challenged on appeal. That said, it was Mr. Watters’ obligation to fully investigate the claims made and, if he did not have the time to do so prior to the sentencing proceeding, he should have requested additional time to assess the situation and submit a supplemental filing, if necessary. Although Mr. Watters failed to do so which, arguably, could have rendered him ineffective as well, the statements he did make at sentencing nevertheless prompted the court’s obligation to conduct additional inquiry. 5 Respondent asserts that the allegations raised by newly-appointed counsel were not sufficient to bring Mr. Mitchell’s case within the purview of People v. Tinsley, 35 N.Y.2d 926 (1974), see Resp. Br. at 32, given that the defendant in the companion case (People v. Vaughn) claimed that he was innocent, asserted that he had previously pled guilty because he had no witnesses to testify on his behalf, and was dissatisfied with his assigned attorney because of alleged misrepresentations, coercion and deceit. 35 N.Y.2d at 927-28. However, as in that case, here Mr. Mitchell not only asserted his innocence, but also alleged that he was coerced by his attorney, later adding through newly-appointed counsel that prior counsel had not provided effective assistance for several substantive reasons. Just as this Court held in Tinsley that the court’s summary denial was error, this Court should draw the same conclusion here. 9 ineffective assistance of counsel. S. 5 (A. 57).4 Given that these allegations implicated Mr. Mitchell’s fundamental constitutional right to effective assistance of counsel, see U.S. Const. amends. VI, XIV; N.Y. Const. art. I §6, the court was obligated to conduct additional inquiry.5 By completely failing to do so, the court committed reversible error. Moreover, telling a client only that he needs to take a plea can hardly be said to be sound legal advice, as Respondent would have this Court conclude. See Resp. Br. at 31, n. 10. If Mr. Gonzalez never discussed possible trial strategy or defenses 10 with Mr. Mitchell, then he was hardly providing effective assistance, as this Court has recognized. See Hurrell-Harring v. State, 15 N.Y.3d 8, 19 (2010) (finding sufficient facts that right to counsel was denied where attorneys met with clients “little, if at all, . . . waived important rights without consulting them, and ultimately appeared to do little more on their behalf than act as conduits for plea offers”). See also N.Y. Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.4 (Jul. 12, 2012) (mandating that lawyers “reasonably consult with the client about the means by which the client’s objectives are to be accomplished; . . . [and] explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation”). By asserting, through newly-appointed counsel, that prior counsel had failed to discuss with him critical matters related to his case, Mr. Mitchell was essentially alleging that he was forced to plead guilty because, otherwise, he would have been in the position of having to go to trial while being represented by an attorney who had never discussed the merits of his case with him. Leaving a client with no reasonable alternative to pleading guilty is a form of coercion. Indeed, it is difficult to see how Mr. Mitchell could have made a knowing, intelligent, and voluntary plea under such circumstances. Thus, contrary to Respondent’s assertion, see Resp. Br. at 22, the court could have reasonably construed the claim Mr. Gonzalez failed to discuss these 6 While Respondent places much emphasis on the plea discussions that took place, claiming that they belie any claims of coercion, see Resp. Br.at 33, the issue before this Court is whether the trial judge failed to properly inquire into Mr. Mitchell’s motion to withdraw his plea. Had the trial court done so, it might have concluded that, given the lack of any discussion concerning the possible defenses and strategies that could be pursued had the possibility of going to trial actually been explored, Mr. Mitchell was essentially coerced by an ineffective attorney into taking a plea, and then worked to get the best deal he could when he believed he had no other option. Because his attorney gave him little reason to have confidence in the representation had he gone to trial, clearly all Mr. Mitchell was trying to do was get the most advantageous sentence possible under the circumstances, for which he can hardly be faulted. 11 critical matters as a form of attorney coercion.6 When a pro se indigent defendant files the only tool he has available to him while in jail, claims of coercion should be read broadly, see Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“[t]he handwritten pro se document is to be liberally construed”) – just as the claims of pro se litigants are liberally construed in other contexts. See, e.g., Rovello v Orofino Realty Co., 40 N.Y.2d 633, 634 (1976); Pehzman v. City of New York, 29 A.D.3d 164, 168 (1st Dep’t 2006). While Respondent now claims that, “[b]y appointing substitute counsel, the trial court avoided the fundamental pitfall that caused the appellate courts to reverse the rulings challenged in” cases cited by appellate in his opening brief, where initial counsel took a position that was adverse to his client and, on appeal, it was determined that “the proper recourse” was to “assign new counsel before deciding the underlying issue,” Resp. Br. at 36, this ignores the facts presented here. While the court did appoint new counsel, this was merely a pro forma exercise, in light of the 12 fact that it had already personally elicited damaging, self-serving statements from prior counsel on the record, before relieving him of his duties as Mr. Mitchell’s attorneys – duties which include acting loyally to one’s client. See N.Y. Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.3 comment [1] (Jul. 12, 2012); N.Y. Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7 comment [1] (Jul. 12, 2012). Not only did the court allow, and perhaps even invite, prior counsel to take a position adverse to Mr. Mitchell, but when newly-appointed counsel brought to its attention substantive and very serious allegations, the court dismissed them out of hand, despite the fact that prior counsel had not addressed these specific allegations in his statements at the pre-sentencing proceeding. See PS. 10-11 (A. 48-49). Given its expression of doubt that Mr. Mitchell would be successful in his plea withdrawal application even with new counsel, PS. 11 (A. 49), and the fact that it had already denied Mr. Mitchell’s withdrawal motion, PS. 7 (A. 45), the record indicates that the court was predisposed to rejecting Mr. Mitchell’s serious allegations and had assigned a new attorney simply to avoid scrutiny on appeal. Therefore, the mere appointment of substitute counsel was not enough for the court to have fulfilled its obligation to inquire into and seriously consider the claims Mr. Mitchell raised. 13 In that regard, the court’s reliance on the plea colloquy to summarily reject the problematic allegations raised by newly-appointed counsel, see S. 6-7 (A. 58-59), was not enough to dispose of Mr. Mitchell’s plea withdrawal motion, as Respondent contends, see Resp. Br. at 32, because the claims being made by Mr. Mitchell are simply not susceptible of being resolved by the minutes from the plea proceeding. Moreover, if all that was needed to decide a withdrawal motion was the transcript of the plea proceeding, during which the defendant would most likely not have given any indication that the plea something other knowing, intelligent, and voluntary, then the plea minutes would always control, and there would be no need for any further inquiry. This, however, is not the case. In conclusion, Respondent mischaracterizes the claim being made on appeal. See Resp. Br. at 31. This is not about conducting some sort of “fishing expedition,” see id., especially given that the trial court elicited highly damaging, self-serving statements from initially-assigned counsel and then completely ignored the additional very serious allegations of ineffective assistance of counsel raised by Mr. Mitchell’s new attorney at sentencing, which were anything but conclusory. Far from arguing that the court should have conducted an interrogation “conform[ing] to his own specifications,” see id., Mr. Mitchell is simply contending that the lower court was required to conduct some further inquiry into the bases for his claims. This appeal 14 is about courts providing defendants with a “reasonable opportunity” to present their claims when deciding plea withdrawal motions. Frederick, 45 N.Y2d at 524-25. Here, the court never gave Mr. Mitchell such an opportunity, which was reversible error. 7 Even if the issues presented on appeal are found to be mixed questions of law and fact, this Court has made clear that, if there is no support in the record for the Appellate Division’s decision, then the claim is reviewable. See People v. Konstantinides, 14 N.Y.3d 1, 10-11 (2009). Here, there was no support in the record for the Appellate Division’s conclusions that the trial court properly denied Mr. Mitchell’s plea withdrawal motion, that it provided Mr. Mitchell with a “full opportunity to present his claims,” and that the attorney who initially represented Mr. Mitchell provided effective assistance of counsel, People v. Mitchell, 89 A.D.3d 628, 628 (2011), in light of the serious allegations put forth by newly-appointed counsel at the sentencing proceeding. 15 POINT II MR. MITCHELL’S CLAIMS ON APPEAL ARE PRESERVED QUESTIONS OF LAW AND THUS, CONTRARY TO RESPONDENT’S CONTENTIONS, ARE PROPERLY REVIEWABLE BY THIS COURT (Replying to Respondent’s Brief at 21-26). As an initial matter, because neither the Appellate Division nor the trial court made any findings of fact with respect to the validity of Mr. Mitchell’s claims of attorney coercion and ineffective assistance of counsel, these issues are not the kind of mixed questions of law and fact that this Court is precluded from reviewing. Indeed, the trial court here never made any factual findings with respect to Mr. Mitchell’s allegations, repeatedly asserting that there were “conclusory,” and “boilerplate,” and proceeded to summarily deny his motion out of hand. See PS. 4, 7-9, 11 (A. 42, 45-47, 49); S. 2, 6-9 (A. 54, 59-61). Respondent’s claims otherwise are therefore meritless. See Resp. Br. at 22-23.7 8 While Respondent also claims that, even after denying his plea withdrawal motion, “the court continued to withhold entry of judgment until [Mr. Mitchell] made it clear that he had nothing left to argue,” both with respect to his motion and “any other issue,” Resp. Br. at 25 (citing PS. 7-17 [A. 59-69]), this is a complete mischaracterization of the record, given that the court twice stated that it was denying the motion, PS. 6, 9 (A. 58, 61), and then proceeded to sentencing. Thus, the remainder of the discussion in the previously cited portion of the transcript concerns Mr. Mitchell’s sentence and has nothing to do with his withdrawal motion. See PS. 9- 17 (A. 61-69). 16 More importantly, however, the fundamental issue before this Court is whether the trial judge erred in failing to conduct additional inquiry before summarily denying Mr. Mitchell’s plea withdrawal motion and this issue is clearly preserved. By formally moving to withdraw his plea, and obtaining a denial of that motion from the trial court, Mr. Mitchell properly preserved his claim that the court erred in summarily denying his motion. See N.Y, Crim. Proc. Law § 470.05(2) (McKinney 2009). While Respondent makes much of the fact that Mr. Mitchell did not request a formal hearing or make any additional arguments after the court denied his motion prior to sentencing, see Resp. Br. at 22, there is absolutely no requirement that he do so in order to preserve his claims. See C.P.L. § 470.05(2).8 Morever, this Court is endowed with the authority to review questions of law which were “raised or considered” during the appeal to “the intermediate appellate court.” N.Y. Crim. Proc. Law § 470.35(1) (McKinney 2009). Given that the Appellate Division specifically ruled on the issues of whether the trial court properly denied Mr. Mitchell’s plea 17 withdrawal motion, after providing him with a sufficient opportunity to present his claims, and whether initially-assigned defense counsel was ineffective, see Mitchell, 89 A.D.3d at 628, these issues are properly before this Court. Mr. Mitchell’s claim that initially-assigned defense counsel was ineffective, proffered by newly-appointed counsel at sentencing, see S. 5-6 (A. 57-58), was put before the court at a time when it could have addressed it, thereby preserving the matter for appellate review. See People v. Louree, 8 N.Y.3d 541, 545 (2007). Had this claim been unpreserved, surely the Appellate Division would have reached this conclusion; however, it did not. See Mitchell, 89 A.D.3d at 628. In addition, to the extent that Mr. Mitchell is noting before this Court that initially-assigned defense counsel acted in a conflicted manner when he took a position that was directly adverse to that of his client at the pre-sentencing proceeding, such an issue requires no preservation in order to be reviewed on appeal. See People v. Kinchen, 60 N.Y.2d 772, 773 (1983) (claimed constitutional deprivations of right to counsel need not be preserved). Respondent’s further assertion that Mr. Mitchell did not preserve his claims because newly-appointed counsel did not make additional assertions beyond the information he initially gave the court, see Resp. Br. at 25, is belied by the serious and specific content of these allegation, which were sufficient to trigger the court’s 9 It should also be noted that Respondent’s position fails to take into account the fact that newly-appointed counsel met with Mr. Mitchell just prior to the sentencing proceeding and had little time to adequately familiarize himself with all of the nuances and particulars of this case. Indeed, the better practice would have been for Mr. Watters to request an adjournment to investigate the matter further and possibly file his own supplemental written submission. While Mr. Watters did not do so, what information he did provide on the record at sentencing was enough to mandate at least some additional inquiry by the court. 18 duty to engage in at least some additional inquiry. See Point I, supra. Respondent’s position also ignores that, not only did the court fail to conduct further inquiry into these serious allegations, but it never gave Mr. Mitchell a meaningful opportunity to personally address the court and provide the bases for his allegations on the record, despite his request to do so. See PS. 7 (A. 45).9 Lastly, while Respondent takes great issue with the fact that a copy of Mr. Mitchell’s actual plea withdrawal motion could not be located, see Resp. Br. at 21, 26, it should be noted that this matter was already addressed in Mr. Mitchell’s opening brief, where it was pointed out that, because both parties and the court referred to and quoted from the motion on the record, the fact that a physical copy of the motion is not available, does not in any way impede this Court’s review of the issues presented. See Opening Brief at 6, n. 2. 19 CONCLUSION For the reasons stated above, Robert Mitchell’s plea should be vacated, and his conviction reversed. In the alternative, this Court should remand the matter for proper inquiry into Mr. Mitchell’s plea withdrawal motion. Dated: New York, New York December 4, 2012 Respectfully submitted, RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant ___________________________ By: REBEKAH J. PAZMIÑO, ESQ. Staff Attorney RPazmino@appellatedefender.org OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, New York 10007 (212) 402-4100