The People, Respondent,v.Josue Deliser, Appellant.

Brief

N.Y.May 2, 2013

To be argued by WINSTON MCINTOSH (15 Minutes) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - JOSUE DELISER, Defendant-Appellant. BRIEF AND APPENDIX FOR DEFENDANT- APPELLANT LYNN W. L. FAHEY WINSTON MCINTOSH Attorneys for Defendant- Appellant 2 Rector Street, 10th Floor New York, N.Y. 10006 (212) 693-0085 August 13, 2012 INDEX TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . 1 QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS Introduction . . . . . . . . . . . . . . . . . . . 3 The Guilty Pleas . . . . . . . . . . . . . . . . . 4 The Plea Withdrawal Motion and Sentencing . . . . . 5 Appellate Division Decision . . . . . . . . . . . . 8 ARGUMENT APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY, RESPONDING TO APPELLANT’S ALLEGATIONS IN HIS PLEA WITHDRAWAL MOTION THAT THE ATTORNEY HAD COERCED AND TRICKED HIM INTO PLEADING GUILTY, TOUTED HIS EFFORTS ON APPELLANT’S BEHALF AND STATED THAT, IN HIS OPINION, THE PLEAS WERE “KNOWING” AND IN APPELLANT’S “BEST INTEREST,” AND THE COURT DENIED THE MOTION WITHOUT ASSIGNING NEW COUNSEL TO REPRESENT APPELLANT. . . . . . . . . . . . . . 8 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 25 APPENDIX Order Granting Leave to Appeal . . . . . . . . . A. 1 Order and Decision of the Appellate Division . A. 2-3 Minutes of the Guilty Pleas . . . . . . . . . A. 4-26 The Plea Withdrawal Motion . . . . . . . . . A. 27-31 Minutes of July 8, 2009 . . . . . . . . . . . A. 32-35 Sentence Minutes . . . . . . . . . . . . . . A. 36-42 ii TABLE OF AUTHORITIES FEDERAL CASES Anders v. California, 386 U.S. 738 (1967) . . . . . . . . . 11 Boykin v. Alabama, 395 U.S. 238 (1969) . . . . . . . . . . . . 5 Jones v. Barnes, 463 U.S. 745 (1983) . . . . . . . . . . . . 16 Lopez v. Scully, 58 F.3d 38 (2d Cir. 1995) . . . . . . . 20, 21 Strickland v. Washington, 466 U.S. 668 (1984) . . . . . . . 10 United States v. Davis, 239 F.3d 283 (2d Cir. 2001) . . . . . .10, 20-21, 21 United States v. White, 174 F.3d 290 (2d Cir. 1999) . . . . 11 Wood v. Georgia, 450 U.S. 261 (1981) . . . . . . . . . . . . 10 STATE CASES Hope v. State, 682 So.2d 1173 (Fla. 4th DCA 1996) . . . 18, 24 People v. Baret, 11 N.Y.3d 31 (2008) . . . . . . . . . . . . 23 People v. Berroa, 99 N.Y.2d 134 (2002) . . . . . . . . . 1-2, 10 People v. Bernard, 242 A.D.2d 387 (2d Dept. 1997) . . . . . 19 People v. Boyd, 22 N.Y.2d 707 (1968) . . . . . 3, 14, 15, 16, 24 People v. Brown, 45 N.Y.2d 852 (1978) . . . . . . . . . . . . 2 People v. Costner, 302 A.D.2d 902 (4th Dept. 2003) . . . . . 22 People v. Deliser, 85 A.D.3d 1047 (2d Dept. 2011) . . . . . . 8 People v. Driscoll, 30 A.D.2d 793 (1st Dept. 1968) . . . 10, 24 People v. Elting, 2 A.D.3d 455 (2d Dept. 2003) . . . . . . . 18 People v. Friedman, 39 N.Y.2d 463 (1976) . . . . . . . . . . 14 People v. Garcia, 92 N.Y.2d 726 (1999) . . . . . . . . . . . 10 People v. Gonzalez, 171 A.D.2d 413 (1st Dept. 1991) . . . . 20 iii People v. Graves, 95 A.D.3d 1034 (2d dept. 2012) . . . . . . 18 People v. Humbert, 219 A.D.2d 674 (2d Dept. 1995) . . . . . 19 People v. Joseph, 84 N.Y.2d 995 (1984) . . . . . . . . . . . . 9 People v. Kennedy, 22 N.Y.2d 280 (1968) . 3, 10, 11, 13, 14, 15 23, 24 People v. Kirkland, 68 A.D.3d 1794 (4th Dept. 2009) . . . . 17 People v. Lewis, 286 A.D.2d 934 (4th Dept. 2001) . . . . . . 17 People v. Longtin, 92 N.Y.2d 640 (1998) . . . . . . . . . . 10 People v. Lopez, 76 N.Y.2d 652 (1990) . . . . . . . . . . . 10 People v. Maragh, 208 A.D.2d 563 (2d Dept. 1994) . . . . . . 23 People v. McGrath, 31 A.D.2d 944 (2d Dept. 1969) . . . . . . 24 People v. Petrovich, 87 N.Y.2d 961 (1996) . . . . . . . . . 16 People v. Rodriguez, 189 A.D.2d 684 (1st Dept. 1993) . . . . 23 People v. Rozzell, 22 N.Y.2d 712 (1967) . 3, 10, 12, 15, 17, 23 People v. Santana, 156 A.D.2d 736 (2d Dept. 1989) . . . . . 19 People v. Seaberg, 74 N.Y.2d 1 (1989) . . . . . . . . . . . . 9 People v. Sparcino, 78 A.D.3d 1508 (4th Dept. 2010) . . . . . 9 People v. Wardlaw, 6 N.Y.3d 556 (2006) . . . . . . . . . . . 24 People v. Waters, 80 A.D.3d 1002 (3d Dept. 2011) . . . . . . . 9 People v. Williams, 35 A.D.3d 1085 (3d Dept. 2006) . . . 20, 22 People v. Wilson, 15 N.Y.2d 634 (1964) . . 3, 11, 12, 15, 17, 23 People v. Zirpola, 237 A.D.2d 967 (4th Dept. 1997) . . . . . . 9 Sheppard v. State, 17 So.3d 275 (Fla. 2009) . . . . . . 20, 21 Smith v. State, 849 So.2d 485 (Fla. 2d DCA 2003) . . . . . . 24 iv State v. Paige, 756 N.W.2d 134 (Minn. 2009) . . . . . . . . 21 CONSTITUTIONS N.Y. Const. Art. I, §6 . . . . . . . . . . . . . . . . . . . . 9 U.S. Const., Amend. VI . . . . . . . . . . . . . . . . . . . . 9 1 Numbers preceded by “A” refer to the Appendix. 1 COURT OF APPEALS STATE OF NEW YORK ------------------------------------- THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- JOSUE DELISER, Defendant-Appellant. ------------------------------------- PRELIMINARY STATEMENT By permission of the Honorable Theodore T. Jones, Associate Judge of the Court of Appeals (A. 1),1 appellant appeals from an order of the Appellate Division, Second Department (A. 2-3), affirming two judgments of the Supreme Court, Kings County, both rendered on July 21, 2009, convicting him, upon his guilty pleas, of attempted murder in the second degree [P.L. §§110/125.25(1)] and robbery in the first degree [P.L. §160.15(2)], and sentencing him to concurrent 10-year prison terms, to be followed by five years of post-release supervision. The issue raised herein, that appellant was denied his right to the effective assistance of counsel in connection with his motion to withdraw his guilty pleas, presents a question of law notwithstanding the lack of protest in the trial court. People v. 2 Berroa, 99 N.Y.2d 134 (2002); People v. Brown, 45 N.Y.2d 852 (1978). Appellant’s motion for assignment of counsel is pending. QUESTION PRESENTED Whether appellant was denied his right to the effective assistance of counsel when his attorney, responding to appellant’s allega- tions in his plea withdrawal motion that the attorney had coerced and tricked him into pleading guilty, touted his efforts on appel- lant’s behalf and stated that, in his opinion, the pleas were “knowing” and in appellant’s “best interest,” and the court denied the motion without assigning new counsel to repre- sent appellant. SUMMARY OF ARGUMENT A criminal defendant has a right to counsel, guaranteed by both the Federal and State Constitutions, at every critical stage of the prosecution. Plea withdrawal is such a critical stage of the proceedings. The right to counsel means the right to the effective assistance of counsel, which in turn means representation by a competent and conflict-free attorney who is single-mindedly devoted to the client’s interests. Here, on his motion to withdraw his guilty pleas, appellant was “represented” by an attorney who not only failed to act in a representative capacity but who, in effect, became a witness against his client. In the motion, appellant, protesting his 3 innocence, alleged that the pleas were the product of coercive and manipulative conduct by counsel. In response, counsel vigorously defended himself, detailing his efforts on behalf of appellant and proclaiming that the pleas were entered knowingly and were in appellant’s best interest. This was the very antithesis of single- minded advocacy by conflict-free counsel. Nonetheless, the court, without assigning new counsel to represent appellant, or even acknowledging the apparent conflict of interest between appellant and counsel, proceeded to a determination of the motion. The result was that, at this critical stage of the proceedings, appellant was effectively without the representation to which he was constitutionally entitled. People v. Kennedy, 22 N.Y.2d 280 (1968); People v. Boyd, 22 N.Y.2d 707 (1968); People v. Rozzell, 20 N.Y.2d 712 (1967); People v. Wilson, 15 N.Y.2d 634 (1964) STATEMENT OF FACTS Introduction Appellant pled guilty to attempted murder in the second degree and robbery in the first degree. Prior to sentencing, alleging that his assigned attorney had coerced and tricked him into pleading guilty, he sought to withdraw the pleas. Invited by the court to respond, counsel cited the “numerous times” he had met with appellant, and assured the court that he had always kept appellant fully informed about developments in the cases. Then, 2 The pleas were taken over the opposition of the People, who wanted a 12-year sentence (A. 6-7). One indictment charged appellant, along with a co-defendant on some counts, with attempted murder and related crimes, while the other charged him and two co- defendants with robbery in the first degree and lesser offenses. 4 noting that appellant was facing “two strong cases” with a sentence exposure of “close to 50 years,” counsel assured the court that the pleas were “knowing . . . and . . . in [appellant’s] best inter- est.” Without appointing new counsel to represent appellant, the court denied the motion. The Guilty Pleas On June 10, 2009, appellant, represented by assigned counsel Ivan Vogel, entered guilty pleas in satisfaction of two indict- ments.2 Under Indictment Number 2938/06, appellant pled guilty to attempted murder in the second degree in exchange for a sentence promise of 10 years in prison and five years of post-release supervision, to run concurrently with the sentence under Indictment Number 5477/07 (A. 5-6, 10-11, 14). He admitted attacking Jamel Pierson on April 12, 2006, and withdrew any claim that he had acted in self-defense (A. 11-12). Before accepting the plea, the court elicited from appellant, who was 24 years old, that he had attended college, had been employed as a tutor prior to his arrest, had discussed the case with his attorney, had had sufficient time to do so, and was 3 Boykin v. Alabama, 395 U.S. 238 (1969). 5 satisfied with the attorney’s representation (A. 7-9). Appellant acknowledged that no one had threatened, forced, or promised him anything to induce his guilty plea (A. 10, 11), and that there was no doubt in his mind about pleading guilty (A. 12). He also acknowledged his Boykin rights (A. 9),3 and waived his right to appeal (A. 13). Under Indictment Number 5477/07, appellant pled guilty to robbery in the first degree, admitting that he committed a gunpoint robbery on June 8, 2007 (A. 15, 19-20, 22-23). He was promised the same sentence (A. 15, 19, 23), and waived his right to appeal (A. 20). Before accepting this plea, the court engaged appellant in exactly the same colloquy as before (A. 16-20). Based on his admission that he had been convicted in 2004 of criminal possession of a weapon in the third degree, appellant was adjudicated a second violent felony offender (A. 23-26). The case was then adjourned to July 8, 2009, for sentencing (A. 26). The Plea Withdrawal Motion and Sentencing In pro se papers dated June 24, 2009, appellant moved to withdraw the guilty pleas, alleging, among other things, that he had been “pressured, tricked and coerced” by his attorney “into taking the plea” (A. 28, 29). According to appellant, although he “kept telling” his attorney that he was innocent of the charges, 6 the attorney nonetheless “continually” exerted “undue pressure” on him to plead guilty (A. 28). The attorney asked him why he was insisting on going to trial, and told him that he was “making a mistake” (A. 28). He also said that, if appellant went to trial and was convicted of both charges, the judge would give him the maximum sentence on each count and run the sentences consecutively, for a total of 50 years in prison (A. 29). Appellant additionally alleged that, on the day he pled guilty, he came to court believing, based on what his attorney had told him, that the case was on for “some type of hearings,” only to find out that, in fact, the case was on for trial (A. 29). Moreover, his family was not present, leading him to think that they did not believe in his innocence. As he later found out, however, the only reason they were not in court was because his attorney had told his mother not to show up and to come instead on the following day (A. 29). Already “under stress” because of his grandmother’s serious illness, and believing that, with the trial about to start, “it was too late to ask for more time to think about it,” appellant took the pleas (A. 29, 30). In light of the motion, the court ordered the plea minutes and adjourned sentencing (A. 33-34). At sentencing on July 21, 2009, the court first asked the prosecutor for the People’s position on appellant’s motion. Saying that there was no reason to grant it, the prosecutor asked the 4 Following a Huntley-Wade-Dunaway hearing, the court had denied suppression of the statement but precluded an in-court identification of appellant by the complainant absent a showing by the People that there was an independent source for such an identification. The independent source hearing was never held. 7 court to impose the promised sentence (A. 37). The court then turned to defense counsel, who responded as follows: Well, Judge, it’s my client’s motion. I could just say over the years we’ve probably, before he was put in on the second case, we met numerous times, we probably did close to 20 or more video conferences. I always kept him informed, he had copies of his paperwork. His exposure was close to 50 years. With the time, I think he already has three years in, with the time he has in he’ll probably be out in another five years and he’ll still be maybe 30 years old or so. And further, the attempted murder case there’s a statement4 and in the robbery case there’s property recovered from the complainant [sic] so I think they were two strong cases against him and I think he made a knowing plea and I think it was in his best interest (A. 37-38). Asked if there was anything he wished to add, appellant said he was innocent and therefore did not think “it was fair the way [he] was coerced into pleading to ten years.” He asked the court to give him “less time,” but did not withdraw his motion (A. 38). The court did not address defense counsel’s remarks, and did not appoint new counsel to represent appellant. Instead, after reading into the record the portions of the plea allocutions in which appellant had admitted his guilt and affirmed that he wished 8 to plead guilty, the court, without further comment, denied the motion and imposed the promised sentences (A. 38-42). The Appellate Division Decision In a memorandum decision issued on June 21, 2011, the Appellate Division, Second Department, affirmed the conviction, finding that appellant’s pleas were knowingly, voluntarily, and intelligently entered; that his claims of coercion were belied by the record; and that “his attorney did not take a position adverse to his motion to withdraw his pleas.” People v. Deliser, 85 A.D.3d 1047 (2d Dept. 2011). Judge Jones granted leave to appeal. ARGUMENT APPELLANT WAS DENIED HIS RIGHT TO THE EFFEC- TIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY, RESPONDING TO APPELLANT’S ALLEGATIONS IN HIS PLEA WITHDRAWAL MOTION THAT THE ATTORNEY HAD COERCED AND TRICKED HIM INTO PLEADING GUILTY, TOUTED HIS EFFORTS ON APPELLANT’S BEHALF AND STATED THAT, IN HIS OPINION, THE PLEAS WERE “KNOWING” AND IN APPELLANT’S “BEST INTEREST,” AND THE COURT DENIED THE MOTION WITHOUT AS- SIGNING NEW COUNSEL TO REPRESENT APPELLANT. Prior to sentencing, appellant, who had pled guilty to attempted murder in the second degree and robbery in the first degree, moved to withdraw his guilty pleas. In his moving papers, filed pro se, appellant alleged, among other things, that his attorney had coerced and tricked him into pleading guilty. Asked for his response, defense counsel made an elaborate statement 5 This issue survives appellant’s waiver of his right to appeal. Since an appeal waiver does not preclude a defendant from arguing on appeal that his guilty plea was not knowing, intelligent, and voluntary, People v. Seaberg, 74 N.Y.2d 1, 10 (1989), it follows that such a waiver does not preclude a defendant from arguing on appeal either that his plea withdrawal motion based on a claim of involuntariness was improperly denied, see People v. Waters, 80 A.D.3d 1002, 1003 (3d Dept. 2011); People v. Sparcino, 78 A.D.3d 1508, 1509 (4th Dept. 2010), or that he was denied effective assistance of counsel on such a motion. People v. Zirpola, 237 A.D.2d 967 (4th Dept. 1997). And although appellant asked for “less time” following counsel’s remarks, that, as the court evidently understood, was not an indication that he no longer wished to withdraw his pleas. 9 completely undercutting appellant’s account of how he had come to plead guilty, and concluding with the statement that, in his opinion, the pleas were “knowing” and in appellant’s “best interest.” Under these circumstances, the court should have assigned new counsel to represent appellant before deciding the motion. As a result of its failure to do so, appellant was denied his right to the effective assistance of counsel. U.S. Const., Amends. VI, XIV; N.Y. Const., Art. I, §6.5 (A) The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” Article I, §6 of the New York Constitution similarly guarantees the right to counsel in criminal cases. See People v. Joseph, 84 N.Y.2d 995, 997 (1984). The right to counsel attaches at every 10 critical stage of the prosecution, People v. Garcia, 92 N.Y.2d 726, 730 (1999); United States v. Davis, 239 F.3d 283, 285 (2d Cir. 2001), including a motion withdraw a guilty plea. People v. Kennedy, 22 N.Y.2d 280, 281-282 (1968); People v. Rozzell, 20 N.Y.2d 712, 713 (1967); United States v. Davis, 239 F.3d at 286; People v. Driscoll, 30 A.D. 2d 793 (1st Dept. 1968). As the Second Circuit Court of Appeals explained in Davis, 239 F.3d at 286, because a guilty plea forecloses a defendant’s “very right to a trial,” fair adjudication of a claim that a plea was entered involuntarily “is vital to ensuring the integrity of the process by which guilt may ultimately be determined.” Accordingly, a defendant should not be expected to “navigate this area of the law without the competent advice of counsel.” The right to counsel means the right to the effective assistance of counsel, meaning the single-minded advocacy of a competent, conflict-free attorney. Strickland v. Washington, 466 U.S. 668, 686, 688-689 (1984); Wood v. Georgia, 450 U.S. 261, 271 (1981); People v. Berroa, 99 N.Y.2d 134, 138-139 (2002); People v. Longtin, 92 N.Y.2d 640, 644 (1998) (effective assistance of counsel means “representation that is reasonably competent, conflict-free and singlemindedly devoted to the client’s best interests”); People v. Lopez, 76 N.Y.2d 652, 656 (1990) (the right to effective assistance of counsel “encompasses the right to conflict-free counsel”). As this Court noted long ago, “To the defendant for 11 whom he speaks, a lawyer’s commitment must be wholehearted, complete and free of ambiguity.” People v. Kennedy, 22 N.Y.2d at 282. Counsel must function as an “active advocate in behalf of his client, as opposed to that of amicus curiae,” Anders v. California, 386 U.S. 738, 744 (1967), and he or she owes a “paramount duty of loyalty” to the client even in the face of the client’s criticisms of the attorney’s performance. United States v. White, 174 F.3d 290, 296 (2d Cir. 1999). In a series of cases decided almost half a century ago, this Court applied these precepts in the context of a defendant’s application to withdraw his guilty plea. In People v. Wilson, 15 N.Y.2d 634 (1964), the defendant sought to withdraw his guilty plea, saying that he was “confused” and “didn’t understand” at the time of the plea that he was sick. His attorney immediately noted that, before accepting the plea, the court asked Wilson whether he was pleading guilty voluntarily and whether he understood the nature of the plea. Although the court denied the application at that point, Wilson and his attorney continued to debate the matter, agreeing that Wilson was indeed sick at some point, but contradict- ing each other as to whether this was true at the time of the plea or only earlier. The court then repeated that it had denied the application, following which there were further conflicting statements by Wilson and counsel regarding events after the plea, 12 in particular, whether Wilson had asked counsel to “get [his] plea back.” This Court reversed the judgment and remitted to County Court for a hearing on the plea withdrawal application. It found that, given “such a difference of opinion between attorney and client over the motion to withdraw the plea,” the court was required to “take notice of the extent to which defendant was then effectively represented by counsel.” 15 N.Y.2d at 635. In People v. Rozzell, 20 N.Y.2d 712, the defendant moved to withdraw his guilty plea on the ground that he was not guilty. At a hearing on the motion, Rozzell, his lawyer, who did not join in the motion and “seem[ed] not to have favored it,” and the prosecu- tor were each called and examined by the court. The examination included inquiry into conversations between counsel and Rozzell regarding Rozzell’s guilt. Citing Wilson, this Court held that Rozzell was deprived of the effective assistance of counsel at a critical stage of the proceedings. As in Wilson, it reversed and ordered a new hearing on the plea withdrawal motion, explaining, It is difficult, if not impossible, for coun- sel effectively to represent the right of the accused to have judicial consideration given to his motion to withdraw a plea of guilty, where counsel is himself called as a witness in an inquiry which penetrates deeply into the intraprofessional relationship, especially where counsel apparently did not favor the making of the motion. 20 N.Y.2d at 713. 6 In fact, it appears that counsel did essentially stand mute. According to the dissenting opinion of Judge Jasen, on the date scheduled for the hearing, the attorney, in response to the court’s inquiry, merely reported that the information Kennedy had given her had been investigated by her and “checked out” by the investigative staff of The Legal Aid Society. 22 N.Y.2d at 287. 13 Prior to the imposition of sentence in People v. Kennedy, 22 N.Y.2d 280 (1968), the defendant, claiming that he was innocent and did not commit the crime, moved to withdraw his guilty plea to attempted manslaughter in the second degree. Kennedy alleged that he was arrested in Coney Island within a half hour of the crime’s commission in Manhattan, making it all but impossible for him to have been at the crime scene. In preparation for a hearing, the court asked Kennedy’s assigned attorney to investigate the alibi and report her findings. This Court agreed with Kennedy that, “by virtue of this involvement of his lawyer he was denied the effective and affirma- tive representation of counsel,” and was thus entitled to the appointment of new counsel. Significantly, the Court rejected as “most unrealistic” the suggestion in a concurring opinion that Kennedy would not be prejudiced if, upon checking the facts and finding the defense insupportable, counsel simply stood mute. “Silence under such circumstances would convey counsel’s opinion, just as loudly as words, that the basis for her client’s applica- tion (to withdraw his plea) lacked merit.” 22 N.Y.2d at 281-282.6 14 Kennedy cited People v. Boyd, 22 N.Y.2d 707, 708-709 (1968), in which the Court had gone even further. In that case, counsel did not say anything that was directly adverse to his client’s motion to withdraw his guilty plea. But, declining to represent Boyd on the motion, he told the court that he would “stand on the record,” and requested that the court assign another counsel for the purpose of determining whether there was sufficient ground for the application. On appeal, Boyd argued that, under these circumstances, the court should have appointed new counsel to represent him on the application to withdraw the guilty plea. This Court agreed, remitting for a new hearing on Boyd’s motion “so that he might have the assistance of counsel in attempting to show why he should have been allowed to withdraw” his guilty plea. The lesson of these cases is that a defendant’s right to the effective assistance of counsel is severely compromised when his attorney, whether voluntarily or at the invitation of the court, either becomes a witness against his client or otherwise assumes, or is put in, a position that is adverse to that of the client. Cf. People v. Friedman, 39 N.Y. 2d 463, 467-468 (1976) (defendant who had entered an Alford plea during trial, after the conclusion of the People’s case, was not denied effective assistance of counsel when he sought to withdraw the plea; defense counsel “made factual statements in good faith in the interest of fairly 15 presenting the grounds for defendant’s desire to withdraw his plea”). (B) As in Wilson, Rozzell, Kennedy, and Boyd, appellant was denied the effective assistance of counsel on his motion to withdraw his guilty pleas. Indeed, he was essentially without counsel when the court determined the motion. In the motion, appellant alleged that, despite his protestations of innocence, his attorney had “pressured, tricked and coerced” him into pleading guilty. According to appellant, counsel told him that, if he went to trial and was convicted, the court would impose the maximum sentence on each count and run the sentences consecutively, for a total of 50 years in prison. Appellant also alleged that counsel had misled him and his family as to what would happen in court on the day trial was to begin, leaving appellant without family support as he faced the choice of whether to take the plea offers or proceed immediately to trial. Asked for his response, counsel recounted the time and effort he had put in on appellant’s behalf. He suggested that the real reason appellant pled guilty was because he had come to understand that, given the evidence against him, the possible 50-year sentence he faced if he was convicted at trial, and the amount of jail time credit he had earned, it was in his interest to do so. He 7 Of course, whether to plead guilty is among “the fundamental decisions” that a defendant has the “ultimate authority to make.” Jones v. Barnes, 463 U.S. 745, 751 (1983); People v. Petrovich, 87 N.Y.2d 961, 963 (1996). 16 concluded by telling the court that, as far as he was concerned, and contrary to appellant’s claims, the pleas were “knowing” and in appellant’s “best interest.”7 Contrary to the Appellate Division’s decision, there can be no question that counsel took an adverse position to appellant’s motion. In fact, counsel sought to distance himself from the motion with the very first words he uttered, saying, “Well, Judge, it’s my client’s motion.” Cf. People v. Boyd, 22 N.Y.2d at 708 (counsel said he would “stand on the record” and suggested that the court assign another attorney to determine whether there was sufficient ground for plea withdrawal). That counsel did not make a point by point refutation of the factual allegations in appellant’s motion is of no consequence. In his motion, appellant provided a narrative of how he came to plead guilty, the import of which was that counsel had coerced and manipulated him into doing so. Defense counsel countered with a different narrative, the plain import of which was that there was no coercion, and that, on the contrary, the pleas were knowing and voluntary. Thus, for example, without specifically denying that he had told appellant the court would impose the maximum terms if he was convicted after a trial and run the sentences consecutively, 17 counsel suggested that all he had done was inform appellant of his sentence exposure. Unlike the attorney in Rozzell, counsel was not formally called to the stand and interrogated by the court. Nevertheless, by implicitly denying the factual allegations in appellant’s motion and making the case against plea withdrawal that the People had not, counsel acted as a witness against his client. That counsel did not favor the motion could not have been clearer; indeed, he advocated against it, doing so much more explicitly than the defense attorney in either Wilson or Rozzell. On virtually indistinguishable facts, other courts have held that defense counsel took an adverse position to his or her client, and thus that the defendant was denied the effective assistance of counsel when the court then failed to assign new counsel. In People v. Lewis, 286 A.D.2d 934 (4th Dept. 2001), for example, in response to the defendant’s plea withdrawal motion, which appar- ently alleged ineffective assistance of counsel, defense counsel said that he believed he had done an “appropriate job” on Lewis’s behalf. It was “fairly clear,” counsel continued, that Lewis was involved in the robbery because he was shot at the scene by police and there was a videotape depicting his involvement. Counsel then requested that the court impose the promised sentence, which it did. The Fourth Department held that counsel thus “became a witness against” his client, thereby depriving him of the effective assistance of counsel. See also People v. Kirkland, 68 A.D.3d 1794 18 (4th Dept. 2009) (defense counsel became a witness against defendant by taking an adverse position to him, thereby depriving him of effective assistance of counsel); Hope v. State, 682 So.2d 1173, 1173-1174 (Fla. 4th DCA 1996) (in response to plea withdrawal motion in which, among other things, defendant claimed that counsel had told him that, if he did not accept the negotiated plea, he would get “50 years mandatory time,” counsel said there was no doubt in his mind that the plea was in defendant’s best interest, adding that, in his opinion, if the case had gone to trial, “there was a substantial chance” that defendant would be spending the rest of his life in prison). Notably, despite its decision in the present case, the Second Department has generally accepted the reasoning of these cases, finding in analogous circumstances that the defendant was denied the effective assistance of counsel. See, e.g., People v. Graves, 95 A.D.3d 1034 (2d Dept. 2012) (responding to plea withdrawal motion, which alleged ineffective assistance of counsel, counsel told the court she felt uncomfortable representing defendant at sentencing, and stated that she saw no legal ground for defendant to withdraw plea); People v. Elting, 2 A.D.3d 455 (2d Dept. 2003) (appointed to represent defendant in connection with his motion to withdraw his guilty plea, counsel reviewed for the court what prior counsel, who had been relieved in the wake of defendant’s plea withdrawal motion, had done, and then told the court that he saw no 19 reason to allow defendant to withdraw the plea); People v. Bernard, 242 A.D.2d 387 (2d Dept. 1997) (responding to defendant’s plea withdrawal motion, which, among other things, alleged ineffective assistance of counsel, defense counsel emphasized the strength of the evidence against his client, the highly favorable plea agreement he had negotiated on the client’s behalf, and that the client had indicated at the plea that he was satisfied with counsel’s representation); People v. Santana, 156 A.D.2d 736 (2d Dept. 1989) (when defendant sought plea withdrawal, the court asked defense counsel if they had had an adequate opportunity to discuss the case prior to the plea, whereupon counsel “embarked on a lengthy dissertation regarding all that he had done on the defendant’s behalf” and suggested that the plea withdrawal request represented a mere change of heart); People v. Humbert, 219 A.D.2d 674 (2d Dept 1995) (counsel stressed what he had done on defen- dant’s behalf and specifically controverted defendant’s contention that he had pressured him into pleading guilty). The results in these cases are consistent with, indeed are compelled by, this Court’s precedents, and a similar result should obtain in appel- lant’s case. (C) The constitutional violation was even more apparent in this case than in the Court of Appeals cases discussed above because 20 here, in opposing the plea withdrawal motion, counsel was essen- tially defending himself against accusations of misconduct at his client’s expense. As a number of courts have held, when a defendant moves to withdraw his guilty plea by accusing his attorney of misconduct –- that the attorney had coerced him into pleading guilty or induced the plea by affirmative misinformation or misrepresentations –- such allegations, unless baseless on their face, give rise to a conflict of interest that the court should address before determining the motion. See United States v. Davis, 239 F.3d at 286-287; Lopez v. Scully, 58 F.3d 38, 41 (2d Cir. 1995); Sheppard v. State, 17 So.3d 275, 286 (Fla. 2009); see also People v. Williams, 35 A.D.3d 1085, 1087 (3d Dept. 2006); People v. Gonzalez, 171 A.D.2d 413, 413-414 (1st Dept. 1991). As the Second Circuit Court of Appeals explained in Lopez v. Scully, 58 F.3d at 41, an attorney facing such allegations cannot argue in favor of the client’s motion without admitting serious ethical violations and possibly subjecting himself to a malpractice claim. On the other hand, denying the allegations would mean contradicting his client. And, one might add, silence would merely mask, rather than resolve, the conflict. In the face of such allegations, these jurisdictions require that the court make some inquiry to determine whether there is indeed a conflict of interest, and, if necessary, appoint conflict- free counsel to represent the defendant on the motion. United 21 States v. Davis, 239 F.3d at 287; Sheppard v. State, 17 So.3d at 286-287; State v. Paige, 756 N.W.2d 134, 141 (Minn. 2009). As the Second Circuit Court of Appeals explained in Davis, 239 F.3d at 287, Allegations of coerced pleas are particularly serious given the definitively harmful conse- quences to a defendant of an involuntary guilty plea. A defendant who is coerced into pleading guilty loses the right to put the government to its proof or perhaps even to establish his innocence. Accordingly, in the face of a motion to withdraw a plea based on counsel’s misconduct, district courts must determine whether the facts as alleged support a finding of conflict. If they do not, there is no problem. If they do, the defendant may still waive his right to conflict-free counsel or his right to counsel altogether and proceed pro se; otherwise the district court must provide the defendant with the effective assistance of conflict-free counsel for the purposes of the plea withdrawal. Here, appellant’s allegations of coercion by his attorney were not facially meritless. If, as alleged by appellant, counsel told him that the court would sentence him to 50 years in prison if he went to trial and was convicted, that went far beyond advice about the risks of going to trial. See Lopez v. Scully, 58 F.3d at 40 (defendant alleged that his attorney told him that he was in a “no win” situation and would be sentenced to 25 years to life in prison if he did not take the plea offer of 15 years to life). Moreover, appellant also accused counsel of lying to him and his mother about upcoming court proceedings. Nonetheless, the court made no inquiry even after counsel mounted a full-throated defense 22 of himself at the expense of his client. Instead, the court proceeded to a determination of the plea withdrawal application without appointing new counsel to represent appellant. See People v. Williams, 35 A.D.3d at 1087 (criticizing County Court for failing to address conflict issue). As a result, appellant was essentially without counsel at a critical stage of the proceedings. (D) In their brief before the Appellate Division (pp. 17, 26-28), the People, relying on a series of First Department cases, argued that, in any event, appellant was not prejudiced by counsel’s remarks because they did not influence, and could not have influenced, the court’s decision on the plea withdrawal motion. In particular, the People claimed, the record showed the court denying the motion based solely on its own review of the plea minutes. This argument is not tenable. For one thing, it assumes that, because the court made no reference to counsel’s comments when it denied the motion, those comments had no impact on its decision. But the court explicitly invited comments from counsel before making its decision. It plainly did so because it intended to take whatever counsel said into account in making that decision. The People would have a better argument if the court had denied the motion before counsel made any adverse comments, but that is not what happened here. Cf. People v. Costner, 302 A.D.2d 902 (4th 23 Dept. 2003) (court denied motion before eliciting adverse comments from counsel, so those comments had no effect on the court’s determination); People v. Maragh, 208 A.D.2d 563 (2d Dept. 1994) (same); People v. Rodriguez, 189 A.D.2d 684 (1st Dept. 1993) (same). More important, the People’s argument amounts to the applica- tion of harmless error analysis in a situation where such analysis does not apply. According to the People, appellant’s claim that he was coerced and tricked into pleading guilty was refuted by the record of the plea proceedings, and thus the court would have denied the plea withdrawal motion even if counsel had made no comments or the court had appointed new counsel to represent appellant. But what is at issue at this point is not whether appellant’s motion should have been granted in the first instance, but whether he was denied the effective assistance of counsel on the motion. Moreover, factually supported claims of off-the-record coercion and misrepresentation cannot be resolved simply on the basis of the plea allocution, that is, without inquiry into the facts alleged in support of those claims. See People v. Baret, 11 N.Y.3d 31, 35 (2008) (Jones, J., dissenting) (“in certain cases, sole reliance upon the plea allocution presumes too much about what has previously taken place (or not) off the record”). Notably, nowhere in the quartet of cases reversed by this Court for failure to assign new counsel to represent a defendant on his motion to withdraw his plea –- Wilson, Rozzell, Kennedy, and 8 The dissent in Kennedy included a long excerpt from the plea allocution, the dissenter concluding that “there was no basis for assuming that defendant was unaware of what he was doing” when he pled guilty. 22 N.Y. 2d at 284-287. The majority did not address this argument. 24 Boyd –- was there any suggestion that this issue is subject to harmless error analysis.8 See also People v. McGrath, 31 A.D.2d 944 (2d Dept. 1969) (reversing despite finding that the plea record established “appellant’s guilt and his conscious and voluntary admission of the facts showing such guilt”); People v. Driscoll, 30 A.D.2d 793 (“While . . . there may well be no merit to defendant’s contention with reference to his being coerced into the plea, he was without effective assistance of counsel on his motion to withdraw his plea, which was a critical stage of the proceedings”); Smith v. State, 849 So.2d 485, 486 (Fla. 2d DCA 2003) (rejecting State’s argument that court’s error in failing to appoint conflict- free counsel to assist defendant in filing plea withdrawal motion was harmless because the plea colloquy showed that defendant understood the consequences of his plea); Hope v. State, 682 So.2d at 1174 (“Even if some or all of appellant’s allegations were unfounded, his interests were indisputably adverse to those of his counsel”). As the Court said in see People v. Wardlaw, 6 N.Y.3d 556, 559 (2006), When a defendant has wrongly been denied counsel at a proceeding, we do not inquire whether the presence of counsel would have changed the proceeding’s result. In this 25 sense, the denial of the right to counsel may not be treated as ‘harmless’. * * * In sum, on his motion to withdraw his guilty pleas, appellant was “represented” by an attorney who, seeking to defend himself against allegations that called into question his ethics and professionalism, vigorously opposed the motion. As a result, appellant was not just denied the effective assistance of counsel; he was essentially without counsel. Accordingly, the judgment should be reversed and the matter remitted to Supreme Court for a new hearing to determine whether appellant’s motion to withdraw his guilty plea should be granted. CONCLUSION FOR THE ABOVE-STATED REASONS, THE JUDGMENT SHOULD BE REVERSED AND THE CASE REMANDED FOR A NEW HEARING ON APPELLANT’S PLEA WITHDRAWAL MOTION. Respectfully submitted, LYNN W. L. FAHEY Attorney for Defendant- Appellant WINSTON McINTOSH Of Counsel August 13, 2012