The People, Appellant,v.Anthony Griffin, Respondent.

Brief

N.Y.February 13, 2013

To be argued by SHEILA O’ SHEA (15 Minutes Requested) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, - against - ANTHONY GRIFFIN, Defendant-Respondent. B R I E F F O R A P P E L L A N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov ALAN GADLIN SHEILA O’SHEA ASSISTANT DISTRICT ATTORNEYS Of Counsel MAY 21, 2012 Page TABLE OF CONTENTS PRELIMINARY STATEMENT ......................................................................................... 1 QUESTIONS PRESENTED .............................................................................................. 2 JURISDICTIONAL STATEMENT ................................................................................... 2 INTRODUCTION................................................................................................................ 3 THE RELEVANT RECORD ............................................................................................. 5 POINT BY PLEADING GUILTY, DEFENDANT FORFEITED HIS CLAIM THAT THE TRIAL JUDGE IMPROPERLY RELIEVED ASSIGNED COUNSEL. IN ANY EVENT, THE TRIAL JUDGE ACTED WITHIN HER DISCRETION IN RELIEVING THE LEGAL AID SOCIETY WHEN IT INSISTED THAT IT SHOULD BE RELIEVED IF IT WAS NOT GRANTED AN ADJOURNMENT THE COURT FOUND UNWARRANTED. ..................................................................................... 23 CONCLUSION ................................................................................................................... 45 ii TABLE OF AUTHORITIES FEDERAL CASES Blackledge v. Perry, 417 U.S. 21 (1974) ............................................................................. 25 Fields v. Attorney General of State of Maryland, 956 F.2d 1290 (4th Cir. 1992) ........ 26 Rivera v. Illinois, 556 U.S. 148 (2009) ................................................................................ 27 Smith v. Estelle, 711 F.2d 677 (5th Cir. 1983) .................................................................. 26 Strickland v. Washington, 466 U.S. 668 (1984) ................................................................ 27 Tollett v. Henderson, 411 U.S. 258 (1973) ........................................................................ 27 United States v. Bohn, 956 F.2d 208 (9th Cir. 1992) ....................................................... 26 United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) ............................................. 26, 30 United States v. Moussaoui, 591 F.3d 263 (4th Cir. 2010) ......................................... 26-27 United States v. Sanchez Guerrero, 546 F.3d 328 (5th Cir. 2008) ................................. 26 United States v. Smith, 618 F.3d 657 (7th Cir. 2010) ...................................................... 26 Werth v. Curtin, Slip Copy, 2010 WL 3419818 (E.D. Mich. 2010) ............................... 26 Wheat v. United States STATE CASES , 486 U.S. 153 (1988) .................................................................... 30 Matter of Abrams, 62 N.Y.2d 183 (1984) .................................................................... 30-31 Matter of Schumer v. Holtzman, 60 N.Y.2d 46 (1983) ................................................... 39 People v. Arroyave, 49 N.Y.264 (1980) ........................................................................ 30-31 People v. Bracy, 261 A.D.2d 180 (1st Dept. 1999) .......................................................... 31 People v. Childs, 247 A.D.2d 319 (1st Dept. 1998) ......................................................... 31 People v. Di Donato, 87 N.Y.2d 992 (1996) .................................................................... 29 People v. Green, 75 N.Y.2d 902 (1990)............................................................................. 27 iii People v. Griffin, 92 A.D.3d 1 (1st Dept. 2011) .......................................................... 4, 19 People v. Hall, 46 N.Y.2d 873 (1979) ................................................................................ 30 People v. Hansen, 95 N.Y.2d 227 (2000) .................................................................... 25, 29 People v. Kinchen, 60 N.Y.2d 772 (1983) ......................................................................... 33 People v. Knowles, 88 N.Y.2d 763 (1996) ................................................................... 31-32 People v. Lopez, 6 N.Y.3d 248 (2006) ............................................................................... 29 People v. McLean, 15 N.Y.3d 117 (2010) ......................................................................... 33 People v. Pena, 7 A.D.3d 259 (1st Dept. 2004) ................................................................ 28 People v. Petgen, 55 N.Y.2d 529 (1982) ...................................................................... 25, 27 People v. Phillips, 56 A.D.3d 1163 (4th Dept. 2008) ....................................................... 28 People v. Sawyer, 57 N.Y.2d 12 (1982) ............................................................................. 30 People v. Shields, 205 A.D.2d 833 (3d Dept. 1994) ......................................................... 28 People v. Sides, 75 N.Y.2d 822 (1990) ............................................................................... 30 People v. Simcox, 219 A.D.2d 869 (4th Dept. 1995) ....................................................... 29 People v. Snyder, 297 N.Y. 81 (1947) ................................................................................ 34 People v. Taylor, 65 N.Y.2d 1 (1985) ................................................................................ 25 People v Thomas, 53 N.Y.2.d 338 (1981) ......................................................................... 29 People v. Tineo, 64 N.Y.2d 531 (1985) ................................................................. 31, 38-39 People v. Wilkins STATE STATUTES , 28 N.Y.2d 53 (1971)............................................................................. 32 County Law § 700(1) ............................................................................................................ 39 CPL 30.30 ........................................................................................................................ 39, 42 CPL 450.90 .............................................................................................................................. 2 iv Penal Law § 110.00 ............................................................................................................. 1, 3 Penal Law § 160.10(1) ............................................................................................................ 3 Penal Law § 160.15(4) ........................................................................................................ 1, 3 OTHER AUTHORITIES http://www.nycourts.gov/admin/directory/scherer_micki.shtml ............................... 13 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- ANTHONY GRIFFIN, Defendant-Respondent. PRELIMINARY STATEMENT BRIEF FOR APPELLANT By permission of the Honorable John W. Sweeny of the Appellate Division, First Department, the People appeal from a December 15, 2011 order of that court. The Appellate Division’s order reversed an October 19, 2006 judgment of the Supreme Court, New York County (Micki A. Scherer, J., at substitution of counsel; Edward McLaughlin, J., at plea and sentence), convicting defendant, upon his guilty plea, of Robbery in the First Degree (Penal Law § 160.15[4]) and Attempted Robbery in the First Degree (Penal Law §§ 110.00/160.15[4]), and sentencing him, as a persistent violent felony offender, to concurrent indeterminate prison terms of from twenty years to life. Defendant is currently incarcerated. 2 QUESTIONS PRESENTED 1. Did defendant’s guilty plea forfeit his claim that the trial court improperly relieved the Legal Aid Society, which had been assigned to represent defendant? A majority of the Appellate Division answered this question in the negative. 2. Did the trial court properly substitute counsel when the particular Legal Aid Society attorney representing defendant had resigned from the Society and was leaving the case, the Legal Aid Society insisted to the judge that it should be relieved unless the court granted a lengthy adjournment, and the judge found that the adjournment was inappropriate due to prior delays by the Legal Aid Society? A majority of the Appellate Division answered this question in the negative. JURISDICTIONAL STATEMENT This appeal is authorized by CPL 450.90 since it presents a question of law decided adversely to the appellant by the Appellate Division. This appeal is taken pursuant to an order granting leave dated February 2, 2012 (A3).1 1 Parenthetical references preceded by “A” are to the Appendix that accompanies this brief. 3 INTRODUCTION At approximately 7:00 a.m. on September 15, 2005, defendant entered a Starbucks on 8th Avenue and 47th Street in Manhattan. Brandishing a silver pistol, he ordered the store manager to open the safe. He then duct taped the hands of two male employees and herded them to the back of the store. Next, defendant forced the manager to the safe at gunpoint and demanded that she open it. The safe had a two-minute delay, so defendant left the store while he waited for it to open. At that point, a customer entered the store, and the manager locked the door so that defendant could not re-enter. Defendant did not get any money from the attempted robbery (A21, A176). At approximately 6:30 a.m. on September 22, 2005, defendant and a cohort robbed a second Starbucks, on 8th Avenue between 49th and 50th Streets in Manhattan. Defendant brandished a silver pistol as his cohort duct taped the hands of two employees. Defendant then forced the store manager to the safe at gunpoint and demanded money. The manager opened the safe and gave defendant approximately $1,500. Defendant took the manager to the back of the store and duct taped his hands behind his back (A21, A176). By New York County Indictment Number 6425/05, filed on December 20, 2005, defendant was charged with Attempted Robbery in the First Degree (Penal Law §§ 110.00/160.15[4]), Robbery in the First Degree (Penal Law § 160.15[4]), and Robbery in the Second Degree (Penal Law § 160.10[1]). The case was adjourned on 4 numerous occasions until July 10, 2006, when Justice Micki Scherer relieved defendant’s assigned counsel, the Legal Aid Society, after the staff attorney assigned to represent defendant resigned, and his supervisor advised the court that the Society would not be prepared to proceed to trial on the date the court had scheduled and asked to be relieved were the court to refuse to grant his adjournment request. On July 12, 2006, Justice Scherer appointed William Hauptman of the law firm of Shearman & Sterling to represent defendant. On October 3 and 4, 2006, a Huntley/Dunaway hearing was conducted before the Honorable Edward J. McLaughlin, who denied defendant’s motions. On October 5, 2006, defendant pleaded guilty to Robbery in the First Degree and Attempted Robbery in the First Degree, in full satisfaction of the indictment. By papers dated October 17, 2006, defendant moved pro se On appeal to the Appellate Division, defendant claimed, to withdraw his guilty plea. On October 19, 2006, the court denied defendant’s motion and sentenced defendant as noted above. inter alia, that the court violated his right to counsel of his choosing when it relieved the Legal Aid Society. In a December 15, 2011 decision and order, the Appellate Division, by a three-to-two vote, reversed defendant’s conviction. People v. Griffin, 92 A.D.3d 1 (1st Dept. 2011) (A4-19). On February 2, 2012, Justice Sweeny, one of the Appellate Division dissenters, granted the People’s application for leave to appeal to this Court (A3). 5 THE RELEVANT RECORD Defendant was arrested in this case on December 24, 2005 ( Defendant’s Request for an Adjournment and the Substitution of Counsel see NYSID Sheet).2 On March 15, 2006, Mr. Cohen appeared for defendant, and ADA Craig appeared for the People. Defendant was not produced because he was appearing on an unrelated case in Brooklyn. Thereafter, the Legal Aid Society was assigned to represent him. On February 8, 2006, defendant appeared for arraignment before Justice Scherer with David Cohen of the Legal Aid Society. Cohen submitted a notice of appearance on defendant’s behalf (A23). Jessica Craig appeared for the People. Defendant pled not guilty, and the court adjourned the case to March 15th for defense motions (A25, A28-29). 3 On March 29, 2006, Mr. Cohen appeared for defendant, and Christian Browne appeared for the People. The court granted a The court directed the People to respond to the defense motions by March 27, 2006. The case was adjourned to March 29, 2006 (A31-32). Huntley/Wade/Dunaway hearing but summarily denied defendant’s Mapp 2 Defendant’s NYSID Sheet will be submitted to the Court under separate cover. motion (A34). The People had a series of “bad 3 In November 2005, defendant was indicted by a Kings County grand jury for multiple counts of robbery, grand larceny and petit larceny (Kings Co. Indt. No. 7658/05). Subsequent to plea and sentencing in this case, he pleaded guilty to attempted first-degree robbery and was sentenced to an indeterminate prison term of from sixteen years to life. See NYSID Sheet. 6 dates” in April and thus requested a trial date between May 1 and 5, 2006. The court agreed to May 1st, but Mr. Cohen asked if he could have “any other day than that Monday.” When the court pressed him for an explanation, Mr. Cohen responded that he “was not in the office on Mondays.” The court admonished Mr. Cohen, “But when you’re on trial you’re supposed to be, right?” Mr. Cohen agreed and assured the court, “If we’re on trial through Monday I’ll certainly be here.” Mr. Cohen then requested Tuesday, May 2nd, and the court accommodated his request (A36). On that date, the case was adjourned to May 10, 2006 without explanation (A37). On May 10, 2006, Mr. Cohen appeared for defendant, and David Clune, the assigned assistant, appeared for the People. ADA Clune advised the court that defendant had not been produced for a scheduled meeting the previous week. Justice Scherer agreed to sign a “take-out” order, but stated that she was adjourning the case for hearing and trial, and asked when the People would be ready (A39-40). ADA Clune responded that he would be ready on May 17th. Mr. Cohen then requested the following week -- i.e., the week of May 22nd -- and explained that he had advised ADA Clune that he would not be in on May 15th, 16th or 17th. The court noted that it had accommodated Mr. Cohen’s request on the previous adjourned date, when Mr. Cohen stated that he did not work on Mondays (A40). Mr. Cohen responded, “[N]ext week I won’t be in because it’s my birthday and I have plans for Monday, Tuesday, Wednesday, and I won’t be back until Thursday, the 18th” (A40-41). The 7 court adjourned the case to May 18, 2006 for hearing and trial (A41). On that date, the case was adjourned to June 7, 2006 without explanation (A42). On June 7, 2006, Mr. Cohen appeared for defendant, and ADA Craig appeared for the People. ADA Craig asked to approach but the court denied her request. She then advised the court that the assistant to whom the case had been reassigned, Nitin Savur, was requesting a two-week adjournment. The court denied the request, stating that the case was on for disposition or to set a trial date. The court asked whether or not there was a disposition, and Mr. Cohen responded that there was not (A44). The court then directed the parties to set a trial date. Mr. Cohen noted that ADA Clune had left the District Attorney’s Office. The court responded, “We knew that ADA Clune was leaving the office.” Mr. Cohen stated that he had only learned of ADA Clune’s departure a week and a half earlier. The court adjourned the case to June 28, 2006 for hearing and trial (A45). On June 28, 2006, Mr. Cohen appeared for defendant, and Timothy Smith appeared for the People. At the start of the calendar call, Justice Scherer upbraided Mr. Cohen: [M]y office called you and asked you to be here at a particular hour. If you can’t do that, I’m going to have some conversations with your superiors about this. You and I have had these conversations before about your inability to get to the part when you’re asked to be here. I don’t want to have any conversations with you again 8 (A47). Mr. Cohen responded that he had been in the courtroom three times that morning, but the court disputed that assertion: You were asked to be here at 9:30, Mr. Cohen. You weren’t here at 9:30. You weren’t here at any time close to 9:30. I’m asking you to conform your schedule to the phone calls that are made by my office, and if there’s a particular reason why you can’t do that, put it in writing as you would [a] notice of actual engagement, so that we know where you are. Okay, I don’t want to have this conversation again. We’ve had this conversation on numerous occasions (A47-48). ADA Smith advised the court that the People were not ready and requested an adjournment to July 12th. The court asked why the People were not ready, but ADA Smith did not have that information and offered to contact the assigned assistant, ADA Savur (A48). At the second call of the case, a second assistant, Daniel Boylan, advised the court that he had spoken with ADA Savur, who informed him that he had not yet had the opportunity to meet with all of the witnesses but expected to be able to do so prior to July 12th. The judge responded that she would not be available on that date and that the trial would have to commence before then. The judge then instructed ADA Boylan to summon ADA Savur to the courtroom (A49). At the third call of the case, the court asked ADA Savur why the People were not ready. He responded that the case had been assigned to him the previous month and that he had not yet met with the witnesses or the victims. He also asserted that 9 there was likely to be a disposition in the case (A52). The judge stated that she would not engage in any conversation about disposition, as she intended to try the case (A52-53). ADA Savur requested a bench conference, but the judge refused his request. He then requested an adjournment to July 12th but reiterated that “there may be a disposition before then” (A53). The court asked ADA Savur, “[I]f this case is going to be disposed of, why isn’t it being disposed of today?” He responded that, while there was a “very good chance” of a disposition, “for matters [he] c[ould] not explain, it can’t be disposed of today” (A57). Mr. Cohen added that, out of respect for defendant and himself, ADA Savur was keeping some sensitive matters out of open court, “and that is the rationale behind the . . . likely disposition” (A58). Mr. Cohen requested a bench conference to “explain what’s happening,” but the court refused his request. The court then adjourned the matter to July 10, 2006 for hearing and trial (A59). On July 10, 2006, Mr. Cohen appeared for defendant, and ADA Savur appeared for the People. ADA Savur advised the court that the People were not ready and requested an adjournment to July 25, 2006 (A62). The court asked why the People were not ready, and Mr. Savur responded that the detective assigned to the September 22nd robbery would be on vacation until July 24th and that the evidence recovery officer, Officer O’Neill, was on sick leave (A62-63). The court asked ADA Savur if had contacted the police surgeon. He responded that he had “reached out” to the surgeon but had not yet received word as to O’Neill’s availability. Savur added 10 that he had called O’Neill directly and left messages for her to return his calls. The court instructed him to speak to the police surgeon and adjourned the case to July 25th (A64). Mr. Cohen then advised the court that he would be leaving the Legal Aid Society, and that the case would be reassigned. He asked the court to adjourn the case to July 25th for a control date, “so we can bring you the new attorney who will be trying the case.” The court refused to do so, and admonished Mr. Cohen that the Legal Aid Society “should prioritize this case.” The court directed Mr. Cohen to have someone meet with defendant that day or the next and have a conference with Mr. Cohen while he was still at the Legal Aid Society, “so the matter can proceed as it should on the 25th” (A64-65). Mr. Cohen responded that the Legal Aid Society had two lawyers in mind to take over the case but that both would be on vacation until the end of July. The court retorted, “[I]f someone’s on vacation, it’s not a good choice. There are certainly more than two lawyers at the Legal Aid Society who are experienced enough to try this matter who are not on vacation” (A65). The court then voiced its expectation that “somebody will be here today to meet” defendant (A65-66). The court had Mr. Cohen confirm that he had told his supervisors previously that he was leaving the Legal Aid Society. Mr. Cohen then advised the court that he would be available after he left the Society to conference the case with defendant and his newly-assigned lawyer. He explained that he was requesting a control date of July 11 25th, because the case was “very serious” and defendant was facing a life sentence. Mr. Cohen opined that two weeks would not be an adequate amount of time for the new lawyer to prepare (A66). The court disagreed, noting Mr. Cohen’s availability and the fact that he undoubtedly had “begun to prepare th[e] case in view of the serious nature of the charges” (A66-67). The court observed, “[I]t’s the obligation of the Society to have somebody here to meet [defendant] today so that the Society will be able to proceed on [defendant]’s behalf.” The court instructed the People to be ready, given that a trial had been under discussion since May, and “it’s now the end of July” (A67). At that juncture, Kenneth Ives, Mr. Cohen’s supervisor at Legal Aid, asked to be heard. Mr. Ives advised the court that the defense would not be ready for trial on the next court date. He then added, “[I]f you think the Legal Aid Society should be relieved, you should do that” (A67). Mr. Ives then observed that the case was “very serious” and that defendant was an “alleged” mandatory persistent felon who was facing a life sentence (A67-68). Mr. Ives stated that, although “[a] lot of work ha[d] already been done in the case,” there were not many lawyers in his “complex” who could take it on and be ready to try it in two weeks. Mr. Ives added that the Legal Aid Society had one or two lawyers in mind who were going to be on vacation sporadically through the third week in August. He proposed July 25th as a control date so that one of those lawyers could be assigned. The lawyer would then meet with defendant and talk to Mr. Cohen “and be ready to 12 try the case sometime in late August or early September.” Mr. Ives considered that a reasonable request, given the “severity of the case” and the “complicated nature of the charges” (A68). The court disagreed: [I]t’s clear that Mr. Cohen didn’t decide to leave the Society today and the matter has been adjourned continuously since the beginning of May for trial. If the Society chooses to behave -- to proceed in this fashion where you make no plans for substituting attorneys until the day that somebody leaves, I think that that’s unreasonable. I don’t think that that’s an appropriate way to proceed. I think the Society is not being professional or responsible and I’m intending to communicate with the Criminal Justice Coordinator about this because the Society picks up cases that are arraigned in this court and the Society has to have a better way of dealing with lawyers who come and go because there are an enormous number of people who come and go, and the fact that the Society waits until the person has actually left to then try and decide who the case should go to, I don’t believe is professional. . . . It puts an extra burden on the system which -- not only financial but otherwise, and I don’t think that that’s a professional way to proceed (A68-69). Mr. Ives protested, “That’s not exactly what’s happening” (A69-70). He stated that plea negotiations had been ongoing until that morning and that the parties were hoping to present the court with a potential disposition. As for the possible replacements for Mr. Cohen, Mr. Ives explained that the two lawyers were not in his “office.” He added that Mr. Cohen had only given notice about ten days earlier, “so it’s not like we’re not acting quickly to have this case reassigned.” According to Mr. 13 Ives, even if he had reassigned the case as soon as Mr. Cohen resigned, given the magnitude of the case, “to have somebody ready at the end of July” would be “unreasonable” (A70). Finally, Mr. Ives asserted, “It happens every day in this courthouse where a case is put on for control for a new lawyer to appear and it’s not an unreasonable request” (A70-71). Justice Scherer, who at the time was administrative judge of the Supreme Court, New York County Criminal Term,4 Mr. Ives countered that everyone at the Legal Aid Society had “a lot of cases” and that lawyers were “not sitting around for one case before [Justice Scherer] to come by” (A71-72). According to Mr. Ives, it was not unreasonable “to put the case over once so a lawyer can come into the case, will get up to speed on the case, and then try the case in late August or early September. That is our request” (A72-73). disagreed. She observed that numerous lawyers from Legal Aid “come and go for various reasons.” In the court’s view, then, “[T]his [wa]s not an isolated incident. It happens all the time, much too frequently, in my opinion.” The court opined that the Legal Aid Society should have re-assigned the case ten days earlier, when Mr. Cohen resigned, or “have two people on a matter to second seat if there wasn’t a disposition so that you could proceed” (A71). 4 Justice Scherer had held that position for nearly seven years. See http://www.nycourts.gov/admin/directory/scherer_micki.shtml (last updated Oct. 11, 2007). 14 The court relieved the Legal Aid Society and adjourned the case to July 12, 2006. Mr. Ives stated, “That’s over my objection,” and the court responded, “That’s what you asked me.” Mr. Ives insisted, “[W]hat I asked you to do is if you were going to force us to be ready for trial on July 25th, that what you should do is relieve us because we’re not going to be ready . . . by July 25th.” The court twice repeated that the Legal Aid Society was relieved, but Mr. Ives continued, “I’m not going to find a lawyer today and tell him or her she has to try a very serious case on July 25th” (A73). The court responded: You don’t want to find a lawyer in most situations where the case is ready for trial, Mr. Ives. That’s my experience time after time. It happens too often. I don’t think it’s professional. I[t] would put a burden on the system that I don’t think the system should have to bear (A73-74). The court then adjourned the matter to July 12, 2006 for the assignment of 18-B counsel. The court denied ADA Savur’s request to approach, and the proceedings concluded (A74). On July 12, 2006, Justice Scherer assigned William Hauptman of the law firm of Shearman & Sterling to represent defendant. The court adjourned the case to July 19th for a control date, to give counsel an opportunity to confer with Mr. Cohen and to meet with defendant (A77-79). On July 19, 2006, Mr. Hauptman appeared for defendant, and ADA Savur appeared for the People. ADA Savur advised the court that the People were not ready. He explained that Officer O’Neill was still on medical leave and unable to 15 testify. At ADA Savur’s request, the court adjourned the case to August 16th for a control date and an update from him regarding the officer’s condition (A81-82). On August 16, 2006, defendant appeared with Mr. Hauptman and another lawyer from Shearman & Sterling. Ivana Nizich and Julie Nobel appeared for the People. ADA Nizich advised the court that Officer O’Neill was due back to work on August 19th. When the court asked when the case could be tried, Ms. Nizich responded that discussions were ongoing with defense counsel regarding a disposition. The court then convened a bench conference (A85). On August 23, 2006, two of Mr. Hauptman’s associates appeared for defendant. ADA Nobel, to whom the case had been reassigned, appeared for the People, accompanied by her supervisor, Daniel McNulty. The judge asked ADA Nobel why ADA Savur had not advised the court on July 19th that he would be starting paternity leave two days later (A89). The court also expressed its dismay that the case was not reassigned to ADA Nobel until mid-August (A90, A92). ADA Nobel advised the court that ADA Savur had informed her that he believed the case was “on for control and update” (A92). The court responded, “What’s the difference? There still needed to be another assistant. [ADA Savur] was still leaving two days later.” The court then castigated ADA Savur for ignoring “his obligation to the Court to inform the Court that he wasn’t going to be here” (A93). ADA McNulty acknowledged that “perhaps it would have been better if he said something.” He added that ADA Savur expected that there would be a plea in the case, although that 16 outcome was now unlikely (A94). The court characterized ADA Savur’s conduct as “outrageous” and expressed disbelief at his “lack” of “common sense” (A95). ADA Nobel advised the court that she had conferred with defense counsel and that they had agreed upon the beginning of October for the hearing (A97). The court responded that it did not intend to conduct the hearing separately from the trial and adjourned the matter to October 2nd (A97-100). On that date, Justice Scherer ruled on various defense motions and sent the case to Justice Edward J. McLaughlin for hearing and trial. On October 3 and 4, 2006, a The Plea and Sentencing Proceedings Huntley/Dunaway On October 5, 2006, defendant appeared with Mr. Hauptman before Justice McLaughlin and pleaded guilty to Attempted Robbery in the First Degree and Robbery in the First Degree, in full satisfaction of the indictment. With respect to the first count, defendant admitted that, on September 15, 2005, he attempted to forcibly steal property from a Starbucks employee while displaying what appeared to be a pistol. With respect to the second count, defendant admitted that, on September 22, 2005, he stole money from a Starbucks employee while displaying what appeared to be a pistol (A176). hearing was held before Justice McLaughlin. At the conclusion of the hearing, Justice McLaughlin issued an oral ruling denying defendant’s motions. 17 Defendant affirmed his understanding that a guilty plea had the same effect as if he were found guilty after a jury trial. Defendant also understood that, by pleading guilty, he was giving up his rights to a trial, to cross-examine witnesses against him, to testify or remain silent, and to have his guilt proved beyond a reasonable doubt (A177-78). In exchange for defendant’s guilty plea, the court promised to sentence him to concurrent sentences of twenty years to life. Defendant would also receive a concurrent sentence in his Brooklyn case (A179). Defendant acknowledged that he had discussed the plea agreement with counsel and that he was pleading guilty because he was, in fact, guilty. Defendant further averred that he was not under the influence of any drugs or alcohol. Finally, defendant represented that what he had told the court during his plea allocution was true (A180). The court then found that, on January 31, 1995, defendant had been convicted of the violent felony of Robbery in the Second Degree in Kings County Supreme Court. The court further found that, on December 3, 1997, defendant had been convicted of the violent felony of Attempted Robbery in the Second Degree, also in Kings County Supreme Court. Without objection, the court adjudicated defendant a persistent violent felony offender (A181-87). By papers dated October 17, 2006, defendant moved pro se to withdraw his guilty plea. Defendant claimed that he did not understand the court’s instructions “as 18 to certain elements of his legal rights.” Defendant further claimed that he was innocent, that “inducing plea was mistake” [sic], that his attorney asserted no defense on his behalf, and that the trial court was “biased.” Finally, defendant claimed that he was “unaware of the consequences of his plea” and “of the fact that he had a good meritorious defense” (A195).5 On October 19, 2006, defendant appeared before Justice McLaughlin for sentencing. During colloquy with the court, defense counsel represented that defendant felt he was “under duress” when he decided to take the plea. When the court asked in what way, counsel explained that defendant thought he had not had enough time to consider the plea. The court found that there was no legal or factual basis for withdrawing defendant’s plea. The court reasoned that defendant had overnight to consider its original offer of twenty-two years to life, that it offered a lesser sentence of twenty years to life the following day, and that it distinctly remembered seeing defendant and counsel confer. The court further concluded that, given his criminal history and the evidence in the case, defendant understood that he was saving himself between ten and fifteen years in prison by pleading guilty. 5 Defendant also prepared a motion for reassignment of counsel, alleging that his counsel was ineffective. In particular, defendant claimed that counsel had failed to inform him of “pertinent motions made,” conduct an investigation or “make any bail requests or reduction applications” (A199). Defendant further claimed that counsel had failed to confer with him or prepare for trial (A199-200). The Supreme Court File contains neither defendant’s motion for reassignment of counsel nor his plea withdrawal motion. The People subsequently obtained copies from appellate defense counsel. Those copies are not time and date stamped and do not otherwise indicate that they were filed with the court. 19 Moreover, defendant told the court that he was pleading guilty voluntarily, admitted his guilt in both robberies, and assured the court that he was telling the truth. Accordingly, the court denied defendant’s motion and imposed the promised concurrent sentences of from twenty years to life (A190-92). On appeal, defendant argued, Defendant’s Appeal to the Appellate Division inter alia, that Justice Scherer violated his right to counsel of his choosing when she relieved the Legal Aid Society. In a December 15, 2011 decision and order, a divided Appellate Division reversed defendant’s conviction, on the law, vacated his plea and remanded the matter to Supreme Court for further proceedings. People v. Griffin, 92 A.D.3d 1 (1st Dept. 2011) (A4-19). In an opinion authored by Justice Rolando T. Acosta, the three-judge majority held that “the court’s discharge of defendant’s counsel without consulting defendant was an abuse of discretion and interfered with defendant’s right to counsel” (A5). The majority reasoned that defendant “had a long-standing attorney-client relationship with The Legal Aid Society” (A9-10). In particular, the majority observed, the attorney-of-record was Seymour James, the attorney-in-charge of the Criminal Defense Division, and David Cohen, from the Society, “had represented defendant during the entire five-month period between arraignment and the time the court relieved The Legal Aid Society and assigned new counsel.” During that time, the majority continued, “The Legal Aid Society, through Cohen, had filed all the 20 necessary motions and had engaged in protracted negotiations with the People for a plea resolution of th[e] case.” Further, the majority stated without citing record support, “the Society [ ] relied on the services of many of its employees, including supervisors, investigators and social workers, in preparing for the defense” (A10). The majority opined that the court “treated the People much differently” when they requested adjournments. In that regard, the majority cited the “disparaging remarks” made by the court about the Legal Aid Society during the July 10th colloquy (A10). The majority further remarked that, “although it was the People who requested lengthy adjournments in this case, the court wrongly castigated Cohen for these delays” (A10-11). The majority concluded that, since one of the People’s witnesses “was out on sick leave and would not be available until late August[,] The Legal Aid Society would have had sufficient time to prepare a new attorney to take over defendant’s case and be ready for trial” (A11). In the majority’s view, “There was no reason the court could not have accommodated the single [defense] request for an adjournment,” given the “serious[ness]” and “compl[exity]” of the case, and the People’s unreadiness to proceed. Moreover, the majority observed, in light of ADA Savur’s pre-planned paternity leave and the anticipated reassignment of the case, the proposed delay “neither affirmatively delayed the proceedings in th[e] case nor prejudiced the People.” Accordingly, the majority found that the court “improperly interfered with an established attorney-client relationship between defendant and The Legal Aid 21 Society” (A11). Moreover, the majority discounted the Legal Aid Society’s “plea in desperation” to be relieved were the requested adjournment to be denied, since “counsel was placed between the proverbial ‘rock and a hard place’” (A13). The majority further found that the “issue” was not waived by defendant’s guilty plea (A12-13). Justice Sweeny, joined by Justice Moskowitz, dissented in part, concluding that the court did not, “as a matter of law,” “abuse[ ] its discretion in requiring Legal Aid to assign another staff attorney to represent defendant and to have that attorney ready to proceed to trial within two weeks from that point” (A15). The dissent pointed out that the trial court was advised on July 10th that Mr. Cohen, the assigned Legal Aid lawyer, had resigned (A16). Thus, the dissent stressed, “The attorney who was actually handling this case was not removed -- he resigned from Legal Aid. Rightfully so, the majority claims no interference with the attorney-client relationship as a result of this” (A15, n.1). The dissent also emphasized that Mr. Ives had known about Mr. Cohen’s departure for ten days. Further, the dissent observed, the trial court “directed Legal Aid to assign another of its staff attorneys to be ready for trial within two weeks, thus giving Legal Aid more than three weeks time to assign a different staff attorney and prepare for trial. Legal Aid demurred and asked to be relieved.” Accordingly, the dissent concluded, “[T]here was no removal and clearly no violation of the attorney- client relationship” (A16). In fact, the dissent noted, neither Mr. Cohen nor Mr. Ives 22 suggested that relieving the Legal Aid Society would interfere with defendant’s right to be represented by his counsel of choice (A17-18). The dissent observed that, while there were unforeseen scheduling difficulties that arose after new counsel was appointed, the majority “unfairly use[d] these delays to bootstrap its criticism of the court” (A16). Similarly, the dissent noted that, while the majority outlined the delays occasioned by the People, the record showed that there were also delays occasioned by Mr. Cohen. In addition, the dissent noted that Mr. Cohen and Mr. Ives “made no attempt to explain to the court with any particularity why another Legal Aid attorney, with the assistance of [Mr. Cohen], could not prepare for trial in two weeks.” Indeed, the dissent observed, “[A]t no time did either [Mr. Cohen or Mr. Ives] argue [that] the intricacies of the case, including the number of witnesses, the volume of material involved, or the complexity of issues of law which potentially could arise during the trial” necessitated the requested adjournment (A17). In addition, the dissent rejected as “unfounded” the majority’s criticism of the trial court for not consulting with defendant about relieving the Legal Aid Society. The dissent reasoned that “[i]t was Legal Aid who presented the court with the conundrum that it should be relieved if it was not granted more than a two-week adjournment. There is no evidence that any Legal Aid attorney, including [Mr. Cohen], discussed this with the defendant before they [sic] presented this argument to the court.” Moreover, the dissent added, “given defendant’s persistent felony status, 23 it is difficult to believe that he was not experienced enough in the criminal justice system to make himself heard had he chosen to do so” (A18). The dissent underscored that, “when defendant did enter a plea, he did so months later, after being appointed new counsel and engaging in extensive discussions between himself, his counsel, the prosecutor and the new trial judge” (A18). Further, the dissent added, at no time did defendant ever argue that his plea should be vacated because Justice Scherer improperly relieved the Legal Aid Society (A18-19). POINT BY PLEADING GUILTY, DEFENDANT FORFEITED HIS CLAIM THAT THE TRIAL JUDGE IMPROPERLY RELIEVED ASSIGNED COUNSEL. IN ANY EVENT, THE TRIAL JUDGE ACTED WITHIN HER DISCRETION IN RELIEVING THE LEGAL AID SOCIETY WHEN IT INSISTED THAT IT SHOULD BE RELIEVED IF IT WAS NOT GRANTED AN ADJOURNMENT THE COURT FOUND UNWARRANTED. On the eve of trial, when defendant’s case had already been pending for five months, the Legal Aid Society advised Justice Scherer that the particular attorney who had been representing defendant was leaving, that the Society had known about his resignation for ten days but not yet assigned a new attorney, and that it had decided to replace counsel with an attorney who was on vacation for at least two more weeks. On the basis of those circumstances, the Society demanded that the trial be adjourned for another six to eight weeks and, in an attempt to strong-arm the judge into granting 24 an adjournment, declared that the judge should relieve it if she was not willing to adjourn the trial. The judge declined to grant the adjournment and accordingly granted the Society’s alternative request to be relieved. When the Society objected, the judge pointed out that it had asked to be relieved, and the Society indeed confirmed that it had requested that relief in the event the court denied its request for an adjournment. Three months later, defendant pleaded guilty, without ever suggesting that he had felt compelled to do so because of the Legal Aid Society’s removal. The Appellate Division majority found that Justice Scherer interfered with defendant’s right to counsel when she relieved the Legal Aid Society. The majority further found, without explanation, that defendant’s claim was not waived by his guilty plea. Contrary to that conclusory finding, however, defendant forfeited his Sixth Amendment argument by pleading guilty. Moreover, as the dissent correctly concluded, it was the Legal Aid Society that terminated the attorney-client relationship with defendant, in that the assigned staff attorney resigned and the Society insisted that the court relieve it, if the judge refused to grant an adjournment. The Society cannot be relieved of its responsibility for its alternate request for relief based on the court’s refusal to grant the demanded adjournment, for the court’s decision on that score was wholly appropriate. 25 A. Defendant forfeited the right to press his Sixth Amendment claim by pleading guilty. As an initial matter, by pleading guilty, defendant forfeited review of his claim that the trial court improperly relieved the Legal Aid Society. A plea of guilty “generally marks the end of a criminal case, not a gateway to further litigation.” People v. Hansen, 95 N.Y.2d 227, 230 (2000) (citing People v. Taylor, 65 N.Y.2d 1, 5 [1985]). “As a rule, a defendant who in open court admits guilt of an offense charged may not later seek review of claims relating to the deprivation of rights that took place before the plea was entered.” Hansen, 95 N.Y.2d at 230; see Blackledge v. Perry, 417 U.S. 21, 29-30 (1974) (a defendant who pleads guilty “may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea”). Accordingly, a guilty plea effects a forfeiture of the right to raise most claims on appeal. Hansen, 95 N.Y.2d at 230. “The limited issues surviving a guilty plea in the main relate either to jurisdictional matters . . . or to rights of a constitutional dimension that go to the very heart of the process (such as the constitutional speedy trial right, the protection against double jeopardy or a defendant’s competency to stand trial).” Id. The forfeiture rule applies with equal force to many Sixth Amendment claims concerning deprivations of counsel. Most importantly, in at 230-31. People v. Petgen, 55 N.Y.2d 529, 534-35 (1982), this Court found that a claim that counsel had been ineffective was forfeited by a guilty plea where the defendant was represented at the 26 plea by new counsel who was aware of the prior attorney’s asserted ineffectiveness. See also United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992) (defendant’s guilty plea waived claim of ineffective assistance of counsel occurring before the plea); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983) (petitioner’s claim that his counsel was ineffective for failing properly to investigate the case was forfeited by his guilty plea). In fact, claims of absolute deprivation of counsel can be forfeited due to a guilty plea. See Fields v. Attorney General of State of Maryland, 956 F.2d 1290, 1294- 96 (4th Cir. 1992) (petitioner’s claim that he was denied counsel at a critical stage of the proceedings in violation of the Sixth Amendment was deemed barred due to his later guilty plea). Indeed, the Fourth Circuit has held that by subsequently pleading guilty, a defendant forfeits a claim that he was deprived of counsel of choice. United States v. Moussaoui, 591 F.3d 263, 279-80 (4th Cir. 2010).6 6 Two other federal circuit courts have held that a defendant’s guilty plea does not forfeit a claim that he was deprived of his counsel of choice United States v. Smith, 618 F.3d 657, 663 (7th Cir. 2010); United States v. Sanchez Guerrero, 546 F.3d 328, 331-32 (5th Cir. 2008). Both courts rely on United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), to support that conclusion. In Gonzalez-Lopez, the Supreme Court held that the “erroneous deprivation of the right to counsel of choice” constituted a “structural error,” and thus was not subject to harmless error analysis. 548 U.S. at 148-50. However, Gonzalez-Lopez clearly distinguished between retained counsel and assigned counsel: it expressly stated that “the right to counsel of choice does not extend to defendants who require counsel to be appointed for them.” Id. at 151. Here, unlike in Gonzalez-Lopez, Sanchez-Guerrero and Smith, the Legal Aid Society was assigned counsel, not retained, so by their terms those cases do not apply to this case. In any case, the Fifth and Seventh Circuits were wrong simply to assume that a claim involving a structural error cannot be waived by a guilty plea. Other federal courts have held that, while not subject to harmless error review, structural errors are “nevertheless subject to the general rules of waiver, forfeiture and default.” Werth v. Curtin, Slip Copy, 2010 WL 3419818, at *6 (E.D. Mich. 2010) (collecting cases). Indeed, in (Continued…) 27 Here, too, defendant’s complaint should be deemed forfeited by his subsequent guilty plea. Indeed, given that this Court found forfeiture of the defendant’s Sixth Amendment claim in Petgen, it should certainly find forfeiture here. At issue in Petgen was ineffectiveness of counsel, i.e., an attorney’s failure to function as the counsel guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). Here, instead, defendant is merely claiming that he should have had a different attorney. Importantly, too, to the extent the Appellate Division majority thought that Sixth Amendment claims are the “fundamental” type not waived by a guilty plea (see A13), Petgen It makes particular sense to apply the forfeiture rule in this case for several reasons. First, defendant could not continue to be represented by Mr. Cohen in any event, and the severance of their attorney-client relationship was not caused by anything the court did. Mr. Cohen himself decided to leave the Legal Aid Society and thus terminate his representation of defendant. Second, as the Appellate Division dissent observed, defendant never alleged that his guilty plea was induced by the shows that the majority was simply wrong. ___________________________ (…Continued) Moussaoui, 591 F.3d at 280 n.12, the Fourth Circuit pointed out that the notion that “structural defects” cannot be forfeited by a plea would be incompatible with Tollett v. Henderson, 411 U.S. 258 (1973), which held that a claim that African-Americans had been systematically excluded from the grand jury -- a structural defect -- was forfeited by a guilty plea. It is certainly true that in New York jurisprudence, claims that are not amenable to harmless error analysis can nonetheless be forfeited by a plea. For instance, in People v. Green, 75 N.Y.2d 902 (1990), this Court held that a claim that a prosecutor violated Batson during jury selection is forfeited by a subsequent plea, even though harmless error analysis is inapplicable to a Batson violation. See Rivera v. Illinois, 556 U.S. 148, 161 (2009). 28 court’s ruling reliving the Legal Aid Society: “[W]hen defendant did enter a plea, he did so months later, after being appointed new counsel and engaging in extensive discussions between himself, his counsel, the prosecutor and the new trial judge. At no time during any of the subsequent trial court proceedings did defendant assert that his plea should be vacated because [Justice Scherer] improperly removed the Legal Aid Society” (A18-19). See People v. Phillips, 56 A.D.3d 1163 (4th Dept. 2008) (claim that the court abused its discretion in denying the defendant’s motion to discharge counsel was forfeited by a plea and appeal waiver where, inter alia, the defendant stated at the time of the plea that he was satisfied with the services of his attorney); see generally People v. Pena, 7 A.D.3d 259 (1st Dept. 2004) (challenges to the validity of guilty plea unpreserved where the record established no connection between the putative denial of the defendant’s right to defend himself and his subsequent decision to plead guilty); People v. Shields, 205 A.D.2d 833 (3d Dept. 1994) (appeal waiver precluded consideration of the defendant’s claim that he was denied the right to proceed pro se where, inter alia Third, as explained below in more detail, in reality, all the court did was deny defense counsel’s request for an adjournment; it was the Legal Aid Society that then declared that it had to be relieved absent an adjournment. Of course, a claim that the court denied a requested adjournment is clearly the type of discretionary ruling , the court’s refusal to permit him to conduct his own defense did not affect the plea bargaining process or the voluntariness of his plea). 29 forfeited by a guilty plea. See People v. Simcox, 219 A.D.2d 869 (4th Dept. 1995); see generally People v. Di Donato Nonetheless, the Appellate Division majority reasoned that since “the court did not include defendant in the discussion to assign new counsel . . . it cannot be said that defendant knowingly and voluntarily waived the issue” (A13). However, the majority’s analysis was flawed because it conflated the distinct concepts of “waiver” and “forfeiture.” As this Court explained in , 87 N.Y.2d 992, 993 (1996) (a defendant’s ability to challenge a discretionary ruling is forfeited by his guilty plea). Hansen, “Forfeiture occurs by operation of law as a consequence of the guilty plea, with respect to issues that do not survive the plea. Waiver occurs when a defendant intentionally relinquishes or abandons a known right that would otherwise survive a guilty plea.” Hansen, 95 N.Y.2d at 230 n.1 (citing People v Thomas, 53 N.Y.2.d 338, 342, n.2 [1981]); accord People v. Lopez, 6 N.Y.3d 248, 256-57 (2006). Here, then, it would not have mattered even if the court had asked defendant about relieving the Legal Aid Society and defendant had vigorously protested such a move; by operation of law, defendant’s guilty plea forfeited any such claim. See generally Thomas , 53 N.Y.2d at 342 & n.2 (preserved claim forfeited by guilty plea). 30 B. Since defendant’s assigned attorney was on his own ending his representation of defendant, and the Legal Aid Society itself said it should be relieved if its conditions for continued representation were not met, the trial court did not improperly terminate defendant’s attorney-client relationship with the Society. Regardless of whether defendant’s later plea forfeited his complaint that the judge improperly relieved the Legal Aid Society, that complaint is without merit. An indigent defendant’s right to have a particular attorney represent him is not as broad as a defendant’s right to retain paid counsel. See Gonzalez-Lopez, 548 U.S. at 151 (“[T]he right to counsel of choice does not extend to defendants who require counsel to be appointed for them”). But, even when a defendant’s right to be represented by counsel of his own choosing is at stake, that right is not absolute. Matter of Abrams, 62 N.Y.2d 183, 196 (1984); People v. Hall, 46 N.Y.2d 873, 875 (1979). For example, a court has the discretion to deny a defendant’s request for an adjournment to secure counsel of choice. See People v. Arroyave, 49 N.Y.264, 271 (1980). Nor does a defendant have a categorical right to insist that a specific attorney continue to represent him. See People v. Sides, 75 N.Y.2d 822, 824 (1990); People v. Sawyer, 57 N.Y.2d 12, 18-19 (1982); Hall, 46 N.Y.2d at 875. That is because the “essential aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.” Wheat v. United States To be sure, regardless of whether counsel is assigned or retained, a court “should be hesitant to interfere in an established attorney-client relationship,” and , 486 U.S. 153, 159 (1988). 31 may not do so “arbitrarily.” People v. Knowles, 88 N.Y.2d 763, 766-767 (1996). However, a court may remove counsel when it determines that there is an “overriding competing public interest” mandating such relief. Abrams, 62 N.Y.2d at 196. For example, a court is permitted to relieve a defendant’s attorney when it makes “threshold findings” that counsel’s participation “would have delayed or disrupted the proceedings.” Knowles, 88 N.Y.2d at 767. After all, strong public policy considerations concerning judicial economy and the integrity of the criminal process militate against unduly delaying the wheels of justice solely so that a particular attorney can represent a defendant. See People v. Tineo, 64 N.Y.2d 531, 537 (1985); Arroyave, 49 N.Y.2d at 271. Thus, a court is empowered to relieve counsel when counsel’s continued representation would unduly delay the progress of the case. See, e.g., People v. Bracy, 261 A.D.2d 180 (1st Dept. 1999); People v. Childs Given these principles, Justice Scherer deprived defendant of no right when, upon being informed that his assigned Legal Aid attorney was terminating his representation of defendant, the court denied the further adjournment the Legal Aid Society demanded in order to find a new attorney for defendant and then, at the Society’s own suggestion, relieved it. First, as the Appellate Division dissent recognized, the judge did not interfere with an existing attorney-client relationship, as the judge did not relieve Mr. Cohen; rather, he announced that the he was leaving the case. The Appellate Division majority asserted that “defendant had a long-standing , 247 A.D.2d 319, 324-26 (1st Dept. 1998). 32 attorney-client relationship with the Legal Aid Society,” and stressed that the head of the Society’s Criminal Defense Division was the attorney of record (A9-10). In reality, though, defendant’s substantive attorney-client relationship was with Mr. Cohen, the particular Legal Aid lawyer assigned to represent him, rather than with the Legal Aid Society itself. There is no indication that defendant had spoken with any other Legal Aid Society lawyer, or even that Mr. Cohen had consulted with any other Society lawyer regarding the details of the case. In addition, Mr. Ives was plainly planning on bringing in an attorney without any previous connection to the case. At worst, then, the court severed the existing attorney-client relationship in only the most technical sense. See People v. Wilkins Indeed, this Court recognized in , 28 N.Y.2d 53, 56 (1971) (for the purpose of disqualification of counsel, the Legal Aid Society is not analogous to a law partnership). Knowles, 88 N.Y.2d at 767, that a defendant forms a “relationship of trust” with his individual lawyer rather than with the institutional defender itself. Accordingly, the Knowles Court found that the trial judge interfered with an established attorney-client relationship when he excluded one of the defendant’s two Legal Aid Society attorneys from participating in the trial. Id. at 767-69. The Court so concluded even though the head of the Legal Aid Society’s Criminal Defense Division was Knowles’s attorney of record, id. at 766, rather than either of the individual attorneys. In stark contrast to Knowles, Justice Scherer did nothing to interfere with defendant’s real attorney-client relationship; instead, the 33 termination of that relationship was effected by Mr. Cohen, when he resigned from the Legal Aid Society. Especially since defendant never expressed a preference that the Society continue to represent him, defendant is hard pressed to maintain that the court interfered with a substantive attorney-client relationship. To minimize the import of Mr. Cohen’s departure, the Appellate Division majority asserted that, in addition to Mr. Cohen, the Legal Aid Society “relied on the services of many of its employees, including supervisors, investigators and social workers, in preparing for the defense” (A10). However, there is absolutely no support in the record for that conclusion. At no time did Mr. Cohen or Mr. Ives represent that a social worker or investigator had been assigned to the case, or that the “services” of such non-legal staff had been sought or utilized. Mr. Ives did represent that “[a] lot of work ha[d] already been in the case” (A68), but there was no reason to think that he was referring to anyone but Mr. Cohen. A defendant can prevail only if there is record support for his deprivation of counsel claim, People v. McLean, 15 N.Y.3d 117, 121 (2010); People v. Kinchen Beyond the fact that defendant’s actual attorney was terminating his representation on his own, the trial judge relieved the Legal Aid Society only upon its own insistence that it be relieved unless the court was willing to grant a lengthy adjournment so that the Society could settle on a new attorney for defendant. Notably, in her initial discussions with Mr. Cohen, Justice Scherer never suggested , 60 N.Y.2d 772, 774 (1983), but there is none here on this point, despite the musings of the Appellate Division majority. 34 that she might wish to relieve the Legal Aid Society. The sole focus of her comments was the obligation of the Legal Aid Society to assign a new attorney for defendant right away. The first one to suggest replacement was Mr. Ives, when, as the Appellate Division dissent observed (A16), he insisted that a new lawyer could not prepare for trial in two weeks and asked the judge to relieve the Society if she would not grant an adjournment. Justice Scherer declined to grant an adjournment, so she granted that alternate request. Mr. Ives purported to object, but even then he simply repeated that what he really wanted was for the Legal Aid Society to continue representing defendant and be granted an adjournment. It was not as though he suggested that the Legal Aid Society might continue to represent defendant without the adjournment. On the contrary, Mr. Ives still absolutely refused to have a Legal Aid lawyer ready for trial on July 25th (A67-73). Certainly, the court was justified in relieving the Legal Aid Society when Mr. Ives insisted the Society would be unable to proceed under the court’s schedule. Given the Society’s insistence that it could not possibly be ready for trial without a longer adjournment, the judge could not have let it remain on the case without granting an adjournment. That would have invited a later ineffectiveness claim on the ground that counsel was ill-prepared. See generally People v. Snyder The Appellate Division majority dismissed the relevance of the fact that it was the Legal Aid Society itself that proposed being relieved, on the ground that the , 297 N.Y. 81 (1947). 35 Society was placed between a “rock and a hard place” as a result of the trial court’s refusal to grant an adjournment (A13). On the contrary, as the Appellate Division dissent reasoned, the judge was not obliged to countenance further delay by the Legal Aid Society in its efforts to continue representing defendant. After all, defendant’s case had been pending for seven months and had been adjourned for trial six times. And, while several of those adjournments were reasonably requested by the People, a number were because Mr. Cohen had engaged in unprofessional conduct that, as the dissent correctly observed (A17), also occasioned delays in the trial schedule. For example, on March 29, 2006, when Justice Scherer indicated that trial would commence on Monday, May 1st, Mr. Cohen requested “any other day,” because he was not in the office on Mondays (A36). Similarly, on May 10th, when the People advised the court that they would be ready for trial on Wednesday, May 17th, Mr. Cohen requested an adjournment on the basis that he would be out for three days celebrating his birthday (A40-41). In addition, Mr. Cohen demonstrated an utter lack of professionalism by routinely arriving late for court. Indeed, at the court appearance on June 28th, the court upbraided him for his chronic tardiness (A47-48). Thus, even before July 10th, the court had reason to be exasperated by adjournments engendered by defendant’s Legal Aid Society lawyer. The court was further entitled to conclude that the Society was being dilatory in its efforts to replace Mr. Cohen. As of July 10th, the Society had known that Mr. Cohen was leaving for ten days, yet had not even settled on a replacement for him, even though trial had 36 been under discussion for two months and the case had been adjourned to July 10th for hearing and trial. Mr. Ives’ insistence that he could only reassign the case to two attorneys who were not even available for over a month highlighted the propriety of the court’s conclusion that the Legal Aid Society was not handling the case in an expeditious enough manner. As Justice Scherer noted, there were “certainly more than two lawyers at the Legal Aid Society” who were sufficiently experienced to try the case who were not on vacation (A65). Moreover, drawing on her lengthy experience as administrative judge, the court observed that a delay in replacing departing attorneys was a frequent occurrence rather than an isolated incident (A71). That indicated that the delay was not on account of any particular difficulties in this case, but rather was a systemic failure. Under these circumstances, the judge was surely authorized to reject the Society’s adjournment request. A further six- to eight-week delay would have violated the strong public policy considerations in favor of judicial economy and the efficient administration of the criminal justice system. Indeed, defendant himself was entitled to the timely resolution of his case. Moreover, Justice Scherer could fairly conclude that, had the Legal Aid Society promptly reassigned the case when it learned that Mr. Cohen was resigning, his successor may well have been ready to proceed to trial on July 25th. That is especially true since defendant’s new lawyer would not have been starting from scratch. Indeed, Mr. Ives conceded that “[a] lot of work ha[d] already been done in the case” (A68). Further, Mr. Cohen advised the court that he would be 37 available to conference the case with defendant and his new lawyer after he left the Legal Aid Society (A66). Thus, if the Society was between a “rock and a hard place,” that was because of its own delay in replacing Mr. Cohen, not the court’s refusal to adjourn the case for six to eight weeks. The Appellate Division majority insisted that the Legal Aid Society could not have been ready in two weeks, given what it characterized as the “complex[ity]” of the case (A11, A13). However, as the dissent observed, while Mr. Cohen and Mr. Ives broadly alluded to the “complicated nature of the charges” (A66, A67-68), “[a]t no time did either attorney argue [that] the intricacies of the case, including the number of witnesses, the volume of material involved, or the complexity of the issues of law which potentially could arise during the trial” made a further adjournment necessary (A17). That is not surprising, for the circumstances of the robberies suggest that the case was not particularly complicated. On the contrary, both crimes were brief, straightforward and witnessed by only a handful of people. In particular, during the attempted robbery on September 15, 2005, defendant ordered the store manager to open the safe, duct taped the hands of two employees, and demanded, at gunpoint, that the manager open the safe. When defendant left the store briefly, the manager locked the door. Similarly, during the robbery on September 22, 2005, defendant duct taped the hands of two employees, forced the store manager to open the safe at gunpoint and then fled with approximately $1,500 (A21, A176). Thus, counsel’s 38 conclusory assertions regarding the complexity of the case provided no basis for granting an adjournment. Contrary to the Appellate Division majority’s view (A5, A7, A13), the trial court was not obliged to consult with defendant directly before relieving the Legal Aid Society and appointing different counsel. Even assuming that defendant wished to continue to be represented by the Legal Aid Society, the court was warranted in reliving the Society based on its inability to try the case expeditiously. In any case, as the dissent pointed out (A18), the Society never represented to the court that defendant wished to continue an attorney-client relationship with the organization. And it was up to the Legal Aid Society to raise the subject with defendant, not the court; the Society represented defendant and it was the one that first proposed being relieved. Apparently, then, either the Society asked defendant his wishes but he had no preference, or the Society never broached the subject with him, in which case defendant’s interests clearly were not foremost in the Society’s mind. Further, as the Appellate Division dissent observed (A18), defendant was present during the colloquy between counsel and the court and, given his status as a persistent felony offender, was sufficiently experienced with the criminal justice system to have voiced an objection -- if he had one -- to the removal of the Legal Aid Society. See generally Tineo, 64 N.Y.2d at 536 (defendant’s claims that substitution of counsel was error 39 was unpreserved because, when defense counsel asked to be relieved, defendant did not object).7 Finally, much of the Appellate Division majority’s unhappiness with the trial court’s actions stemmed from its belief that the court engaged in a “difference in treatment of the Legal Aid Society as compared to the People” (A10). In that regard, the majority suggested that, since the trial court granted the People several adjournments, the court should likewise have granted the Legal Aid Society’s request for an adjournment on July 10th (A5, A8, A10-11). As a preliminary matter, comparing adjournments sought by defense counsel to delay by the People is like comparing apples to oranges. First, CPL 30.30 imposes a built-in brake on delays by the People. The defense has no such constraint -- only a trial judge can keep control over excessive defense delay by denying adjournments and relieving counsel, if necessary. Notably, defendant has never suggested that there was a CPL 30.30 violation. Second, a court cannot relieve the People, since a county’s District Attorney is charged with conducting all criminal prosecutions cognizable by that county’s courts. County Law § 700(1); Matter of Schumer v. Holtzman 7 The Appellate Division majority found that Tineo itself did not apply, because the Legal Aid Society preserved defendant’s claim and that, in any event, the Appellate Division could reach the claim in the interest of justice (A14). But Tineo is not significant in this context for preservation purposes. Instead, Tineo illustrates that where, as here, defense counsel asks to be relieved, it is fair to expect a defendant to protest personally if he is unhappy with counsel’s request. As discussed, defendant made no such protest here. , 60 N.Y.2d 46, 50 (1983). Finally, once again, the Legal Aid Society asked to be removed if it did 40 not get the adjournment it requested. Up until then, Justice Scherer had never suggested removing the Society. Of course, the People may not demand adjournments and threaten to drop a case unless an adjournment is granted. Furthermore, many of the Appellate Division majority’s observations concerning the People’s purportedly dilatory conduct are not borne out by the record. For example, contrary to the majority’s suggestion (A5, A10), that different calendar assistants represented the People during pre-trial proceedings at which the court set a motion schedule (March 15) and ruled on defendant’s motions (March 29) effected no delay whatsoever in the proceedings. Nor did the fact that David Clune, the assistant originally assigned to the case, left the District Attorney’s Office (A5). On June 7, 2006, when ADA Clune’s resignation was first referenced, the case was on for disposition or to set a trial date. Defense counsel reported that there was no disposition, and the court adjourned the case to June 28th for hearing and trial. The length of the adjournment -- a mere three weeks -- plainly was reasonable, and nothing in the record suggests that it was at all impacted by ADA Clune’s resignation. Nor was his departure a surprise. Indeed, when defense counsel complained that “Mr. Clune had left the District Attorney’s Office,” the court responded, “We knew that Mr. Clune was leaving the office” (A45). Equally unsupported is the Appellate Division majority’s suggestion that Nitin Savur, ADA Clune’s successor, was not diligent in familiarizing himself with the case (A5). For instance, although ADA Savur answered not ready on July 10, 2006, he 41 explained that one police witness was on vacation, while another was on sick leave. Thus, that Mr. Savur had been unable to meet with these witnesses by no means demonstrates that there was any dereliction of duty on his part. The Appellate Division majority underscored that Savur requested “only” a two-week adjournment on July 10th, although Officer O’Neill, the witness on sick leave, “would not be available until late August” (A11). However, as of July 10th, Savur had been unable to reach O’Neill, despite various attempts to do so, and thus did not know that she would be unavailable until that time. Indeed, it was not until August 16th that ADA Nizick advised the court that Officer O’Neill was due back to work on August 19th (A85). Thus, it was only in hindsight that the majority could conclude that had the Society not been relieved, it “would have had sufficient time to prepare a new attorney to take over defendant’s case and be ready for trial” because the case would have been adjourned to late August in any event (A11). As the dissent stressed, the judge’s decision cannot fairly be criticized based on circumstances that only arose later (A16-17). Similarly, while the Appellate Division majority maintained that, during the five-month period between arraignment and the time Justice Scherer relieved the Legal Aid Society, the People sought several “lengthy” adjournments, “resulting in numerous delays” (A5, A10), most of the delays during that period were not attributable to the People. For example, five weeks elapsed between defendant’s arraignment, on February 8th, and the first court date, on March 15th. Similarly, on 42 March 29th, the court ruled on defendant’s motions and adjourned the case for trial. Then, on May 10th, the prosecutor advised the court that defendant had not been produced for a scheduled meeting the previous week, and the court once again adjourned the case for hearing and trial. Notably, on both March 29th and May 10th, it was defense counsel whose scheduling requests the court accommodated. And, on May 18th, the case was adjourned for three weeks without explanation. To be sure, the People requested several two-week adjournments.8 Equally flawed is the Appellate Division majority’s conclusion that the trial court treated the People “differently” than the Legal Aid Society when they requested adjournments (A8, A10, A12). In particular, the majority asserts that Justice Scherer made “disparaging remarks” about the Legal Aid Society during the July 10th colloquy (A10). But Justice Scherer’s comments about the Legal Aid Society were entirely proper given the context in which they were made. After all, as administrative judge, Justice Scherer was well positioned to comment on the practices of the Legal Aid However, contrary to the majority’s characterization, it can hardly be said that those were “lengthy” (A10). Importantly, too, as noted, defendant has never suggested that the People exceeded the six-month speedy trial limit imposed by CPL 30.30. 8 Specifically, on June 7th, the People requested a two-week adjournment, on the basis that the case had been re-assigned to ADA Savur. On June 28th, the People answered not ready and requested an adjournment to July 12th, on the basis that ADA Savur had not yet met the witnesses or victims, and a disposition was likely. On July 10th, the People again answered not ready and requested an adjournment to July 25th, on the basis that their police witnesses were unavailable. 43 Society -- particularly the Society’s repeated failure to timely reassign cases when attorneys resigned. Indeed, the Legal Aid Society’s behavior in this case exemplified what Justice Scherer had observed on numerous other occasions. As the judge commented, the Society did nothing until the eleventh hour to reassign the case and then proposed attorneys who were on vacation and unavailable to try it for six to eight weeks. Given what Justice Scherer had seen in other cases, it was apparent to her that this was not an emergency or an exceptional situation that she could simply overlook. In fact, the judge was so disturbed by this practice that she intended to broach it with the Criminal Justice Coordinator (A69). Thus, rather than disparaging the Legal Aid Society, Justice Scherer was appropriately criticizing a practice that she found unprofessional and burdensome to the judicial system. Notably, too, while the Appellate Division majority complained that Justice Scherer “castigated” Mr. Cohen (A10-11), Justice Scherer was certainly not shy about expressing her exasperation with the People. For example, Justice Scherer was furious upon learning, after the fact, of ADA Savur’s paternity leave. At that juncture, Justice Scherer directed that a supervisor appear in court and, when he did so, she demanded an explanation as to why ADA Savur had failed to advise the court when he last appeared before it that he would be starting paternity leave just two days later (A89). Clearly dissatisfied with the People’s explanation, Justice Scherer derided ADA Savur’s conduct as “outrageous” and utterly “lack[ing]” in “common sense” (A95). In 44 short, criticizing the trial court for favoring the People over the Legal Aid Society is unfair and insupportable. * * * In sum, by pleading guilty, defendant forfeited his claim that the court improperly relieved the Legal Aid Society. In any event, the trial judge properly relieved the Society when it insisted that it could not proceed without an adjournment to replace the individual attorney who had been representing defendant. 45 CONCLUSION The order of the Appellate Division should be reversed and the judgment of conviction should be reinstated. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: SHEILA O’SHEA Assistant District Attorney Of Counsel ALAN GADLIN SHEILA O’SHEA Assistant District Attorneys Of Counsel May 21, 2012