The People, Appellant,v.Anthony Griffin, Respondent.BriefN.Y.February 13, 2013 To be argued by HAROLD V. FERGUSON, JR. (20 Minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against - ANTHONY GRIFFIN, Defendant-Respondent. BRIEF FOR DEFENDANT-RESPONDENT STEVEN BANKS Attorney for Defendant- Respondent THE LEGAL AID SOCIETY Criminal Appeals Bureau 199 Water Street, 5th Floor. New York, N.Y. 10038 (212) 577-3548 HAROLD V. FERGUSON, JR. Of Counsel July, 2012 i TABLE OF CONTENTS TABLE OF AUTHORITIES....................................................................................ii BRIEF FOR DEFENDANT-RESPONDENT.................................................... 1 QUESTIONS PRESENTED................................................................................... 1 STATEMENT OF FACTS....................................................................................... 2 ARGUMENT POINT I THIS APPEAL MUST BE DISMISSED BECAUSE THE APPELLATE DIVISION’S DECISION WAS NOT BASED ON THE LAW ALONE OR UPON THE LAW AND SUCH FACTS WHICH, BUT FOR THE DETERMINATION OF LAW, WOULD NOT HAVE LED TO REVERSAL. C.P.L. §450.90(2)(a)................... 21 POINT II THE APPELLATE DIVISION CORRECTLY DETERMINED THAT JUSTICE SCHERER VIOLATED RESPONDENT’S CONSTI- TUTIONAL RIGHT TO COUNSEL OF CHOICE WHEN SHE UNJUSTIFIABLY RELIEVED THE LEGAL AID SOCIETY AS RESPONDENT’S ASSIGNED COUNSEL. U.S. CONST., AMEND. VI; N.Y. CONST., ART. I, §6..................... 26 POINT III THE APPELLATE DIVISION ERRED WHEN IT SUMMARILY REJECTED RESPONDENT’S ISSUE CONCERNING THE SUMMARY DENIAL OF HIS PRO SE MOTION TO WITHDRAW HIS GUILTY PLEA. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I, §6.................................... 37 CONCLUSION........................................................................................................ 43 ii TABLE OF AUTHORITIES FEDERAL CASES United States v. Sanchez Guerrero, 546 F.3d 328 (5th Cir. 2008)...................... 35 United States v. Smith, 618 F.3d 657 (7th Cir. 2010)........................................... 35 STATE CASES People v. Alicea, 61 N.Y.2d 23 (1983) ................................................................... 41 People v. Arroyave, 49 N.Y.2d 264 (1980) ................................................ 27-28, 37 People v. Baker, 64 N.Y.2d at 1027........................................................................ 24 People v. Bauman & Sons Buses, Inc., 6 N.Y.3d 404 (2006).............................. 22 People v. Brown, 14 N.Y.3d 113 (2010) ................................................................ 38 People v. Brown, 205 A.D.2d 436 (1st Dept. 1994)............................................. 42 People v. Brown, 90 N.Y.2d 872 (1997) ...........................................................24-25 People v. Burton, 28 A.D.3d 803 (1st Dept. 2006) .............................................. 35 People v. Butler, 58 N.Y.2d 1056 (1983) ............................................................... 23 People v. Caban, 14 N.Y.3d 369 (2010)................................................................. 22 People v. Childs, 247 A.D.2d 319 (1st Dept. 1998) ............................................. 27 People v. Cruz, 244 A.D.2d 564 (1st Dept. 1997) ................................................ 41 People v. Dercole, 52 N.Y.2d 956 (1981) .............................................................. 23 People v. Espinal, 10 A.D.3d 326 (1st Dept. 2004)........................................ 35, 37 People v. Frederick, 45 N.Y.2d 520 (1978) ........................................................... 38 People v. Gonzalez, 171 A.D.2d 413 (1st Dept. 1991) ........................................ 42 People v. Gonzalez, 68 N.Y.2d 995 (1986) ..................................................... 22, 24 People v. Griffin, 92 A.D.3d 1 (1st Dept. 2011)................................. 18, 23-24, 29 iii People v. Hansen, 95 N.Y.2d 227 (2000)............................................................... 35 People v. Harris, 61 N.Y.2d 9 (1983) ..................................................................... 39 People v. Hill, 204 A.D.2d 1015 (4th Dept. 1994) ............................................... 41 People v. Hinton, 81 N.Y.2d 867 (1993) ............................................................... 22 People v. Johnson, 47 N.Y.2d 124 (1979) ............................................................. 22 People v. Knowles, 88 N.Y.2d 763 (1996)........................................................27-28 People v. Leslie, 98 A.D.2d 977 (4th Dept. 1983) ................................................ 41 People v. Moisett, 76 N.Y.2d 909 (1990)............................................................... 39 People v. Nixon, 21 N.Y.2d 338 (1967)................................................................. 40 People v. Perino, 19 N.Y.3d 85 (2012)................................................................... 25 People v. Riley, ___ N.Y.3d ___, 2012 WL 2428242 (June 28, 2012) ............... 22 People v. Rozzell, 20 N.Y.2d 712 (1967) ............................................................... 41 People v. Sawyer, 57 N.Y.2d 12 (1982).................................................................. 27 People v. Schepis, 86 N.Y.2d 856 (1995)............................................................... 22 People v. Serrano, 15 N.Y.2d 304 (1965)............................................................... 38 People v. Stith, 69 N.Y.2d 313 (1987).................................................................... 27 People v. Tinsley, 35 N.Y.2d 926 (1974) ............................................................... 38 People v. Ulloq, 300 A.D.2d 60 (1st Dept. 2002)................................................. 41 People v. Washington, 71 N.Y.2d 916 (1988) ................................................. 22, 24 CONSTITUTIONAL PROVISIONS N.Y. Const., Art. I, §6 ..............................................................................2, 26, 37, 38 U.S. Const., Amend. VI ....................................................................................... 2, 26 U.S. Const., Amend. XIV ..............................................................................2, 37, 38 iv STATUTES C.P.L. §210.40 ........................................................................................................... 24 C.P.L. §220.60(3)....................................................................................................... 38 C.P.L. §450.90(2)(a) .......................................................................................... Passim C.P.L. §470.05 ..................................................................................................... 23, 27 1 COURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Appellant, : -against- : ANTHONY GRIFFIN, : Defendant-Respondent. : -------------------------------------------------------------------------X BRIEF FOR DEFENDANT-RESPONDENT By permission of the Honorable John W. Sweeny, Jr., an Associate Justice of the Appellate Division: First Department, granted February 2, 2012, the People appeal from an Order of the Appellate Division: First Department, entered on December 15, 2011, reversing a judgment of the Supreme Court, New York County rendered on October 19, 2006, convicting respondent, after a guilty plea, of robbery and attempted robbery in the first degree and sentencing him to concurrent 20 year to life terms of imprisonment (McLaughlin, J.). Respondent is presently incarcerated on a separate conviction. QUESTIONS PRESENTED 1. Whether this appeal must be dismissed because the Appellate Division’s decision was not based on the law alone or upon the law and such 2 facts which, but for the determination of law, would not have led to reversal. C.P.L. §450.90(2)(a). 2. Whether the Appellate Division correctly determined that Justice Scherer violated respondent’s constitutional right to counsel of choice when she unjustifiably relieved the Legal Aid Society as respondent’s assigned counsel. U.S. Const., Amend. VI; N.Y. Const., Art. I, §6. 3. Whether the Appellate Division erred when it summarily rejected respondent’s issue concerning the summary denial of his pro se motion to withdraw his guilty plea. U.S. Const., Amend. XIV; N.Y. Const., Art. I, §6. STATEMENT OF FACTS Under New York County indictment number 6425/05, respondent was charged with robbery in the first degree and attempted robbery in the first degree in connection with incidents that occurred on September 15, 2005 and September 22, 2005. On February 8, 2006, respondent was arraigned before the Honorable Micki Scherer (A24).1 At arraignment, respondent was represented by David Cohen of The Legal Aid Society (A24). The People were represented by Assistant District Attorney Jessica Craig (A24). Respondent pled not guilty to the charges contained in the indictment (A25). The People presented respondent a 20 year to life plea offer to cover all the charges in the indictment 1 Parenthetical references preceded by “A” refer to pages of appendix submitted by the People in this case. 3 (A26). Counsel requested “a little longer than the normal two or three weeks [for the filing of defense motions] because I just got the indictment and his rap sheet” (A28). As a result, counsel requested an adjournment until “March 22nd or thereabouts” (A29). The court denied that request (A29). The court stated “No, that’s more than forty-five days, Mr. Cohen, so, I’m not giving you more than forty-five days” (A29). The court then set an adjournment date of March 15, 2006 (A29). Respondent was not produced in court for his next scheduled appearance (A31). Counsel asked that the proceeding be postponed until later in the week in order for respondent to be present (A31). The court noted that the appearance was merely for the filing of defense motions and asked counsel to waive respondent’s appearance (A31). Although counsel filed his motions, he was reluctant to waive respondent’s appearance (A31-32). Counsel related that respondent was a mandatory persistent felon if convicted and had expressed a desire to be present for all proceedings in his case (A31-A32). The court replied “[l]ife is hard” and then adjourned the case until March 29, 2006 (A32). The court also required the People to file their response to the defense motions by March 27, 2006 (A32). At the next scheduled appearance, the People were represented by Assistant District Attorney Christian Browne (A33). Respondent was represented by David Cohen and Natasha Rosen (A33-34). The court began 4 by telling Mr. Cohen that it had not seen him in court in the morning (A34). Counsel responded that he had been present in court “two or three times” that morning (A34). The court replied “I didn’t see you, that’s all” (A34). The court then granted respondent a Huntley, a Wade and a Dunaway hearing (A34). It denied respondent’s application for a Mapp hearing because he had failed to articulate what property had been seized and his expectation of privacy in the searched location (A34). The court also reserved decision on appellant’s grand jury motion because it had not yet received the grand jury minutes (A34). The court immediately corrected itself and stated that it had not yet read the grand jury minutes despite having them (A35). The court asked the People for a trial date (A35). ADA Brown indicated that, according to the notes he had, there were a number of bad dates in April (A35). As a result, the People requested a trial date in early May (A35). Defense counsel stated that he had spoken to the assistant district attorney who was going to try the case (A35). Defense counsel related that this ADA needed additional time to speak to all of the witnesses in the two incidents (A35). The court set a trial date of May 1, 2006 (A36). Counsel then asked for May 2nd because he was unavailable on the first (A36). The court then moved the date to the second (A36). 5 On May 2, 2006, this case was adjourned until May 10, 2006 (A37). Neither party made a court appearance at this proceeding (A37). Nor was respondent produced in court (A37). At the May 10, 2006 proceeding, the People were represented by Assistant District Attorney David Clune (A38). ADA Clune indicated that he was supposed to meet with respondent on the previous Friday but that respondent had not been produced (A39). Clune then stated that he would meet with respondent later that day if the court signed a take-out order (A39). The court agreed to sign the order (A39). The court then adjourned the case for hearing and trial (A39-40). The court then asked ADA Clune when the People would be ready (A40). ADA Clune and defense counsel then conferred (A40). While the two attorneys were speaking, the court interrupted (A40). The court stated “Excuse me, Mr. Cohen, I’m asking the People” (A40). ADA Clune then requested an adjourned date of May 17th (A40). Without consulting defense counsel, the court set the adjournment date as requested by the People (A40). Defense counsel then requested that the case be adjourned until the following week because he was unavailable at the People’s requested time (A40). The court replied, “I accommodated your schedule on the last 6 adjournment” (A40).2 Counsel indicated that he was taking vacation until May 18th since he was celebrating his birthday (A40-A41). The court then adjourned the case until May 18, 2006 (A41). On May 18, 2006, this case was adjourned until June 7, 2006 (A42). Neither party made an appearance at this proceeding (A42). Nor was respondent produced in court (A42). On June 7, 2006, the People were represented in this case by ADA Craig (A43). ADA Craig stated that ADA Savur would now be representing the People in this case (A43). ADA Craig asked to approach the bench (A43). The court refused to allow the parties to approach (A43). The People requested a two week adjournment (A43). The court initially denied that request (A43). It then held that the grand jury minutes were sufficient to maintain the indictment (A43). The court then wanted to set a trial date (A44). Counsel stated that the delay was tied to ADA Clune’s leaving the prosecutor’s office (A44). The court replied that it knew that ADA Clune was leaving (A44). Counsel responded that he only learned this fact “just a week and-a-half ago” (A44). The court 2 The court was mistaken. As documented earlier, the lengthy previous adjournment was due to the ADA’s unavailability. Counsel had only requested a single extra day of adjournment. 7 then set a June 28, 2006 trial date, a time period longer than the People’s requested two week adjournment (A45). At the June 28, 2006 proceeding in this case, the People were initially represented by ADA Timothy Smith (A46). The court began by castigating defense counsel for failing to be present when the court requested3 (A46). Counsel replied that he had been in the part three times that morning (A46). The court responded that counsel had not been present at 9:30 a.m. as directed (A47). The court also stated that it might need to speak to defense counsel’s supervisors at The Legal Aid Society about this problem (A47). ADA Smith then stated that the People were not ready (A48). He requested an adjournment until July 12, 2006 (A48). In response to the court’s inquiry concerning the People’s lack of readiness, ADA Smith had no answer (A48). ADA Smith stated that he would try to contact the assigned ADA (Savur) to determine the reason for the People’s failure to be ready (A48). ADA Smith indicated that ADA Savur was in ECAB that day (A48). At the second call of this case that day, the People were represented by ADA Daniel Boylan (A48). ADA Boylan indicated that ADA Savur still had not interviewed all the witnesses in this case (A48). The People then requested an adjourned date of July 12th (A48). The court stated that this date was 3 Although the court stated that it had numerous conversations with counsel about this matter, the record demonstrates that the court had only spoken to counsel on a single prior occasion about this (A34). 8 unacceptable because it was “not going to be available on July 12th to try this matter” (A48). The court then directed ADA Boylan to summon ADA Savur to the courtroom (A48). Finally, in the afternoon, ADA Nitin Savur, the assigned ADA, appeared for the People in this case (A50). At the outset, ADA Savur stated that this case had been reassigned to him around May 18th (A50). He further related that he had not yet spoken to any of the witnesses or victims in this case (A52). ADA Savur did note that he expected to have a disposition of this case in the near future (A52). The court interrupted, stating that it would only accept a plea to the indictment in this case (A53). ADA Savur asked to approach the bench to address some of the issues in this case; the court categorically refused the request (A53). ADA Savur then requested a July 12th adjourned date (A53). ADA Savur stated that it was not “unreasonable for me to ask for July 12th for a date. That is two weeks. This is a pattern robbery. There are numerous witnesses” (A55). ADA Savur also noted that he had only been assigned this case last month (A55). Defense counsel requested a bench conference to discuss several sensitive situations involving this case (A58). Again, the court denied the request (A59). The court stated, “If you can’t figure out how to communicate to me without doing that [i.e. at a bench conference], then you should go back to law school, both of you” (A59). 9 The court then set an adjourned date of July 10, 2006, because “7/12 doesn’t work for my vacation” (A59). On July 10, 2006, respondent was represented by David Cohen and Kenneth Ives, Mr. Cohen’s supervisor (A61). On that date, the People were not ready to proceed to trial (A62). ADA Savur stated that the case detective was on vacation until July 24th (A62-63). In addition, another police officer witness was “out on sick leave” (A63). As a result, ADA Savur requested an adjourned date of July 25, 2006 (A63). The court asked ADA Savur if he had personally spoken to the officer on sick leave (A63). ADA Savur replied that he had not spoken to her directly (A63). Defense counsel then informed the court that he was leaving The Legal Aid Society (A64). As a result, this case was going to be reassigned to another attorney in his office (A64). Because of his impending departure, defense counsel requested that the adjourned date only be a control date for this case (A64). The court stated that The Legal Aid Society needed to prioritize this case (A64-65). Counsel noted that The Legal Aid Society had two lawyers “in mind” to handle this case (A65). Counsel stated that “this is a big vacation time for people and they are on vacation at this point and will be returning at the end of July” (A65). Defense counsel stated that, in light of the complexities and seriousness of this case, two weeks was not an adequate time for a new lawyer to prepare himself to try this case (A66). The court disagreed (A66). 10 Defense counsel’s supervisor, Kenneth Ives, then asked to be heard (A67). Ives stated that a new attorney would be unable to try this case in two weeks (A67). Consequently, if the court refused to grant a further adjournment, Ives indicated that the court should relieve The Legal Aid Society to protect respondent’s rights (A67). Ives remarked that respondent’s case was a serious one involving a potential life sentence (A68). Ives stated that, in light of the time of year (i.e. the summer) and vacation plans, The Legal Aid Society needed until the end of August to adequately prepare a new attorney to try this complicated case (A68). The court then castigated The Legal Aid Society for its unprofessionalism (A69).4 The court stated that Legal Aid had no mechanism to cover cases for attorneys who left their office (A69). Without citing any proof, the court stated that The Legal Aid Society had an “enormous” turnover rate (A69). Ives responded that defense counsel had been working on a plea resolution to this case and that ongoing negotiations were still taking place (A70). Ives indicated that he and Mr. Cohen had been involved in the plea negotiations (A70). Ives further noted that the restrictions that the court had placed on the potential disposition of this case had impacted the plea 4 The court noted that The Legal Aid Society handled 87% of the criminal cases in New York County (A69). 11 negotiations (A70). Moreover, Ives told the court that defense counsel had only given his notice “about ten days ago” (A70). Consequently, Ives stressed that Legal Aid had not been dilatory in reassigning this case (A70). Continuing, Ives argued that his adjournment request was a standard one in the criminal justice system and was neither unreasonable, nor unprofessional (A71). The court responded that this was not an isolated incident (A71). It stated that Legal Aid should assign two attorneys to every case to cover situations like this one (A71). Ives stated that there were only one or two lawyers in his complex who could take over this case (A71). Ives further stated that since plea discussions had fallen through, “I don’t think it’s 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). Without any statement from the People, the court then relieved the Legal Aid Society as respondent’s assigned counsel over counsel’s specific objection (A73). Ives reiterated that a new attorney could not be ready for trial in two weeks (A73). The court continued castigating Legal Aid, stating “You don’t want to find a lawyer in most situations where the case is ready for trial . . . That’s my experience time after time. It happens too often. I don’t think it’s professional” (A73-74). Throughout this interchange between the court and counsel, ADA Savur remained silent. ADA Savur did not inform the court that 12 he was going on paternity leave on July 21, 2006 and that the case was going to have to be reassigned to a new prosecutor (A89).5 The court then adjourned the case until July 12, 2006, for the assignment of 18B counsel (A74). The court chose that date because that was the court’s calendar day (A74). On July 12, 2006, ADA Broune appeared for the People (A76). At that proceeding, William Hauptman was assigned as respondent’s new counsel (A77). The court directed Hauptman to confer with former counsel David Cohen on this case (A77). The court also stated that if new counsel could not speak to Mr. Cohen, he could speak to Mr. Ives about this case (A78). The court then adjourned the case until July 19, 2006 (A77). On July 19, 2006, ADA Savur stated that the People were again not ready for trial (A81). ADA Savur asserted that one of his police witnesses was still on sick leave and could not come to court to testify (A81). ADA Savur requested a three and a half week adjournment (A81-82). The court granted the People’s request and adjourned the case to August 16, 2006 (A82-83). On August 16, 2006, ADA Ivana Nizich appeared for the People (A84). ADA Nizich asserted that the police witness, who had been previously unavailable, was returning to work on August 19th (A85). After ADA Nizich 5 In fact, ADA Savur did not even inform the court of his imminent paternity leave on the July 19, 2006 court appearance in this case (A80-83, 89). 13 informed the court that there were discussions toward a disposition of this case, the court asked both attorneys to approach the bench for a bench conference (A85). After the bench conference, the court ordered a second call (A85). After the second call, the court conducted another bench conference (A86). After that bench conference, the court informed respondent that any plea in this case would involve a life sentence (A86-87). The court then adjourned the case to August 23, 2006 (A87). At the August 23, 2006 proceeding, the court asked ADA Julie Nobel why ADA Savur had not told the court that he was going on paternity leave on July 21, 2006 (A89). The court also related that the District Attorney’s Office had not assigned a new ADA to appellant’s case until a day or two before the August 16th appearance (A90). The court further stated that ADA Savur’s paternity leave was not a last minute emergency situation (A91). ADA McNulty acknowledged the accuracy of the court’s assertion (A91). ADA Nobel stated, in response, that ADA Savur had tried to resolve this case by plea (A92-93). ADA Nobel also asserted that, due to the police officer witness’s sick leave situation, this case was not ready for trial at that time (A92-93). In response, the court stated that it had not learned of ADA Savur’s paternity leave until the week before this court appearance (A96). ADA Nobel 14 then requested an early October hearing/trial date, based in part upon the unavailability of one of the People’s witnesses until October 1st (A96). After a brief bench conference, the court adjourned the case to October 2, 2006 (A99- 100). Prior to the next court appearance, defense counsel filed a speedy trial motion seeking dismissal of the indictment. On October 3, 2006, the court summarily denied that motion.6 It refused to hold a hearing. The court also denied appellant’s severance motion. The court then sent this case to Justice McLaughlin for hearing and trial. A suppression hearing was conducted before Justice McLaughlin.7 The court denied appellant’s suppression motion on October 4, 2006 (A102-A120). Afterwards, defense counsel and respondent conferred (A161). Counsel then asked the court, on behalf of respondent, what sentence the court would recommend if respondent then pled to the entire indictment (A161-162). Upon hearing that recommendation, respondent then wanted time to talk to his family (A162). The court stated that it would sentence respondent to concurrent 22 year to life terms of imprisonment (A163). The court informed respondent that 6 Respondent failed to include the transcript of this proceeding in their appendix. 7 Respondent raised no issue on this hearing in the Appellate Division. Respondent did not include the transcript of that hearing in its appendix. 15 respondent could get consecutive time if he went to trial (A163). Continuing, the court stated ‘I would seriously consider consecutive sentences if you lose” at trial (A164). In addition, the court told respondent that this offer would expire the moment the People called a witness at trial (A165). On the following day, October 5, 2006, the court learned that respondent had not been able to speak to his family (A167). The court told respondent that his sentence inquiry indicated that he expected to be found guilty at trial (A168). It noted that an innocent person would not consider the court’s plea offer (A168). Continuing, the court told respondent that if he did not plead guilty, he would rue his decision while in prison (A169). The court stated that respondent would only have himself to blame if he did not take the plea offer (A170). The court then stated: This isn’t a church or a synagogue or a mosque. It’s a courtroom. Miracles don’t happen. You can expect to be found guilty and I understand you realize that already or you wouldn’t have asked me. (A170). The court acknowledged that it had promised respondent the opportunity to talk to his mother before he made his decision (A170). But, after learning respondent’s age (31 years old), the court stated “[w]e’re now talking about twenty-two versus a lot more than that” (A171). Continuing, the 16 court related “The ability to have a functioning Anthony Griffin when you’re released and not a decrepit, nonfunctioning human being” (A171). The court then informed respondent that “I would like for this to be resolved today” (A171). The court then made a one-time only lower offer (A171). It offered to sentence respondent to concurrent 20 years to life sentences if he pled that day (A171). The plea would return to the original offer at the next court appearance (A172). The court remarked “I’ve just now saved two more years that you won’t have to kick yourself around your cell” (A172). The court then gave respondent five minutes to make a decision (A173). The court then allowed respondent to speak to ADA Nobel (A173). After that conversation, the court informed respondent that the offer would not go “lower than twenty” (A174). After a brief conversation, the court gave respondent an ultimatum: “It’s yes or no” (A175). Counsel then informed the court that there was a disposition (A175). During the ensuing colloquy, respondent answered each of the court’s many questions with the single one word answer of “yes” or “no” (A176-180). Respondent never uttered a complete sentence at his plea. Subsequent to the plea, respondent filed two pro se motions. First, respondent moved to withdraw his plea (A193-196). In that motion, dated October 13, 2006, respondent asserted that he was innocent (A195). 17 Respondent contended that his attorney failed to formulate a defense on his behalf (A195). Respondent asserted that the trial court was “extremely biased” against him (A195). He further alleged that he had been induced into pleading guilty (195). Respondent filed a second pro se motion seeking assignment of new counsel. (A197-202). He asserted that counsel failed to investigate his case and only was intended in getting respondent to “cop a plea” (A199). Respondent maintained that counsel had provided him with ineffective assistance of counsel (A199-202). Respondent appeared for sentencing on October 19, 2006 (A188). The People recommended the court’s promised sentence (A189). Counsel then informed the court that respondent wanted to withdraw his plea (A190). The court sarcastically responded “Where would be like to take it?” (A190). Counsel replied that respondent asserted that he was under duress when he pled guilty (A190). In addition, counsel related that respondent believed that he did not have enough time to consider the plea (A190). Still further, counsel related that respondent believed that counsel and the court had coerced him into pleading guilty (A190). Without giving respondent the opportunity to say anything, the court summarily denied respondent’s motion to withdraw his guilty plea (A190-192). The court stated that respondent had answered all of its questions at the 18 colloquy (A191). Consequently, the court held that there was no factual or legal basis for respondent to withdraw his guilty plea (A192). The court never addressed respondent’s motion for assignment of new counsel. The court then imposed the promised concurrent 20 year to life sentences (A192). On appeal to the Appellate Division: First Department, respondent raised two substantive grounds for reversal. First, respondent argued that Justice Scherer had violated his right to choice of counsel when it unjustifiably relieved The Legal Aid Society as respondent’s assigned counsel. Second, respondent argued that Justice McLaughlin had erred in summarily denying his pro se motion to withdraw his guilty plea. On December 15, 2011, the Appellate Division: First Department reversed respondent’s judgment of conviction and remanded his case for further proceedings. See People v. Griffin, 92 A.D.3d 1 (1st Dept. 2011)(A4- 18). The majority held that Justice Scherer had improperly interfered with an established attorney-client relationship between respondent and The Legal Aid Society (A11). It then held that Justice Scherer had erred in relieving The Legal Aid Society in this case over defense objection (A11). In making its decision, the majority noted the disparate treatment that Justice Scherer had accorded the People and The Legal Aid Society in this case (A10-12). The majority stated that Justice Scherer had “wrongly castigated” defense counsel for the 19 delays in this case because “it was the People who requested lengthy adjournments in this case” (A10-11). The majority also criticized Justice Scherer for “disparaging remarks made by the court about the Legal Aid Society during the July 10 colloquy” (A10). Continuing, the majority held that “courts should be hesitant about micromanaging the institutional providers of legal services” and “we expect trial courts to treat institutional indigent defense providers with the same courtesy and respect as they treat the District Attorney or noninstitutional attorneys” (A12). In addition, the court stated, “a judge simply cannot treat litigants and their counsel differently without a basis in reason or fact. To do so is the definition of caprice and arbitrariness” (A12). The majority noted that the court “treated the People much differently when they requested time for reassigned ADAs” (A10). The majority held that the “court’s improvident exercise of discretion reflected a difference in treatment of Legal Aid” (A10). Moreover, the majority implicitly faulted the People for their less than forthright disclosures to the trial court in this case (A11). The majority held that respondent’s guilty plea had not been waived by his guilty plea because the instant issue implicated the integrity of the process (A12-A13). Moreover, the majority noted that Justice Scherer had not consulted respondent before relieving The Legal Aid Society (A12-13). The majority stated “in a case such as the present one, a defendant should not be treated as a 20 mere spectator” (A12). As a result, respondent did not knowingly and voluntarily waive this issue (A13). As to preservation, the majority stated: Contrary to the dissent’s view, that counsel never stated that denying his request [for an adjournment] infringed on defendant’s right to counsel of choice does not prevent this court from reviewing the issue. It was abundantly clear by the colloquy that counsel was seeking to protect defendant’s right. In any event, unlike People v. Tineo (64 N.Y.2d 531, 535- 536 [1985]) where the Court of Appeals was precluded from deciding the issue on preservation grounds, this Court may decide it in the interest of justice. (A13-14). As to the issue of the summary denial of respondent’s pro se motion to withdraw his guilty plea, the Appellate Division: First Department unanimously rejected this issue without discussion (A14-15). In their dissenting opinion, the dissenting justices asserted that respondent had not preserved the issue upon which the majority had reversed respondent’s conviction (A15, 17-19). The dissenting justices stated that respondent had not raised the interference with defendant’s right to be represented by counsel of his choosing issue in the trial court (A17-18). The dissenting justices also asserted that the “majority’s criticism of the court for not consulting with [respondent] about relieving Legal Aid and appointing 18-B counsel is unfounded” (A18). The dissenting justices further noted that 21 respondent had never asserted that his plea should be vacated because Justice Scherer had improperly removed The Legal Aid Society (A18-19). The dissenting justice therefore concluded, “The majority is therefore creating an issue where none exists” (A19). ARGUMENT POINT I THIS APPEAL MUST BE DISMISSED BECAUSE THE APPELLATE DIVISION’S DECISION WAS NOT BASED ON THE LAW ALONE OR UPON THE LAW AND SUCH FACTS WHICH, BUT FOR THE DETERMINATION OF LAW, WOULD NOT HAVE LED TO REVERSAL. C.P.L. §450.90(2)(a). The Appellate Division: First Department reversed respondent’s conviction on the trial court’s violation of his right to counsel of choice. Although the Appellate Division stated that its reversal was “on the law,” in reality, respondent never raised the counsel of choice issue in the trial court. Instead, respondent only raised an ineffective assistance of counsel claim in the court of first impression. Therefore, the Appellate Division reversed respondent’s conviction on an unpreserved issue by exercising its interest of justice review power. Moreover, the Appellate Division’s reversal was based upon its discretionary powers since it held that the court had improvidently exercised its discretion, not that it had abused its discretion as a matter of law. Furthermore, the Appellate Division’s majority decision was a fact-based 22 determination involving the analysis of competing inferences presented by the record. As a result, for each of these reasons, this Court must now dismiss the People’s appeal. C.P.L. §450.90(2)(a). This Court only reviews intermediate appellate court determinations of reversal that are on the law or upon the law and such facts which, but for the determination of law, would not have led to reversal. C.P.L. §450.90(2)(a). When a reversal in the Appellate Division is based, even in part, on an unpreserved issue, this Court is without jurisdiction to review it and must dismiss the appeal. People v. Riley, ___ N.Y.3d ___, 2012 WL 2428242 (June 28, 2012); People v. Caban, 14 N.Y.3d 369, 373 (2010); People v. Bauman & Sons Buses, Inc., 6 N.Y.3d 404, 407 (2006); People v. Gonzalez, 68 N.Y.2d 995 (1986). In determining whether it has jurisdiction, this Court is not bound by the appellate court’s description of its action. People v. Hinton, 81 N.Y.2d 867 (1993). Rather, this Court has not only the power, but the obligation, to look beyond the form of an appellate court’s order to see that its substance, and not only its label, conforms to the statutory requisites for review. People v. Schepis, 86 N.Y.2d 856 (1995); People v. Johnson, 47 N.Y.2d 124 (1979); C.P.L. §450.90(2)(a). Thus, for the purpose of resolving the jurisdictional issue, this Court must itself examine the lower court’s decision to determine on what basis it was made. See e.g., People v. Washington, 71 N.Y.2d 916, 918 (1988); 23 People v. Butler, 58 N.Y.2d 1056, 1057 (1983); People v. Dercole, 52 N.Y.2d 956, 957 (1981). Here, although the Appellate Division order recited that it was “on the law”, a reading of the majority decision reveals that the reversal was based upon on an unpreserved error. Indeed, the majority acknowledged that respondent’s “counsel never stated that denying his request [for an adjournment] infringed on defendant’s right to counsel of choice.” See People v. Griffin, 92 A.D.3d at 8. Moreover, the majority went on to note that unlike in People v. Tineo [64 N.Y.2d 531, 535-536 (1985)], “where the Court of Appeals was precluded from deciding the issue on preservation grounds, this Court may decide it in the interest of justice.” Id. In People v. Tineo, this Court held that a defendant was precluded from raising a counsel of choice issue in this Court because the “defendant did not voice any objection to his attorney’s application to be relieved as defense counsel” 64 N.Y.2d at 535-536. Here, just like the defendant in Tineo, respondent did not voice any objection to his attorney’s actions when his attorney moved to be relieved as defense counsel. Consequently, just as in Tineo, the instant issue is not preserved for this Court’s review. C.P.L. §470.05. As a result, this Court must dismiss the People’s appeal. C.P.L. §450.90(2)(a). Furthermore, the majority held that the “court’s improvident exercise of discretion reflected a difference in treatment of the Legal Aid Society as compared to the People.” People v. Griffin, 92 A.D.3d at 6. In People v. 24 Baker, this Court held that the Appellate Division’s characterization of a trial court’s denial of a C.P.L. §210.40 motion as an “improvident exercise of discretion” rather than “an abuse of discretion as a matter of law” rendered that issue beyond this Court’s review. 64 N.Y.2d 1027 (1985). This Court then dismissed the People’s appeal because the Appellate Division’s discretionary reversal did not satisfy the jurisdictional predicate of C.P.L. §450.90(2)(a).8 Id. Cf. People v. Washington, 71 N.Y.2d at 918. Here, by substituting its discretion for the improvident discretionary actions of Justice Scherer, the Appellate Division exercised its discretionary powers and thus its reversal could not be “on the law.” People v. Baker, 64 N.Y.2d at 1027. As a result, for this reason as well this Court must dismiss the present appeal. Id. Still further, the Appellate Division majority’s determination of the counsel of choice issue rested on a review of the facts. As the dissenting opinion demonstrates, however, the majority’s opinion reflected its “analysis of competing inferences presented by the record.” See People v. Brown, 90 N.Y.2d 872, 874 (1997). The majority’s detailed opinion was highly fact- intensive and relied on a view of the record entirely different from that of the dissent. For example, the majority and the dissent disputed which party was 8 Although initially the Appellate Division referenced the abuse of discretion standard, it later held that the court had improvidently exercised its discretion in this case. Therefore, at the very least, the improvident exercise of discretion was an alternative ground for its holding. See People v. Gonzalez, 68 N.Y.2d at 995. Consequently, this appeal must be dismissed. Id. Moreover, even the dissent noted that this was an improvident exercise of discretion case. People v. Griffin, 92 A.D.3d at 9. 25 responsible for the delays in this case. They also disputed whether the court had treated defense counsel differently than the People in this case. The majority and dissent also disputed the significance of the delays in this case after the court relieved The Legal Aid Society. People v. Perino, 19 N.Y.3d 85, 89 (2012). As a result, the Appellate Division’s reversal was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal.” Id. Consequently, for this reason as well, the People’s appeal must be dismissed. C.P.L. §450.90(2)(a); People v. Perino, 19 N.Y.3d at 85; People v. Brown, 90 N.Y.2d at 874. Since the Appellate Division’s reversal was therefore based upon an unpreserved issue, involved that court’s discretionary powers and was based upon the majority’s fact-based determinations, this Court lacks jurisdiction to hear the People’s appeal. Accordingly, this Court should now dismiss the instant appeal. C.P.L. §450.90(2)(a). 26 POINT II THE APPELLATE DIVISION CORRECTLY DETERMINED THAT JUSTICE SCHERER VIOLATED RESPONDENT’S CONSTI- TUTIONAL RIGHT TO COUNSEL OF CHOICE WHEN SHE UNJUSTIFIABLY RELIEVED THE LEGAL AID SOCIETY AS RESPONDENT’S ASSIGNED COUNSEL. U.S. CONST., AMEND. VI; N.Y. CONST., ART. I, §6. Upon learning that respondent’s primary Legal Aid attorney was leaving that office and that a new Legal Aid attorney would need more than two weeks to prepare for trial, Justice Scherer unjustifiably relieved The Legal Aid Society as assigned counsel and reassigned 18B counsel to represent respondent. In making this rash decision, the court did not have all the facts before it. Moreover, in its stated remarks and its actions in this case, Justice Scherer manifested an unfair bias against The Legal Aid Society. Since the court’s actions unjustifiably interfered with an established attorney-client relationship, the Appellate Division correctly determined that Justice Scherer’s actions violated respondent’s right to counsel of choice. Accordingly, this Court should now affirm the Appellate Division’s decision. As a threshold matter, none of the arguments that the People are advancing in this Court are preserved for this Court’s review. The People did not participate in the colloquy between Justice Scherer and defense counsel on the issue in question. Indeed, ADA Savur remained silent throughout this 27 lengthy colloquy. Nor did the People ever adopt any of Justice Scherer’s assertions in the court of first impression. Consequently, none of the People’s present legal or factual arguments are preserved for this Court’s review. See C.P.L. §470.05. As a result, these arguments cannot be considered by this Court in its disposition of this appeal. See People v. Stith, 69 N.Y.2d 313 (1987). In any event, the Appellate Division: First Department correctly determined that Justice Scherer had violated respondent’s constitutional right to counsel of choice when it unjustifiably relieved The Legal Aid Society as assigned counsel in this case. An indigent defendant’s constitutional right to the assistance of counsel “is not to be equated with a right to choice of assigned counsel.” People v. Sawyer, 57 N.Y.2d 12, 18-19 (1982). Nonetheless, “that distinction is significantly narrowed once an attorney-client relationship is established”. People v. Knowles, 88 N.Y.2d 763, 766-767 (1996); People v. Childs, 247 A.D.2d 319, 325 (1st Dept. 1998). Consequently, once an attorney-client relationship has been formed between assigned counsel and an indigent defendant, the defendant enjoys a right to continue to be represented by that attorney as “counsel of his own choosing”. People v. Arroyave, 49 N.Y.2d 264, 270 (1980). 28 This right, “is qualified in the sense that a defendant may not employ [it] as a means to delay judicial proceeding” Id. at 271. A court, however, may not interfere with this right arbitrarily. People v. Knowles, 88 N.Y.2d at 766. Thus, “judicial interference with an established attorney-client relationship in the name of trial management may be tolerable only when the court first determines that counsel’s participation presents a conflict of interest or where defense tactics may compromise the orderly management of the trial or the fair administration of justice” Id. at 766-767 (emphasis added). Accordingly, a court commits reversible error where it interferes with an established attorney- client relationship without making a “threshold finding that [the attorney’s] participation would have delayed or disrupted the proceedings, created any conflict of interest, or resulted in prejudice to the prosecution or the defense” Id. at 767. Such findings must demonstrate that interference with the attorney- client relationship is “justified by overriding concerns of fairness or efficiency” (Id. at 769). In this case, respondent had a long-standing attorney-client relationship with The Legal Aid Society. During the five month period between arraignment and the time that Justice Scherer relieved Legal Aid as respondent’s assigned counsel, respondent was primarily represented by David Cohen. During that time, Cohen had filed all of the necessary motions in respondent’s case and secured multiple suppression hearings for him. In 29 addition, Cohen had engaged in protracted negotiations with the People for a plea resolution of this case. Cohen, however, was not an island onto himself. To the contrary, Cohen’s supervisor was directly involved in the plea negotiations in this case. Furthermore, on at least one occasion, respondent was represented by Cohen and co-counsel at the court proceedings in this case. Moreover, as the Appellate Division properly found The Legal Aid Society is a comprehensive law firm for the poor that utilizes the services of investigators and social workers in the preparation of a defense. See 92 A.D.3d at 6.9 Contrarily, during this same five month period, multiple assistant district attorneys represented the People in this matter. Moreover, the first ADA who was assigned to try this case (David Clune) left the prosecutor’s office during this five month period. As a result, this case had to be reassigned to a new ADA. Consequently, respondent’s case was delayed by this reassignment since a new ADA needed to familiarize himself with this case. Still further, by his own admission, the new ADA (Nitin Savur) was not diligent in this task. Indeed, more than six weeks after his assignment to the case, ADA Savur had not even interviewed a single witness in this case. 9 According to the Legal Aid website, The Legal Aid Society, the nation’s oldest and largest not-for-profit legal services organization, employs more than 900 attorneys and over 600 social workers, investigators and support and administrative staff. See www.legal-aid.org. Moreover, as Justice Scherer correctly recognized, The Legal Aid Society is the primary institutional public defender in New York County. 30 Furthermore, during the five month period between the time respondent was arraigned and Legal Aid was relieved, it was the People who were continuously unready for trial. At no point did Legal Aid declare that they were unready to proceed. It was the People who sought adjournments for their unavailable police witnesses. Moreover, there were no court appearances in the month of April because of the ADA’s unavailability. Contrary to the dissent’s contention, there were no delays attributable to defense counsel. At worst, on two occasions when the People were unready to proceed and the court granted the People’s adjournment request, counsel secured an additional delay of a single day to accommodate his schedule.10 Defense counsel diligently worked to secure a equitable resolution of this case during his representation of respondent. However, by early July, no disposition had been reached. Approximately ten days before the July 10th appearance in this case, Cohen gave his notice to The Legal Aid Society. At the July 10th appearance, Cohen apprised the court of his imminent departure from Legal Aid. In response, Justice Scherer became very angry. She then 10 As a further example of the disparate treatment accorded the People and Legal Aid, despite the People’s delay in turning over the indictment and respondent’s rap sheet to counsel, Justice Scherer refused to grant counsel additional time to file defense motion beyond the statutorily mandated time. 31 ordered Legal Aid to assign new counsel to try this case a mere two weeks later.11 At that point, Kenneth Ives, a supervisor at Legal Aid explained to Justice Scherer that it would be impossible to have a new attorney pick up this complicated case and be ready for trial in two weeks.12 Faced with the Sophie’s choice of legal malpractice or being relieved, Ives opted for the latter over his objection to the court’s attack on respondent’s attorney-client relationship. During this colloquy, Justice Scherer made repeated disparaging remarks against The Legal Aid Society, thereby evincing a bias against this institutional defender.13 Strikingly, Justice Scherer had treated the People much differently when they reassigned this case to a new ADA. Originally, ADA Clune was the assigned trial prosecutor in this case. When he left the District Attorney’s Office, ADA Savur was given more than six weeks to prepare this case for trial. 11 Tellingly, Justice Scherer did not treat the People the same way when ADA Clune left the District Attorney’s Office. To the contrary, Justice Scherer granted the People an adjournment in excess of what they requested in order for the newly assigned ADA to become familiar with this case. 12 Indeed, by the People’s own prior admissions, the instant case was a difficult case involving a pattern robbery and numerous witnesses. 13 That bias was further manifested in the differing treatment Justice Scherer accorded new assigned counsel. While defense counsel Cohen was not allowed to approach the bench for a bench conference during his representation of respondent, Justice Scherer invited new assigned counsel to multiple bench conferences during his representation of respondent. In addition, although it was the People who requested lengthy adjournments in this case, Justice Scherer wrongly castigated defense counsel Cohen for these delays. Still further, Justice Scherer made a number of ill-tempered sarcastic remarks against respondent during the course of this case. 32 During this lengthy period of time, however, he did absolutely nothing to prepare for trial. Indeed, ADA Savur had not even interviewed a single witness during this lengthy period of time. Consequently, Legal Aid’s request for six weeks to prepare for trial was a perfectly reasonable request that Justice Scherer should have granted. Prior to this request, defense counsel had engaged in no dilatory tactics in this case. Nor is there anything in the record to support Justice Scherer’s attack on The Legal Aid Society for its alleged routine dilatory tactics in Manhattan criminal cases.14 Nor had defense counsel been less than candid with the court. Thus, the dismissal of The Legal Aid Society as assigned counsel was not necessitated by prolonged unavailability for trial. Still further, the People were complicit in Legal Aid’s dismissal in this case. At the July 10th proceeding where Legal Aid was relieved, ADA Savur sat silent while Ives argued for time so a new Legal Aid attorney could adequately prepare for trial. Justice Scherer was trying to get this case to trial by the end of July. ADA Savur, however, knew that this prospect was never going to happen because he was going on paternity leave on July 21st. Therefore, ADA Savur knew that this case needed to be assigned to yet another ADA who would need time to prepare for trial. Despite this fact, ADA Savur 14 In their brief to this Court, the People contend that based upon her role as an administrative judge, Justice Scherer was privy to information concerning these alleged happenstances. The People, however, presented no such information in the trial court. 33 said nothing at the proceeding in question relating to the proposed new trial date. It is important to note that Legal Aid had diligently sought a more favorable plea bargain for respondent during their representation of him. In the end, respondent accepted the same plea offer that was transmitted at his arraignment. Thus, the logical inference is that the Manhattan District Attorney’s Office was hoping that Justice Scherer would relieve The Legal Aid Society in an effort to achieve a more favorable plea resolution of this case from the People’s perspective. Still further, although ADA Savur requested only a two week adjournment at that time due to the unavailability of two police witnesses, he had not even spoken to one of those witnesses. That witness was out on sick leave. Thus, since ADA Savur had not spoken to this witness directly, he had no idea when this witness would be available. Had he done so, as it turned out, ADA Savur would have learned that this witness was not going to be available until late August. Therefore, when Justice Scherer made her erroneous decision to relieve Legal Aid, she did not have all the facts before her because the People were less than candid with the court. If the People had shown the appropriate candor, Legal Aid would have had the requisite sufficient time to prepare a new attorney to take over respondent’s case and be ready for trial. In addition, when ADA Savur left the DA’s office, as a further example of its disparate treatment of Legal Aid and the People, Justice Scherer did not 34 hold the People to the same standard it applied to Legal Aid. Although ADA Savur had left the DA’s office for a pre-planned paternity leave on July 21st, the People did not even assign a new ADA to handle this case for nearly a month. Nonetheless, when Justice Scherer learned of the delayed reassignment of this case, she still gave the new ADA more than six additional weeks to prepare for trial – less time than Ives had requested for the new Legal Aid attorney. Thus, there was no justification for Justice Scherer’s actions in this case. Justice Scherer improperly interfered with an established attorney-client relationship between respondent and The Legal Aid Society.15 There was no reason the court could not accommodate Legal Aid’s single request for a delay to allow a new attorney sufficient time to prepare for trial in this serious and complicated case. There was no conflict of interest between respondent and Legal Aid. Moreover, especially in light of the known reality of the necessary reassignment of this case in the DA’s office due to ADA Savur’s pre-planned paternity leave, Legal Aid’s proposed single delay neither affirmatively delayed the proceedings in this case nor prejudiced the People. Therefore, as the Appellate Division correctly ruled, Justice Scherer erred in relieving The Legal 15 We note that respondent never expressed any dissatisfaction with Legal Aid. Contrarily, he moved to have his subsequent assigned counsel relieved because of ineffective assistance of counsel. 35 Aid Society in this case over defense objection. People v. Espinal, 10 A.D.3d 326 (1st Dept. 2004); People v. Burton, 28 A.D.3d 803 (1st Dept. 2006). Finally, the People’s forfeiture argument must fail in this Court. First, this Court has never held that a counsel of choice issue does not survive a guilty plea. In fact, no appellate court in this State has held that a guilty plea forfeits a counsel of choice issue on appeal.16 In People v. Hansen, 95 N.Y.2d 227, 230-231 (2000), this Court distinguished between issues that do and do not survive a guilty plea. This Court held that the “critical distinction is between defects “implicating the integrity of the process, which may survive a guilty plea, and less fundamental flaws, such as evidentiary or technical matters, which do not.” Id. at 231. Here, Justice Scherer’s disparate and disparaging treatment of The Legal Aid Society went directly to the integrity of the process. In this case, as the Appellate Division properly held, Justice Scherer treated The Legal Aid Society and the People differently in this case. The Appellate Division properly found that Judge Scherer had made unjustified “disparaging remarks” against The Legal Aid Society and had “wrongly 16 In the Federal courts, both the 7th Circuit and the 5th Circuit have explicitly held that a counsel of choice issue is not forfeited by a guilty plea. See United States v. Smith, 618 F.3d 657, 663 (7th Cir. 2010); United States v. Sanchez Guerrero, 546 f.3d 328, 331-332 (5th Cir. 2008). In each case, the Federal Circuit Court of Appeals relied on the U.S. Supreme Court decision in United States v. Gonzalez-Lopez which held that counsel of choice issues constitute structural errors that were not subject to harmless error analysis. 540 U.S. 140 (2006). Moreover, the People’s reliance on United States v. Moussaoui is misplaced because the 4th Circuit did not explicitly hold that counsel of choice issues are forfeited by a guilty plea. 591 F.3d 263 (4th Cir. 2010). 36 castigated” defense counsel for delaying this case when, in fact, it was the People who had repeatedly sought lengthy adjournments in this case.17 Nothing goes more to the integrity of the criminal justice process than the disparate treatment afforded the People and the defense. Here, as the Appellate Division properly held, Justice Scherer’s unjustifiable actions violated respondent’s constitutional right to choice of counsel. Here, Justice Scherer openly disparaged the primary institutional public defender in Manhattan and unjustifiably accused, without any offer of proof, The Legal Aid Society of systematic unprofessional conduct. Moreover, Justice Scherer’s intemperate remarks evinced her long-standing problem with The Legal Aid Society. Moreover, Justice Scherer’s actions in this case demonstrate that her problems with The Legal Aid Society colored her decisions in this case to the detriment of respondent. The court’s disrespectful and disparate treatment of The Legal Aid Society unquestionably affected the integrity of the process in this case.18 17 As previously noted, after arraignment, defense counsel never sought any adjournment in this case. To the contrary, as the record amply demonstrates, the People requested every subsequent adjournment in this case because they were not ready for trial for a variety of reasons. At worst, after Justice Scherer had granted the People’s adjournment request, on two occasions, counsel sought and obtained a single extra day of adjournment to accommodate his schedule. 18 Furthermore, by standing mute at the critical juncture in this case, the People were complicit in the court’s unjustifiable actions. Stymied by The Legal Aid Society’s refusal to have respondent take an unfavorable plea bargain in this case, the People allowed Justice Scherer to make incorrect factual assertions and did not reveal critical relevant information at the time that the court relieved The Legal Aid Society as assigned counsel. In essence, the People remained silent in an effort to have Legal Aid relieved in the hope that new assigned counsel would be more amenable to a plea resolution of this case that was in the People’s 37 As a result, contrary to the People’s contention, respondent did not forfeit this critical issue by pleading guilty in this case. Since the doctrine of harmless error is inapplicable to a violation of a defendant’s right to counsel of his own choosing, this error was per se reversible. People v. Arroyave, 49 N.Y.2d at 264; People v. Espinal, 10 A.D.3d at 330. Accordingly, this Court should now affirm the Appellate Division’s decision. POINT III THE APPELLATE DIVISION ERRED WHEN IT SUMMARILY REJECTED RESPONDENT’S ISSUE CONCERNING THE SUMMARY DENIAL OF HIS PRO SE MOTION TO WITHDRAW HIS GUILTY PLEA. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I, §6. At sentencing, in a rush to judgment, the court summarily denied respondent’s motion to withdraw his guilty plea. In that motion, respondent had raised issues of innocence, duress, ineffective assistance of counsel and coercion. In addition, respondent had moved to have assigned counsel relieved. Despite these issues, the court did not even afford respondent an opportunity to speak before it summarily denied respondent’s plea withdrawal. This was plain error. Inexplicably, without any discussion, the Appellate Division: First Department summarily rejected this issue on appeal. This too best interests. Eventually, the People got what they had always sought - - respondent’s plea to the top counts in the indictment with a 20 year to life sentence. 38 was plain error. Accordingly, in the event that this Court overturns the Appellate Division’s counsel of choice decision, this Court should then reverse respondent’s conviction, grant his motion to withdraw his guilty plea and remand this case for further proceedings. U.S. Const., Amend. XIV; N.Y. Const., Art. I, §6. To be valid, a guilty plea must be knowingly, intelligently and voluntarily entered. People v. Serrano, 15 N.Y.2d 304 (1965). At any time prior to sentencing, a defendant who has pleaded guilty may move to withdraw his guilty plea. C.P.L. §220.60(3). It has long been held that when a defendant unequivocally asserts his innocence prior to sentencing, a court should not, except in extraordinary circumstances, impose sentence, but should either grant the application to allow the plea to be withdrawn, or conduct an inquiry or a hearing to fully examine the defendant’s claims. People v. Tinsley, 35 N.Y.2d 926 (1974). In hearing a motion to withdraw a guilty plea, a court “must exercise [its] discretion in affording a defendant a reasonable opportunity to advance his claims from which an informed and prudent determinate can be rendered.” People v. Frederick, 45 N.Y.2d 520, 525 (1978). Where, however, a defendant has raised a legitimate question of the voluntariness of his guilty plea, a hearing should be ordered. People v. Brown, 14 N.Y.3d 113 (2010). Contrary to the Appellate Division’s implicit decision, respondent’s contention that his plea was not knowingly, intelligently and voluntarily entered 39 is supported by the record. In People v. Harris, 61 N.Y.2d 9, 91 (1983), this Court held that “the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily.” This Court also reaffirmed that in determining the validity of a plea all relevant circumstances must be considered. Id. at 16, 19; see also People v. Moisett, 76 N.Y.2d 909 (1990). In this case, over the course of eight months, there were protracted negotiations for a plea resolution of this case. After the negative result of the suppression hearings, respondent requested an informational sentencing recommendation from the court if he then pled guilty. Respondent also asked for time to consult his family after receiving this sentencing recommendation. The court then indicated that it would impose concurrent 22 year to life sentences. Unfortunately, respondent was unable to speak to his family after court that evening. Nonetheless, when respondent appeared in court the next day, the court demanded an answer. In the ensuing colloquy, the court advised respondent that he was guilty and would be convicted at trial and would receive a far lengthier sentence after trial. The court also painted a very gloomy future for respondent if he did not plead guilty. Indeed, the court juxtaposed a portrait of a man with a potential for a future meaningful life if respondent pleaded guilty with a picture of a decrepit, nonfunctioning human being if he 40 went to trial. The court then upped the ante with a one-time sentence discount of two years if respondent immediately pleaded guilty. The court then gave respondent a mere five minutes to make this important decision. With time expiring on the clock, the court issued respondent an ultimatum. Respondent then accepted the deal. Demonstrating respondent’s rush to judgment and reluctance to plea, the ensuing plea colloquy was pro forma at best. At no point did respondent utter a complete sentence. To the contrary, the court engaged in a virtual monologue where respondent’s role was reduced to the assent of a Greek chorus. Indeed, throughout this proceeding, respondent only said the words “yes” or “no”. He never articulated a complete thought. Not surprisingly, as soon as he left the courtroom, respondent rued his decision. Within a week, respondent drafted a motion to withdraw his guilty plea. See People v. Nixon, 21 N.Y.2d 338 (1967) (promptness of defendant’s application to withdraw his guilty plea factor in granting the application). In that motion, respondent asserted his innocence in this case. He also alleged that he entered the plea under duress and was coerced by counsel and the court to plead guilty. Still further, respondent maintained that he had received ineffective assistance of counsel from his assigned attorney. In addition, respondent filed a second motion seeking to have his assigned counsel relieved. 41 The People did not file a formal response to respondent’s motion Nor did they verbally oppose it at sentencing. Hence, the People did not assert that they would be prejudiced by the vacatur of respondent’s plea. See People v. Hill, 204 A.D.2d 1015 (4th Dept. 1994)(vacating guilty plea where the defendant asserted his innocence and noting that the People had made no claim of prejudice); People v. Leslie, 98 A.D.2d 977 (4th Dept. 1983)(same). At sentencing, in response to respondent’s motion, the court first treated it in a sarcastic derisive manner. Without acknowledging that respondent had also moved to relieve assigned counsel, the court had a brief interaction with defense counsel before denying respondent’s plea withdrawal motion. Based upon respondent’s motion to relieve defense counsel, an obvious conflict of interest existed between respondent and his attorney. See People v. Alicea, 61 N.Y.2d 23 (1983). In light of respondent’s assertion of coercion by counsel and ineffective representation, at the very least, the court should have assigned substitute counsel at sentencing to advance respondent’s position.19 This the Court did not do. Indeed, the court did not even afford respondent an opportunity to speak before it summarily denied his pro se plea withdrawal motion. This too 19 Therefore, at the very least, this Court should remand this case for a hearing with new counsel. People v. Ulloq, 300 A.D.2d 60 (1st Dept. 2002); People v. Cruz, 244 A.D.2d 564 (1st Dept. 1997); People v. Rozzell, 20 N.Y.2d 712 (1967). 42 was erroneous. See People v. Brown, 205 A.D.2d 436 (1st Dept. 1994); People v. Gonzalez, 171 A.D.2d 413 (1st Dept. 1991). Under the totality of the circumstances, the court should have granted respondent’s plea withdrawal motion. Based upon the court’s graphic description of the misery of respondent’s life if he did not plead guilty, the court’s personal expression of its belief in his guilt, and the court’s implicit threat of a far greater sentence after trial, the court had created a coercive atmosphere that induced respondent’s guilty plea. In addition, despite the court’s earlier assurance that respondent could consult his family before he made this decision, the court removed that consideration on the date he pled guilty. Still further, the court lowered its original sentence promise with a one time only offer of less time. The court then permitted respondent a mere five minutes to make a decision. As the clock ticked down to zero, the court issued respondent a plea ultimatum. Respondent then succumbed to the pressure and took the plea. That plea, however, under these circumstances cannot withstand this Court’s scrutiny. When the actions of the court on plea day are coupled with respondent’s specific and detailed assertions concerning his innocence, coercion and ineffective representation, the conclusion becomes inescapable: Respondent’s guilty plea was not knowingly, intelligently and voluntarily entered. Accordingly, the trial court should have granted arespondent’s plea 43 withdrawal motion. Its failure to do so, therefore, constitutes reversible error. Therefore, the Appellate Division: First Department erred when it summarily rejected this issue on respondent’s appeal to that court. Accordingly, in the event that this Court reverses the Appellate Division’s reversal of respondent’s conviction on counsel of choice grounds, this Court should reverse respondent’s conviction, grant his motion to withdraw his guilty plea and then remand his case for further proceedings. CONCLUSION FOR THE REASONS STATED IN POINT I, THIS COURT SHOULD DISMISS THE PEOPLE’S APPEAL. ALTERNATIVELY, FOR THE REASONS STATED IN POINT II, THIS COURT SHOULD AFFIRM THE DECISION OF THE APPELLATE DIVISION: FIRST DEPARTMENT. ALTERNATIVELY, FOR THE REASONS STATED IN POINT III, THIS COURT SHOULD REVERSE THE APPELLATE DIVISION: FIRST DEPARTMENT’S DECIS- ION, VACATE RESPONDENT’S GUILTY PLEA AND REMAND THIS CASE FOR FURTHER PROCEEDINGS. Respectfully submitted, STEVEN BANKS Attorney for Defendant- Appellant HAROLD V. FERGUSON, JR. Of Counsel July, 2012