The People, Respondent,v.Phillip A. Dodson, Appellant.BriefN.Y.November 16, 2017 To Be Argued By: JANE I. YOON Assistant Public Defender Estimated Time: 10 Minutes ______________________________________________________________________ Supreme Court of the State of New York Appellate Division, Fourth Department ___________________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- PHILLIP A. DODSON, Appellant. ___________________________________________________ REPLY BRIEF FOR APPELLANT Monroe County Indictment Number 2013-0619 Docket Number KA 14-01031 TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant BY: JANE I. YOON Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 (585) 753-4210 ________________________________________________________________________ TABLE OF CONTENTS TABLE OF AUTHORITIES i Reply Point I: Mr. Dodson Established Good Cause For The Substitution Of Counsel Such That The Court Abused Its Discretion In Summarily Denying His Request. 1 i TABLE OF AUTHORITIES State Cases People v Benson, 265 AD2d 814 (4th Dept 1999) ............................................................ 3 People v Bowers, 45 AD2d 241 (4th Dept 1974) .............................................................. 8 People v Gibson, 126 AD3d 1300 (4th Dept 2015) .......................................................... 7 People v Hortiz, 60 AD3d 692 (4th Dept 2009) ................................................................. 7 People v Lewis, 286 AD2d 934 (4th Dept 2001) ............................................................... 8 People v Linares, 2 NY3d 507 (2004) ............................................................................... 4 People v Linares, 302 AD2d 256 (1st Dept 2003), aff’d 2 NY3d 507 (2004) .............. 5, 7 People v MacLean, 48 AD3d 1215 (4th Dept 2008) ......................................................... 3 People v Medina, 44 NY2d 199 (1978) ......................................................................... 2, 5 People v Mitchell, 21 NY3d 964 (2013) ....................................................................... 2, 8 People v Reese, 23 AD3d 1034 (4th Dept 2005) ............................................................... 4 People v Rozzell, 20 NY2d 712 (1967) ............................................................................. 8 People v Sides, 75 NY2d 822 (1990) ............................................................................ 1, 5 1 Reply Point I: Mr. Dodson Established Good Cause For The Substitution Of Counsel Such That The Court Abused Its Discretion In Summarily Denying His Request. Where Mr. Dodson stated that he felt he was forced to plead guilty because he could not even contemplate going to trial with an attorney who had twice requested to be relieved of representing him, Mr. Dodson establish good cause to replace his counsel and the court should have assigned him new counsel to advise him on whether to go forward with such motion (People v Sides, 75 NY2d 822, 824 [1990]). This is especially so because Mr. Dodson believed he had a potential justification defense but would have faced consecutive sentences as a second violent felony offender if he had pursued his motion and it had been granted (which the court was inclined to do, albeit for its own reasons). Curiously, the People argue that one of the reasons the court did not abuse its discretion in denying Mr. Dodson’s request for new counsel was because he purportedly rejected the court’s offer to withdraw his guilty plea (Respondent’s Brief 15). In response to whether he wished to withdraw his plea (not, as the People contend, when pressed on his complaints against counsel [Respondent’s Brief 9], an inquiry the court never conducted), Mr. Dodson said: “I’m not saying nothing, man. I’m not saying nothing. I need a new lawyer to come and see me and let me know my chances. I’m not saying I withdraw my plea. I’m not saying none of that. I’m saying that I need a lawyer that is willing to represent me, let me know my chances because this man is not giving me a straight answer about anything. That’s what I need. That’s what I need.” 2 (S 4.) But it was precisely that decision Mr. Dodson needed the effective assistance of counsel for (People v Mitchell, 21 NY3d 964, 966 [2013]). The People’s contention fails to address a defendant’s constitutional right to the assistance of counsel on a motion to withdraw a plea, as more fully discussed in the Main Brief at Point I, Subparagraph D (Appellant’s Brief 21). The People also argue that Mr. Dodson’s request for new counsel was merely a delay tactic because, “After all, defendant had worked with his attorney for at least three months without indicating any dissatisfaction with the attorney’s performance” (Respondent’s Brief 15). But the tenuous relationship between Mr. Dodson and counsel was evident from the outset of the case, as set forth in the Main Brief. Mr. Dodson repeatedly complained about what he believed was counsel’s apathy to his case (compare People v Medina, 44 NY2d 199, 205 [between his May arrest and his October trial date, there was never “the slightest hint that the appellant was harboring any dissatisfaction with his lawyer.”]). On October 9, 2013, when Mr. Dodson initially indicated his intention to plead guilty and the court asked him if he had enough time to consult with counsel, Mr. Dodson adamantly responded, “Not at all. Not at all,” complaining he had not seen counsel during the three months he had been in custody (10/9M 3). Rather than inquiring further into Mr. Dodson’s complaint, the court simply ordered the two to meet and discuss the offer. On the following court date when Mr. Dodson complained, “This man has done – like, he has not – I don’t believe he gave me his all,” the court was again dismissive and once more ordered the two to discuss Mr. Dodson’s options (10/16M 6). 3 Mr. Dodson’s complaints against his assigned counsel were not conclusory, as the People contend. In requesting to withdraw his plea, Mr. Dodson stated he felt he had been forced to take a plea and could not even consider going to trial because, “How could I even think about a trial with a man that stated to you two times that he does not want to represent me? He does not want to represent me.” (12/18M 2.) This was a specifically articulated complaint, with sufficient support in the record, unlike the generalized claim of a failure to visit or return jail calls as in People v Benson (265 AD2d 814, 814 [4th Dept 1999]), cited by the People (Respondent’s Brief 9; compare also People v MacLean, 48 AD3d 1215, 1217 [4th Dept 2008] [good cause was not established where the defendant “made only vague assertions that defense counsel was not in frequent contact with him and did not aid in his defense”]). Here, it is undisputed that counsel twice sought to be relieved as counsel because he felt that there had been a breakdown in communications. When the offer was initially extended to Mr. Dodson and counsel requested a one-week adjournment to discuss the matter, Mr. Dodson complained of counsel’s absence during the preceding three months. Mr. Dodson can hardly be faulted for feeling minimized when counsel believed one week was sufficient to discuss the very serious charges pending against him, particularly if counsel had not been to visit him in the prior three months. When counsel did attempt to visit Mr. Dodson during that one week adjournment, apparently Mr. Dodson refused the visit. Notably, the visit was scheduled for the Friday just before court, after counsel had unsuccessfully attempted to visit him earlier in the week, but was unable to see Mr. Dodson due to administrative issues. 4 The People contend that Mr. Dodson’s refusal to see counsel during that one week adjournment should be viewed as contumacious behavior on his part. Though the People do not cite to any law, this case is unlike People v Linares (2 NY3d 507, 511-512 [2004]), where the Court of Appeals upheld the First Department’s determination that the defendant was not entitled to the substitution of counsel where he “manufactured a conflict with counsel on the very eve of trial,” by threatening his lawyer. But in this case, because the court summarily denied counsel’s motion to be relieved when counsel first cited a breakdown in communications and did not conduct an inquiry, whether Mr. Dodson’s apparent refusal was deliberate, or due to some other reason such as an administrative snafu is unknown. The court should have asked Mr. Dodson why he refused the visit, in order to properly ascertain whether the two could salvage the relationship (see People v Reese, 23 AD3d 1034, 1035 [court reasonably concluded that a defendant’s complaints about the lack of communication from counsel had no merit after making a sufficient inquiry into the matter]). This is particularly so in this case where Mr. Dodson complained that counsel was not advocating for him, which was validated, in part, by the court confirming it had not seen a letter Mr. Dodson believed counsel would be presenting to the court on his behalf (and counsel did not give any explanation to the court for his lapse on this matter, such as explaining that he intended to discuss it further with Mr. Dodson, if counsel felt that sharing the letter was against his client’s interests) (10/16M 3). Under these circumstances, it is a reasonable inference that Mr. Dodson perceived the attempted visit as a last-minute visit just before court only because the court had 5 ordered it (as it is unlikely he would have known that counsel tried to visit him earlier). After already feeling ignored by counsel’s failure to see him in the three months leading up to that time, even if Mr. Dodson had intentionally refused counsel’s visit, surely he cannot be criticized for having done so out of frustration and a lack of confidence in counsel. And when, upon their next court appearance, where counsel’s first request was not, for another adjournment to try to work with Mr. Dodson and discuss his options with him, but rather a motion to be relieved, it is no wonder that Mr. Dodson continued to feel minimized by counsel (compare People v Linares, 302 AD2d 256, aff’d 2 NY3d 507 [counsel stated he could continue to work with the defendant]). And counsel’s second request came immediately following the first, on the very next court date. Surely little is more disheartening to a defendant than an attorney who not only does not seem to be advocating for him, but in fact, requests twice to be relieved as counsel. (See People v Medina, 44 NY2d 199, 207 [“Since a relationship of mutual confidence between lawyer and client is important to the lawyer’s fulfillment of his professional functions, where good cause is shown by the defendant why that confidence does not exist the court should substitute counsel”] [internal citation omitted].) Mr. Dodson’s complaints were not merely conclusory and a plain reading of the record shows only a continuing antagonism between counsel and Mr. Dodson, such that the relationship had completely deteriorated by the time Mr. Dodson sought new counsel (see People v Sides, 75 NY2d 822, 824-825 [“Defendant’s request on its face suggested a serious possibility of irreconcilable conflict with his lawyer, as evidenced by the acknowledgement of counsel that a complete breakdown of communication and lack of 6 trust had developed in their relationship,” such that at a minimum, the court was required to conduct a further inquiry into the nature of their relationship]). Finally, the People’s suggestion that there was no evidence of a breakdown in communication to warrant a substitution of counsel because Mr. Dodson had not previously requested a new counsel is without merit (Respondent’s Brief 15). Mr. Dodson could not afford private counsel and the court was very clear that it would not substitute counsel. To fault Mr. Dodson for failing to request something the court already denied and declared it would not grant is unsound. Notably it was counsel that first claimed that the relationship had broken down, and it was Mr. Dodson that continually acquiesced to the relationship, despite counsel’s unsuccessful requests to be taken off his case. The People’s analysis of Mr. Dodson’s comments that, “I don’t need another lawyer” and “he explained [the offer] to me” are further evidence that there was no breakdown in communication between Mr. Dodson and his attorney fails to take those comments in the context with which they were made. Mr. Dodson obviously understood the terms of the offer and understood that he faced a significantly harsher sentence if he did not accept the offer. But he very clearly articulated his perception of his attorney’s performance: “I just feel like he didn’t – he’s not aggressive, he didn’t argue … I feel he didn’t’ do what he was suppose [sic] to do for me. That’s what I feel … There’s nothing he can do for me. He knows – he explained it to me.” (10/13M 12). These comments are not those of a person who simply disagrees with an attorney’s strategic approach; they are comments indicating resignation and defeat and signal an inability to communicate with 7 the attorney assigned to zealously advocate on his behalf (compare People v Hortiz, 60 AD3d 692 [4th Dept 2009] [where court told the defendant he would be given additional opportunities to meet with his attorney and discuss his concerns about counsel’s performance, and defendant was satisfied with this solution to his complaints, court did not err in refusing to substitute counsel]). Taken together with counsel’s own assertions to the court that their relationship had broken down, there is ample evidence in the record that there were such irreconcilable differences between them to warrant a substitution of counsel (see People v Gibson, 126 AD3d 1300 [4th Dept 2015] [where both defendant and attorney acknowledged the breakdown in communications, new counsel should have been assigned]; compare People v Linares, 302 AD2d 256, aff’d 2 NY3d 507 [defense counsel stated that he could continue to represent defendant, despite defendant’s threats to injure him]). Under these circumstances, it is reasonable to conclude that Mr. Dodson’s decision to plead guilty with assigned counsel’s continued representation was merely acceptance of the fact that he was stuck with the attorney assigned to him because he could not hire his own counsel, that he believed any further attempt at discussions with his assigned attorney was futile and, therefore, had no other option but to plead guilty. At a minimum, Mr. Dodson appears to have recognized that the offer was not unfavorable. But he clearly still had questions about the viability of certain defenses and other motions he believed were applicable to his case and because of the breakdown of communications with his attorney, never believed he received sound, unbiased advice from an attorney 8 willing to take his case to trial, if indeed Mr. Dodson decided to pursue that avenue. Mr. Dodson’s perception that any advice from counsel was insincere was only enhanced by the fact that counsel twice requested to be relieved, the first of which occurred before any real discussions ever took place between the two. The record establishes that that there was a breakdown in communications between Mr. Dodson and his assigned counsel. Where such a breakdown exists, it cannot be said that the assigned attorney is in a position to advise his client whether to even pursue a motion to withdraw his plea (see People v Rozzell, 20 NY2d 712, 713 [1967]; People v Lewis, 286 AD2d 934, 935 [4th Dept 2001]). This is even more so because Mr. Dodson moved to withdraw his plea on the ground that he felt he was forced to do so because of a lack of trust in counsel (People v Bowers, 45 AD2d 241, 245 [4th Dept 1974]). Because Mr. Dodson was entitled to the effective assistance of counsel on his motion to withdraw his plea (People v Mitchell, 21 NY3d 964, 966 [2013]), the court abused its discretion in summarily denying Mr. Dodson’s request for the substitution of counsel. Therefore, the matter should be remitted for the substitution of counsel to assist Mr. Dodson on his motion to withdraw his plea. Dated: July 5, 2016 Respectfully submitted, TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant BY: JANE I. YOON Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 (585) 753-4210