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. ___________________________________________________ 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 PAGE TABLE OF AUTHORITIES i, ii QUESTION PRESENTED 1 STATEMENT OF FACTS 2 Point I: Where The Record Shows A Breakdown In Communications Between Mr. Dodson and His Assigned Counsel, The Lower Court Abused Its Discretion In Refusing to Assign New Counsel To Advise Him On Whether To Pursue His Motion To Withdraw His Plea, Which The Court Initially Indicated It Was Inclined to Grant. 12 A. The Waiver of Appeal Is Invalid Or Otherwise Ineffectual. 12 B. The Right to Counsel 16 C. There Was An Irreparable Breakdown in the Attorney-Client Relationship. 18 D. Mr. Dodson Was Entitled To the Effective Assistance of Counsel In Deciding Whether To Pursue His Motion To Withdraw His Plea. 21 CONCLUSION 24 i TABLE OF AUTHORITIES Federal Case Pointer v Texas, 380 US 400 (1965) ............................................................................... 16 State Cases People v Arroyave, 49 NY2d 264 (1980) ........................................................................ 23 People v Bowers, 45 AD2d 241 (4th Dept 1974) ............................................................ 21 People v Boyd, 22 NY2d 707 (1968) ............................................................................... 21 People v Bradshaw, 18 NY3d 257 (2011) ....................................................................... 13 People v Brown, 122 AD3d 133 (2d Dept 2014) ................................................ 14, 15, 16 People v Carrasquillo, 130 AD3d 1498 (4th Dept 2015) ............................................... 15 People v Gibson, 126 AD3d 1300 (4th Dept 2015) .................................................. 17, 20 People v Gonzalez, 47 NY2d 606 (1979) ........................................................................ 17 People v Johnson, 14 NY3d 483 (2010) ......................................................................... 13 People v Lewis, 286 AD2d 934 (4th Dept 2001) ............................................................. 22 People v Linares, 2 NY3d 507 (2004) ....................................................................... 17, 19 People v Lopez, 6 NY3d 248 (2006) ............................................................................... 13 People v Lopez, 28 AD3d 234 (1st Dept 2006) ............................................................... 19 People v Medina, 44 NY2d 199 (1978) ........................................................................... 17 People v Mitchell, 21 NY3d 964 (2013) ......................................................................... 21 People v Moyett, 7 NY3d 892 (2006) .............................................................................. 13 People v Ramos, 7 NY3d 737 (2006) .............................................................................. 16 People v Rozzell, 20 NY2d 712 (1967) ........................................................................... 22 ii People v Tucker, __ AD3d __, 2016 NY Slip Op 03637 (4th Dept 2016) ............... 17, 20 People v White, 288 AD2d 839 (4th Dept 2001) ....................................................... 17, 19 State Statute CPL 220.60 (3) ................................................................................................................ 21 Constitutions NY Const art I, § 6 ........................................................................................................... 16 US Const Amend VI ........................................................................................................ 16 1 QUESTION PRESENTED 1. Where there was a breakdown in the attorney-client relationship, did the court abuse its discretion in refusing to substitute counsel to advise Mr. Dodson on his motion to withdraw his plea? This was not addressed below. 2 STATEMENT OF FACTS The Supreme Court assigned counsel to represent Phillip Dodson on an indictment charging Mr. Dodson with one count of assault in the first degree, three counts of criminal possession of a weapon in the second degree and one count of reckless endangerment in the first degree (Appendix [“A”] 5-7). After a few adjournments for the filing of motions, negotiations and a conference with the court, at Mr. Dodson’s fourth court appearance, on October 9, 2013, the court informed Mr. Dodson that there was a plea offer on the table for him to consider: if Mr. Dodson pleaded guilty to the top count of assault in the first degree, the court would sentence him to 13 years’ imprisonment with the Department of Corrections, to be followed by a 5-year term of post-release supervision (October 9, 2013 Minutes [“10/9M”] 2). The court stated it would grant counsel’s request to adjourn the matter for one week to allow Mr. Dodson to consider and discuss the offer with his parents, but Mr. Dodson told the court that he wished to take it without a further adjournment (10/9M 2- 3). Yet when the court asked Mr. Dodson if he had had enough time to discuss the offer with his attorney, Mr. Dodson complained, “Not at all. Not at all.” (10/9M 3). Counsel explained that was why he requested the adjournment (10/9M 3). To this, Mr. Dodson retorted, “For the week? I’ve been down here three months. Now you’re going to give me a week. I appreciate it. I’ve been down here three months. Thanks for your week, 3 man.” (10/9M 3). The court ultimately refused to take the plea at that appearance and instead adjourned it for the two to further discuss the offer (10/9M 3). When the parties appeared the following week, counsel advised the court that he had been unable to meet with Mr. Dodson the previous Friday, as he initially planned, due to administrative issues at the jail, and that when he re-scheduled his visit for the previous day Mr. Dodson refused to meet with him (October 16, 2013 Minutes [“10/16M”] 2). Counsel concluded that there had been a breakdown in their relationship and requested to be relieved of the assignment (10/16M 2). Mr. Dodson’s comments also suggested that their relationship had deteriorated, as he complained to the court that he felt that counsel was not advocating for him. As an example, Mr. Dodson referred to a letter that he expected counsel to bring to the court’s attention (which the court confirmed that it had not seen) (10/16M 3). Mr. Dodson protested, “This man has done – like, he has not – I don’t believe that he gave me his all. That’s how I feel. And I’m not wrong for feeling like that. I’ve been down here three months. He came to see me one time.” (10/16M 6). Despite his dissatisfaction with counsel, Mr. Dodson told the court that he still wished to plead guilty because he did not want to risk receiving a sentence greater than the negotiated thirteen-year promise (10/16M 4-6). After Mr. Dodson’s assertions, counsel again urged the court to substitute counsel due to the breakdown in the attorney-client relationship (10/16M 6). The court, however, summarily denied the motion, stating, “I’m not giving him another attorney” (10/16M 7). 4 The court proceeded to discuss with Mr. Dodson its concerns about certain statements that Mr. Dodson made that suggested he might have a justification defense to the assault count which was necessarily part of the plea bargain (10/16M 8-10). Specifically, Mr. Dodson claimed that the victims had forcefully entered his home and he was merely trying to defend himself, his girlfriend and his children (10/16M 4-5). The prosecutor also expressed concern about Mr. Dodson’s claims, indicating his own reluctance about going forward with a plea (10/16M 7, 10). But Mr. Dodson insisted he wished to plead guilty with the promise of thirteen years because he feared the consequences if he lost on the motions, hearings or a trial (10/16M 9). The court, repeating its concerns about taking a plea if Mr. Dodson was claiming he had a justification defense added, “you’re going to have to waive your right to an appeal” (10/16M 9). The prosecutor reiterated his reluctance to go forward with a plea, adding that he was also concerned about counsel’s representation that the attorney-client relationship had broken down (10/16M 10). Still, the court refused to assign new counsel, telling Mr. Dodson, “I’m sure you would be real happy if I removed [counsel] and gave you another attorney. It’s not going to happen. When you get an assigned attorney, that’s your attorney.” (10/16M 11.) Mr. Dodson responded that he just wanted to resolve his case and insisted on going forward with his plea (10/16M 11). The court instead adjourned the matter, ordering Mr. Dodson to further discuss the plea with counsel because, “You need to discuss it with the attorney. I’m not going to create all these issues that could be reviewed by a higher court because of your refusal to discuss it with 5 [counsel].” (10/16M 12.) Seemingly in an attempt to assuage Mr. Dodson, the prosecutor noted that the initial offer had been for a 15-year prison term and that it was defense counsel that had persuaded him to agree to the 13-year term. (10/16M 13). The parties appeared two weeks later at which time counsel renewed his request to be relieved, indicating that he had met with Mr. Dodson and that based on their conversation, “I think I should be relieved if Mr. Dodson intends to take a plea today.” (October 30, 2013 Plea Minutes [“P”] 2). The court again refused to do so, telling Mr. Dodson, “However much you don’t get along, I’m sure he advised you of certain things.” (P 2.) The court proceeded to inform Mr. Dodson that if he pleaded guilty, he would be waiving the right to present defenses (P 3). Mr. Dodson resignedly responded that his understanding was that if he pursued his motions – which he believed were meritorious – that “you’re saying there will be no offers or nothing” (P 4). The prosecutor confirmed that the 13-year sentence offer was a “pre-hearing” offer, that his original offer sought a 15-year prison term, and that it was unlikely that if the parties proceeded to hearings that he would still be agreeable to a 13-year term (P 4). As the grand jury minutes had not yet been provided to the court, the court did promise Mr. Dodson that if warranted after review of the grand jury minutes, it would allow Mr. Dodson to withdraw his plea and grant whatever other relief may be necessary (P 5). Mr. Dodson then asked the court whether a better offer might be available after hearings, to which the court said, “I can’t tell you. I don’t know enough about you. I went along with this disposition fairly reluctantly. Remember, I was at the 15, too.” (P 7). To that, Mr. Dodson responded, “Yeah. I’ll just go then.” (P 7) 6 During his plea colloquy, the court did not require Mr. Dodson to admit that he was not justified in seriously injuring the victim, but did elicit from Mr. Dodson that he understood that by pleading guilty, he was waiving his right to present a justification defense (P 8-9). Mr. Dodson also signed a waiver of appeal, but there was no discussion about that waiver until after the court had already accepted his guilty plea (P 7-11; A 10). Prior to engaging in the factual colloquy for the plea, the prosecutor told the court that he had provided defense counsel with the waiver document but the court did not otherwise address Mr. Dodson about the waiver of appeal prior to accepting his guilty plea: The Court: You can take the colloquy. Mr. Harrigan: Can we go over – I just provided Mr. Young a Waiver of Appeal, Your Honor. The Court: You may review it with him. Go ahead. Mr. Harrigan: Would you like me to do that before he signs the Waiver of Appeal? The Court: I thought that’s what you just asked to do. Mr. Harrigan: Mr. Young is still filling it out, so I was giving him a chance to do that. The Court: While he is filling it out, go through the colloquy. Mr. Harrigan: All right. [Colloquy] Mr. Harrigan: The People are satisfied, your Honor. The Court: Mr. Dodson, how do you plead to Assault in the First Degree in satisfaction of all the counts pending before this Court? 7 The Defendant: Guilty. The Court: I’ll accept your plea of guilty. I’ll adjourn sentencing four weeks. [Enhancement warnings given.] Mr. Harrigan: May I address the Waiver of Appeal, your Honor? The Court: You may. Go ahead. Mr. Harrigan: Thank you. Mr. Dodson, before you is what we have been talking about before your plea, the Waiver of Appeal. Have you had enough time to go over what these rights are with your attorney? The Defendant: Yes. Mr. Harrigan: And you understand everything that is within that document? The Defendant: Yes. Mr. Harrigan: And do you understand that the Waiver of Appeal, that is a right separate and apart from any other rights, your trial rights, that the Judge talked about; do you understand that? The Defendant: Yes. Mr. Harrigan: At this time if you understand completely what is in it, you don’t have any more questions, I ask that you sign that document. Mr. Young: Judge, for the record, I have explained to Mr. Dodson that he retains his right to appeal ineffective assistance of counsel only. The Court: Okay. Mr. Harrigan: I note Mr. Dodson and Mr. Young have both signed the Waiver of Appeal. Thank you. 8 (P 7-11.) The matter was then adjourned for sentencing (P 11). At the next court appearance, Mr. Dodson immediately began by telling the court that he wished to take back his plea: “I’d like to go through my motions, sir, take my plea [sic]. I feel like I was forced to take this. This man stated twice on the record he did not want to represent me, and you stated that I would not be allowed to go through with my motions unless I go to trial. 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.” (December 18, 2013 Minutes [“12/18M”] 2). Mr. Dodson then waffled when the court responded that they had already gone through this: “I sat and thought about it. Thirteen years is a long time for me to think about it, okay, I will take it. You’re denying me my right.” (12/18M 3.) Without addressing Mr. Dodson’s complaint, the court proceeded with the second violent felony information, asking whether Mr. Dodson had any constitutional challenges to the predicate conviction (12/18M 3). Mr. Dodson complained that he had no legal counsel to properly advise him, elected to stand mute to that inquiry and added that he believed he had meritorious Fourth Amendment and sufficiency claims and also, “I have plenty of appeal issues.” (12/18M 3-7.) The court merely responded, “Great, they will be appeal issues because I’m not going to allow you to withdraw your plea” and attempted to return to proceeding with the second felony information (12/18M 4). After some additional complaints by Mr. Dodson reiterating his frustrations with counsel and a reminder from counsel about the court’s promise to review the grand jury minutes, the court did concede that it had not yet done so, noting also that, in fact, it had not received the grand jury 9 minutes (12/18M 5-7). The court thus postponed sentencing, directing the prosecutor to hasten the production of the grand jury minutes (12/18M 7-8). On the following date, the court, having finally reviewed the grand jury minutes, stated that it was troubled by its review, but not in Mr. Dodson’s favor (January 8, 2014 Sentencing Minutes [“S”] 2). The court reiterated its previous sentiment that it had reluctantly gone along with the plea offer in the first place because defense counsel had convinced it that the sentence was fair (S 2). Mr. Dodson complained that the court was prejudiced against him (because of a prior history before the same judge): “I feel like I need to get out of your courtroom. I need to get out of your way. I’m going to refuse to come to court and I don’t care what the police do. Yeah, I’m not taking nothing. I need a lawyer that could come tell me what my chances are that’s not on such a negative level.” (S 3). At that point, the court then “offered” Mr. Dodson a chance to withdraw his plea, “because I don’t think 13 years is enough anyway.” (S 3). Reiterating his distrust of the court Mr. Dodson claimed that based on the court’s comments, “I can’t go through with my motion.” (S 3) The court then “offered” to assign new counsel, but not for the purpose of assisting or advising Mr. Dodson on whether he wished to withdraw his plea (S 3). Rather, as the court immediately followed up by asking Mr. Dodson whether he wished to withdraw his plea, it essentially conditioned the assignment of new counsel on the withdrawal of the plea (S 3-4). Mr. Dodson responded that he lacked the guidance of counsel on how to proceed: “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 10 man is not giving me a straight answer about anything. That’s what I need. That’s what I need.” (S 4.) Ignoring Mr. Dodson’s complaints, the court simply proceeded with sentencing: “People move sentencing and wish to be heard?” (S 4.) The prosecutor deferred to the negotiated disposition (S 5). Mr. Dodson added, “And I don’t waive my right to an appeal. I don’t waive my right to an appeal.” (S 5.) The court responded, “You don’t have to waive your right to appeal,” and then turned to defense counsel (S 5). Defense counsel said only, “Judge, I believe I need to remain silent because my client does not wish me to speak for him.” (S 5.) (Notably, other than confirming his appearance with Mr. Dodson, counsel did not otherwise speak at this appearance.) Mr. Dodson added that he did not wish to be sentenced and the following ensued: Court: You didn’t move to withdraw your plea by remaining silent. Mr. Dodson: Yeah, I move to withdraw my plea. Court: You want to withdraw your plea? Mr. Dodson: Yeah. Court: You just said you weren’t going to say anything. Mr. Dodson: I need a new lawyer to let me know – I need a new lawyer. That’s what I need, man. That’s what I need. I just didn’t – this man right here is playing. I’m not a law man. I can’t let you know what I – I don’t know what’s going on. Court: I just want you to understand if you withdraw your plea, that offer will not be made again and it’s not coming back. Do you understand that? Mr. Dodson: Like if this district attorney makes another offer – 11 Court: No offers. Mr. Dodson: -- how could you not accept another offer? How could you not? This is between the district attorney. Like if I take a plea, he makes a [sic] offer, how could you not accept a [sic] offer? That shows prejudice. That shows you’re being prejudice [sic] against me. Court: Do you wish to withdraw your plea? Mr. Dodson: I asked you a question first. I asked you a question. I asked you a question. Court: You answer my question. Mr. Dodson: Okay. My lawyer’s not speaking for me, so who am I supposed to ask? Who am I suppose [sic] to ask questions to if my lawyer is not – Court: I will take that as a no. I’m going to sentence you [….] (S 5-7) Mr. Dodson was then sentenced pursuant to the negotiated disposition (S 7) and is still serving that sentence. 12 Point I: Where The Record Shows A Breakdown In Communications Between Mr. Dodson and His Assigned Counsel, The Lower Court Abused Its Discretion In Refusing to Assign New Counsel To Advise Him On Whether To Pursue His Motion To Withdraw His Plea, Which The Court Initially Indicated It Was Inclined to Grant. A. The Waiver of Appeal Is Invalid Or Otherwise Ineffectual. Although Mr. Dodson signed a waiver of appeal when he pleaded guilty, when he subsequently moved to withdraw his plea, Mr. Dodson verbally rescinded his waiver and the court accepted that rescission. In connection with his motion to withdraw his plea and his concurrent request for counsel to advise him on that motion, Mr. Dodson stated, “And I don’t waive my right to an appeal. I don’t waive my right to an appeal” and the court responded, “You don’t have to waive your right to appeal.” (S 5.) Thus, the previously signed waiver became ineffective. Notwithstanding, the court did not reaffirm Mr. Dodson’s waiver of the right to appeal after refusing to assign new counsel to assist him on his motion to withdraw his plea. This omission is further indicative of the court’s acceptance of Mr. Dodson’s rescission of his waiver of the right to appeal. But even if this Court is persuaded that the waiver of appeal was not rescinded and is otherwise valid, the waiver of appeal would not encompass Mr. Dodson’s present claim of the constitutional deprivation of the right to counsel at a critical stage in his proceedings. To the extent that the written waiver of appeal may have foreclosed any appellate claims regarding complaints against his assigned counsel to that date, it cannot be said that the waiver included his future request for new counsel based on his inability to communicate with his assigned counsel. 13 In People v Johnson (14 NY3d 483, 487 [2010]), the Court of Appeals held that at the time the defendant agreed to the waiver of appeal, he had no reason to suspect the court would deviate from the negotiated sentence parameters, such that when the court did so and imposed a more severe sentence, “it was incumbent on the court to elicit defendant’s continuing consent to waive his right to appeal.” This was because the waiver of the appeal could only “be enforceable if the record demonstrates the defendant ‘intentionally relinquishe[d] or abandon[ed] a known right that would otherwise survive a guilty plea” (id. at 486, citing People v Hansen, 95 NY2d 227, 230 n 1[2000]). At the time that Mr. Dodson signed the waiver of appeal document, it cannot be said that he intentionally relinquished his right to counsel on a motion to withdraw his plea. Because the court did not confirm or otherwise obtain Mr. Dodson’s continuing consent to waive his right to appeal, particularly here, where Mr. Dodson declared he was not waiving his right to appeal, the previously signed waiver does not encompass his present claim. Additionally, the waiver is invalid because the court failed to establish that it was made knowingly, intelligently and voluntarily in the first place (People v Bradshaw, 18 NY3d 257, 264 [2011] [internal citations omitted]). While there is no set litany the plea court must recite to obtain a valid waiver, the court must insure that the defendant understands the ramifications of pleading guilty (People v Lopez, 6 NY3d 248, 256 [2006]). When a defendant is also waiving his right to appeal as part of a plea deal, the court must also insure that the defendant knows that his appellate rights are separate and distinct from the rights that he otherwise forfeits from taking a plea. (See People v Moyett, 7 NY3d 892, 892-893 [2006]; People v Lopez, 6 NY3d 248, 256 [2006]). 14 Here, the court did nothing. It did not review any of the appellate rights Mr. Dodson was giving up by agreeing to sign a waiver of appeal, let alone establish that Mr. Dodson understood that his appellate rights were separate and distinct from the rights otherwise forfeited by pleading guilty. The only time prior to Mr. Dodson’s plea that the court mentioned the waiver of appeal was on the court date prior to his guilty plea. And at that time, the waiver was discussed only in conjunction with the court’s concern about accepting a guilty plea if Mr. Dodson continued to assert a justification defense and thus conflating the waiver of appeal with rights forfeited if Mr. Dodson decided to plead guilty. Critically, when the parties reconvened on the next court date and Mr. Dodson stated he would plead guilty, the court did not discuss Mr. Dodson’s waiver of appeal at all, deferring instead, to the prosecutor. But the prosecutor’s questions about the waiver of appeal are an inadequate and improper substitute for the court’s obligations. First, the prosecutor’s questions were general and vague, eliciting only that Mr. Dodson had reviewed “the rights” contained in the waiver with counsel, that he understood “everything” that was contained therein and that he understood that the waiver of appeal was “a right separate and apart from any other rights, your trial rights, that the Judge talked about” (P 11). The court never distinguished or explained “those rights.” (See People v Brown, 122 AD3d 133, 137 [2d Dept 2014] [“It is the responsibility of the judge presiding over the plea and waiver to make it clear to the defendant that an appeal waiver ‘is separate and distinct from those rights automatically forfeited upon a plea of guilty’”] [citing People v Bradshaw, 18 NY3d at 264 [emphasis added]). While the prosecutor did allude to the right to appeal as 15 being separate and distinct from trial rights, the court failed to make the critical distinction to Mr. Dodson: that trial rights are automatically forfeited by entry of a guilty plea, while appeal rights are not. This Court has recognized that where there is no basis to conclude a defendant understood that his right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty, the waiver is invalid (see e.g. People v Carrasquillo, 130 AD3d 1498, 1499 [4th Dept 2015]). Here, the court left the discussion of Mr. Dodson’s right to appeal to the prosecutor and did not distinguish the right to appeal from those rights automatically forfeited by entry of a guilty plea. What the court needed to tell Mr. Dodson was that the right to appeal was not one of those rights automatically forfeited by entry of a guilty plea, and ask whether he was giving up the right to appeal, which survived the guilty plea, in order to take advantage of the plea bargain. And there is nothing in the record that establishes that anyone properly explained either the rights or the distinctions to him. Though counsel added that he told Mr. Dodson that only certain ineffective assistance of counsel claims would survive the waiver, this too was an inaccurate (and incorrect) explanation of the rights that would and would not survive the waiver. Notwithstanding the court’s failure to conduct any inquiry into Mr. Dodson’s understanding of the waiver of appeal, “the discussion should be more extensive than a simple confirmation that the defendant signed the waiver and a conclusory statement that the defendant understood the waiver or was executing it knowingly and voluntarily” (People v Brown, 122 AD3d at 140 [2d Dept 2014]). Although New York courts have 16 regularly found that an accompanying written waiver may adequately supplement a deficient oral colloquy, the written waiver in this case fails to do so. In People v Brown (122 AD3d at 139) the Second Department reasoned: “[A] written waiver is not a complete substitute for a proper colloquy supervised by the trial judge. While ‘[a] detailed written waiver can supplement a court’s on-the-record explanation of what a waiver of the right to appeal entails … a written waiver does not, standing alone, provide sufficient assurance that the defendant is knowingly, intelligently and voluntarily giving up his or her right to appeal as a condition of the plea agreement.’ Thus, an appeal waiver generally will not be valid unless the trial court ascertains on the record that the defendant signed the written waiver and that he or she ‘was aware of its contents,’ including, ‘ the implication of the appellate rights he [or she] was waiving.’” [internal citations omitted]. Here, the only inquiry into Mr. Dodson’s review and understanding of the document was conducted by the prosecutor who asked only general and vague questions about Mr. Dodson’s understanding of the waiver and its consequences. This is not a case where the written waiver was a supplement to cure ambiguities in the oral colloquy because there was no oral colloquy to supplement (compare People v Ramos, 7 NY3d 737, 738 [2006] [valid waiver of right to appeal where the detailed written waiver cured the deficient oral colloquy]). The written waiver alone, is an insufficient and improper substitute for the court’s obligation to inquire and ensure that a defendant’s waiver is knowing, intelligent and voluntary. B. The Right to Counsel Both the Federal and State Constitutions guarantee every defendant the right to the assistance of counsel (see US Const Amend VI; NY Const art I, § 6; Pointer v Texas, 380 17 US 400 [1965]; People v Linares, 2 NY3d 507, 510 [2004]). But this right is neither satisfied nor fulfilled with the “pro forma appointment of or service by a member of the Bar,” as both constitutions entitle defendants to more than just the right to have a lawyer present at the material stages of the prosecution (People v Medina, 44 NY2d 199, 207 [1978]): the right to counsel entitles the defendant to the “effective” assistance of an attorney who is single-mindedly devoted to his client’s interests (People v Gonzalez, 47 NY2d 606, 610 [1979]). The trial court therefore has “a continuing duty … to see to it that the proceedings are conducted with solicitude for the essential rights of the accused” (Medina, 44 NY2d at 207). And when a defendant complains that an assigned attorney is not acting in his or her best interests, the court must carefully evaluate the complaint and determine whether there is “good cause” to substitute counsel (Linares, 2 NY3d at 510). Although a defendant’s request for substitution should not be granted “casually,” (Medina, 44 NY2d at 207) a court is required to exercise sound discretion when faced with a real complaint about counsel and must not dismiss complaints out of hand (Linares, 2 NY3d at 510- 511). And this Court has held that where a breakdown in communication between a defense attorney and his client has been established, substitution of counsel is required (People v White, 288 AD2d 839 [4th Dept 2001]; see also People v Tucker __ AD3d __, 2016 NY Slip Op 03637 [4th Dept 2016]; People v Gibson 126 AD3d 1300 [4th Dept 2015]). Here, the court failed to meet its obligation to carefully evaluate the complaint and abused its discretion in denying the request for new counsel. 18 The record here establishes that by the time Mr. Dodson requested new counsel to advise him on whether to pursue his motion to withdraw his plea, the relationship between him and his assigned counsel had so deteriorated that, notwithstanding the court’s failure to conduct the required inquiry following Mr. Dodson’s request, the court should have substituted new counsel. C. There Was An Irreparable Breakdown in the Attorney-Client Relationship. The first request for Mr. Dodson to be assigned new counsel came from his lawyer. But when he made this request, the court asked no questions about counsel’s assertion that the attorney-client relationship had broken down. Instead, the court told Mr. Dodson, “When you get an assigned attorney, that’s your attorney” (10/16M 11). It appears that counsel made this first request for relief after just one meeting with Mr. Dodson following the conveyance of the plea offer. Mr. Dodson, who was in custody from the outset, complained that counsel had seen him only once in the three months since he had been arraigned and then the evening prior to the court date at which he was supposed to decide whether to take the plea; counsel claimed he saw Mr. Dodson three times, but did not provide any further specifics and the court did not ask counsel to clarify his response. Although here the court did not initiate any further inquiry at that time and Mr. Dodson did not join in the application for new counsel, Mr. Dodson did complain about counsel’s seeming indifference to his case, thus corroborating counsel’s claims of their inability to communicate. Notably, not only did the court summarily deny counsel’s motion, its reasoning was tauntingly punitive: “[Counsel] has asked to be removed. I’m 19 sure you would be real happy if I removed him and gave you another attorney. It’s not going to happen” (10/16M 11). These comments suggest that the court refused to even consider appointing another attorney. That counsel’s second request to be relieved came on the heels of his first request (at the very next court date) is further indicative of the continuing breakdown in the relationship that pervaded the remainder of the proceedings. It is no wonder that as his case progressed, and still appearing with the same attorney, Mr. Dodson did not trust counsel to represent his interests in his matter, as counsel had already twice requested to be relieved of his representation on successive court dates. And Mr. Dodson seemingly understood, in concurrence with the court’s statement, that as he was unable to retain private counsel, he was stuck with the attorney assigned. The court told him, “When you get an assigned attorney, that’s your attorney” (10/16M 11), and Mr. Dodson seemed resigned to accept the plea offer despite his dissatisfaction with counsel. However, even the prosecutor seemed to understand that the attorney- client relationship had broken down, as he was reluctant to go forward with a plea, citing as one of his reasons, counsel’s assertions that their relationship had broken down. While an attorney’s acknowledgment that there is a breakdown in the attorney- client relationship does not automatically mean that the attorney should be relieved (see People v Linares, 2 NY3d at 510-511; People v Lopez, 28 AD3d 234 [1st Dept 2006]), it does often signal that a serious problem exists. Indeed, in People v White (288 AD2d 839 [4th Dept 2001]), this Court held that the trial court should have assigned new counsel when counsel advised the court of a “disintegration of the attorney-client relationship.” 20 (See also People v Gibson, 126 AD3d 1300 [4th Dept 2015]; People v Tucker, __ AD3d __, 2016 Slip Op 03637 [4th Dept 2016].) By the time Mr. Dodson, himself, requested a different attorney, it is undeniable that to the extent that there was ever any attorney-client relationship, it had disintegrated. The result was that Mr. Dodson was without the legal advice he needed, at a critical juncture – when he needed to choose between alternative courses of action available to him. The advice of counsel was critical when faced with the question of whether to pursue his motion to withdraw his plea: When the court first tempted Mr. Dodson with a chance to withdraw his plea, Mr. Dodson specifically told the court that he took no position on the question because he needed 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.” (S 4.) And when the court then tried to proceed with the sentencing without addressing Mr. Dodson’s request for new counsel, when Mr. Dodson stated that he did not wish to be sentenced, the court said, “You didn’t move to withdraw your plea by remaining silent” (S 5). Mr. Dodson’s subsequent waffling about whether to withdraw his plea and the questions he asked the court (for example, whether a better offer might be forthcoming if he proceeded with and was successful on his motions) clearly demonstrated his need for legal counsel at that critical time. The questions he asked the court and the reservations he expressed about actually withdrawing his plea at that time were concerns that he should have discussed with counsel, not the court. This suggests that Mr. Dodson felt he 21 had no one but the court to turn to because, “My lawyer’s not speaking for me, so who am I supposed to ask? Who am I suppose [sic] to ask questions to if my lawyer is not …” (S 7)That he could not ask his assigned counsel these questions highlights the lack of any relationship remaining between them by that point. In cutting off Mr. Dodson and not addressing the issue of new counsel and instead summarily determining, “I will take that as a no [to the question as to whether to withdraw his plea]” (S 7), the court abused its discretion. D. Mr. Dodson Was Entitled To the Effective Assistance of Counsel In Deciding Whether To Pursue His Motion To Withdraw His Plea. Mr. Dodson pleaded guilty to a very serious crime, to which, at one point, he asserted a potential justification defense. He made a timely motion to vacate his plea pursuant to CPL 220.60 (3). If the court vacated his plea, he faced consecutive sentences as a second violent felony offender (on charges that were satisfied by his guilty plea but would be reinstated if his plea was vacated), before a judge who expressly stated in open court that he felt that the negotiated sentence of thirteen years’ imprisonment was “[not] enough anyway” (S 3). Thus, whether to pursue his motion to vacate was not a decision to make lightly, and certainly not one to be made without the assistance of counsel. But because the court refused to substitute counsel in this case, Mr. Dodson was deprived of the effective assistance of counsel at this critical stage in the proceedings. A defendant is entitled to the effective assistance of counsel on his motion to withdraw his plea (People v Mitchell, 21 NY3d 964, 966 [2013]; People v Boyd, 22 NY2d 707 [1968]). Indeed, this Court, in People v Bowers, 45 AD2d 241, 245 (4th Dept 22 1974), held that where the defendant alleged that his guilty pleas were induced by duress from counsel, the lower court’s failure to assign new counsel to assist him at a hearing on his motion to withdraw his pleas deprived him of the effective assistance of counsel (citing to People v Rozzell, 20 NY2d 712 [1967]). A motion to withdraw has been deemed a “critical stage” and where counsel is not in a position to effectively represent the client in making or supporting such a motion, the client has been denied the effective assistance of counsel (see People v Rozzell, 20 NY2d 712, 713 [1967]; see also People v Lewis, 286 AD2d 934, 935 [4th Dept 2001] [where defense counsel essentially became a witness against his client who had made a pro se motion to withdraw by taking a position adverse to the defendant, the court should have assigned counsel before determining the motion]). It follows that where there is a breakdown in the attorney-client relationship, it cannot be said that the attorney is in a position to advise his client whether to even pursue such a motion, let alone to make or support such a motion. Here, counsel was not in a position to represent Mr. Dodson, and indeed, said nothing on his behalf. The record establishes that by the time Mr. Dodson requested new counsel to advise him on whether to pursue his motion to withdraw his plea, any pre-existing relationship, if there had ever been one at all, had completely disintegrated. Mr. Dodson should have been allowed to consult with new counsel about the merits of his motion and whether to pursue the motion, even more so where, as here, the court seemed inclined to grant the motion for its own agenda (to potentially impose a harsher sentence). Remittal is required regardless of whether it has been shown that Mr. Dodson was actually 23 prejudiced by the court’s failure to assign new counsel. The right to counsel is fundamental, and, accordingly, “the doctrine of harmless error is inapplicable upon a showing that such right has been abridged.” (People v Arroyave, 49 NY2d 264, 273 [1980]). 24 CONCLUSION Mr. Dodson’s matter should be remitted for the substitution of counsel to assist Mr. Dodson on his motion to withdraw his plea. Dated: May 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
