The People, Respondent,v.Phillip A. Dodson, Appellant.BriefN.Y.November 16, 2017OFFICE OF THE ©strict iHttornep OF MONROE COUNTY SUITE 832 EBENEZER WATTS BUILDING ROCHESTER. NEW YORK 14614 SANDRA DOORLEY DISTRICT ATTORNEY PERRY DUCKLES FIRST ASSISTANT DISTRICT ATTORNEY October 11,2017TELEPHONE 585-7534334FAX 585-7534642 TIMOTHY L. PROSPERISECOND ASSISTANT DISTRICT ATTORNEY The Honorable John P. Asiello Clerk of the Court New York State Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207-1095 Re: People v Phillip A. Dodson APL-2017-00158 Dear Mr. Asiello: Pursuant to your letter dated September 1, 2017, the People hereby submit this respondent’s filing in the above-entitled matter pursuant to the Court’s Rules of Practice § 500.11. Summary of the Argument The unanimous Appellate Division, Fourth Department, rejected defendant’s contention that the court abused its discretion in denying defendant’s request for substitution of counsel. The Appellate Division found that, “ the court made the requisite minimal inquiry into defendant's complaints concerning his attorney and his request for a substitution of counsel.” The court further determined that “Although it was incumbent upon defendant to show good cause for the substitution of counsel, defendant expressed only vague and generic complaints having no merit or substance, and circumstances evinced that defendant’s request was simply a delaying tactic to allow him to avoid or postpone his imminent sentencing and thereby delay the orderly administration of justice” {People v Dodson, 147 AD3d 1343 [4th Dept 2017][internal citations omitted]). Facts On July 18, 2013, defendant was arraigned on indictment # 0619/2013 which charged assault in the first degree, three counts of criminal possession of a weapon in the second degree and reckless endangerment in the first degree as a result of an incident where defendant shot Brien Richardson, causing serious physical injury (Appendix [A] 5-7). By October 9, 2013, a framework for a potential resolution of the charges was agreed to by all parties. As explained by the court (10/9/2013 p.2): ...there’s an offer on the table if you were to plead guilty to assault in the first degree, this court would sentence you to thirteen years in the Department of Corrections and five years of post-release supervision. Your attorney came up here and asked me about the possibility of a furlough with a plea. That will not happen. And he asked -2- for one more week for you to talk to your parents about this offer. I will give you the one week to talk to your parents. If next week you reject the offer, the thirteen is off the table. Fifteen is off the table. You can plea with no promises. You’ve got one week to decide. Defendant rejected the court’s offer of a one week adjournment and persuaded the court to proceed with a plea colloquy (10/9/13 p.2). The colloquy was abandoned once defendant claimed he had not had enough time to speak with his attorney (10/9/13 p. 3). Notwithstanding defendant’s October 9, 2013 complaint, about not having enough time to speak to his attorney, defendant refused to meet with his attorney before the next court appearance. After informing the court about defendant’s refusal, defense counsel asked to be relieved because of a breakdown in their “relationship”(10/16/13 p.2). Defendant remained adamant about entering a guilty plea and told the court there was nothing else that his attorney could do for him. Before it took any further action, the court asked, “Mr. Dodson, do you have any questions you want to ask me about?”(10/16/13 p.3). Defendant explained he was concerned whether: (1) the court had reviewed statements written on his behalf; (2) the court could assist his family in recovering money defendant -3- claimed they paid to another attorney; and (3) he may have been justified in his actions (10/16/13 pp 3-6). As for a potential justification defense, defendant’s attorney clarified (10/16/13 p.6): ... I explained to Mr. Dodson on a couple occasions that we’re all aware he probably had a defense to the first shooting. However, the second set of charges would be a lot harder to defend. And he ran the risk of going to trial and doing consecutive sentences on both sets of charges. According to defendant, he did not want a new lawyer, he just wanted to proceed with a guilty plea (10/16/13 pp 11-12): I don’t need another lawyer. If he could -I just feel like he didn’t- he’s not aggressive, he didn’t argue. The court told defendant: “I’m going to put this off and you’re going to see him [defense counsel] at the jail. When he comes to see you, don’t refuse. Go talk to him” (10/16/13 p.l 1). Defendant replied, “And when he comes, I just want to take the thirteen years. There’s nothing he can do for me. He knows -he explained it to me” (10/16/13 p.l2). -4- At the next court appearance, on October 30, 2013, defendant pleaded guilty. Before accepting defendant’s guilty plea, his attorney informed the court of the following (10/30/13 p.2): I did go see him between the 16th and today and spoke to him length regarding the plea options and what I thought were his viable defenses. Given that conversation, I would ask once again that I think I should be relieved if Mr. Dodson intends to take a plea today. The court denied counsel’s request to be relieved: I’m going to deny your attorney’s request to be relieved. I assume you talked at the jail. However much you don’t get along, I’m sure he advised you of certain things. And you said last time here you wanted to accept the offer from the People, which is a plea to Assault in the First Degree with a sentence promise of 13 years. We reviewed the potential defenses last week. You know they got you pretty solid on the weapons charge. A plea to Assault in the First Degree would satisfy the weapons charges. However, you would have to waive your right to present a self-defense at a trial. You’re also giving up your right to have another court review what happens here. So it really doesn’t matter to me, as long as know you have a defense, you’re waiving your right to present it, and in return you are getting this offer; is that correct? Although defendant responded “Yes”, the court sensed that he still had concerns about pleading guilty, and told the defendant “Go ahead”. This time, defendant -5- explained that he believed one of the People’s witnesses had failed to appear for grand jury rendering the grand jury minutes insufficient. The court assured defendant that if he chose to plead guilty, it would review the grand jury minutes for sufficiency and permit defendant to withdraw his guilty plea if they were insufficient. (10/30/13 pp 3-4,10). Defendant waived any claim of self-defense and pleaded guilty to assault in the first degree in full satisfaction of the indictment (10/30/13 pp 7-8). After the court found the grand jury minutes legally sufficient, and immediately prior to the imposition of sentence, defendant, for the first time, asked for a new lawyer because he believed his attorney did not want to represent him and because he wanted a lawyer who could tell him what his “chances are that’s not on such a negative level” (Sentencing Minutes of January 8, 2014 [SM] 3): 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. -6- The court listened to defendant’s complaints and agreed to withdraw his guilty plea and appoint new counsel (SM3). However, defendant professed that he no longer wanted to speak to the court (SM 4): 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 I need a lawyer that is willing to represent me, let me know my chances because this man is not giving me straight answers about anything. That’s what I need. When asked again if he wanted to withdraw his guilty plea defendant responded (SM 5-6): 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 is going on. Notwithstanding defendant’s stated intent to remain silent, he eventually told the court that he wanted a new lawyer because; (1) his attorney did not want to represent him; (2) he wanted an attorney who could give him his “chances” on not such a “negative level” and (3) he wanted a lawyer who was more of a straight shooter (SM 3 -7). After affording the defendant an opportunity to air his -7- grievances, his request for substitute counsel was denied and the court imposed the agreed upon sentence. Discussion A duty to consider a motion for substitute counsel is triggered only where a defendant alleges “specific factual allegations of ‘serious complaints about counsel’ ” {People v Porto, 16 NY3d 93, 99-100 [2010], quoting People v Medina, 44 NY2d 199, 207 [1978]). If this showing is made, “the court must make at least a ‘minimal inquiry’ ” to determine “the nature of the disagreement or its potential for resolution” {Porto, 16 NY3d at 100, quoting People v Sides, 75 NY2d 822, 825 [1990]). Upon such a review, counsel may be substituted only where “good cause” is shown {Porto, 16 NY3d at 100). Absent an abuse of the lower court’s discretion, its decision to deny a request for substitute counsel should not be disturbed {see, People v Linares, 2 NY3d 507 [2004]). Here, defendant asks this Court to expand Porto to require the trial court to make more than a “minimal inquiry” before denying a request for substitute counsel. Such an enlargement of the “minimal inquiry” standard is unwarranted. -8- In this case, following defendant’s request for a new attorney defendant and the court discussed his request. No further questioning was warranted. When afforded an opportunity to speak, defendant claimed he wanted a new attorney because his attorney did not want to represent him, presumably referencing his attorney’s prior requests to be removed as counsel. Curiously, defendant either said nothing or affirmatively told the court that he did not want another attorney each time his attorney suggested he be removed (10/16/13 p. 2,11;10/30/13 p.2). It was not until almost three months later, and immediately prior to the imposition of sentence, that counsel’s earlier request to be removed suddenly caused defendant to believe he needed a new attorney. In any event, defense counsel’s request to be removed was not because he did not want to represent defendant. The first request was made after defendant refused to meet with him (10/16/13 p.2). Defense counsel revisited the issue when it became apparent that defendant was not happy about the legal advice which his attorney was providing (PM p.2): Judge we were last in court on the 16lh of this month. At that point in time I had asked to be relieved from the case. The Court informed Mr. Dodson I was not going to be relieved. I did go see him between the 16th and today and spoke to him at length regarding the plea options and -9- what I thought were his viable defenses. Given that conversation, I would ask once again that I think I should be relieved if Mr. Dodson agrees to take the plea today. A defendant must do more than merely claim that he is entitled to a new attorney because of a lack of communication or disagreement with his assigned counsel. Otherwise, as in this case, a defendant could thwart the court process by simply refusing to communicate with his attorney or claiming that he was dissatisfied with the advice he was receiving. Given the court’s familiarity with counsel’s prior requests to be removed, no further inquiry was required. Defendant also told the court that he wanted an attorney who could give him his “chances” on not such a “negative level” and he wanted a lawyer who was more of a straight shooter (SM 3 -7). The advice provided by counsel was throughly discussed in court, almost two weeks before defendant pleaded guilty (10/16/13 2-3, 5-6; 10/30/13 pp 2-4). The court confirmed that the advice provided was an accurate statement of the risks of rejecting the plea offer and proceeding to trial (10/16/13 pp 2-6). Defendant acknowledged that he understood the advice given by his attorney including the difficulties in defending against the weapon’s charge, because he was caught “red handed with a firearm” (10/16/13 p 5). Further, if the jury were to reject defendant’s self-defense claim, -10- he risked potential consecutive sentencing. It was for those reasons, that defendant insisted on proceeding with a guilty plea. Significantly, this is not a claim of improper advice only negative advice, and such a claim did not necessitate any further inquiry by the court. Given the limited and general nature of defendant’s complaints, he was given ample opportunity to be heard regarding his concerns and no further inquiry by the court would have established the necessary “good cause” to warrant a substitution of counsel. This Court has enumerated several factors that should be weighed by a court in determining whether “good cause” exists to warrant a substitution of counsel. A trial court must consider the timing of the defendant's request, its effect on the progress of the case and whether present counsel will likely provide the defendant with meaningful assistance {People v Linares, 2 NY3d 507, 510 [2004]). Evaluated under this standard, the denial of defendant’s request for substitute counsel was a proper exercise of the lower court’s discretion. As found by the unanimous Fourth Department, “the circumstances of this case evince that defendant’s request for substitution of counsel was simply a delaying tactic to avoid or postpone his imminent sentencing and thereby delay the orderly administration of justice” {People v Dodson 147 AD3d 1343 [4th Dept 2017]). Defendant did not make his request until all of the impediments to the imposition -11- of sentence were removed and the complained of issues had been explored in great detail during the preceding court appearances (Transcript of 12/18/13 p.7; 10/16/13 p.2-6). Further, looking past defendant's stated objections, there is nothing in the record indicating that defense counsel had a genuine conflict of interest with defendant or that he was in any way deficient in representing him. To the extent defendant's relationship with his attorney was strained as either a guilty plea or trial approached, as in People v Sides (75 NY2d 822 [1990]), the fault was wholly with defendant who either refused to meet with his attorney or who was adamant about being entitled to an attorney who would view his chances, at trial, from a more optimistic perspective. As this Court held in People v Medina 44 NY2d 199 [1978]), tensions arising out of differences over strategy do not compel the trial court to delay the proceedings and bring in a new lawyer. This case is also similar to People v Garcia 16 NY3d 93 (2010). Both cases involve defendants who never asked for substitute counsel until after they pleaded guilty and the court was prepared to proceed with sentencing. Each defendant made repeated assurances of an intent to plead guilty as opposed to -12- proceed to trial and in each case there is no basis to conclude that a further inquiry would have yielded pertinent useful information. Also, as in Garcia, it can can be inferred from the record that defendant’s motion for new counsel was a delay tactic in light of defendant having tried to make a furlough a condition of the plea and given that the complained of conduct was thoroughly discussed in great detail during the weeks before defendant pleaded guilty and always resulted in defendant reasserting his desire to proceed with the plea colloquy without new counsel. The court in this case listened to defendant’s complaints and was willing to assign new counsel should defendant withdraw his guilty plea. Because there is no basis to conclude that his assigned attorney could not assist the defendant in deciding whether to withdraw his guilty plea, the denial of defendant’s motion for substitute counsel was not an abuse of the lower court’s discretion and defendant’s conviction should be affirmed. Respectfully submitted, Nancy Gfmgan Assistant District Attorney Janet Somes, Esq. Senior Assistant Public Defender c: -13- STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, AFFIDAVIT OF SERVICE BY MAIL -vs- PH1LLIP A. DODSON, APL- 2017-00158 Defendant-Appellant. STATE OF NEW YORK) COUNTY OF MONROE) SS: CITY OF ROCHESTER) CYNTHIA A. BELLUCCO, beingduly sworn, deposes and says that deponent is not a party to this action, is over the age of eighteen (18) years and resides at Rochester, New York. That on the 1 lth day of October, 2017, deponent served three (3) copies of the Letter Brief for Respondent upon Janet C. Somes, Esq., Assistant Public Defender, attorney for Defendant-Appellant in this action at 10 North Fitzhugh Street, Rochester, New York 14614, by depositing true copies of the same, enclosed in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State of New York. YNTH1A A. BELLUCCO Sworn to before me this day of October, 2017.nth —~p NpTAIJYPyÿjC Public, Stale ot Mo 01EM6203185 qualified in Mont commission expires w York OQ County , Mar. 30 Notary