The People, Respondent,v.Phillip A. Dodson, Appellant.BriefN.Y.November 16, 2017To Be Argued By: Nancy Gilligan Estimated Time: 10 Minutes STATE OF NEW YORK SUPREME COURT APPELLATE DIVISION FOURTH JUDICIAL DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- PHILLIP A. DODSON, Defendant-Appellant. BRIEF FOR RESPONDENT Monroe County Indictment Number 2013-0619 Appellate Docket Number KA 14-01031 SANDRA DOORLEY District Attorney of Monroe County Attorney for Respondent By: Nancy Gilligan Assistant District Attorney Of Counsel Suite 832 Ebenezer Watts Building Rochester, New York 14614 (585)753-4637 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ii QUESTION PRESENTED 1 PRELIMINARY STATEMENT 2 3STATEMENT OF FACTS The court had no obligation to assign new counsel to help defendant decide if he wanted to withdraw his guilty plea. POINT I 8 CONCLUSION 17 -i- TABLE OF AUTHORITIES CASES People i» Benson, 265 AD2d 814 9 People v Botting, 8 AD3d 1064 (4th Dept 2004) 10 People v Darby, 72 AD3d 1280 (3d Dept 2010) 10 People v Gibson, 126 AD3d 1300 (4th Dept 2015) 12 People v Hoff, 201 AD2d 953 (4th Dept 1994) 10 People v Hortiz, 60 AD3d 692 (2d Dept 2009) 10 People v Jackson, 85 AD3d 1697 10 People v Maclean, 48 AD3d 1215 (4th Dept 2008) 9 People v Medina, 44 NY2d 199 (1978) 8, 14 People v Reese, 23 AD3d 1034 (4th Dept 2005) 9 People v Sawyer, 57 NY2d 12 (1982), cert, denied, 459 U.S. 1178 (1983) 8 People v Sides, 75 NY2d 822 (1990) 8 People v Skaar, 225 AD2d 824 (3d Dept 1996), to denied 644 NY2d 700 (1996) 10 People v Sylvan 108 AD3d 869 (3rd Dept 2013) 16 People v Tucker _ AD3d _ (2016 NY Slip Op 03637 [4th Dept 2016]) 12 STATUTES Penal Law § 130.60 2 -ti- QUESTION PRESENTED Question: Did the denial of defendant’s request for the assignment of new counsel, for the sole purpose of discussing the possibility of filing a motion to withdraw his guilty plea, constitute an abuse of discretion? Answer: No. I PRELIMINARY STATEMENT Defendant, Philip Dodson, was convicted on October 13, 2013, following his guilty plea, of assault in the first degree (Penal Law § 130.60 [2]) in Monroe County Supreme Court (Renzi, J.). He was sentenced, as a second violent felony offender, to the agreed upon term of thirteen years in state prison plus five years of post-release supervision. There has been no stay of the sentence. Defendant is currently incarcerated at Five Points Correctional Facility, (http://nysdocslookup.docs.state.ny.us [DIN: 14-B- 0182]). 2 STATEMENT OF FACTS Indictment # 0619/2013 charged defendant with assault in the first degree, three counts of criminal possession of a weapon in the second degree and reckless endangerment in the first degree. Following his indictment, and extensive plea negotiations, the court advised defendant it would impose a sentence of thirteen years in state prison and five years of post-release supervision, as a second violent felony offender, if he plead guilty to assault in the first degree. (Transcript of 10/9/13 proceeding p.2): Mr. Dodson, 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 for one week for you to talk to your parents about the offer. I’ll 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 plead with no promises. You’ve got one week to decide. Defendant immediately accepted the offer, “I’ll take it today man. I’ll take the thirteen.” After he was re-advised that he would have one week to discuss the plea with his attorney and his family, defendant insisted he wanted to plead guilty that day. (10/9/13 p.2). Although the court initially acquiesced to defendant’s request to proceed, the plea colloquy was abandoned once defendant claimed he had not had enough time to speak with his attorney. (10/9/13 p. 3). 3 At the next court appearance, October 16, 2013, defendant’s attorney explained his contact with the defendant (10/16/13 p.2): Judge, I went to see Mr. Dodson on Friday as the court had indicated. He said he didn’t have enough of a chance to talk to me about the plea. I was unable to see him on Friday due to several contacts in the jail. I went back yesterday. Mr. Dodson refused to come down and talk to me. Given the breakdown in our relationship, I would request to be relieved from the case. Notwithstanding his attorney’s comments, defendant interjected and reiterated his desire to proceed with the guilty plea (10/16/13 pp 2-3): I would just make the request to take my time today. I accept my responsibility and just lets get this out of the way, man. Just take my time. We have nothing else to talk about. There’s nothing he can do with me. If I go through my motion, I’m forced to go to trial. I’ve had letters on my behalf. I believe they didn’t help me. I have to accept my responsibility. I got caught. Get it out of the way. 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 proceeded to disclose his concern about: (1) whether the court had reviewed statements written on his behalf; (2) if the court could assist his family in recovering money which he claimed they paid to another attorney and (3) his belief that he may have been justified in his actions. (10/13/13 pp 3-6). Defendant’s attorney clarified, (10/16/13 p.6): That is what I explained to Mr. Dodson on a couple occasions that we’re all aware he probably had a defense to the first shooting. However, 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. 4 After defendant complained about the number of times his attorney had come to visit him in jail, his attorney responded: ‘That’s why my request would be maybe a different attorney. Maybe Mr. Dodson could even talk to a different attorney.” Defendant told the court he did not want another attorney and repeatedly asked the court to permit him to enter a guilty plea. (10/16/13 p 7,8,10,11,12 jemphases added): Defendant: I don’t need another lawyer. If he could -I just feel like he didn’ t- he’s not aggressive, he didn’t argue. He didn’t even show this man this letter, probably. I have three people that were in my home that day. I feel he didn’t do what he was suppose to do for me. That’s what I feel. At the same time, I know I can’t win. You know I can’t win. I just want my story to be heard. I want to know I was also victimized. That’s it. I’m going to put this off and you’re going to see him at the jail. When he comes to see you, don’t refuse. Go talk to him. Court: Defendant: 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. Ultimately, the court decided to adjourn the matter to allow defendant an opportunity to speak further with his attorney.(10/13/13 p.12). At the next court appearance, October 30, 2013, there was the following exchange (10/13/13 pp 2-3): Defense counsel: Judge, we were last in court on the I6'h 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 16,h and today and spoke to him at length regarding the plea options and what I thought were his viable defenses. Given that conversation, I would ask once again that I should be relieved if Mr. Dodson intends to take a plea today. 5 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. Ac 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? Court: Defendant: Yes. Presumably sensing that the defendant still had concerns about pleading guilty, the court told defendant “Go ahead”. Defendant explained that he believed one of the People’s witnesses had failed to appear for Grand Jury which would render 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 he would permit defendant to withdraw his guilty plea if the grand jury minutes were insufficient. (10/30/13 pp 3-4,10). Defendant proceeded to waive any claim of self-defense and he pleaded guilty to assault in the first degree in full satisfaction of the indictment. (10/30/13 pp 7-8). On January 8, 2014 and after he was told there were no deficiencies in the Grand Jury minutes, defendant accused the court of being prejudiced against him and alleged that his attorney would not give him a straight answer. (SM 2-3). The court told defendant that he would be permitted to withdraw his guilty plea and he would be assigned new counsel (SM 3). But, defendant’s request for the assignment of new counsel 6 for the sole purpose of deciding if he wanted to withdraw his guilty plea was denied. Defendant was thereafter sentenced, as promised, as a second violent felony offender, to thirteen years in state prison to be followed by five years of post-release supervision. 7 POINT I The court had no obligation to assign new counsel to help defendant decide if he wanted to withdraw his guilty plea. Defendant claims the lower court abused its discretion when it denied his request for the assignment of new counsel, to help him decide if he wanted to withdraw his guilty plea. According to defendant, his attorney, who had represented him through the plea proceedings and who had negotiated a very favorable sentencing commitment was ineffective because there was a breakdown in communication between himself and his attorney. To support his claim defendant relies predominately on the fact that his attorney twice tried to be relieved as his attorney. (SM 3). The People submit that defendant’s generalized statements against his attorney, made prior to the imposition of sentence, did not provide the requisite “good cause” to warrant an assignment of a new attorney to help defendant decide if he wanted to withdraw his guilty plea. The standards governing the appointment of a new attorney are well established. A criminal defendant, while of course entitled to effective legal representation, does not have an absolute right to counsel of his choosing. See People v. Sawyer, 57 NY2d 12, 18- 19 (1982), cert. denied, 459 U.S. 1178 (1983); People v. Medina, 44 NY2d 199, 207 (1978). In particular, an indigent defendant's request to replace his assigned counsel should be granted only when the defendant shows good cause, such as a genuine conflict of interest or some other irreconcilable conflict with counsel. People v Sides, 75 NY2d 822, 824(1990).This Court has repeatedly held that vague or conclusory assertions that 8 defense counsel is not communicating with the defendant do not raise a serious possibility of good cause for substitution ( People v Maclean, 48 AD3d 1215, 1217 [4th Dept 2008] [defendant made only vague assertions that defense counsel was not in frequent contact with him and did not aid in his defense]; People i> Reese, 23 AD3d 1034, 1035 [4th Dept 2005] [defendant’s complaints concerning the alleged lack of communication between defendant and defense counsel were vague]; People v Benson, 265 AD2d 814, 814 [4th Dept 1999] [defendant made conclusory assertions that counsel failed to visit him frequently in jail or return his calls]). In the instant case, the first time defendant sought the assignment of new counsel was after he was told by the court that it had found the grand jury minutes sufficient and was ready to proceed with sentencing. At that point, defendant accused the court of being biased against him and he complained his attorney was ineffective because he did not want to represent him and he “needed” an attorney who could “tell me [him] what my [his] chances are that’s not on such a negative level” (SM3). When pressed on his complaints, the defendant’s claims became even vaguer (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. Defendant continued (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 9 The court repeatedly allowed defendant to air his concerns about defense counsel, and, defendant was unable to articulate a specific reason for the court to assign another lawyer, therefore the court did not abuse its discretion when it found that defendant’s vague and conclusory assertions did not suggest good cause. Even assuming arguendo that the defendant's claims were somehow neither vague nor conclusory, defendant’s contention should nonetheless be rejected. This Court has found that a complaint that a defendant cannot communicate with counsel is insufficient to warrant good cause ( People v Hoff, 201 AD2d 953, 953-54 [4th Dept 1994] [contention that defendant could no longer communicate with his counsel was insufficient for substitution]; see also People v Darby, 72 AD3d 1280, 1283 [3d Dept 2010] [defendant’s complaint that counsel was not communicating with him was inadequate for substitution]; People v Hortiz, 60 AD3d 692, 693 [2d Dept 2009] [defendant’s claim that his discussions with his attorney were too infrequent did not warrant substitution]; People v Skaar, 225 AD2d 824, 825 [3d Dept 1996], Iv denied 644 NY2d 700 [1996] [defendant’s complaint that counsel should have spent more preparation time with him did not constitute good cause for substitution]). Moreover, this Court has noted that a simple disagreement with counsel is not a complete breakdown in communication ( see People v Jackson, 85 AD3d 1697, 1699 [4th Dept 2011]; People v Boding, 8 AD3d 1064, 1065 [4th Dept 2004]). On appeal, defendant relies primarily on the two requests by his attorney to be relieved as his attorney as being evidence of the breakdown in communications. 10 However, the first request followed a refusal by defendant to meet with his attorney at the jail. The second request to be relieved followed a meeting with defendant at the jail where they discussed defendant’s sentencing exposure (after trial) and the viability of a justification defense to the assault charge. (10/16/13 p.2, 6; 10/30/13 p.2). As a practical matter, it makes perfect sense that 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 obtain the substitution of counsel at will by simply refusing to communicate with his attorney or claiming that he was dissatisfied with the representation he was receiving. Not only are defendant’s conclusory allegations insufficient to warrant an assignment of new counsel, but they are belied by the record. Defendant never asked for a new attorney until immediately prior to the imposition of his sentence. Prior to his guilty plea defendant told the court he did not need another lawyer and he acknowledged that his attorney had explained everything to him. (10/16/13 p.11;emphases added): Defendant: I don’t need another lawyer. If he could -1 just feel like he didn’t-he’s not aggressive, he didn’t argue. He didn’t even show this man this letter, probably. I have three people that were in my home that day. I feel he didn’t do what he was suppose to do for me. That’s what I feel. At the same time, I know I can’t win. You know I can’t win. I just want my story to be heard. I want to know I was also victimized. That’s it. Court: I’m going to put this off and you’re going to see him at the jail. When he comes to see you, don’t refuse. Go talk to him. Defendant: And when he comes, 1 just want to take the thirteen years. There’s nothing he can do for me. He knows -he explained it to me. 11 At the next court appearance, defendant waived his right to proceed with a justification defense and pleaded guilty to assault in the first degree. (10/30/13 pp 6*9). He did not seek new counsel and his case was adjourned for a presentence investigation and for the court to review the grand jury minutes. The transcript of the pre-plea court proceedings demonstrate an understanding by defendant that although a jury could have found he was justified in his assault of the victim, there was no viable defense to the weapon offenses. As an aside, the prosecutor never said there was a viable justification defense to the assault charge. (10/16/13 p.7). Defendant recognized an advantageous sentence commitment from the court and a desire to get the case over and done with. The cases relied upon by defendant to support his allegation of a breakdown in communications are distinguishable from the instant matter. For example, in People v Tucker _ AD3d _ (2016 NY Slip Op 03637 [4th Dept 2016]), error was found in a failure to appoint new counsel were defendant requested substituted counsel, defense counsel believed he had a conflict of interest by continuing to represent defendant and defendant had filed a grievance against his attorney. In the case before this court, the alleged breakdown of communications stemmed from defendant having refused to meet with his attorney at the jail and defendant taking offense to his attorney’s advise regarding the plea which was offered and defendant’s likelihood of success after trial. In People v Gibson, 126 AD3d 1300 [4,h Dept 2015]), error was found in the request for substitute counsel where both defendant and the attorney acknowledged a 12 breakdown in communications. Moreover, the breakdown was attributed to defense counsel as opposed to defendant. For instance, it was undisputed that defendant, who was facing a maximum sentence of 25 years in prison, had not been informed by defense counsel whether there were any plea offers in his case, notwithstanding that the trial was impending. In addition, defense counsel met with defendant only sporadically and had not yet discussed with him what defense strategy he intended to pursue against the charges. Defendant also informed the court without contradiction that defense counsel refused to return or take phone calls from defendant’s wife and failed to provide him with a copy of certain motion papers that defendant had repeatedly requested. In this case, the transcript of the pre-plea proceedings show defense counsel to be a vigorous advocate for his client. He made every effort to keep the defendant apprised of the state of the plea negotiations and he was well-aware of what defendant hoped to include in the terms of any plea bargain (/.eM a furlough, least amount of prison time possible). At the September 11, 2013 court appearance, defense counsel told the court “Mr. Harrigan [the prosecutor] and myself are still trying to discuss a little more what took place at our pre-trial conference. I did speak to my client regarding that at that point in time. Where we are, where my client is with the offer, I think I need to work on Mr. Harrigan to see if he can come down a little farther.” (9/11/13 p.2). Further efforts by counsel, on defendant’s behalf, are reflected in the comments by the court (10/9/13 p.2): ...your attorney came up here and asked me about the possibility of a furlough with a plea. That will not happen. And he asked for one more week to talk to your parents. If next week you reject the offer the thirteen is 13 off the table. Fifteen is off the table. You can plead with no promises. You’ve got one week to decide. Finally, it was defendant’s attorney who convinced the prosecutor to agree to a thirteen as opposed to a fifteen year sentence (10/16/13): I wasn’t comfortable initially even at the initial offer I extended to Mr. Young was fifteen years. We’ve had numerous discussions regarding this and I made an offer after talking to Mr. Young. Just for Mr. Dodson. In all, the record belies defendant’s claim, on appeal, that there was a breakdown in communications between himself and his attorney. As for defendant’s reliance on concerns by the prosecutor about defendant entering a plea of guilty as being indicative of a concurrence with a claim of an alleged breakdown of communications, the People disagree. It is apparent that the prosecutor voiced concerns about defendant asserting a justification defense to the assault charge which would necessitate an abandonment of the plea proceeding if he did not waive such a defense. (10/16/2013 p. 7). Finally, refusal to substitute counsel has been upheld where a defendant was guilty of delaying tactics ( People v Medina, 44 NY2d 199, 208 [1978]). In Medina, the defendant first made his dissatisfaction and his desire for new counsel known at “the twelfth hour,” and he offered no reason why he could not have done so earlier (id.). The defendant’s criticisms were also ones that were “known to him long before the day of trial” (id. at 208-09). Here, the defendant met with his counsel in the courtroom four times prior to his guilty plea. The transcript also reveals several meetings at the jail, one of which defendant refused to attain. Moreover, the court had extensive interaction with 14 the defendant, prior to the guilty plea, concerning his understanding of the terms of the plea agreement. Defendant’s request for new counsel was clearly nothing more than a last ditch effort to delay his sentencing. Perhaps because, as he told the court, his girlfriend had just given birth to his child. (12/18/13 p.7). After all, defendant had worked with his attorney for at least three months without indicating any dissatisfaction with the attorney's performance, much less asking the court to relieve him. It was only when his sentence was about to be imposed that defendant suddenly decided that he needed to speak to another attorney to decide if he wanted to withdraw his guilty plea. Defendant had almost thirty days to discuss the terms of the plea agreement with his family or another attorney before he pleaded guilty. By his own admission, his attorney explained everything to him. (10/16/13 p.l l;emphases added). Defendant had I Vt months between the time of his guilty plea and the imposition of his sentence and yet did nothing to contact the court seeking assignment of new counsel. Finally, defendant was told that he could withdraw his guilty plea and receive new counsel, but he rejected the court’s offer. (SM 3-4). The court should not be required to summarily grant a request to adjourn sentencing to allow defendant additional time to “potentially” pursue or prepare a motion with no articulated basis. This Court should find that the lower court properly exercised its discretion. Defendant's motion to withdraw his guilty plea was based on conclusory claims of ineffective assistance of counsel which were belied by the record and certainly did not 15 require the court to appoint new counsel. See, People v Sylvan 108 AD3d 869 (3,d Dept 2013)(Assigned counsel is not required to make or assist in a defendant’s motion for substitution of counsel). 16 CONCLUSION Defendant’s request for remittal of his case and the assignment of substitute counsel should be denied. Respectfully submitted, SANDRA DOORLEY Monroe County District Attorney Ebenezer Watts Building Rochester, New York 14614 Nancy Gilligan Esq., Of Counsel June, 2016 17