People v. Arroyave

Decision Date10 January 1980
Citation49 N.Y.2d 264,401 N.E.2d 393,425 N.Y.S.2d 282
Parties, 401 N.E.2d 393 The PEOPLE of the State of New York, Respondent, v. Luis ARROYAVE, also known as Henry Fortwl, Appellant.
CourtNew York Court of Appeals Court of Appeals
Mark Lemle Amsterdam, New York City, for appellant

JASEN, Judge

On this appeal, the sole issue presented for our determination is whether the trial court's denial of a motion to grant newly retained counsel an adjournment to enable him to prepare for trial deprived defendant of his constitutionally guaranteed right to be defended at trial by counsel of his own choosing.

The facts relevant to this appeal are as follows: Defendant was arrested on September 9, 1974 and charged, in a 12-count indictment, with various offenses arising out of the sale and possession of marihuana and cocaine on three separate occasions. On September 11, 1974, an attorney was assigned to represent defendant pursuant to article 18-B of the County Law. Some two months later, defendant requested that assigned counsel be relieved and new counsel assigned. This request was denied.

Although the record reveals that assigned counsel represented defendant in a most diligent and conscientious manner, defendant remained persistent in his efforts to obtain newly assigned counsel. Each subsequent request to relieve assigned counsel and to substitute newly assigned counsel was denied, 1 and after the completion of various pretrial proceedings, the parties were advised to be ready to proceed to trial on September 23, 1975.

On September 23, 1975, while the jury panel was assembled for preliminary instructions, one Frank Bress, an attorney with the New York University Criminal Law Clinic, appeared and advised the court that defendant had written him a letter in early April, 1975 "seeking my assistance in his defense." 2 Mr. Bress explained that he responded to defendant by letter dated April 10, in which he advised defendant that "if (defendant) gave me a bit more information about his case; adjourned date and brief description of the case, that I would investigate the situation and probably represent him."

Mr. Bress explained further that it had come to his attention that the letter he sent to defendant "was held by the Department of Corrections until September 19, four days ago" when it was given to defendant, who immediately responded by letter to Mr. Bress apprising him of the situation. Mr. Bress stated that he received the letter that very morning, and "tracked down the court clerk and found out the status and I am here to tell the Court I will appear as counsel for the defendant."

The following colloquy ensued between Mr. Bress and the court:

"THE COURT: We started this trial, counsel.

"MR. BRESS: I understand. What the defendant discussed with me in the pen and in his letter, he told me he was dissatisfied with counsel then representing him and was attempting to have counsel (relieved) and new counsel appointed. I think that there is probably a comedy of errors. The letter held by the Department of Corrections and not being directed toward (defendant) earlier.

"THE COURT: Is it that you want to try the case? Do you want to sit in?

"MR. BRESS: I will try the case. I think it would be unreasonable to ask me to try the case this morning.

"THE COURT: I'm sorry, counsel.

"MR. BRESS: I think that it appears the defendant's Constitutional Right to representation by counsel of his own choice has apparently been violated in part by the Department of Correction in not forwarding my letter to him. Had that letter been forwarded I would have been installed as counsel much earlier and been ready to try the case.

"THE COURT: You wrote to him saying you want more information and perhaps you might represent him.

"MR. BRESS: Yes.

"THE COURT: You never did come in and sign a slip of paper saying that you in fact represent this defendant the first time.

"MR. BRESS: I never did.

"THE COURT: I am not about to interrupt this trial which has already commenced to permit you to make an application for any kind of adjournment.

"THE COURT: Do you want to try the case?

"MR. BRESS: Yes.

"THE COURT: I will substitute you right now in (assigned counsel's) place and you can sit there and proceed with the selection of the jury.

"MR. BRESS: I think you are aware that would probably be less than good representation than he already has.

"THE COURT: What is your application?

"MR. BRESS: My application is for a delay of the trial to allow me sufficient time to prepare myself to try it.

"THE COURT: Your application is denied."

Thereafter, the case was tried defendant being represented by assigned counsel and the jury returned a verdict finding defendant guilty of two counts of criminal sale of controlled substances in the first degree. Defendant was sentenced to concurrent terms of 15 years to life.

On appeal, a divided Appellate Division affirmed the judgment of conviction. That court ruled, in essence, that under the particular facts of this case, the trial court did not abuse its discretion in denying Mr. Bress' application for a trial adjournment so as to deprive defendant of his right to defend by counsel of his own choosing. The order of the Appellate Division should be modified, and the case remitted to Supreme Court, New York County, for an evidentiary hearing on the issue whether the Department of Correction obstructed defendant's efforts to secure counsel of his own choosing by delaying delivery to defendant of the letter from Attorney Bress, dated April 10, 1975, until September 19, 1975.

It is certainly well established that the right to counsel, guaranteed by both the Federal and State Constitutions (U.S. Const., 6th Amdt.; N.Y. Const., art. I, § 6), embraces the right of a criminal defendant to be represented by counsel of his own choosing. (Chandler v. Fretag, 348 U.S. 3, 9, 75 S.Ct. 1, 4, 99 L.Ed. 4; Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158; People v. Hannigan, 7 N.Y.2d 317, 318, 197 N.Y.S.2d 152, 153, 165 N.E.2d 172, 173; People v. McLaughlin, 291 N.Y. 480, 482, 53 N.E.2d 356, 357; People v. Price, 262 N.Y. 410, 412, 187 N.E. 298, 299.) As a necessary corollary to this right, a defendant must be accorded a reasonable opportunity to select and retain his counsel. (See Chandler v. Fretag, 348 U.S., at pp. 9-10, 75 S.Ct., at pp. 4-5, supra; United States v. Bragan, 4 Cir., 499 F.2d 1376, 1379.)

This constitutional guarantee ensuring the right of a defendant to be represented at trial by counsel of his own choosing serves many critical needs. Paramount among these considerations is the need for a defendant to be willing to confide freely and fully in his attorney so that the channels of communication and advice between counsel and his client may remain free-flowing and unobstructed. Mutual co-operation between defendant and counsel is often times a critical prerequisite to effective legal representation, and an atmosphere of trust and respect can best be obtained if a defendant's choice of counsel is honored. (Cf. Baird v. Koerner, 9 Cir., 279 F.2d 623, 629-630.)

In addition, the accused is more likely to harbor a feeling that his presumed innocence and individual rights were scrupulously protected at trial. By granting a defendant a reasonable opportunity to retain counsel of his own choosing, individual rights are honored and the ultimate public concern at any criminal trial the need to discern the truth is best effectuated. (See, generally, Comment, An Examination of the Sixth Amendment Right to Choose Retained Counsel, 60 Iowa L.Rev. 328, 331-332.)

The courts of this State have remained vigilant in their duty to ensure that a defendant's right to retain counsel of his own choosing is protected. Thus, it has been held to be reversible error where a court does not honor a defendant's timely request to retain counsel (see, e.g., People v. McLaughlin, 291 N.Y. 480, 53 N.E.2d 356, supra; People v. Walker, 29 A.D.2d 973, 289 N.Y.S.2d 284; People v. Faracey, 46 Misc.2d 46, 259 N.Y.S.2d 1), or where a court proceeds with the trial, the taking of a guilty plea, or sentencing in the absence of the defendant's retained counsel, even though an attorney has been assigned to represent the defendant's interests (see, e.g., People v. Fitch, 25 A.D.2d 783, 269 N.Y.S.2d 521; People v. Gordon, 262 App.Div. 534, 30 N.Y.S.2d 625; People v. Di Salvo, 19 A.D.2d 747, 242 N.Y.S.2d 886; People v. Iacona, 44 Misc.2d 573, 254 N.Y.S.2d 359 1. In short, courts must remain sensitive to the benefits which both the defendant and the legal process itself derive from permitting the criminally accused to obtain counsel of his own choosing, and should undertake the steps reasonably required to ensure that the defendant's right to retain counsel is honored.

Although a defendant has the constitutionally guaranteed right to be defended by counsel of his own choosing, this right is qualified in the sense that a defendant may not employ such right as a means to delay judicial proceedings. The efficient administration of the criminal justice system is a critical concern to society as a whole, and unnecessary adjournments for the purpose of permitting a defendant to retain different counsel will disrupt court dockets, interfere with the right of other criminal defen...

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