People v. Brown

• Decision Date: 02 May 2019
• Docket Number: No. 23,23
• Citation: 33 N.Y.3d 983,100 N.Y.S.3d 697,124 N.E.3d 247
• Parties: The PEOPLE of the State of New York, Respondent, v. Boris BROWN, Appellant.
• Court: New York Court of Appeals Court of Appeals

33 N.Y.3d 983

124 N.E.3d 247

100 N.Y.S.3d 697

The PEOPLE of the State of New York, Respondent,

v.Boris BROWN, Appellant.

No. 23

Court of Appeals of New York.

May 2, 2019

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be modified in accordance with this memorandum and, as so modified, affirmed. The Appellate Division properly affirmed the judgment of conviction, however, a hearing is required on the CPL 440.10 motion.

In the early morning hours of October 3, 2010, defendant fired into a courtyard at the AK Houses in Manhattan. He killed a seventeen-year-old victim and wounded

another bystander. The shooting was apparently in response to an earlier robbery.

Defendant and his co-defendant, Devon Coughman, were arrested and charged with various crimes, including depraved indifference murder, felony murder, felony assault, attempted robbery, and two counts of weapon possession. Jeffrey Chabrowe was hired to represent defendant. While defendant's case was pending, Ahmed Salaam, who had been present at the shooting and the earlier robbery, was arrested on unrelated charges. Salaam hired Chabrowe to represent him in that case.

After being informed of a potential conflict related to Chabrowe's concurrent representation of defendant and Salaam, Supreme Court appointed conflict counsel to advise defendant and conducted a conflicts inquiry pursuant to People v. Gomberg , 38 N.Y.2d 307, 379 N.Y.S.2d 769, 342 N.E.2d 550 (1975). The People indicated that although Salaam was present at the scene of the murder, they were not planning to call him as a witness. Additionally, Coughman's attorney represented that he was also not likely to call Salaam to testify. Conflict counsel recounted to the court that he met with defendant and explained to him that Salaam was "represented [by Chabrowe] in some unrelated case" and "may be called by the co-defendant" to testify. Conflict counsel informed the court that he discussed with defendant "the potential conflict and the problems that arise, should that happen" and that defendant indicated that he understood and wished to waive the conflict. The court then engaged in its own inquiry of defendant, who again expressed his desire to waive any conflict. The court accepted the waiver and the case proceeded to trial with Chabrowe acting as defendant's counsel.

Defendant was found guilty and sentenced to 25 years to life in prison for depraved indifference murder and to two concurrent seven-year prison terms on the weapon possession counts. The weapon possession sentences were set to run consecutively to the sentence for murder, for an aggregate sentence of 32 years to life in prison.

Defendant subsequently moved to set aside his conviction pursuant to CPL 440.10, contending that he was denied his constitutional right to effective, conflict-free, representation. With respect to the concurrent representation that was the subject of the conflict inquiry conducted by Supreme Court, defendant alleged that the only conflict explained to him was that his attorney would be prohibited from cross-examining Salaam if he were called as a witness. Although defendant had informed the trial court during the Gomberg inquiry that he or his family had hired Chabrowe, he alleged that Salaam paid Chabrowe to represent defendant, resulting in an undisclosed and "unwaivable" conflict, and that Chabrowe failed to explain any possible conflict of interest related to Salaam's payment of defendant's legal fees. In addition to his own affidavit, defendant submitted an affirmation from his current appellate counsel, who relayed details of a conversation he affirmed he had with Chabrowe about the payment of defendant's legal fees. Defendant also relied on recorded prison phone calls, which purportedly corroborate defendant's allegation that Salaam hired and paid for his attorney. Defendant concluded by noting that "[s]hould the factual allegations set forth in defendant's motion be controverted by the People, then the Court should order a hearing to resolve those issues of fact."

In response, the People dismissed the allegations in appellate counsel's affirmation as hearsay and concluded that "defendant's claims are unsupported by sworn allegations and there is no reasonable possibility that they are true." The People also argued that even assuming defendant's allegations were true, there was no conflict of interest, and in the alternative, the conflict was potential, not actual, and was waived by defendant. In this respect, the People contend that even if there was a potential conflict that was not waived, "it is due to defendant's unjustifiable failure to adduce the pertinent facts on the record." Supreme Court made no findings of fact or conclusions of law and denied the motion in a one sentence order, stating: "[d]efendant's motion pursuant to CPL 440.10 is denied without a hearing for the reasons set forth at great length in the People's opposing [papers]."

On direct appeal, defendant challenged the decision of the suppression court that an accidental viewing of defendant's photograph by a witness to the events surrounding the shooting was not police-arranged and argued that the court erred in imposing consecutive sentences. The Appellate Division affirmed the judgment of conviction and the denial of defendant's CPL 440.10 motion in a single order ( People v. Brown , 155 A.D.3d 509, 509–510, 65 N.Y.S.3d 36 [1st Dept. 2017] ). The Court held that "the record supports the conclusion that" Chabrowe had a "potential conflict of interest" that was "validly waived" ( id. at 509, 65 N.Y.S.3d 36 ). A Judge of this Court granted leave to appeal ( 31 N.Y.3d 1079, 79 N.Y.S.3d 100, 103 N.E.3d 1247 [2018] ).

"[W]hether a photo [display] is unduly suggestive is a mixed question of law and fact and our review is limited to whether there is support in the record for the finding" of the courts below (see People v. Holley , 26 N.Y.3d 514, 524, 25 N.Y.S.3d 40, 45 N.E.3d 936 [2016] ). Here, such support exists. Moreover, the suppression court found the identification to be otherwise reliable. Defendant's remaining contentions on direct appeal are without merit. Accordingly, we affirm so much of the Appellate Division's order affirming defendant's judgment of conviction.

With respect to defendant's CPL 440.10 motion, this Court has categorized conflicts of interest as either actual or potential. An actual conflict of interest arises when an attorney "ha[s] divided and incompatible loyalties within the same matter necessarily preclusive of single-minded advocacy" ( People v. Cortez , 22 N.Y.3d 1061, 1068, 981 N.Y.S.2d 651, 4 N.E.3d 952 [2014] [Lippman, Ch. J., concurring] ). A potential conflict, on the other hand, is one that may never be realized (see People v. Solomon , 20 N.Y.3d 91, 95–96, 956 N.Y.S.2d 457, 980 N.E.2d 505 [2012] ; People v. Ortiz , 76 N.Y.2d 652, 656–657, 563 N.Y.S.2d 20, 564 N.E.2d 630 [1990] ; see also Cuyler v. Sullivan , 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 [1980] ). When alerted to a conflict, the trial court must ascertain whether the defendant "has an awareness of the potential risks involved in that course and has knowingly chosen it" ( People v. Mattison , 67 N.Y.2d 462, 468, 503 N.Y.S.2d 709, 494 N.E.2d 1374 [1986] ). At least some actual and all potential conflicts may be waived (see People v. Sanchez , 21 N.Y.3d 216, 223, 969 N.Y.S.2d 840, 991 N.E.2d 698 [2013] ; Solomon , 20 N.Y.3d at 96, 956 N.Y.S.2d 457, 980 N.E.2d 505 ). Because a potential conflict presents only the possibility for conflict, however, even absent an effective waiver, "it is the defendant's heavy burden to show that a potential conflict actually operated on the defense" ( Sanchez , 21 N.Y.3d at 223, 969 N.Y.S.2d 840, 991 N.E.2d 698 ). Whether a conflict operates on the defense is a mixed question of law and fact ( People v. Ennis , 11 N.Y.3d 403, 411, 872 N.Y.S.2d 364, 900 N.E.2d 915 [2008] ; People v. Harris , 99 N.Y.2d 202, 210, 753 N.Y.S.2d 437, 783 N.E.2d 502 [2002] ).

Upon a CPL 440.10 motion, the court must consider "all papers of both parties ... and ... all documentary evidence or information, if any, ... for the purpose of ascertaining whether the motion is determinable without a hearing to resolve questions of fact" ( CPL 440.30[1] ; see People v. Jones , 24 N.Y.3d 623, 634, 2 N.Y.S.3d 815, 26 N.E.3d 754 [2014] ). A court may deny a motion to vacate a judgment of conviction without conducting a hearing in certain specific circumstances (see CPL 440.30[4] ). We review the summary denial of a CPL 440.10 motion under an abuse of discretion standard ( People v. Wright , 27 N.Y.3d 516, 520, 35 N.Y.S.3d 286, 54 N.E.3d 1157 [2016] ). On this record, we conclude that Supreme Court abused its discretion in determining that a hearing was not warranted to address the allegations contained in defendant's CPL 440.10 motion regarding Chabrowe's representation of defendant and whether any conflict of interest existed warranting reversal.

STEIN, J. (dissenting).

Because defendant failed to raise a question of fact warranting a hearing on his CPL 440.10 motion, I respectfully dissent insofar as the majority holds that Supreme Court abused its discretion in summarily resolving the motion.

Defendant was convicted of depraved indifference murder and two counts of criminal possession of a weapon after he fired a gun into a crowded courtyard, killing the 17–year–old victim and wounding another bystander. Thereafter, he filed a CPL 440.10 motion to set aside his conviction on the ground that he was deprived of his right to conflict-free representation at trial. Defendant asserted that his trial counsel, Jeffrey Chabrowe, operated "under an actual and unwaived conflict of interest" because he concurrently represented Ahmed Salaam – who was with defendant at the time of the shooting and during an earlier robbery – in an unrelated matter. Although defendant had expressly informed Supreme Court, during a pretrial Gomberg i...