People v. Browne

• Decision Date: 24 October 1995
• Citation: 220 A.D.2d 313,632 N.Y.S.2d 785
• Parties: The PEOPLE of the State of New York, Respondent, v. Mark BROWNE, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 785

632 N.Y.S.2d 785

220 A.D.2d 313

The PEOPLE of the State of New York, Respondent, v. Mark BROWNE, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Oct. 24, 1995.

G. D'Angelica, for respondent.

B. Zolot, for defendant-appellant.

Before MURPHY, P.J., and WALLACH, ROSS, NARDELLI and TOM, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J.), rendered April 13, 1993, convicting defendant of criminal sale and possession of a controlled substance in the third degree and sentencing him, as a second felony offender, to concurrent terms of 4 1/2 to 9 years imprisonment, unanimously reversed, on the law; order, same court and judge, entered December 9, 1993, denying defendant's motion to vacate judgment, unanimously reversed and the motion granted, as a matter of discretion in the interest of justice; and the matter is remanded for new trial.

Defendant was arrested in connection with a drug buy-and-bust operation. His assigned counsel arranged for pre-trial parole to a residential drug treatment program at Daytop Village, but defendant was rejected for refusal to cut his dreadlocks on religious grounds. Counsel was then urged by Justice Massaro to sue Daytop under the Human Rights Law. That action was tried before Justice Massaro by other counsel, and resulted in judgment for Daytop (Brown v. Daytop Village, 161 Misc.2d 248, 613 N.Y.S.2d 1021). During the course of that action, certain damaging admissions were made concerning defendant's involvement with controlled substances. When the instant criminal proceeding resumed, Justice Massaro informed defendant, inter alia, that he was aware of unspecified matters in defendant's background which might never be revealed to a jury, but which he would not weigh if he were to try the case without a jury. Upon advice of counsel, defendant waived his right to jury trial. Counsel then proceeded to present a defense that was clearly inconsistent with defendant's own testimony during the civil action.

This appeal raises two points: counsel's ineffective representation in failing to review the civil proceedings at which defendant had offered testimony damaging to his criminal defense; and whether defendant's jury waiver was "knowing and intelligent", in light of counsel's unawareness of the trial judge's special knowledge. A third point, raised on appeal from denial of the motion to vacate judgment, argues that the trial judge should have recused...