People v. Burks, 109841

• Decision Date: 16 May 2019
• Docket Number: 109841
• Citation: 172 A.D.3d 1640,99 N.Y.S.3d 790
• Parties: The PEOPLE of the State of New York, Respondent, v. Gerard BURKS, Appellant.
• Court: New York Supreme Court — Appellate Division

172 A.D.3d 1640
99 N.Y.S.3d 790

The PEOPLE of the State of New York, Respondent,
v.
Gerard BURKS, Appellant.

109841

Supreme Court, Appellate Division, Third Department, New York.

Decided and Entered: May 16, 2019
Calendar Date: March 21, 2019

99 N.Y.S.3d 791

Theodore J. Stein, Woodstock, for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

Before: Garry, P.J., Clark, Mulvey, Devine and Rumsey, JJ.

MEMORANDUM AND ORDER

Clark, J.

172 A.D.3d 1640

Appeal from a judgment of the Supreme Court (Breslin, J.), rendered October 19, 2017 in Albany County, convicting defendant upon his plea of guilty of the crime of murder in the second degree.

Defendant was indicted on the charge of murder in the second degree (intentional murder) based upon allegations that, in November 2016, he approached a woman outside of

172 A.D.3d 1641

her apartment in the City of Albany, struck her, causing her to fall to the ground, and then repeatedly stomped on her head, thereby inflicting injuries that ultimately resulted in her death. The beating was witnessed by a nearby resident and captured on street surveillance video. Defendant was apprehended near the crime scene with blood on his sneakers and clothing, which was later determined to be consistent with a DNA profile from the victim. Defendant ultimately pleaded guilty to the indictment and waived his right to appeal with the understanding that he would be sentenced to a prison term of between 18 and 19 years to life.

99 N.Y.S.3d 792

When defendant appeared for sentencing, he stated that he had no recollection of the fatal attack due to his consumption of alcohol and certain pain medication and, further, that he believed that the Albany County Public Defender's office had a conflict of interest in representing him because it was headed by a retired judge who had presided over an unrelated 2014 conviction from which he had a pending appeal. In an abundance of caution, Supreme Court relieved the Public Defender's office and assigned the Conflict Defender's office to represent defendant. Defendant thereafter moved to withdraw his guilty plea. Supreme Court denied that motion and later sentenced defendant, in accordance with the plea agreement, to 18 ½ years to life in prison. Defendant appeals, and we affirm.

"The decision whether to grant a motion to withdraw a guilty plea rests within the sound discretion of the trial court and, generally, such relief will be permitted only where there is evidence of innocence, fraud or mistake in the inducement" ( People v. Little, 92 A.D.3d 1036, 1036, 937 N.Y.S.2d 482 [2012] [citations omitted]; accord People v. Nealon, 166 A.D.3d 1225, 1226, 88 N.Y.S.3d 283 [2018] ; see People v. Nieves, 166 A.D.3d 1380, 1380, 88 N.Y.S.3d 703 [2018] ). In support of his motion, defendant asserted that his guilty plea was not knowing and voluntary due to the alleged ineffective assistance of counsel provided by the Public Defender's office. Defendant primarily took issue with the fact that the Public Defender's office continued to represent him in the face of a purported conflict of interest, as well as his counsel's alleged failure to investigate and properly advise him on a potential intoxication defense. We agree with Supreme Court that defendant's claims are without merit.

Pursuant to Judiciary Law § 17, a retired judge is prohibited from "act[ing] as attorney or counsellor in any action, claim, matter, motion or proceeding, which has been before him [or her] in his [or her] official character" (see also Rules of Professional Conduct [ 22 NYCRR 1200.0 ] rule 1.12[a] ). The Rules of

172 A.D.3d 1642

Professional Conduct impose additional restraints upon the ability of a retired judge's legal associates to undertake or continue representation "in a matter upon the merits of which the [retired judge] has acted in a judicial capacity" (Rules of Professional Conduct [ 22 NYCRR 1200.0 ] rule 1.12[a]; see Rules of Professional Conduct [ 22 NYCRR 1200.0 ] rules 1.0[h]; 1.12[d] ). The crime at issue here occurred after the Public Defender retired from judicial office and, thus, it is clear that the instant criminal matter was not before him in his official capacity (compare People v. Sumter, 169 A.D.3d 1275, 1276, 92 N.Y.S.3d 924 [2019] ). Nor is there any allegation of factual ties between the present matter and any prior matters over which the Public Defender presided (compare N.Y. St Bar Assn Comm on Prof Ethics Op 1064 [2015] ).

Defendant nevertheless suggests that his appeal from the 2014 judgment of conviction – upon which he was not represented by the Public Defender's office (see People v. Burks, 163 A.D.3d 1268, 81 N.Y.S.3d 665 [2018] ) – created a conflict of interest because he raised...