People v. Burney
| Decision Date | 22 April 2022 |
| Docket Number | 1171 KA 19-00552 |
| Citation | 2022 NY Slip Op 02737 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. GARY D. BURNEY, DEFENDANT-APPELLANT. (APPEAL NO. 3.) |
| Court | New York Supreme Court |
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ADAM AMIRAULT OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J SHOEMAKER OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND WINSLOW, JJ.
Appeal from a judgment of the Genesee County Court (Charles N Zambito, J.), rendered January 29, 2019. The judgment convicted defendant, upon a jury verdict, of burglary in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the facts, the indictment is dismissed, and the matter is remitted to Genesee County Court for proceedings pursuant to CPL 470.45.
Memorandum Defendant appeals from three judgments convicting him, following a single jury trial, of various crimes. Defendant appeals, in appeal No. 3, from a judgment convicting him of burglary in the second degree (Penal Law § 140.25 [2]), arising from an incident in which defendant, despite a stay-away order of protection in favor of his on-again, off-again girlfriend (victim), was arrested by the police after the victim allowed him to enter her apartment, where he proceeded to take a shower and a nap. In appeal No. 1, defendant appeals from a judgment convicting him of bail jumping in the second degree (§ 215.56), arising from an incident in which he failed to appear in court on the charge related to the initial arrest. In appeal No. 2, defendant appeals from a judgment also convicting him of burglary in the second degree (§ 140.25 [2]), arising from a subsequent incident in which defendant, following a multi-day stay at a hotel with the victim who accompanied him out of fear and was not allowed to leave the hotel room, returned to the apartment. There defendant argued with the victim, stayed overnight, and had sex with the victim against her will.
As a preliminary matter, to the extent that the pro se notice of appeal states that defendant is appealing from the sentences only, rather than the entire judgment in each appeal, we exercise our discretion in the interest of justice to treat the appeals as validly taken from the judgments (see CPL 460.10 [6]; People v Boldt, 185 A.D.3d 1551, 1552 [4th Dept 2020], lv denied 35 N.Y.3d 1093 [2020]; People v Flax, 117 A.D.3d 1582, 1583 [4th Dept 2014]).
Defendant contends in each appeal that he was deprived of effective assistance of counsel because defense counsel, in response to defendant's pro se requests for assignment of new counsel, took an adverse position to him by disputing certain of his factual allegations, thereby creating a conflict of interest and undermining his credibility. We reject that contention.
Although "[t]he right of an indigent criminal defendant to the services of a court-appointed lawyer does not encompass a right to appointment of successive lawyers at defendant's option..., the right to be represented by counsel of one's own choosing is a valued one, and a defendant may be entitled to new assigned counsel upon showing 'good cause for substitution,' such as a conflict of interest or other irreconcilable conflict with counsel" (People v Sides, 75 N.Y.2d 822, 824 [1990]; see People v Porto, 16 N.Y.3d 93, 99-100 [2010]). "[A] court's duty to consider... a motion [for substitution of counsel] is invoked only where a defendant makes a 'seemingly serious request[ ]'" for new counsel (Porto, 16 N.Y.3d at 99-100; see Sides, 75 N.Y.2d at 824). When a defendant's request for substitution of counsel is supported by "specific factual allegations of 'serious complaints about counsel[, ]'... the court must make at least a 'minimal inquiry'" into" 'the nature of the disagreement or its potential for resolution'" (Porto, 16 N.Y.3d at 100; see People v Smith, 30 N.Y.3d 1043, 1043-1044 [2017]; Sides, 75 N.Y.2d at 824-825; People v Medina, 44 N.Y.2d 199, 207-208 [1978]).
The requisite inquiry includes allowing the defendant to air his or her complaints, and the court may also allow defense counsel to explain his or her performance (see People v Washington, 25 N.Y.3d 1091, 1095 [2015]; People v Nelson, 7 N.Y.3d 883, 884 [2006]; People v Okolo, 35 A.D.3d 1272, 1273 [4th Dept 2006], lv denied 8 N.Y.3d 925 [2007]). Indeed, "[a]lthough an attorney is not obligated to comment on a client's pro se motions or arguments, he [or she] may address allegations of ineffectiveness [raised on a motion for substitution of counsel] 'when asked to by the court' and 'should be afforded the opportunity to explain his [or her] performance'" (Washington, 25 N.Y.3d at 1095). Nevertheless, "[w]hile defense counsel need not support a defendant's pro se motion for the assignment of new counsel, a defendant is denied the right to [effective, conflict-free] counsel when defense counsel becomes a witness against the defendant by taking a position adverse to the defendant in the context of such a motion" (People v Fudge, 104 A.D.3d 1169, 1170 [4th Dept 2013], lv denied 21 N.Y.3d 1042 [2013]; see Okolo, 35 A.D.3d at 1273). Defense counsel "takes a position adverse to his [or her] client when stating that the defendant's motion lacks merit" (Washington, 25 N.Y.3d at 1095). Conversely, defense counsel "does not create an actual conflict merely by 'outlining his [or her] efforts on [the] client's behalf'... and 'defending his [or her] performance'" (id.; see Nelson, 7 N.Y.3d at 884; People v Avent, 178 A.D.3d 1403, 1405 [4th Dept 2019], lv denied 35 N.Y.3d 940 [2020]; People v Blackwell, 129 A.D.3d 1690, 1691 [4th Dept 2015], lv denied 26 N.Y.3d 926 [2015]; Okolo, 35 A.D.3d at 1273).
Here, we conclude that defense counsel's denials of defendant's open-court allegations that defense counsel used a racial slur or other language evincing racial animus in conversations with defendant did not, without more, establish that defense counsel took a position adverse to defendant on his requests for substitution of counsel or otherwise created a conflict of interest (see Washington, 25 N.Y.3d at 1093-1095; People v Gutek, 151 A.D.3d 1281, 1282 [3d Dept 2017]; see generally People v Cambronae, 180 A.D.3d 557, 558 [1st Dept 2020], lv denied 35 N.Y.3d 1025 [2020]). Defense counsel briefly "denied the factual assertions but, importantly, did not take a position adverse to defendant on his request[s] for substitute counsel or otherwise, and no conflict of interest arose therefrom" (Gutek, 151 A.D.3d at 1282; see Washington, 25 N.Y.3d at 1093-1095). Contrary to defendant's related contention, while it would have been better practice for defense counsel to be more circumspect in his representations to County Court even in the face of defendant's continued interruptive and accusatory behavior, we conclude that defense counsel did not take a position adverse to defendant by clarifying that he did not, in fact, inform defendant that the decision to call witnesses was up to defendant (see Washington, 25 N.Y.3d at 1093-1095; Cambronae, 180 A.D.3d at 558). Defense counsel simply informed the court "what [he and defendant had] discussed" about the decision to call witnesses and, in doing so, defense counsel "never strayed beyond a factual explanation of his efforts on his client's behalf" (Washington, 25 N.Y.3d at 1095; see Cambronae, 180 A.D.3d at 558).
We reject defendant's contention in each appeal that the court erred in denying his purported pretrial requests to represent himself without conducting a searching inquiry. The record establishes that defendant "did not clearly and unequivocally request to proceed pro se," i.e., defendant's statements" 'd[id] not reflect a definitive commitment to self-representation' that would trigger a searching inquiry by the trial court" (People v Duarte, 37 N.Y.3d 1218, 1219 [2022], quoting People v LaValle, 3 N.Y.3d 88, 106 [2004]; see People v Gillian, 8 N.Y.3d 85, 88 [2006]).
Defendant also contends in each appeal that the court erred by refusing to grant an adjournment just before the beginning of jury selection to permit him to retain new counsel. That contention lacks merit. It is well settled that (People v Arroyave, 49 N.Y.2d 264, 271 [1980]; see People v Goodwin, 159 A.D.3d 1433, 1433-1434 [4th Dept 2018]; People v Robinson, 132 A.D.3d 1407, 1409 [4th Dept 2015], lv denied 27 N.Y.3d 1005 [2016]). Here, defendant "had ample opportunity to retain counsel of his own choosing before his request, and he failed to demonstrate that the requested adjournment was necessitated by forces beyond his control and was not a dilatory tactic" (People v Allison, 69 A.D.3d 740, 741 [2d Dept 2010], lv denied 14 N.Y.3d 885 [2010]; see People v Hunter, 171 A.D.3d 1534, 1535 [4th Dept 2019], lv denied 33 N.Y.3d 1105 [2019]). Considering "the reasonableness of the trial court's decision in light of all the existing circumstances" (Arroyave, 49 N.Y.2d at 272), we conclude that the court did not abuse its discretion in refusing to grant an adjournment on the eve of trial (see People v DeValle, 194 A.D.3d 1411, 1412 [4th Dept 2021], lv denied 37 N.Y.3d 964 [2021]; Robinson, 132 A.D.3d at 1409).
Contrary to defendant's further contention in appeal Nos. 2 and 3 the court did not err in permitting the People to introduce Molineux evidence related to prior incidents of domestic violence between defendant and the...
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