People v. Byrne

• Decision Date: 28 April 1966
• Citation: 270 N.Y.S.2d 193,17 N.Y.2d 209,217 N.E.2d 23
• Parties: , 217 N.E.2d 23 The PEOPLE of the State of New York, Respondent, v. Joseph T. BYRNE and James J. Flynn, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 193

270 N.Y.S.2d 193

17 N.Y.2d 209, 217 N.E.2d 23

The PEOPLE of the State of New York, Respondent, v. Joseph T. BYRNE and James J. Flynn, Appellants.

Court of Appeals of New York.

April 28, 1966.

Julius A. Hellenbrand, Thomas J. Mackell and Carl W. Sarett, New Gardens, for Joseph T. Byrne, appellant.

Richard L. Fenstamaker and Anthony F. Marra, New York City, for James J. Flynn, appellant.

Frank S. Hogan, Dist. Atty. (Raymond S. Hack and H. Richard Uviller, New York City, of counsel), for respondent.

VAN VOORHIS, Judge.

The defendants appeal, pursuant to permission granted by Judge FULD, from judgments of the Appellate Division, First Department, which affirmed judgments of Supreme Court, New York County (KLEIN, J.), convicting each of the defendants of attempted extortion.

The defendants, police officers, were convicted of attempting to obtain $500 from Ralph Cozzino by threatening to accuse him of a crime and cause him to be arrested and prosecuted. The victim had been convicted of a felony and a misdemeanor. He had been committed to institutions as a mental defective having a mental age of eight years. During the course of the trial a police officer (McPhillips) testified that defendant Flynn had stated he would split the $500 to be obtained from Cozzino with him and cut defendant Byrne out of the deal. Thereupon the attorney representing both defendants informed the court that he could not continue to represent both defendants because it now appeared there was a conflict of interest between his clients. New counsel was assigned to represent Flynn. New counsel informed the court that he did not believe Flynn could be adequately represented at that late stage by new counsel. The original attorney moved for a mistrial upon the ground that he could not continue to represent either defendant because of privileged communications received from Flynn. Newly assigned counsel for Flynn moved for a mistrial. The motions were denied.

It is argued in behalf of both defendants and chiefly in behalf of defendant-appellant Flynn that it was error not to declare a mistrial when the evidence disclosed an important conflict of interest between the defendants who were both represented by the same counsel; that it was error not to allow Flynn's substituted counsel sufficient time to prepare for trial; that his constitutional right to representation by counsel at every stage of the trial was violated when he did not have the benefit of counsel for four days during the course of the trial.

At the commencement of the trial there was no reason on the part of Mr. Mendelson, who represented both defendants, to assume that there would be a conflict of interest between his two clients. It may be unwise for an attorney to undertake such dual representation in view of the possibility of unforeseen conflicts arising during the trial, but there is no reason to believe that Mendelson acted otherwise than entirely in good faith. As soon as the police officer (McPhillips) unexpectedly testified that defendant Flynn had stated that he would split the $500 to be obtained from Cozzino with him and cut defendant Byrne out of the deal, an obvious conflict arose. If McPhillips' testimony was true, Byrne would not be exonerated as matter of law, yet if the jury believed McPhillips it would militate in Byrne's favor. The jury might consider that, although it indicated that Byrne would have been a willing recipient of this proffered bribe, he would not have participated in the money if the project had come to fruition and that this might somewhat mitigate the seriousness of his conduct. Unless Byrne withdrew from the enterprise, this would not legally amount to a defense, but judicial notice must be taken that juries may be affected by such factors which can be utilized by counsel as part of their tactics in conducting a trial. The jury did, of course, have McPhillips' testimony before them and still they convicted both Byrne and Flynn. It may have been a matter of judgment for trial counsel for Byrne to decide whether to attempt to undermine McPhillips before the jury or to bank on his testimony. Insofar as Flynn was concerned, there could have been no doubt. It was necessary for Flynn's trial counsel to attack McPhillips and destroy his credibility if possible. It is difficult to conceive how a lawyer in Mr. Lenefsky's situation, newly retained to represent Flynn at this juncture, could have entered the trial after the jury had been drawn, and it had progressed for four days, even after McPhillips' direct examination had been completed which Lenefsky had not heard, and then, without having been versed in the atmosphere of the trial or even in what McPhillips had testified except at second hand, proceed effectively to cross-examine him. He did not even have a transcript of the testimony of McPhillips on direct or of any of the previous witnesses. Even if he had had a typewritten copy of the testimony, that would have been no substitute for the overtones or undertones of a trial to which the antennae of a trial lawyer are sensitive and which bear importantly on his effectiveness before court or jury.

That this presents a question of law for our review is demonstrated by Glasser v. United States (315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680), where a new trial was granted for the reason that a defendant in a conspiracy case (to defraud the Government by...