People v. Cesare

• Decision Date: 22 July 1968
• Citation: 292 N.Y.S.2d 948,30 A.D.2d 868
• Parties: The PEOPLE, etc., Respondent, v. Steve CESARE and Joseph Cruz, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 948

292 N.Y.S.2d 948

30 A.D.2d 868

The PEOPLE, etc., Respondent, v. Steve CESARE and Joseph Cruz, Appellants.

Supreme Court, Appellate Division, Second Department.

July 22, 1968.

Aaron E. Koota, Dist. Atty., Kings County, for respondent; Aaron Nussbaum, Asst. Dist. Atty., of counsel.

Anthony F. Marra, by James S. Morris, New York City, for appellants.

Before BELDOCK, P.J., and CHRIST, MUNDER, BENJAMIN and BRENNAN, JJ.

MEMORANDUM BY THE COURT.

Two judgments of the Supreme Court, Kings County, one rendered September 2, 1965 as to defendant Cesare and one September 9, 1965 as to defendant Cruz, each convicting the respective defendant of attempted burglary in the third degree and possession of burglar's instruments as a felony, upon a jury verdict, modified, on the law, by reducing the sentence on the latter count as to each defendant to one year. As so modified, judgments affirmed. The findings of fact below have been affirmed.

On this appeal, defendants contend, Inter alia, that they were denied the effective assistance of counsel by reason of the fact that they were jointly represented by a single attorney who had been assigned to act as counsel for both of them. Under the circumstances of this case, we find this claim to be without merit. While it is true that it may be error for the court to proceed with the trial where two or more defendants, Whose interests are in conflict, are represented by the same assigned counsel (People v. Powell, 21 A.D.2d 789, 250 N.Y.S.2d 592; People v. Sprinkler, 16 A.D.2d 705, 227 N.Y.S.2d 818), absent a conflict of interest which interferes with the proper presentation of the defense of one or more of the codefendants the mere fact that the codefendants are represented by the same counsel is not grounds for reversal (Lugo v. United States, 9 Cir., 350 F.2d 858). Such an assignment is not, in itself, a denial of effective assistance of counsel. It is clear that some conflict of interest must be shown before a defendant can successfully claim that the joint representation deprived him of his right to counsel (United States v. Dardi, 2 Cir., 330 F.2d 316, 335).

In our opinion, there has been no persuasive showing of any such conflict of interest between the codefendants. Moreover, our review of the record demonstrates that not only were the interests of the defendants not inconsistent, as, for example, they might be in a case where each of the defendants has made statements exculpating himself and inculpating his codefendant (cf. People v. Sprinkler, supra), but also that the attorney's representation, which fully protected and preserved the rights of each defendant, was no less effective than it would have been if he had represented either defendant alone.

We have examined each of the remaining arguments urged by defendants and conclude that, neither individually nor collectively, do any of them constitute ground for reversal.

One further point, however, merits consideration, although not raised by defendants on this appeal. The trial court, with the consent of the District Attorney, charged the jury 'to consider the count (second) only as charging possession of burglars' instruments as a misdemeanor.' However, the court subsequently sentenced each defendant on the second count as if he had been convicted of a felony. Consequently, the sentence imposed on the second count as to each defendant cannot stand and, accordingly, the term of imprisonment on said count as to each defendant should be reduced to one year, to run concurrently with the sentence imposed on the first count (Code Crim.Proc. § 543).

BELDOCK, P.J., and CHRIST and MUNDER, JJ., concur.

BRENNAN, J., concurs in the disposition as to defendant Cesare, but dissents as to Cruz and votes to reverse his judgment and grant him a new trial, with the following memorandum, in which BENJAMIN, J., concurs:

At the Huntley (People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179) hearing and at the trial, Correction Officer Arno, the sole witness at the hearing and the principal witness at the trial, testified, in substance, that on the morning of October 27, 164 at 2:15 A.M. he saw defendants in front of a grocery store. He observed defendant Cesare 'jimmying' a lock on the door of the store and defendant Cruz standing lookout. Cruz turned around and said '(s)omebody is coming'. Officer Arno approached defendants with his revolver drawn, identified himself as an officer and ordered them to raise their hands and stand against a wall until assistance arrived. In Cruz's presece, he asked Cesare '(w)hat are you doing' and Cesare replied that 'he was trying to break in * * * to get money for his habit.' The statement was found to be voluntary by the hearing judge and was introduced at the trial, without objection, through the testimony of Officer Arno. ¹ Neither defendant took the stand and the court assigned attorney failed to request that the question of voluntariness be submitted to the jury (cf. People v. Vella, 21 N.Y.2d 249, 287 N.Y.S.2d 369, 234 N.E.2d 422; People v. Castro, 19 N.Y.2d 14, 277 N.Y.S.2d 644, 224 N.E.2d 80). ²

The assistant district attorney, in his summation at the trial, referred to Cesare's statement and stated that Officer Arno testified 'that the defendant (Cesare) said They were trying to break in' and, therefore, Cesare's admission was binding upon Cruz because they were a 'team acting in concert.' The court reiterated this contention and instructed the jury, in effect, that, if they believed such was the fact, the defendants should be convicted. (No exception was taken.) The court also observed, in reconstructing the testimony, that Officer Arno had testified that Cesare said He was trying to break in and admonished the jury to consider the facts as they recalled them and not as the district attorney or the court remembered them. ³

Defendants contend that they were denied the effective assistance of counsel by the failure of the trial court, in the absence of a request, to assign additional counsel when it appeared that their interests were in conflict, In placing this contention in its proper context it is necessary to refer to what transpired at the conclusion of the Huntley hearing.

'(Defense Counsel): Your Honor, I respectfully move that any statements made, or any statements be attributed to the defendant Steve Cesare, will not be attributed to the codefendant, Joseph Cruz.

'The Court: Up to this point I have the statement made only by the defendant Cesare. We are concerned only now, at this time--I say again--with the question of voluntariness. I have denied your motions.

'Now we will commence the trial of the case, and, of course, at the appropriate time, You make the appropriate objections, * * *.'

However, at trial, defense counsel failed to make the Appropriate objections; no limiting instruction was Ever issued; and the jury was not charged at the close of the case on the nonbinding effect of the statement as to Cruz. ⁴ Nevertheless, the majority conclude that since Cesare's statement did not Expressly implicate Cruz it did not prejudice him and consequently the assignment of a single attorney to represent defendants' interests did not substantially impinge upon Cruz's constitutional rights. Parenthetically, it is interesting to note that the People do not argue that no conflict of interest existed, but instead contend that the statement was admissible against both defendants or that the Legal Aid Society had absolute discretion in choosing the number of attorneys to represent defendants. Neither contention has merit. ⁵

Accordingly, in our opinion, once the testimony of Officer Arno is carefully considered in its totality (which placed Cruz at the scene of the crime as a 'lookout' while Cesare made his incriminating admission), it becomes perfectly clear that Cesare's admission was highly prejudicial to Cruz (cf. People v. Burrelle, 21 N.Y.2d 265, 287 N.Y.S.2d 382, 234 N.E.2d 431)

and indicated that a divergence of interest existed. This conflict of interest in presenting different lines of defense was brought home to the trial court at the Huntley hearing and the trial judge, at the very least, should have then ordered a continuance and assigned additional counsel (People v. Byrne, 17 N.Y.2d 209, 270 N.Y.S.2d 193, 217 N.E.2d 23). Of course, Cesare was not prejudiced by the instant representation as he was the declarant and an objection for his benefit would have been to no avail.

Thus, his conviction, as modified, must be affirmed (Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680). However, defense counsel represented dual interests and could not object on behalf of Cruz, as that would have injured Cesare's position by highlighting the damaging admission. Since the right to counsel 'comtemplates that such assistance be untrammeled and unimpaired by a court order requiring that one attorney shall simultaneously represent conflicting interests' (Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 465, supra), it does not require great imagination to perceive that Cruz's constitutional rights were violated by the joint representation (see People v. Powell, 21 A.D.2d 789, 250 N.Y.S.2d 592; People v. Sprinkler, 16 A.D.2d 705, 227 N.Y.S.2d 818; People v. Fritz, 279 App.Div. 1020, 111 N.Y.S.2d 734).

Concededly, there was no affirmative waiver of the right to the effective assistance of counsel (Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461) and such right 'is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial' (Glasser v. United States, supra, 315 U.S. 76, 62 S.Ct. 467). ⁶ The record herein fails to convince 'beyond a reasonable doubt' that Cruz was not prejudiced by the joint representation and, therefore, the constitutional violation as to him was not harmless (Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; ...