People v. Chin Min Foo

• Decision Date: 01 August 1989
• Citation: People v. Chin Min Foo, 545 N.Y.S.2d 55, 144 Misc.2d 589 (N.Y. Sup. Ct. 1989)
• Parties: The PEOPLE of the State of New York v. CHIN MIN FOO a.k.a. Dennis Foo, Defendant.
• Court: New York Supreme Court

Page 55

545 N.Y.S.2d 55

144 Misc.2d 589

The PEOPLE of the State of New York v. CHIN MIN FOO a.k.a. Dennis Foo, Defendant.

Supreme Court, Criminal Term New York County, Part 56.

Aug. 1, 1989.

Robert Morgenthau, Dist. Atty., New York County by Daniel Bibb, for the people.

Peter Chen, New York City, for defendant.

HAROLD J. ROTHWAX, Justice.

The defendant, indicted for the crime of robbery in the second degree committed on October 20, 1976, pleaded guilty before this court to the lesser offense of robbery in the third degree on April 22, 1977 and was sentenced on May 24, 1977 to an indeterminate term of incarceration not to exceed four years. According to the defendant's pedigree reflected in the court's records, he was born on September 9, 1960 and was sixteen years old at the time of the incident. The court considered and denied youthful offender treatment for the defendant.

Defendant's counsel at the plea and sentence was one Joel Steinberg. Eleven years after the judgment herein was entered, Steinberg's certificate of admission to the Bar of New York State was revoked by the Appellate Division First Department. [Matter of Steinberg, 137 A.D.2d 110, 528 N.Y.S.2d 375 (1st Dept.1988) ]. The grounds for revocation were that a certificate of waiver issued by the State Board of Law Examiners was fraudulently obtained in that Steinberg "withheld material information as to his lack of qualifications" for admission under a rule of court allowing waiver of the bar examination for persons whose course of law school study had been interrupted by active service in the Armed Services after completing two thirds of the requirements for graduation ( supra, at 115, 528 N.Y.S.2d 375). Steinberg failed to meet the waiver requirement in two respects. He had been asked to leave the law school he attended due to poor academic performance, and before he had completed two thirds of the courses required for graduation. Moreover, the court found that his legal studies were not "interrupted by active service in the Armed Forces". [137 A.D.2d at pp. 111-112, 528 N.Y.S.2d 375]. The court concluded that Steinberg "was clearly ineligible for admission without having passed the Bar examination". [Id. at p. 113, 528 N.Y.S.2d 375]. Revocation was deemed necessary "if the requirements of a high moral character and fitness to practice law are to have any meaning". [Id. at p. 115, 528 N.Y.S.2d 375].

The defendant herein now moves to vacate his 1977 judgment of conviction on the ground that insofar as Joel Steinberg was never duly qualified to serve as legal counsel, the judgment was obtained in violation of defendant's Sixth Amendment right "to have the Assistance of Counsel for his defence". [U.S. Cons.Amdt. VI] [People v. Williams, 140 Misc.2d 136, 530 N.Y.S.2d 472 (Sup.Ct. Queens Co.1988) ].

In People v. Felder [47 N.Y.2d 287, 418 N.Y.S.2d 295, 391 N.E.2d 1274 (1979) ] the Court of Appeals established as a matter of law that "(c)ounsel, as the word is used in the Sixth Amendment can mean nothing less than a licensed attorney at law" [47 N.Y.2d at p. 293, 418 N.Y.S.2d 295, 391 N.E.2d 1274 (footnote omitted) ]. Felder had been represented by a lay person masquerading as a lawyer. Noting the fundamental nature of the right to counsel within the adversarial context, the Court declined to apply a harmless error analysis or to examine the quality of the nonlawyer's representation in the particular case. [Id. at pp. 295-296, 418 N.Y.S.2d 295, 391 N.E.2d 1274]. In a footnote, however, the Court noted the narrow scope of its holding stating:

"our present holding is limited to the circumstances presented, i.e., where a criminal defendant is unknowingly represented by a person who is not, and has never been, admitted to practice in this or any other jurisdiction. We do not ... determine that representation, either knowing or unknowing, by a person who has been disbarred ... is necessarily violative of the Federal and State Constitutions."

[Id. at p. 294, n. 6, 418 N.Y.S.2d 295, 391 N.E.2d 1274].

On this basis, the People argue that Steinberg having once been admitted to the practice of law by the Board of Law Examiners was "counsel" within the constitutional bounds and thus urge the court to distinguish Felder, supra, and to consider whether Steinberg in fact provided the defendant with effective representation ¹

. The court notes that there is nothing in the record which would lead to a conclusion of ineffective representation of this defendant by Steinberg under the standards applicable in a plea bargaining context, [see, e.g., People v. Modica, 64 N.Y.2d 828, 486 N.Y.S.2d 931, 476 N.E.2d 330 (1985) ] apart from a finding as a matter of law that Steinberg was not "counsel" within the Sixth Amendment [cf., People v. Williams, supra, 140 Misc.2d 136, 530 N.Y.S.2d 472].

There is no doubt about the appeal of the People's position, given the potentially disruptive effect of extending Felder to the numerous cases in which Joel Steinberg appeared as counsel over a period of years. The court notes that the lay person whose representation was at issue in Felder appeared before the Bar for twelve years and once served in the capacity of City Attorney. Based upon review of the numerous cases from other jurisdictions which have interpreted the term "counsel" within the Sixth Amendment in similar contexts, this court is constrained to hold that the term does not include one who has procured the privilege of practicing law by fraud upon the licensing authorities in the first instance.

Reviewing the history of the Sixth Amendment, the Court of Appeals in Felder, supra, notes that "(f)or centuries prior to the enactment of the Sixth Amendment, the English forerunner of the American lawyer was called or invited to practice for a Court only after the Court had satisfied itself that a person was fit to practice by virtue of his character and/or training. On the American side of the ocean, this practice continued throughout the colonial, revolutionary and post-revolutionary era of our history. Although standards for admission were not all uniform and were not always very stringent, the tradition of admission upon qualification continued to exist from even the earliest times of the American legal experience * * * " [47 N.Y.2d at p. 294, 418 N.Y.S.2d 295, 391 N.E.2d 1274; quoting from Turner v. American Bar Association, 407 F.Supp. 451, 474 (N.D.Tex.1975) (emphasis added) ].

In keeping with these principles, courts distinguish between cases in which the defendant is represented by one who has been duly admitted to the Bar, but thereafter suspended or disbarred, and cases in which the defendant's representative was never qualified to the practice of law. As stated by one federal Court of Appeals:

(W)e do not intimate that any technical defect in the licensed status of a defendant's representative would amount to a violation of the Sixth Amendment. * * * (W)here, unbeknown to the defendant, his representative was not authorized to practice law in any state, and the lack of such authorization stemmed from failure to seek it or from its denial for a reason going to legal ability, such as failure to pass a bar examination, or want of moral character (there has been a denial of the right to "counsel").

[Solina v. United States, 709 F.2d 160, 167 [CA2 1983] (footnote omit.) (bracketed text added) ].

Thus, for example, graduation from an accredited law school without subsequent bar examination and accreditation, does not constitute "counsel" within the Sixth Amendment. (Solina v. United States, supra; Huckelbury v. State, 337 So.2d 400 [Fla. DCA2d 1976]. In such cases, there is simply not the necessary assurance that the defendant has received educated representation by one whose qualifications are a matter of record according to established standards, as to constitute effective representation of counsel.

In other cases, such as administrative suspension or censure for failure to comply with rules having no bearing upon the qualification, competence or moral character of the defendant's representative, the absence of licensure in good order has been held not to amount to deprivation of representation by "counsel". Examples include a lawyer's suspension for failure to remit dues [Commonwealth v. Thomas, 399 Mass. 165, 503 N.E.2d 456 (1987); Johnson v. State, 225 Kan. 458, 590 P.2d 1082, 1087 (1979); People v. Brewer, 88 Mich.App. 756, 279 N.W.2d 307 (1979); Dolan v. State, 469 So.2d 142, 143 (Fla.App.1985); Hill v. State, 393 S.W.2d 901 (Tex.Crim.App.1965) ] or to file malpractice insurance forms [State v. Williams, 122 Ariz. 146, 593 P.2d 896 (Ariz.1979) ]; the failure of a lawyer duly admitted in another jurisdiction to obtain admission pro hac vice in the forum jurisdiction [People v. Cornwall, 3 Ill.App.3d 943, 277 N.E.2d 766 (1971); United States v. Bradford, 238 F.2d 395 (CA2 1956) ]; or to take the required oath [Wilson v. People, 652 P.2d 595, 597 (Colo.1982) ]. In these cases, the defect in licensure has no bearing on the attorney's apparent ability to represent a criminal defendant. [Dolan v. State, supra at p. 143]. In order to cure such defects, the "attorney does not have to again show his fitness or qualifications to practice law. He does not have to be re-admitted to the practice. His competency as an attorney has not been diminished". [Hill v. State, supra at p. 904].

In Joel Steinberg's case, the defect in the licensing process was neither technical nor temporary. The fraudulently obtained waiver permitted Steinberg to avoid examination on his qualification to practice law according to minimum standards of competence. The manner in which the waiver was obtained is indicative of lack of "moral character and fitness to practice law". [Matter of Steinberg, supra, 137 A.D.2d at p. 115, 528 N.Y.S.2d 375].

The People argue nonetheless that a per se rule of denial of effective assistance of counsel should not apply in this case since...