People v. Darwish

• Decision Date: 17 June 2021
• Docket Number: 121,KA 17-01910
• Citation: 195 A.D.3d 1515,148 N.Y.S.3d 318
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard DARWISH, Defendant-Appellant.

195 A.D.3d 1515

148 N.Y.S.3d 318

The PEOPLE of the State of New York, Respondent,

v.Richard DARWISH, Defendant-Appellant.

121

KA 17-01910

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

Entered: June 17, 2021

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DIANNE C. RUSSELL OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.

PRESENT: PERADOTTO, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted on counts one through five and seven of the indictment.

Memorandum: In this prosecution arising from the knifepoint robbery of a vehicle from a woman and her teenage daughters in the parking lot of a shopping mall, defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, robbery in the first degree ( Penal Law § 160.15 [3] ) and robbery in the second degree (§ 160.10 [3]). Defendant contends that County Court committed reversible error by failing to conduct an inquiry into his complaints about defense counsel at several junctures during the proceedings. We agree with defendant in part.

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, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990] ; see People v. Porto , 16 N.Y.3d 93, 99, 917 N.Y.S.2d 74, 942 N.E.2d 283 [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, 917 N.Y.S.2d 74, 942 N.E.2d 283 ; see Sides , 75 N.Y.2d at 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ). 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, 917 N.Y.S.2d 74, 942 N.E.2d 283 ; see People v. Smith , 30 N.Y.3d 1043, 1044, 67 N.Y.S.3d 575, 89 N.E.3d 1255 [2017] ; Sides , 75 N.Y.2d at 825, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ; People v. Medina , 44 N.Y.2d 199, 207, 404 N.Y.S.2d 588, 375 N.E.2d 768 [1978] ). In addition, "where potential conflict is acknowledged by counsel's admission of a breakdown in trust and communication, the trial court is obligated to make a minimal inquiry" ( Porto , 16 N.Y.3d at 101, 917 N.Y.S.2d 74, 942 N.E.2d 283 ).

Contrary to defendant's contention, the court was not obligated to make a minimal inquiry based on his statements prior to a suppression hearing inasmuch as " ‘the record reflects that both defendant and the court understood that defendant sought an adjournment ... and did not request new assigned counsel’ " ( People v. Raghnal , 185 A.D.3d 1411, 1413, 127 N.Y.S.3d 665 [4th Dept. 2020], lv denied 35 N.Y.3d 1115, 133 N.Y.S.3d 511, 158 N.E.3d 528 [2020], quoting People v. Johnson , 94 A.D.3d 1496, 1497, 942 N.Y.S.2d 741 [4th Dept. 2012], affd 20 N.Y.3d 990, 960 N.Y.S.2d 55, 983 N.E.2d 1239 [2013] ; see generally Porto , 16 N.Y.3d at 99-100, 917 N.Y.S.2d 74, 942 N.E.2d 283 ). We similarly reject defendant's contentions that the court was required to conduct a minimal inquiry following his submission of two letters to the court containing allegations of various shortcomings in defense counsel's performance and that his subsequent pro se motion to reopen the suppression hearing contained complaints about defense counsel that warranted an inquiry by the court. Neither the letters nor the motion "contained a request that the court provide defendant with substitute counsel" ( Raghnal , 185 A.D.3d at 1412, 127 N.Y.S.3d 665 ), and thus "it cannot be said that the court erred in failing to conduct an inquiry to determine whether good cause was shown to substitute counsel" ( People v. Singletary , 63 A.D.3d 1654, 1654, 880 N.Y.S.2d 829 [4th Dept. 2009], lv denied 13 N.Y.3d 839, 890 N.Y.S.2d 455, 918 N.E.2d 970 [2009] ; see People v. Clark , 136 A.D.3d 1367, 1368, 25 N.Y.S.3d 485 [4th Dept. 2016], lv denied 27 N.Y.3d 1130, 39 N.Y.S.3d 112, 61 N.E.3d 511 [2016] ; People v. La Bar , 16 A.D.3d 1084, 1085, 791 N.Y.S.2d 233 [2005], lv denied 5 N.Y.3d 764, 801 N.Y.S.2d 259, 834 N.E.2d 1269 [2005] ; cf. Sides , 75 N.Y.2d at 824-825, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ).

We agree with defendant, however, that the court committed reversible error by failing to conduct an inquiry following defense counsel's submission of a letter seeking to be relieved from the case and in light of defendant's responses to that letter. In particular, the record establishes that defense counsel—prompted by defendant's prior specific complaints about her failure to file motions, seek relevant evidence through discovery such as surveillance video of the incident, investigate specified witnesses, and engage in meaningful consultation and preparation—expressed a breakdown in trust and communication based on her interactions and appearances with defendant and sought to be relieved from representing defendant on the ground that she was unable to handle his case (see People v. Gibson , 126 A.D.3d 1300, 1301, 6 N.Y.S.3d 198 [4th Dept. 2015] ). In his responsive letter, which included a request for substitution of counsel, defendant expressly stated that there had been "a breakdown in communication between attorney and client." Defendant's subsequent response also indicated that he was requesting new counsel on the basis of his complaints and the breakdown in the relationship. Defendant's specific complaints remained uncontradicted by defense counsel inasmuch as she failed to address them in her letter or at a later appearance when defendant once again voiced his complaints (see People v. Beard , 100 A.D.3d 1508, 1511, 953 N.Y.S.2d 805 [4th Dept. 2012] ). We thus conclude on this record that "[d]efendant's request on its face suggested a serious possibility of irreconcilable conflict with his lawyer, as evidenced by the [acknowledgment] of counsel that a complete breakdown of communication and lack of trust had developed in their relationship" ( Sides , 75 N.Y.2d at 824-825, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ). "[W]here[, as here,] potential conflict is acknowledged by counsel's admission of a breakdown in trust and communication, the...