People v. Droz
| Decision Date | 06 May 1976 |
| Parties | , 348 N.E.2d 880 The PEOPLE of the State of New York, Respondent, v. Vidal DROZ, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Robert Bergen and William E. Hellerstein, New York City, for appellant.
Mario Merola, Dist. Atty. (Billie Manning, New York City, of counsel), for respondent.
Defendant, charged with possession and sale of dangerous drugs, was represented by assigned counsel at trial. He was found guilty of all charges and on the appeal claims that he was deprived of his constitutional right to the effective assistance of counsel because of counsel's lack of preparation for trial and ignorance of basic principles of criminal law. This complaint, frequently made, is rarely found to have merit. On this record, however, we find that the defendant's position should be sustained.
Defendant allegedly sold drugs to an undercover police officer, Detective McGuckin, on January 27, 1972 and January 31, 1972. On each occasion the officer was accompanied by an unidentified informer who apparently witnessed the sales at the defendant's apartment. Following the second sale, McGuckin, together with several other police officers, returned to the apartment and executed a search warrant. They seized 17 tinfoils of heroin, 3 hypodermic needles, a syringe, and 2 eyedroppers. Six persons, including the defendant, were found in the apartment and all were arrested. The Grand Jury returned a nine-count indictment charging the defendant with possession and sale of narcotics and related offenses. The first six counts related to the sales and the last three counts concerned the contraband seized pursuant to the search warrant. 1
Defendant and a codefendant, Angel Colon, were originally represented by the Legal Aid Society. But on July 5, 1972, apparently to avoid a conflict of interest, defendant was assigned different counsel by the court. The assigned attorney did not consult with the defendant until September 5, 1972 when the case was called for trial. On that occasion he requested an adjournment noting that he had just been advi by his client that the defendant had seven witnesses and that at least a week would be needed to examine the Legal Aid file, to employ an investigator and to examine the witnesses. The motion was denied but this first trial resulted in a mistrial because of an emergency in defense counsel's family.
When the second trial began two weeks later, defense counsel requested an adjournment because he had not yet made contact with any witnesses. Apparently he had sent letters to two of the prospective witnesses--defendant's sister and niece--but neither had responded. When the motion was denied, defense counsel renewed the application stating that the testimony of the witnesses was of 'vital importance' to the defendant's interest. But when this proved fruitless, he advised the court that he had previously discussed the matter with the defendant who 'consented to go forward without the witnesses.' However, when the court asked the defendant if he consented, the defendant stated Nevertheless theless the court adhered to its earlier decision and the case proceeded to trial.
During Voir dire defense counsel made it quite clear to the jury that the defendant had an extensive criminal record and in his opening statement advised the jury that the defendant would take the stand in his own behalf to refute the testimony of the People's witnesses.
On the third day of trial, after the People had submitted proof not only as to the sales, but also as to the contraband seized at the defendant's apartment, defense counsel discovered that the defendant had already pleaded guilty to the charges stemming from the items seized pursuant to the warrant. At this point the court dismissed the last three counts of the indictment and offered the defendant a mistrial on the six remaining counts provided the defendant himself joined in the motion.
Defense counsel advised the court that he had informed the defendant that a motion for a mistrial would have 'no merit', although 'there is an area of doubt in my mind as to the jury's being able to completely' disregard the testimony relating to the items found in the defendant's apartment. He further noted that the defendant had been unable to make a decision based on the advice he had received and expressed a lack of confidence in counsel's judgment. In view of this, the attorney requested leave to withdraw from the case.
The court denied this request and advised the defendant that it was for him alone to decide whether he wanted a mistrial. However, the defendant stated that he did not 'even understand now what is going on here.' After the court explained the 'options' the defendant was still unable to decide. The jury was recalled, advised that the last three counts had been dismissed, that all testimony relating to them should be disregarded, and the trial was resumed.
With the last three counts out of the case, Detective McGuckin became the primary witness for the prosecution since he was the only eyewitness to the sales. 2 And although he had previously testified before the Grand Jury, defense counsel did not request a copy of his prior testimony (see People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881). However in cross-examination defense counsel did elicit testimony to the effect that the defendant's apartment was used as a 'shooting gallery', i.e., a place where drug addicts gathered to inject themselves with narcotics, and attempted to establish the fact that the defendant himself was an addict. Defense counsel then pointedly observed that Colon had pleaded guilty while 'throughout this this entire proceeding Droz pleaded not guilty and that's--do you know that?' Actually this was not correct since the defendant had pleaded guilty to the second count in satisfaction of the indictment but the plea had been withdrawn.
The court, considering counsel's conduct 'outrageous' and a 'misrepresentation of the record' informed the jury ...
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