People v. Felder

• Decision Date: 14 February 1978
• Citation: 61 A.D.2d 309,402 N.Y.S.2d 411
• Parties: The PEOPLE, etc., Respondent, v. Julian FELDER, Appellant. The PEOPLE, etc., Respondent, v. Mayso TUCKER, Appellant. The PEOPLE, etc., Respondent, v. Harold E. WRIGHT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 411

402 N.Y.S.2d 411

61 A.D.2d 309

The PEOPLE, etc., Respondent, v. Julian FELDER, Appellant.

The PEOPLE, etc., Respondent, v. Mayso TUCKER, Appellant.

The PEOPLE, etc., Respondent, v. Harold E. WRIGHT, Appellant.

Supreme Court, Appellate Division, Second Department.

Feb. 14, 1978.

James J. McDonough, Mineola (Howard B. Comet and Matthew Muraskin, Mineola, of counsel), for appellant Felder.

Roth & Balanoff, Mineola (Melvyn K. Roth, Mineola, of counsel), for appellant Tucker.

Robert Rivers, P. C., Hempstead, for appellant Wright.

Denis Dillon, Dist. Atty., Mineola (Steven R. Bernhard and William C. Donnino, Mineola, of counsel), for respondent.

Before MOLLEN, P. J., and TITONE, COHALAN, MARGETT and HAWKINS, JJ.

TITONE, Justice.

The defendant in each of these three appeals was represented in the County Court by one Albert Silver. Neither at the time of such representation nor at any other time was Silver duly authorized to practice law either in this State or in any other jurisdiction. Each defendant, unaware of that fact when represented by Silver, appeals from a denial of his motion under CPL 440.10 to vacate the judgment of conviction. Defendant Felder was convicted after a jury trial of robbery in the first degree and grand larceny in the third degree, while defendant Tucker's conviction for criminal sale of a dangerous drug in the third degree and defendant Wright's for rape in the third degree, were rendered after pleas of guilty.

On appeal each defendant argues that his representation in the County Court by a person not admitted to practice law constituted a violation of his Sixth Amendment rights, thus voiding all proceedings in that court per se, and requiring that the ensuing conviction be set aside. I disagree with that conclusion.

Concededly, the fact that each of the defendants was represented in the County Court by a layman masquerading as a lawyer raises an issue of constitutional dimension. However, not all errors which violate the Constitution of the United States call for reversal (cf. Harrington v. California, 395 U.S. 250, 253-254, 89 S.Ct. 1726, 23 L.Ed.2d 284). Constitutional errors insignificant in the setting of a particular case may, consistent with the Federal Constitution, be deemed harmless, not requiring an automatic reversal of the conviction (cf. Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705). Even constitutional error may be harmless where it is clear, beyond a reasonable doubt, that the error did not contribute to defendant's conviction (People v. Almestica, 42 N.Y.2d 222, 224, 397 N.Y.S.2d 709, 710, 366 N.E.2d 799, 800).

We therefore concur with the view expressed by each of the County Court Judges whose decisions are before us that representation of an accused by an unlicensed counsel does not per se mandate vacating of the judgment of conviction (see People ex rel. Harrington v. Martin, 263 App.Div. 922, 32 N.Y.S.2d 406, mot. for lv. to app. den. 263 App.Div. 1025, 34 N.Y.S.2d 270, lv. to app. den. 288 N.Y. 740, cert. den. 316 U.S. 678, 62 S.Ct. 1107, 86 L.Ed. 1751; People v. Cox, 12 Ill.2d 265, 146 N.E.2d 19. The test of due process in such an instance is not whether the defendant had an attorney, licensed or unlicensed, but whether under all of the circumstances his conviction was obtained in such a manner as to be offensive to the common and fundamental idea of what is fair and right (see People v. Cornwall, 3 Ill.App.3d 943, 277 N.E.2d 766).

An in-depth review of the entire record in each of the three cases on appeal reveals the following:

PEOPLE v FELDER

With respect to routine defense work, Silver requested a bill of particulars, used 18 peremptory challenges to potential jurors, requested that witnesses be excluded from the court, and conducted a voir dire in connection with each of the People's exhibits. He conducted a lengthy Wade hearing, and utilized that hearing to elicit testimony from a detective and the complaining witness in order to "lock in" their testimony for impeachment purposes at the trial.

In his opening statement at the trial Silver tried to impress upon the jurors the inherent unreliability of eyewitness identification testimony. Consistent with such strategy, he questioned the complainant in order to demonstrate to the jury that the latter had not obtained a good look at the perpetrator of the robbery and that the lighting conditions had been bad. Silver elicited an admission from the complainant that he had a prior criminal record. In order to impeach the complainant's testimony that the perpetrator had "gritted his teeth" during the robbery, Silver not only produced two witnesses to corroborate Felder's testimony that he did not have any upper front teeth at the time, but produced records of his attempts to obtain false teeth from a health center and a family service center.

In his summation, Silver laid great stress on the testimony concerning the perpetrator's front teeth and Felder's lack of same, and reminded the jury that no weapon had been produced at the trial. During its deliberations the jury requested that the complainant's testimony as to the perpetrator's description be reread. Furthermore, that body was out for some eight hours before returning a verdict.

From the above recital, I come to the inevitable conclusion that Silver's representation of Felder was most effective, exceedingly thorough and highly professional.

PEOPLE v TUCKER

Three indictments were returned against defendant Mayso Tucker: two of those indictments charged him with two counts each of criminally selling a dangerous drug in the third degree, a class C felony, and criminal possession of a dangerous drug in the fourth degree, a class D felony (a total of eight counts, four in each indictment); the third indictment charged, inter alia, criminal possession of a forged instrument in the second degree and forgery in the second degree, class D felonies. The maximum exposure Tucker faced for a class C felony conviction would have been 15 years, and for a class D, a maximum of seven years. Since there were three separate indictments, he could have received consecutive sentences. However, Tucker was permitted to plead to one count of criminally selling a dangerous drug in the third degree in satisfaction of both drug indictments, and to a reduced charge of criminal possession of a forged instrument in the third degree, a class A misdemeanor, in satisfaction of the forgery indictment. Although promised a sentence of no more than five years at the time the pleas were taken, Tucker in fact was given a maximum of three years on the drug conviction, and a definite one-year sentence on the forgery charge, both sentences to run concurrently. In view of the foregoing, I believe that Silver's efforts in obtaining a most advantageous plea on behalf of his client constitute substantially more than mere adequate representation. It is highly doubtful that a duly licensed attorney experienced in criminal matters could have obtained a better result.

PEOPLE v WRIGHT

In the Wright case, defendant was charged under a nine-count indictment with rape in the first degree, rape in the third degree, sodomy in the first degree (two counts) sodomy in the third degree (two counts), sexual abuse in the first degree and endangering the welfare of a child (two counts). That indictment stemmed from his sexual assaults or advances upon two females under 17 years of age. In a second indictment containing six counts, Wright was charged with two counts of first degree sodomy, two counts of sexual abuse in the first degree, and two counts of unlawful imprisonment. That indictment likewise stemmed from his sexual assaults or advances on the same two females.

In view of the fact that defendant had a predicate felony conviction, a conviction under either indictment for first degree rape or first degree sodomy, each a class B felony, would have mandated that he receive at least an indeterminate prison term of 41/2 to 9 years, and would have exposed him to a maximum term of 121/2 to 25 years.

After a hearing on the admissibility of a written statement made by him, which the County Court found he made voluntarily, Wright pleaded guilty to rape in the third degree in satisfaction of both indictments. As a second felony offender he received the minimum sentence possible, namely, an indeterminate term of imprisonment of one and a half to three years. In my opinion this record strongly suggests that Silver did more than a creditable job for Wright. In view of the factors present (maximum exposure and written confession), the plea negotiated by Silver was undoubtedly in the best interest of his client.

Thus, the record conclusively demonstrates that Silver represented each defendant ably, diligently, competently and conscientiously; there is no reasonable possibility that his infirmity (lack of admission to the bar) was the raison d'etre for, or in any way contributed to, their convictions. Thus, such error or infirmity was harmless beyond a reasonable doubt, and the convictions should not be nullified as a matter of law (cf. People v. Almestica, 42 N.Y.2d 222, 397 N.Y.S.2d 709, 366 N.E.2d 799, supra ).

We have examined other issues raised by each of the defendants and have found them to be without merit. Accordingly, the orders appealed from should be affirmed.

COHALAN and MARGETT, JJ., concur in the opinion of Mr. Justice TITONE.

HAWKINS, Justice (dissenting).

I dissent and vote to reverse the orders and grant the motions to vacate the judgments of conviction.

Fortunately, the unadorned common issue presented by these three appeals is most rare: should convictions, one after a jury trial and two by guilty pleas, be set aside upon it being established that each of the three defendants were represented by a rank impostor a layman one Albert Silver, who presumed to act as a duly admitted attorney, who purported to be a lawyer but, in fact, never completed law...