People v. Gomberg

• Decision Date: 29 December 1975
• Citation: 38 N.Y.2d 307,379 N.Y.S.2d 769,342 N.E.2d 550
• Parties: , 342 N.E.2d 550 The PEOPLE of the State of New York, Respondent, v. Jerry GOMBERG, Appellant. The PEOPLE of the State of New York, Respondent, v. George KAPLAN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 769

379 N.Y.S.2d 769

38 N.Y.2d 307, 342 N.E.2d 550

The PEOPLE of the State of New York, Respondent, v. Jerry GOMBERG, Appellant.

The PEOPLE of the State of New York, Respondent, v. George KAPLAN, Appellant.

Court of Appeals of New York.

Dec. 29, 1975.

Herbert S. Kassner, New York City, and Paul E. Warburgh, Jr., Huntington, for Jerry Gomberg, appellant.

Steven J. Hyman, New York City, for George Kaplan, appellant.

Robert M. Morgenthau, Dist. Atty. (Richard H. Girgenti and Peter L. Zimroth, New York City, of counsel), for respondent.

JASEN, Judge.

Jerry Gomberg, George Kaplan and Martin Hodas allegedly owned the Geisha House massage parlor located on West Forty-Second Street in the Times Square area of New York City. The three alleged partners were charged with setting fire to two competing massage parlors in an apparent attempt to burn certain competitors out of business.

According to the evidence adduced by the People at the trial, the three men had become extremely disturbed over the fact that two competing parlors were undercutting the Geisha House's prices and decided to take affirmative action. The key witnesses against the defendants were three Geisha House employees (Dexter Morton, Christopher Hatton and Earl Jones) and the owner of one of the competing parlors, Nicholas Valentine. The three employees were paid accomplices who actually set the two fires. Valentine testified that, on two occasions, the defendants threatened him. After the first massage parlor was set on fire, Valentine was warned that if he did not raise his prices, his massage parlor would be next. As it turned out, it was. The Valentine testimony was offered to corroborate the testimony of the three accomplices. (See CPL 60.22, subd. 1; People v. Daniels, 37 N.Y.2d 624, 376 N.Y.S.2d 436, 339 N.E.2d 139.)

The defendants, in cross-examination of the People's witnesses and in their own direct case, attempted to discredit the veracity of the prosecution witnesses. In addition to attempting to discredit the prosecution's witnesses, Hodas presented evidence, which was contradicted, that he was merely a landlord of the Geisha House and thus had no motive to set fire to competitor massage parlors. This defense proved to be successful, as Hodas was acquitted, while the other two defendants, appellants herein, were found guilty of two counts of arson in the second degree.

The principal issue on this appeal arises out of the joint representation of all three defendants by the same attorney, Herbert Kassner. The firm of Kassner & Detsky had performed legal services for Gomberg, Kaplan and Hodas on a continuing basis for approximately two years prior to their indictment. The defendants retained the firm to represent them in the criminal proceedings. Kassner participated in the jury selection process and tried the case. His partner, Seymour Detsky, represented the defendants in a preliminary motion for disclosure and at a proceeding conducted immediately prior to the commencement of the trial. Moreover, Kassner & Detsky also represented, at the request of the defendants, two of the accomplices (Dexter Morton and Earl Jones), who later gave incriminating testimony against the defendants. Detsky was designated to represent the two accomplices, while Kassner handled the defense of Gomberg, Kaplan and Hodas. Between six and nine months after Detsky assumed the representation of the accomplices, the attorneys discovered that the two accomplices had made statements to the authorities which implicated their principal clients. Sometime thereafter, the representation of Morton and Jones was dropped. After conviction of Gomberg and Kaplan, different counsel represented the appellants on their appeals to the Appellate Division. Although Kassner did not participate in the intermediate appeal, Kassner argued Gomberg's appeal in our court. Kaplan remains represented by other counsel.

Appellant Kaplan argues that the joint representation by Kassner & Detsky deprived him of the effective assistance of counsel. He contends that Hodas' defense of lack of economic incentive to commit the crimes charged worked to shift all of the blame upon the two remaining defendants and reinforced the prosecution's argument that the owners of the Geisha House would have the motive and opportunity to perpetrate an arson. The only defense witnesses were attorney Kassner, Hodas and Herbert Levin, the accountant for Hodas. Prejudice is asserted to lie in the failure to call witnesses in Kaplan's behalf and in the natural reluctance of Kassner to subject Hodas and Levin to a full and searching cross-examination.

In the brief for appellant Gomberg, which was prepared by Kassner, the conflict of interest point is not specifically raised. Instead, we find this rather cryptic statement: 'Various arguments, including insufficiency of evidence have been briefed by the co-defendant Kaplan on this appeal, which if found valid, would necessitate reversal of the convictions of both defendants. This brief will not go over the same ground'. This statement reflects Kassner's clear reluctance to argue that his own actions below deprived his client Gomberg of the effective assistance of counsel. As an alternative, he asserts a kind of domino theory--that if we find Kaplan to have been deprived of his constitutional right to effective assistance of counsel and reverse the conviction, we must also reverse as to Gomberg. We cannot agree with the contentions of either appellant and would affirm the orders of the Appellate Division.

In reaching a resolution of the issue of effective assistance of counsel, it is necessary to carefully balance two conflicting considerations flowing from the same constitutional protection. The right of an accused in a criminal proceeding to the assistance of counsel is guaranteed by the Federal and State Constitutions, as well as by State statute. (U.S.Const., 6th Amdt.; N.Y.Const., art. I, § 6; CPL 210.15, subd. 2.) This constitutional right may be substantially impaired if one lawyer simultaneously represents the conflicting interests of a number of defendants. (Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 86 L.Ed. 680.) However, the joint representation of defendants is not per se a denial of the effective assistance of counsel. (People v. Gonzalez, 30 N.Y.2d 28, 34, 330 N.Y.S.2d 54, 59, 280 N.E.2d 882, 885, cert. den. 409 U.S. 859, 93 S.Ct. 145, 34 L.Ed.2d 105.) A conflict exists only when the individual defenses 'run afoul of each other'. (People v. Gonzalez, supra, at p. 34, 330 N.Y.S.2d at p. 59, 280 N.E.2d at p. 885.) Yet, once a conflict is clearly established, the courts will not enter into 'nice calculations' as to the amount of prejudice resulting from the conflict. (Glasser v. United States, supra, 315 U.S. at p. 76, 62 S.Ct. 457.)

On the other hand, an important concomitant of the right to counsel is the obligation of the courts to respect a selection of counsel made by the defendant and such choice should not be lightly interfered with. (See United States v. Sheiner, 410 F.2d 337, 342, cert. den. 396 U.S. 825, 90 S.Ct. 68, 24 L.Ed.2d 76.) Once counsel is selected, the evolving relationship of attorney and client becomes increasingly close and intimate. In order to give proper professional guidance to his client, the attorney should be made fully cognizant of the relevant facts. (ABA Standards Relating to the Defense Function, §§ 3.1, 3.2; see Whiting v. Barney, 30 N.Y. 330, 332--333.) Trial strategy and tactics must be carefully planned and discussed. In order to insure that the attorney and client have the privacy necessary for effective representation, we have in our State, as a matter of public policy, given confidential attorney-client communications a privileged status. (CPLR 4503; Richardson Evidence (10th ed.), § 411, pp. 404--405.) It has even been suggested that the freedom of confidential communication between lawyer and client is as valuable as the privilege against self incrimination. (See People v. Lynch, 23 N.Y.2d 262, 271, 296 N.Y.S.2d 327, 334, 244 N.E.2d 29, 34.)

Since the right to effective assistance of counsel and the right to retain counsel of one's choice may clash when a retained attorney is involved in an apparent conflict of interest, a Trial Judge has a duty to protect the right of an accused to effective assistance of counsel. At the same time, a court should not arbitrarily interfere with the attorney-client relationship.

The court should also recognize that a defendant may not always perceive the existence of a conflict of interest in the joint representation by an attorney. Consequently, the court should be satisfied, where there is joint representation, that the defendant's decision to proceed with his attorney is an informed decision. (United States v. Truglio, 4 Cir., 493 F.2d 574, 579; United States v. Williams, 8 Cir., 429 F.2d 158, 161, cert. den. 400 U.S. 947, 91 S.Ct. 255, 27 L.Ed.2d 253; United States v. Lovano, 2 Cir., 420 F.2d 769, 772--773, cert. den. 397 U.S. 1071, 90 S.Ct. 1515, 25 L.Ed.2d 694; Campbell v. United States, 122 U.S.App.D.C. 143, 352 F.2d 359, 360; ABA Standards Relating to the Function of the Trial Judge, § 3.4; see People v. Chacon, 69 Cal.2d 765, 73 Cal.Rptr. 10, 447 P.2d 106.) The court may even inquire as to whether counsel himself has perceived the conflict and apprised his client of the risks involved. (See Lord v. District of Columbia, 235 A.2d 322, 323 (D.C.App.).) However, a court must be careful not to pursue its inquiry too far as it may infringe upon the defendant's right to retain and confer with counsel of his own choice. (See People v. Gonzalez, 30 N.Y.2d 28, 34, 330 N.Y.S.2d 54, 59, 280 N.E.2d 882, 885, Supra.) Of course, the court...