People v. Harris
| Decision Date | 21 November 2002 |
| Citation | 783 N.E.2d 502,753 N.Y.S.2d 437,99 N.Y.2d 202 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LAWRENCE D. HARRIS, Also Known as DAHU, Also Known as D., Appellant. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ANTHONY J. WRIGHT, Also Known as ANDREW D. SMITH, Also Known as C., Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Robert J. Boyle, New York City, for Lawrence Harris, appellant.
Daniel R. Williams, New York City, for Anthony J. Wright, appellant. Louise K. Sira, District Attorney, Johnstown, for respondent.
Eliot Spitzer, Attorney General, New York City (Laurie M. Israel, Caitlin J. Halligan, Daniel Smirlock and Robin A. Forshaw of counsel), for Attorney General of the State of New York, amicus curiae.
This joint appeal presents us with two distinct attorney conflict situations and defendants' claims that such conflicts deprived them of their constitutional right to effective assistance of counsel. Defendant Lawrence Harris maintains that his attorney's pretrial concurrent representation of a confidential informant, a key prosecution witness, was a conflict of interest that deprived him of effective assistance of counsel. Defendant Anthony Wright maintains that his attorney's prior representation of another prosecution witness, James Hill, created a conflict not obviated by Hill's consent to be cross-examined at trial by the attorney, and was further compounded by the Trial Judge's failure to conduct an inquiry into the conflict. We conclude, under the circumstances presented here, that neither alleged conflict deprived defendants of effective assistance of counsel.
Defendants additionally contend that the trial court erred by refusing to remove a seated juror who expressed concern for her safety, and by holding an in camera hearing outside of defendants' presence as to that juror's fitness to serve. We perceive no error.
Between January and April of 1996, defendants engaged in the sale of crack cocaine from the home of James Hill and Sharon Cannizzo. Pursuant to their arrangement, defendants supplied the crack cocaine, and Hill and Cannizzo interacted with the customers. After their arrests, Hill and Cannizzo entered into cooperation agreements with the prosecution and testified against the defendants both before the grand jury and at trial.
A confidential informant also testified against the defendants pursuant to a cooperation agreement. The confidential informant had purchased cocaine from Hill on three occasions by executing "controlled buys" in conjunction with a police investigation.
An alleged conflict arose when defendant Harris's pretrial attorney, Michael Albanese, simultaneously represented the confidential informant on unrelated charges. Upon discovering the "conflict" midtrial, when the informant's name was revealed, trial counsel, William Lorman, brought it to the court's attention, whereupon the court conducted an inquiry of Albanese. During the inquiry it was revealed that Albanese was unaware that he concurrently represented the informant from September or October 1996 through February or March 1997, and defendant Harris from August 1996 through January 1997.1 At the time Albanese began representing the confidential informant, he already had entered into a cooperation agreement with the District Attorney and had testified against Harris and Wright before the grand jury in July of 1996. The same District Attorney prosecuted both the informant and Harris and failed to reveal the conflict to Albanese or the court, also claiming unawareness of the conflict. Following the inquiry, County Court denied Harris's motion for a mistrial.
Defendant Wright's trial attorney, Fulton County Public Defender William Martuscello, had previously represented the prosecution witness, James Hill, on an unrelated matter. Before cross-examining Hill, the attorney, in defendant's presence, elicited the fact of his prior representation on the record and obtained Hill's consent to use any privileged information acquired as a result of the representation. Martuscello then proceeded with his questioning.
Defendants were each convicted of criminal possession of a controlled substance in the first degree, criminal facilitation in the second degree, conspiracy in the second degree, three counts of criminal sale of a controlled substance in the third degree and three counts of criminal facilitation in the fourth degree and were sentenced to consecutive prison terms for those crimes.
The Appellate Division modified the judgments in the interest of justice by directing that all sentences run concurrently, and, as so modified, affirmed. The Appellate Division rejected Harris's ineffective assistance claim, concluding that his representation was not negatively impacted where his attorney was not aware of any conflict, and it held that Wright faced no conflict where his attorney's former client consented to the cross-examination. A Judge of this Court granted leave to appeal and we now affirm.
The first issue we address is whether defendant Harris was denied effective assistance of counsel by Albanese's unknowing simultaneous representation of the confidential informant.
Both the Constitution of the United States and the New York State Constitution ensure the right to effective assistance of counsel (see US Const 6th Amend; NY Const, art I, § 6). Effective assistance is "representation that is reasonably competent, conflict-free and singlemindedly devoted to the client's best interests" (People v Longtin, 92 NY2d 640, 644 [1998], citing People v Ortiz, 76 NY2d 652, 656 [1990]). To prevail on an ineffective assistance of counsel claim, a defendant must first demonstrate the existence of a potential conflict of interest (see People v Ortiz, 76 NY2d 652, 656-657 [1990]
). Then, the "defendant must show that `the conduct of his defense was in fact affected by the operation of the conflict of interest,' or that the conflict `operated on' the representation" (People v Ortiz, 76 NY2d 652, 657 [1990], quoting People v Alicea, 61 NY2d 23, 31 [1983]; see also People v Longtin, 92 NY2d 640, 644 [1998]).
"A lawyer simultaneously representing two clients whose interests actually conflict cannot give either client undivided loyalty" (People v Ortiz, 76 NY2d 652, 656 [1990]). In the context of joint representation of codefendants, once the presence of an actual conflict situation is established, "prejudice is presumed, for `courts will not enter into "nice calculations" as to the amount of prejudice resulting from the conflict'" (People v Mattison, 67 NY2d 462, 468 [1986], quoting People v Gomberg, 38 NY2d 307, 312 [1975]).
Whether a conflict operates on the defense is a mixed question of law and fact (see People v Ming Li, 91 NY2d 913, 917-918 [1998]
; see also People v Berroa, 99 NY2d 134 [decided today]). Here, there is record support for the Appellate Division's conclusion that the potential conflict did not operate on the attorney's representation, and as such, the determination is beyond our further review. Albanese was unaware that the confidential informant was cooperating against Harris and although he advised the informant to continue cooperating with the District Attorney's office—clearly contrary to the interests of defendant Harris—the representation was not affected by the potential conflict. The grand jury testimony had been given before Albanese began his representation of the informant, and during Albanese's brief pretrial representation of Harris, he never learned the identity of the informant in the Harris case.
Typically, a conflict requiring reversal exists when defense counsel simultaneously represents defendant and the primary prosecution witness (see e.g. People v Wandell, 75 NY2d 951 [1990]
). However, unlike this case, in Wandell both defense counsel and the prosecutor were aware of the conflict and failed to disclose it to the court. Here, although the interests of the defendant and the informant were materially divergent, the record supports the lower courts' conclusion that defense counsel's unawareness of the potential conflict precludes a finding that he was somehow inhibited in singlemindedly pursuing Harris's best interests during the course of the representation. Put another way, there is nothing in the record to suggest that had Albanese earlier learned of the representation and withdrawn as Harris's attorney, subsequent counsel would have defended him in some more vigorous, less inhibited manner.
While generally both defense counsel and the prosecution had a duty to recognize potential conflict situations, and neither side apparently was aware of the conflict, what is significant is that the conflict did not operate on defense counsel's representation. Reversal of Harris's conviction therefore is not required.
There similarly is record support for the lower courts' conclusion that Wright was not deprived of effective assistance of counsel. Wright has demonstrated the existence of a potential conflict of interest since his trial attorney, Martuscello, previously represented an important prosecution witness (see People v Ortiz, 76 NY2d at 656-657
). However, the record supports the conclusion that the potential conflict did not operate on the defense. Here, Hill expressly consented to cross-examination by his former attorney, who questioned Hill concerning his prior felony convictions and his motivation for testifying. His waiver of the attorney-client privilege terminated any duty of confidentiality owed to him by Martuscello and Hill's consent to cross-examination obviated any potential conflict (see People v Lombardo, 61 NY2d 97, 103 [1984]). Hill had also been fully cross-examined by codefendant Harris's attorney, William Lorman.
Defendant Wright further...
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