People v. Jacobs
| Decision Date | 15 December 2005 |
| Citation | 844 N.E.2d 1126,6 N.Y.3d 188 |
| Parties | The PEOPLE of the State of New York, Respondent, v. James JACOBS, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Legal Aid Society, New York City (Karen G. Leslie and Laura R. Johnson of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Peter D. Coddington of counsel), for respondent.
In People v. Felder, 47 N.Y.2d 287, 291, 418 N.Y.S.2d 295, 391 N.E.2d 1274 [1979], this Court held that when "a defendant in a criminal proceeding has unwittingly been represented by a layman masquerading as an attorney but in fact not licensed to practice law, his conviction must be set aside without regard to whether he was individually prejudiced by such representation." We decline to extend this rule of per se reversal to every situation, such as that before us, in which a nonlawyer participates in a trial as cocounsel with an admitted attorney.
Defendant was charged in a 10-count indictment with robbery, assault and related crimes. At his bench trial, he was represented by two persons employed by the Bronx Defenders, Lisa Cartier-Giroux and Diane Shamis. Defendant was ultimately acquitted of nine of the charges against him, and convicted of the single count of grand larceny in the fourth degree.
After defendant's conviction, it was discovered that Shamis, unbeknownst to her employer and despite having held herself out for six years as an admitted attorney, had never been licensed to practice law. Although Shamis had graduated from an accredited law school and passed both the bar examination and the multistate professional responsibility examination, she never appeared before the Committee on Character and Fitness as required for her ultimate admission to the New York bar (see Judiciary Law §§ 460, 478; 22 NYCRR 520.12).1
A defendant is entitled to the effective assistance of counsel (see U.S. Const. Amend. VI; N.Y. Const., art. I, § 6). And because counsel "can mean nothing less than a licensed attorney at law" (Felder, 47 N.Y.2d at 293, 418 N.Y.S.2d 295, 391 N.E.2d 1274), a defendant who is represented only by a layperson has been completely deprived of counsel and is entitled to per se reversal of a resulting conviction.2 But when, as here, a defendant has been at all times represented by an admitted attorney, mere participation of a non-lawyer in the defense does not, without more, mandate reversal.
Rather, because the active participation of a licensed attorney throughout a defendant's trial should generally suffice to ensure that the defendant's rights are protected, a conviction should not be reversed in the absence of a showing of prejudice. Indeed, every jurisdiction to have addressed the issue before us has reached a similar conclusion (see e.g. United States v. Novak, 903 F.2d 883, 890-891 [2d Cir. 1990]; Commonwealth v. Sellon, 380 Mass. 220, 227-228, 402 N.E.2d 1329, 1336 [1980]; People v. Cox, 12 Ill.2d 265, 273-274, 146 N.E.2d 19, 24 [1957]; Riggs v. State, 235 Ind. 499, 504, 135 N.E.2d 247, 250 [1956]; Higgins v. Parker, 354 Mo. 888, 191 S.W.2d 668 [1945]).
In this case, the Appellate Division's findings that Cartier-Giroux acted as lead counsel throughout defendant's trial and that Shamis's trial participation was minimal have support in the record. As the dissent points out, Cartier-Giroux filed and subscribed all pretrial defense motions and discovery demands; argued against the People's applications made pursuant to People v. Molineux, 168 N.Y. 264, 61 N.E. 286 [1901], People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59 [1981] and People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 [1974], and in support of defendant's application under People v. Betts, 70 N.Y.2d 289, 520 N.Y.S.2d 370, 514 N.E.2d 865 [1987]; argued against recusal of the Justice originally assigned to preside over the trial; signed the waiver of defendant's right to a jury trial; cross-examined the prosecution's witness; negotiated the stipulation by which all defense exhibits were introduced into evidence; argued in support of defendant's request for an adverse inference; made most of the objections and legal arguments at trial; delivered defendant's closing argument; made a bail application on defendant's behalf after the guilty verdict; moved to set aside the verdict; and represented defendant at sentencing.
Shamis, by contrast, delivered the opening statement in this nonjury trial and conducted a brief direct examination of the sole defense witness,3 whose only purpose was to introduce an alleged prior inconsistent statement of the People's witness. In addition, Shamis made a few objections and moved to dismiss the People's case.4 At each of these stages, Cartier-Giroux was present and available to ensure that defendant received the effective assistance of counsel. Moreover, defendant fails to point to a single error arguably committed by Shamis in the course of her minimal participation in the trial.
Accordingly, the order of the Appellate Division should be affirmed.
If a defendant in a criminal proceeding is unwittingly represented at a bench trial by a law school graduate who has passed the bar but is masquerading as a duly licensed attorney, as well as duly licensed counsel, has he or she been deprived of the constitutional right to counsel? The answer to that question arguably depends in part on the level of participation of the nonlawyer. Where, as here, the person posing as an attorney and the licensed counsel were cocounsel who divided up various duties pertaining to the defendant's defense, and two of the nonlawyer's duties were to make the opening statement and present the defendant's case to the factfinder, and the licensed attorney was not the nonlawyer's supervisor, the nonlawyer's participation in the defendant's defense is significant. In light of the significant role played by the nonlawyer and given the fundamental principle that the right to counsel means the right of a defendant to be represented by an admitted attorney during all phases of the criminal proceeding, defendant has been deprived of the right to counsel under the Federal and New York constitutions. Accordingly, I dissent and would vote to reverse defendant's conviction and remand for a new trial.1
On November 13, 2001, defendant was indicted, in Bronx County, for the following 10 crimes: (1) robbery in the first, second and third degrees; (2) grand larceny in the fourth degree; (3) assault in the second and third degrees; (4) criminal possession of stolen property in the fifth degree; (5) criminal possession of a weapon in the fourth degree; (6) criminal mischief in the fourth degree; and (7) tampering with a witness in the fourth degree. In September 2002, defendant was convicted after a bench trial, of grand larceny in the fourth degree. Defendant was sentenced to an indeterminate prison term of 2 to 4 years and a final order of protection was issued.
At his bench trial, defendant was represented by Lisa Cartier-Giroux and Diane Shamis of the Bronx Defenders. It was not uncommon for the Bronx Defenders office to try cases with two lawyers who would divide the trial duties. Cartier-Giroux: (1) signed and filed the sole pretrial motion; (2) argued the defense position on the pretrial Ventimiglia,2 Sandoval,3 Betts,4 and discovery applications; (3) argued against recusal of the Justice originally presiding over the matter (defendant was eventually tried by another Justice); (4) signed documents effectuating defendant's waiver of his right to a jury trial; (5) cross-examined the sole witness for the prosecution; (6) introduced or engineered the stipulation by which all defense exhibits were introduced into evidence; (7) made the application for an adverse inference charge for the nonproduction of 911 tapes related to one of the crimes charged; (8) made a number of the objections and arguments at trial; (9) made the closing argument for the defense; (10) made a bail application on defendant's behalf after the guilty verdict; (11) moved to set aside the verdict; and (12) represented defendant at sentencing. Shamis: (1) participated in opposing the above-mentioned motion for recusal; (2) made the opening statement for the defense; (3) put on the case for the defense; (4) made a motion to dismiss at the end of the People's case; and (5) made various objections and arguments at trial.
A fair reading of the record makes clear that while Cartier-Giroux undertook a major share of the duties in defendant's representation, Shamis was trial cocounsel of record; Cartier-Giroux did not consider Shamis to be an underling in need of supervision (the only reference to a supervising attorney was made by Cartier-Giroux when she asked the court, directly before responding to the People's application seeking recusal of the original presiding Justice, whether she could confer with her supervisor); and Cartier-Giroux and Shamis, consistent with the practices of their office, divided up the duties pertaining to defendant's defense. This division of responsibility was plainly evident when Cartier-Giroux, prior to the People's opening statement and while waiting for Shamis to arrive in the courtroom, noted that the case was being tried by two lawyers, that the duties had been divided and that Shamis would be the one responsible for the opening statement. Cartier-Giroux' statements, which seemed to express concern that Shamis was not present for the People's opening, prompted the court to say, "Counsel, if you wish to have another attorney sit in, that is alright with me."
Subsequent to the verdict, it came to light that only Cartier-Giroux was an attorney admitted to practice law in New York. While Shamis graduated from an approved law school and passed the July 1996 bar examination and the August 1996 multistate professional responsibility examination,...
To continue reading
Request your trial
-
People v. Brinkley
...interview. "New York's right to counsel applies to every critical stage of the criminal proceeding" ( People v. Jacobs , 6 N.Y.3d 188, 195, 811 N.Y.S.2d 604, 844 N.E.2d 1126 [2005] [citation omitted] ), as does the parallel federal right (see Holloway v. Arkansas , 435 U.S. 475, 489, 98 S.C......
-
People v. Perkins
...not be reversed in the absence of a showing of prejudice" arising from the participation of a nonlawyer ( People v. Jacobs , 6 N.Y.3d 188, 190, 811 N.Y.S.2d 604, 844 N.E.2d 1126 [2005] ). Inasmuch as defendant has not established any prejudice from the minor participation by the nonlawyer—a......
-
People v. Konstantinides
...N.Y.S.2d 12] with the second attorney operated on the defense such that he is entitled to a new trial (see People v. Jacobs, 6 N.Y.3d 188, 190, 811 N.Y.S.2d 604, 844 N.E.2d 1126 [2005]). Nevertheless, defendant argues that he met his burden because the second attorney, who presented the def......
-
State v. Loding
...Neb. Ct. R. § 3-1003.31 See Kelly v. Saint Francis Med. Ctr., 295 Neb. 650, 889 N.W.2d 613 (2017).32 People v. Jacobs, 6 N.Y.3d 188, 190, 811 N.Y.S.2d 604, 605, 844 N.E.2d 1126, 1127 (2005) (emphasis supplied). See, also, U.S. v. Novak , supra note 27; U.S. v. Cocivera, 104 F.3d 566 (3d Cir......
-
The development of independent New York constitutional jurisprudence in Chief Judge Kaye's judicial opinions: an empirical study.
...v. Robles 855 N.E.2d 1 2006 D NY For the People Theatres of N.Y., Inc. v. City of New York 843 N.E.2d 1121 2005 D A People v. Jacobs 844 N.E.2d 1126 2005 S USNY People v. Rivera 833 N.E.2d 194 2005 D F People v. Caban 833 N.E.2d 213 2005 MP USNY People v. Catu 825 N.E.2d 1081 2005 MP A D'Am......