People v. Konstantinides

• Decision Date: 17 December 2009
• Docket Number: No. 198,198
• Citation: 14 N.Y.3d 1,2009 NY Slip Op 9311,896 N.Y.S.2d 284,923 N.E.2d 567
• Parties: The PEOPLE of the State of New York, Respondent, v. George KONSTANTINIDES, Appellant.
• Court: New York Court of Appeals Court of Appeals

923 N.E.2d 567

14 N.Y.3d 1

2009 NY Slip Op 9311

896 N.Y.S.2d 284

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

No. 198

Court of Appeals of New York.

December 17, 2009.

Appellate Advocates, New York City (De Nice Powell and Lynn W.L. Fahey of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens (Karen Wigle Weiss and John M. Castellano of counsel), for respondent.

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OPINION OF THE COURT

READ, J.

Defendant George Konstantinides contends that he is entitled

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to a new trial because he was deprived of his right to conflict-free representation. At a minimum, he argues, his sentence should be vacated because Supreme Court did not hold a hearing to determine the constitutionality of one of two prior felony convictions. For the reasons that follow, we reject both claims, and uphold defendant's conviction and sentence.

I.

Defendant violated the conditions of his parole in 2003, which sparked issuance of a warrant for his arrest in June of that year. According to the People's witnesses at trial, in the early morning hours of December 20, 2003, the police learned that defendant was in a bar in Queens. They arrived just in time to see defendant follow another man out of the bar and get into a limousine parked at the curb. Defendant jumped into the passenger side, and the other man, later identified as G.T., got behind the wheel and started up the engine.

Several of the police officers approached the limousine on foot and directed G.T. to stop or shut off the engine. In G.T.'s account of what happened next, defendant retrieved a gun from a bag he was carrying and pointed the barrel at G.T., holding the gun low, near his waist. According to G.T., defendant said, "They're after me. If you don't move this limousine I'm going to kill you where you're sitting." Frightened, G.T. obeyed defendant's order. Traveling at speeds approaching 100 miles per hour, the limousine careened down city streets and eventually entered the Grand Central Parkway, pursued all the way by the police cars, their lights flashing and sirens sounding. During this high-speed chase, defendant fumbled the gun and accidentally fired a bullet into the limousine's dashboard.

Again in G.T.'s telling, defendant repeatedly instructed him to "[j]ust keep going," and that he would "tell [him] when this [was] going to come to an end." Near the 111th Street exit on the Grand Central Parkway, defendant ordered G.T. to pull over. As the car slowed, defendant jumped out, gun in hand. With three police officers in pursuit, he scrambled up an embankment into a wooded area. The officers testified that they saw "muzzle flashes" as defendant turned and shot multiple rounds in their direction; one officer returned fire. No one was injured, and defendant got away.

Detectives found defendant the next day in Manhattan, and arrested him; the gun shot off the night before was tucked in the back of his waistband. The People charged defendant with

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attempted murder in the first and second degrees (Penal Law §§ 110.00, 125.27[1]; §§ 110.00, 125.25[1]); kidnapping in the first degree (Penal Law § 135.25); and criminal possession of a weapon in the second and third degrees (Penal Law § 265.03[2];¹ § 265.02[4]²). On the first day of jury selection at defendant's subsequent trial, an attorney for whom he had worked for a time while on parole (hereafter, attorney number two) joined the defense team to "assist" the attorney who had represented defendant for the eight months preceding trial (hereafter, attorney number one).

After the People had presented the testimony of some police witnesses, the prosecutor informed the court out of the jury's presence that, during his interview of L.T., G.T.'s wife, he had acquired "information which . . . [might] bear on" attorney number two's "remaining at counsel table." He then related that L.T. had told him that defendant and attorney number two called her three times while defendant was incarcerated. L.T. claimed that, during one of these three-party calls, attorney number two asked her if G.T. would be willing to testify that the gun was his instead of defendant's. When L.T. answered that her husband would not say this because it was not true, attorney number two was alleged to have replied that the defense was going to be "that the gun was your husband's and if he doesn't agree with that, then we're just going to go ahead and say that it was his."

According to the prosecutor, L.T. further related that, during a subsequent three-party call, attorney number two threatened that "the defense was going to pay a woman named Jennifer, who . . . supposedly had some sort of extramarital affair with [G.T.] during the course of his marriage to [L.T.], to say that [G.T.] was doing drugs with [her], all during the day and that the gun was [G.T.'s] and that they were going to do that so that [L.T.] might want to distance herself from . . . [G.T.]."

Finally, L.T. informed the prosecutor that she was offered

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a diamond ring if she left her husband and married defendant because it would "look good for . . . defendant that [L.T.] had left [G.T.] . . . and had now come to be with" him. L.T. was said to have refused this overture, telling attorney number two and defendant "[a]bsolutely not and stop calling."

The prosecutor explained that, as an officer of the court, he felt obligated to convey this information to the judge. He added that while he did not know the defense's strategy, attorney number one's opening statement suggested that defendant intended to attack G.T.'s credibility. The prosecutor continued that if defendant

"claim[ed] through cross-examination or through the potential calling of witnesses that the gun was [G.T.'s] and not the defendant's, and/or if he . . . interpose[d] some sort of a defense about [G.T.'s] doing drugs during the course of the day, firstly . . . based upon these conversations which [L.T.] . . . allegedly had with [the second attorney], . . . there would be no good-faith basis to proffer that defense; and, secondly, if they were to proffer such a defense, . . . [the prosecution sh]ould be permitted to call [L.T.] to show recent fabrication."

The prosecutor noted that if this scenario, in fact, developed, the second attorney's "credibility would certainly become an issue" and "he would become a potential witness in the case." As a result, the prosecutor asked the trial judge to disqualify attorney number two and "have the defendant proceed with just [attorney number one]."

When the trial judge asked attorney number two if he wanted to respond, attorney number one interjected "[m]ay we have one second, please?" After a pause, the judge then asked attorney number two if he wanted to deal with these matters after the upcoming lunch recess. Attorney number one again jumped in, telling the judge that "I think that will be good . . . just because there are a couple of issues. First, I'd like to find out the factual scenario of any of these phone calls, and secondly, see what possible legal basis there would be to disqualify or preclude a potential line of argument on defense."

The trial judge then remarked as follows:

"Initially[,] disqualifying an attorney during the course of a trial is [a] very difficult thing to do. I've only had representations by counsel, secondhand

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representations; I haven't had a hearing on the issue."

"Beyond that, these are serious allegations and if they are pressed could certainly lead to disbarment proceedings, because, [attorney number two], allegations of suborning perjury and bribery are serious."

"I don't know if you should discuss how you want to proceed. [Attorney number one] has done all the work at this point, whether you wish to continue at counsel table and, perhaps, these matters might be injected into the trial at some point."

"Decide, as a question of strategy, first what you want to do."

When the trial resumed, the court apologized to the jury for "these delays," and the prosecutor called G.T. to the witness stand. The second attorney remained at the defense table. The record does not disclose the substance of further discussions that the court must have had with the parties to resolve the prosecution's application to disqualify attorney number two.

Attorney number one cross-examined G.T. He focused on G.T.'s relationship with defendant, and sought to undermine his insistence that he and defendant were mere acquaintances. Attorney number one's cross-examination showed that G.T. shared a lot of information about his personal life with defendant, including his history of drug abuse; that G.T. stayed with defendant in his apartment when estranged from L.T.; and that he told defendant that he had been convicted of illegally possessing a firearm and was on probation. Attorney number one also brought out that, after defendant's arrest in this case, G.T. (and L.T) twice visited defendant in jail. He questioned G.T. about whether he kept a gun in his limousine to protect himself, and whether he was "high" on December 20, 2003, evoking adamant denials. Attorney number one also elicited testimony to point out to the jury that G.T knew he would face prison time if found in possession of a gun on December 20, 2003.

Defendant testified in his own behalf; he was examined by attorney number two, whom he addressed familiarly, by his first name. Defendant acknowledged that he was aware on December 20, 2003 that he was wanted by the police, and that he was at the time running an illegal bookmaking business. He operated this business out of an office in the basement of an apartment

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in Astoria and G.T.'s limousine, which he called his "moving office." He explained that both G.T. and L.T. worked for him: G.T. drove him around to pick up betting "tickets" at neighborhood bars and strip clubs, and L.T. acted as his "secretary" by...