People v. LaBrake

• Decision Date: 20 July 1970
• Citation: 35 A.D.2d 631,312 N.Y.S.2d 959
• Parties: The PEOPLE of the State of New York, Respondent, v. Floyd Harold LaBRAKE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 959

312 N.Y.S.2d 959

35 A.D.2d 631

The PEOPLE of the State of New York, Respondent, v. Floyd Harold LaBRAKE, Appellant.

Supreme Court, Appellate Division, Third Department.

July 20, 1970.

Owens D. Grogan, Franklin County Dist. Atty., Malone, for respondent.

William F. Maginn, Jr., Malone, for appellant.

Before HERLIHY, P.J., and REYNOLDS, COOKE, GREENBLOTT and SWEENEY, JJ.

GREENBLOTT, Justice.

Appeal from an order of the County Court of Franklin County, entered November 14, 1969, which denied, without a hearing, a motion to vacate a judgment convicting defendant of burglary in the second degree.

The Public Defender of Franklin County was assigned to represent the defendant, but disqualified himself on the ground that he represented the corporation for whom the victim of the burglary was employed as a manager, and that this relationship constituted a conflict of interest. Thereafter the Assistant Public Defender was assigned to defend appellant.

Appellant contends that, at the trial, although the Assistant Public Defender conducted the examination of the witnesses, the Public Defender was always present and thus advised and influenced the Assistant so as to 'vicariously represent appellant'. It is further alleged that the Public Defender actively engaged in the trial by making a major decision that certain defense witnesses should not be called.

We find nothing in the record to support the allegations of appellant that he was prejudiced by the manner in which the Assistant Public Defender conducted his defense. His contentions, in our view, amount to charges of incompetence and poor trial tactics on the part of the Assistant Public Defender, which would not entitle him to relief. (People v. Brown, 7 N.Y.2d 359, 197 N.Y.S.2d 705, 165 N.E.2d 557; People v. Rossi, 28 A.D.2d 619, 280 N.Y.S.2d 18.)

There is nothing in the petition to indicate that the decision of the Assistant Public Defender not to call as witnesses three police officers who returned appellant to the hospital from which he had eloped on the evening prior to the burglary, was anything but a decision of trial management. Appellant contends that the police officers' testimony would bolster his insanity defense. However, this decision of trial tactics was in the hands of the Assistant Public Defender and we should not 'second guess' counsel in such matters. Appellant's contention that his counsel did not do his best in presenting his insanity defense fails since the Assistant Public Defender did call expert witnesses on this issue.

We find nothing in the record to indicate that the Public Defender participated in the trial in any way. He did not interrogate a single witness. Neither did he open or close to the jury. Nor are we convinced that adequate grounds existed for the disqualification of the Public Defender. He did not represent the victim of the burglary, but merely the corporation for whom the victim was employed. Such a tenuous relationship hardly constitutes grounds for disqualification. In any event, no prejudice has been shown.

Order affirmed.

HERLIHY, P.J., and REYNOLDS, GREENBLOTT and SWEENEY, JJ., concur.

COOKE, J., dissents and votes to reverse in a memorandum.

COOKE, Justice (dissenting).

At issue here is whether or not defendant is entitled to a hearing.

His petition alleges: that he was charged with burglary in the first degree in entering the dwelling of Thomas Vensel on November 12, 1967; that the Franklin County Public Defender was assigned to represent him and thereafter, with the Assistant Public Defender, visited him to learn 'his tale concerning the alleged burglary and to prepare for trial'; that, although the assistant conducted the examination of witnesses at trial, the Public Defender 'was always present and overseered, piloted, advised and influenced (the assistant) in his representation of petitioner to such an extent that petitioner was, for all practical purposes, vicariously represented' by the Public Defender; that the Public Defender took part in a chambers discussion involving the prosecution's attempt to introduce an alleged confession; that he countermanded defendant's request that he call as witnesses three patrolmen familiar with his condition; that the Public Defender at the same time was representing a certain corporation in a civil matter, having been retained by its manager, Vensel, the complainant and person whose home allegedly was burglarized; that defendant learned of the Public Defender's representation of that corporation 'as retained by Vensel' subsequent to trial; and that the simultaneous 'representation of Thomas Vensel's interest, and that of petitioners', constituted a conflict of interest * * * and deprived petitioner of effective representation counsel * * * in violation of the Sixth and Fourteenth Amendments.' In connection with the failure to call the three witnesses, it was further asserted that two of them observed defendant two days before the alleged crime, the third a few hours before at a hospital; that they could have testified that he appeared to be hallucinating, incoherent and delirious; and that these witnesses would have given factual support to the expert opinion of Dr. Clifford, defendant's expert witness, who opined that defendant's conduct on the evening in question was induced by mental instability. Although court minutes show that the Assistant Public Defender was assigned to represent defendant after the interview, the petition poses the issue of whether the Public Defender remained...