People v. Lampkins

• Decision Date: 28 December 1967
• Citation: 286 N.Y.S.2d 844,233 N.E.2d 849,21 N.Y.2d 138
• Parties: , 233 N.E.2d 849 The PEOPLE of the State of New York, Respondent, v. Rex LAMPKINS, also known as Theodore Spears, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 844

286 N.Y.S.2d 844

21 N.Y.2d 138, 233 N.E.2d 849

The PEOPLE of the State of New York, Respondent, v. Rex LAMPKINS, also known as Theodore Spears, Appellant.

Court of Appeals of New York.

Dec. 28, 1967.

Leon B. Polsky and Anthony F. Marra, New York City, for appellant.

Isidore Dollinger, Dist. Atty. (Robert Cantor and Daniel J. Sullivan, New York City, of counsel), for respondent.

KEATING, Judge.

After a trial on an indictment charging murder in the first degree, Rex Lampkins was convicted of murder in the second degree on May 16, 1950. He was sentenced as a second felony offender to 50 years to life imprisonment. This sentence was later reduced to 30 years to life.

Lampkins applied for a writ of error Coram nobis to the Supreme Court, Bronx County, in July, 1965. The application was denied without a hearing, and the denial was unanimously affirmed by the Appellate Division (27 A.D.2d 648, 276 N.Y.S.2d 986).

The principal contention of Lampkins on this appeal is that he was improperly denied his right to appeal by one of his assigned counsel. Apparently, Lampkins had three assigned counsel. In his affidavit, Lampkins alleges that his attorney perpetrated a fraud upon him 'by permitting the appeal to be dismissed for lack of prosecution, and at the same time knowing that petitioner did not want to abandon the appeal and was clearly ignorant of his appeal rights'.

The letters of his attorney evince a certain strategy which he executed on behalf of Lampkins. He did not prosecute the appeal to the Appellate Division because he was fearful that, upon a second trial of the action, Lampkins might be convicted of murder in the first degree. In our view, this strategy appears reasonable. If, after an attorney explains such strategy to a defendant, the defendant agrees to it, he should not, of course, be heard to complain later. As a matter of policy, any other rule would undoubtedly give rise to scores of accusations that the advice of counsel on which a defendant acted was arguably unwise. The degree of judiciousness of an attorney's advice to a defendant should not become a subject of subsequent inquiry, permitting vacaturs of judgments of conviction where courts disagree with an attorney's assessment of a case. (People v. Tomaselli, 7 N.Y.2d 350, 197 N.Y.S.2d 697, 165 N.E.2d 551.)

Thus, the crucial factor is not whether the attorney's view of the probability of a subsequent conviction of Lampkins of murder in the first degree was correct but, rather, whether Lampkins agreed to the strategy.

The letters which Lampkins has annexed to his moving papers suggest the possibility that he did not agree to his attorney's strategy and wished, instead, to prosecute his appeal, regardless of the possible consequences. In the final analysis, that choice was his, not his attorney's. The first letter, dated April 3, 1951, two days before Lampkins' appeal was dismissed, is addressed to Justice PECK. In it, Lampkins states that he has written a letter to his assigned counsel asking why his appeal is on the Appellate Division's calendar for dismissal. He asks: 'I pray that this Court * * * does not dismiss the appeal which is my last hope for freedom.'

The attorney answered Lampkins' inquiry about his appeal in what is, perhaps, the most significant of all the letters annexed. After stating that he has received Lampkins' letter of April 3, the attorney replied:

'The motion that you mention was merely a pro forma application by the District Attorney's office to dismiss the appeal.

'It had long ago been decided that it was not in your best interest to perfect the appeal'.

Although this language is sufficiently ambiguous to be susceptible to varying interpretations, it is possible that the attorney was explaining that He and the other two assigned counsel had agreed to this strategy, not that Lampkins had consented or even known of it.

Moreover, after Lampkins' appeal was dismissed, he undertook what turned out to be a Herculean task, as he attempted to obtain a copy of the minutes of his trial. Lampkins has annexed no less than 10 letters addressed to him in response to his inquiries about obtaining the minutes. The first is dated August 1, 1951 and the last--December 15, 1962. They include a letter from the Chief Clerk of the Bronx County Court suggesting that he write to the official court reporter, a letter from the official court reporter suggesting that he write to his three assigned counsel, letters from one assigned counsel suggesting that he write to the court reporter, letters from the order two assigned counsel suggesting that he write to the District Attorney's office, and a letter from the District Attorney's office suggesting that he write to his assigned counsel.

Although all of this took place After Lampkins' appeal was dismissed by the Appellate Division, nevertheless, it immediately followed Lampkins' letter to Justice PECK, requesting that his appeal be saved, and his letter to his attorney, asking why his appeal was on the dismissal calendar. When, in addition, the attorney's ambiguous reply letter is considered, Lampkins has succeeded in indicating a course of action on his part with respect to his appeal which, at least, raises an issue of fact regarding whether he consented to the strategy of allowing his appeal to die in the Appellate Division for want of prosecution.

In People v. Adams, 12 N.Y.2d 417, 420, 240 N.Y.S.2d 155, 157, 190 N.E.2d 529, 531, the defendant alleged that his appeal had been dismissed without his knowledge. We stated: 'Obviously, if defendant's...