People v. McDonald

• Decision Date: 03 July 1986
• Citation: 505 N.Y.S.2d 824,68 N.Y.2d 1
• Parties: , 496 N.E.2d 844 The PEOPLE of the State of New York, Respondent, v. James McDONALD, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 824

505 N.Y.S.2d 824

68 N.Y.2d 1, 496 N.E.2d 844

The PEOPLE of the State of New York, Respondent, v. James McDONALD, Appellant.

Court of Appeals of New York.

July 3, 1986.

Edward J. Nowak, Public Defender (Brian Shiffrin, Rochester, of counsel), for appellant.

Howard R. Relin, Dist. Atty. (Joan A. Psaila, Rochester, of counsel), for respondent.

OPINION OF THE COURT

MEYER, Judge.

An attorney's concurrent representation of both a defendant charged with arson and the corporation whose building he is alleged to have damaged and whose corporate officer gives testimony tending to prove his guilt involves a conflict of interest which, absent inquiry by the court and the informed consent of the defendant, deprives the defendant of the effective assistance of counsel. The order of the Appellate Division should, therefore, be reversed and a new trial ordered.

I

Defendant, James McDonald, was indicted on charges of arson in the third degree for setting fire to a shed belonging to the Lyell Exchange Lumber Company (the company) in Rochester, New York. Throughout the pretrial and trial proceedings before the Monroe County Court, defendant was represented by retained counsel, Werner Lomker.

In an omnibus motion under CPL 210.30, Lomker sought to inspect the Grand Jury minutes; to dismiss the indictment as not supported by sufficient evidence to establish the crime charged (CPL 190.65[1] ); to suppress, because tainted by a showup, the identification of defendant by the sole eyewitness, Police Officer Evelyn Baez; and other relief. In support of dismissal, counsel attached the affidavit of Michael Lazzaro, the vice-president of the company, made some six months after the fire, attesting that he had inspected the shed on the night of the fire, that there was "some damage where the boards were pulled away from the support near the foundation" but that, in his opinion, "there existed no diminution of value or damage [to the shed] as a result of any fire," ¹ and that, therefore, the company had made no insurance claim for property loss resulting from the fire. After review of the Grand Jury minutes the court denied so much of the motion as sought dismissal but ordered a Wade hearing as to the identification issue.

At the Wade hearing, the People produced evidence that defendant was seen by Officer Baez at about 2:00 a.m. from a distance of about 30 feet; that the area was lit by three street lamps; that Baez saw defendant walk briefly up and down the sidewalk adjacent to the lumberyard and then entered the yard, encircle a building and crouch alongside the corner of a shed from where flames then appeared; that defendant then ran in a northerly direction from the lumberyard; that Baez broadcast a description of him as a white male, with shoulder-length hair wearing dark pants and a white shirt; and that within 15 minutes of her broadcast, he was apprehended and returned in a marked patrol car to the scene of the fire, and there was identified by Baez as the perpetrator. Defense counsel cross-examined the two arresting officers and Baez as well, questioning her about the distance between her and defendant and about the lighting conditions, but never asked whether she knew of defendant's arrest before she identified him at the crime scene. ² Then, to the surprise of the prosecutor, Lomker conceded that at trial Baez could not only identify defendant but also could testify to her crime-scene identification of him.

At trial the People presented the same evidence, plus the testimony of fire experts and of Dean Lazzaro, the secretary-treasurer of the company. The experts ruled out possible accidental causes of the fire and stated that the fire--which was quickly extinguished--had caused charring to the building's clapboards at two separate locations. In their opinion, the charring, along with incidental damage caused by the efforts of fire fighters in pulling some boards away from the foundation, plus the company's failure to repair the shed in the eight months since the fire, had diminished the value of the shed. Although Lazzaro acknowledged at the beginning of the prosecutor's questioning that defense counsel "represents [our] company," the Trial Judge made no effort to ascertain whether defendant was aware of that fact or whether he understood the risks involved in counsel's representing both defendant and the company. Lazzaro's testimony concerning the condition of the building after the fire was consistent with Michael Lazzaro's pretrial affidavit, but he testified further that although defendant had been a lifelong family friend and a long-time employee of the company, he had quit his job about seven weeks before the fire, at a time when defendant and the company "were not on good terms because we had had some prior problems inside our establishment." He identified those problems as including "theft and what have you" and stated that had defendant not resigned, he would have been fired.

Defense counsel began his cross-examination by acknowledging that "[i]t is very uncomfortable to call you Mr. Lazzaro", and thereafter referred to the witness as "Dean." His cross-examination focused on the lack of damage to the shed, but made no reference to defendant's relationship with the company. The sole witness for the defense was an investigator, through whom defense counsel sought to impeach Officer Baez's testimony by showing that the distance between her and defendant when she observed him apparently setting the fire was substantially greater than she had testified it was.

In summation the prosecutor argued that defendant had set the fire as "his way of getting back at the [company]" for his having had to resign "under a cloud for one reason or another." The jury returned a verdict of guilty of arson in the third degree (Penal Law § 150.10[1] ), but on defense counsel's motion to set aside the verdict, the Trial Judge, reasoning that the People had not proven beyond a reasonable doubt the element of damage to the building, modified the verdict (see, CPL 330.30[1]; 330.50[1]; 470.15[2][a] ) by substituting the lesser included offense of attempted arson in the third degree (see, Penal Law §§ 110.00, 150.10[1] ). Judgment of conviction was then entered on the verdict as modified and defendant was sentenced as a predicate felon to a minimum of two and a maximum of four years in prison.

On appeal from the judgment of conviction, defendant was represented by the Monroe County Public Defender, who argued that defendant had been denied the effective assistance of trial counsel. The Appellate Division disagreed, holding that neither a conflict of interest nor the significant possibility thereof was demonstrated "merely by showing that defendant's trial counsel also represented the lumber company" (115 A.D.2d 223, 224, 496 N.Y.S.2d 161), that the fact that the company had made no claim for repair to the shed showed that the company's interests did not conflict with defendant's, and that Dean Lazzaro "evidenced no hostility of any kind toward the defendant" (id.). On the People's cross appeal from the order modifying the jury verdict, the Appellate Division held the People's evidence of damage sufficient to sustain the jury verdict and, therefore, vacated the judgment of conviction, reversed the Trial Judge's order, reinstated the jury verdict and remitted the matter to the Monroe County Court for resentencing.

Defendant appeals by leave of a Judge of this court. He argues that he is entitled to a new trial because counsel's representation of both himself and the company constitutes, per se, a conflict of interest, and that he was, therefore, denied the effective assistance of counsel. He argues also that the Appellate Division erred in reinstating the jury verdict because the People had no authority under CPL 450.20(3) to cross-appeal to that court from the order modifying the jury verdict and because the evidence was legally insufficient to present a jury question concerning whether defendant had "intentionally damage[d]" the building within the meaning of Penal Law § 150.10(1). We conclude (1) that the Appellate Division had jurisdiction under CPL 450.20(3) of the People's cross appeal, (2) that the evidence of damage to the shed was legally sufficient to sustain defendant's conviction of arson in the third degree, but (3) that under the circumstances of this case defense counsel's concurrent representation of defendant and the company constituted a conflict of interest which, in light of the Trial Judge's failure to inquire into defendant's knowledge of and consent to the potential risks involved, denied the defendant the effective assistance of counsel. We therefore reverse and order a new trial.

II

A defendant is denied the right to effective assistance of counsel guaranteed by the Sixth Amendment when, absent inquiry by the court and the informed consent of defendant, defense counsel represents interests which are actually in conflict with those of defendant (People v. Mattison, 67 N.Y.2d 462, 469-470, 503 N.Y.S.2d 709, 494 N.E.2d 374; People v. Lombardo, 61 N.Y.2d 97, 102-103, 472 N.Y.S.2d 589, 460 N.E.2d 1074; People v. Macerola, 47 N.Y.2d 257, 264-265, 417 N.Y.S.2d 908, 391 N.E.2d 990; People v. Gomberg, 38 N.Y.2d 307, 313-314, 379 N.Y.S.2d 769, 342 N.E.2d 550; People v. Wilkins, 28 N.Y.2d 53, 55, 320 N.Y.S.2d 8, 268 N.E.2d 756). Initially it is defense counsel's burden to recognize the existence of a potential conflict of interest, to alert both the client and the court to the potential risks involved, and to obtain the client's informed consent to counsel's continued representation despite those risks (People v. Lloyd, 51 N.Y.2d 107, 111, 432 N.Y.S.2d 685, 412 N.E.2d 371; People v. Gomberg, 38 N.Y.2d, at pp. 313-314, 379 N.Y.S.2d 769, 342 N.E.2d 550, supra; see, Code of Professional Responsibility EC 5-16, 5-19; DR 5-105[C]; ABA Standards for Criminal Justice, Defense Function § 3.5[a] [1971] ). But the...