People v. Ortiz

• Decision Date: 20 November 1990
• Citation: 564 N.E.2d 630,76 N.Y.2d 652,563 N.Y.S.2d 20
• Parties: , 564 N.E.2d 630, 59 USLW 2371 The PEOPLE of the State of New York, Respondent, v. Juan ORTIZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 20

563 N.Y.S.2d 20

76 N.Y.2d 652, 564 N.E.2d 630, 59 USLW 2371

The PEOPLE of the State of New York, Respondent, v. Juan ORTIZ, Appellant.

Court of Appeals of New York.

Nov. 20, 1990.

[76 N.Y.2d 653] [564 N.E.2d 631] Lynn W.L. Fahey and Philip L. Weinstein, New York City, for appellant.

Robert T. Johnson, Dist. Atty. (Jonathan R. Walsh and Peter D. Coddington, New York City, of counsel), for respondent.

OPINION OF THE COURT

KAYE, Judge.

During defendant's trial on drug possession charges, a former client privately confessed to trial counsel that the drugs defendant was charged with having possessed were not defendant's, but that he was the "owner and possessor of those drugs" and defendant "really had nothing to do with that." In an effort to accommodate both individuals, trial counsel then put the former client on the witness stand as part of the defense case, and the witness exculpated defendant but also perjuriously exculpated himself. In these circumstances, we agree with defendant that counsel did not serve defendant's interests with the single-minded devotion constitutionally required for effective assistance of counsel, and that counsel's divided loyalty affected the conduct of the defense. We therefore reverse defendant's conviction and order a new trial.

I.

Defendant was arrested on August 2, 1984, and charged with two counts of criminal possession of a controlled substance in the third degree. At trial, the main prosecution witnesses were the two arresting officers, who testified that while on patrol in The Bronx in an unmarked car they saw defendant, standing on the front stoop of a building, take a glassine envelope out of a grey pouch and hand it to another man. When the police approached, the man and his companion walked away. The officers looked in the grey pouch, saw drugs, and arrested defendant.

During defendant's trial, a question arose about the configuration of the building stoop, and defense counsel visited the premises to take photographs. Later that same day, John Gonzalez, a former client, came to counsel's office. In the presence of two employees, Gonzalez told counsel that when he saw him at the building taking photographs, he realized that he was a witness. Stating that "I can trust you" because "you're my lawyer," ¹ Gonzalez then admitted to the attorney that he, and not defendant, was the owner and possessor of the drugs. Gonzalez further described how he had cautioned defendant to leave when he saw what he recognized as a police car approaching, but that defendant failed to do so and was arrested. Gonzalez informed counsel that, if called to testify and questioned about his confession, he would invoke his privilege against self-incrimination.

Trial counsel did not reveal Gonzalez's statement to the court, but instead called Gonzalez as a defense witness. Gonzalez testified that, as a passerby at the arrest scene, he saw defendant descending the steps, that he saw several other men closer to the bag that contained the drugs, and that the other men ran or walked away when the arresting officers pulled up in an unmarked car. This testimony corroborated the testimony of another defense witness that defendant had gone to that building to repay a loan and was arrested as he was leaving; defendant himself (through an interpreter) testified to this same effect. Gonzalez further testified--falsely in light of his confession to counsel--that he was near the arrest scene because he had been playing ball down the street and was on his way to buy soda. After lengthy deliberations, the jury found defendant guilty of two counts of possession.

At sentencing, trial counsel for the first time revealed that another person had confessed to having owned and possessed the drugs, and suggested that as one of several reasons justifying a short sentence. However, it did not become evident until a postconviction hearing two years later that the person counsel had referred to was Gonzalez.

At the CPL 440.10 hearing, trial counsel testified that he regarded Gonzalez (though refusing to name him, on grounds of attorney-client privilege) as a client at the time of defendant's trial, but had not perceived any conflict of interest. Counsel testified that he did not examine Gonzalez about his confession at the trial or take the stand himself to recount the confession because he did not think the jury would have believed such testimony, because he would have violated his obligations to Gonzalez, and because Gonzalez had told him that he would not recount his confession in court. Counsel further testified that he had informed defendant that another client had confessed to owning the drugs (although not that Gonzalez was the person), that he had advised defendant it was not likely that the jury would believe that such a confession had been made, and that the "strategy" of calling Gonzalez as a defense witness had been discussed with defendant.

Both the trial court and the Appellate Division rejected defendant's claims that he was denied effective assistance of counsel, holding that any conflict was not shown to have prejudiced defendant. As expressed by the Appellate Division: "The witness's confession could not have been brought before the jury because the witness indicated to counsel that he would assert his Fifth Amendment right and counsel would have been precluded from divulging the statement because of the attorney/client privilege. Thus, we reject defendant's claim that he was precluded from obtaining new counsel, the only prejudice alleged as a result of the conflict, when new counsel would have, likewise, been unable to put the witness's confession before the jury." (156 A.D.2d 222, 548 N.Y.S.2d 483.)

We now reverse.

II.

The State and Federal constitutional right to counsel, so fundamental to our form of justice, is the right to effective assistance of counsel, meaning the reasonably competent services of an attorney devoted to the client's best interests. The right to effective assistance of counsel encompasses the right to conflict-free counsel (People v. McDonald, 68 N.Y.2d 1, 505 N.Y.S.2d 824, 496 N.E.2d 844; People v. Salcedo, 68 N.Y.2d 130, 135, 506 N.Y.S.2d 154, 497 N.E.2d 292), in another context we have noted our assumption that counsel's devotion to a client's interests will be " 'single-minded' " (People v. Darby, 75 N.Y.2d 449, 454, 554 N.Y.S.2d 426, 553 N.E.2d 974).

While defendant argues that trial counsel committed several breaches of the Code of Professional Responsibility, particularly in eliciting false testimony, our concern on this appeal is not with any professional impropriety but with whether defendant received the effective assistance of counsel guaranteed him by the State and Federal Constitutions. We conclude that he did not.

A lawyer simultaneously representing two clients whose interests actually conflict cannot give either client undivided loyalty. Thus, the right to effective assistance of counsel has been violated when a lawyer represented both a defendant and the chief prosecution witness (People v. Wandell, 75 N.Y.2d 951, 953, 555 N.Y.S.2d 686, 554 N.E.2d 1274), or a defendant accused of crime and the victim of that crime (People v. McDonald, 68 N.Y.2d 1, 9, 505 N.Y.S.2d 824, 496 N.E.2d 844, supra ). The same has been true when law partners represented two codefendants, one of whom pleaded guilty and agreed to testify against the other (People v. Mattison, 67 N.Y.2d 462, 470, 503 N.Y.S.2d 709, 494 N.E.2d 1374).

The possibility that a lawyer may give one client less than...