People v. Payton

• Citation: 981 N.Y.S.2d 342,2013 N.Y. Slip Op. 08289,4 N.E.3d 352,22 N.Y.3d 1011
• Parties: The PEOPLE of the State of New York, Respondent, v. Wendell PAYTON, Appellant.
• Decision Date: 12 December 2013
• Court: New York Court of Appeals

22 N.Y.3d 1011
4 N.E.3d 352
981 N.Y.S.2d 342
2013 N.Y. Slip Op. 08289

The PEOPLE of the State of New York, Respondent,
v.
Wendell PAYTON, Appellant.

Court of Appeals of New York.

Dec. 12, 2013.

Robert C. Mitchell, Legal Aid Society, Riverhead (Kirk R. Brandt of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead (Glenn Green of counsel), for respondent.

OPINION OF THE COURT
MEMORANDUM.

[4 N.E.3d 353]

The order of the Appellate Division should be modified by remitting the case to County Court for a hearing on defendant's

[4 N.E.3d 354]

CPL 440.10 motion and, as so modified, affirmed.

On April 6, 2007, defendant Wendell Payton was arrested and charged with one count of second-degree robbery (Penal Law § 160.10). About two weeks before defendant's trial, the district attorney's office executed a search warrant on defense counsel's law office. This development was not disclosed to defendant, County Court or the assistant district attorney prosecuting the People's case. On February 19, 2008, the jury convicted defendant as charged.

On April 16, 2008, when defendant appeared for sentencing, the judge revealed that after the verdict he had learned of a potential conflict of interest with respect to defense counsel's representation of defendant. The nature of the conflict was not placed on the record, but County Court referred to an off-the-record discussion with defense counsel and the assistant district attorney. The judge separately confirmed with defense counsel and defendant that they had discussed this matter. The judge then advised defendant that he was prepared to assign him new counsel, and defendant acknowledged that he wanted a new lawyer. County Court relieved defense counsel and rescheduled the sentencing hearing.

On or about June 23, 2008, defendant's new attorney moved to set aside the verdict pursuant to CPL 330.30. He argued that the People's investigation of defendant's trial counsel on unrelated criminal charges created an actual conflict of interest that should have been disclosed to defendant; and that, as a result, defendant's conviction had to be vacated because he did not waive the conflict. In a decision dated October 3, 2008, the judge denied the motion, concluding that the circumstances presented did not rise to the level of an actual conflict of interest, but constituted a potential conflict at most. In the judge's view, the execution of the search warrant did not necessarily alert the trial attorney that he himself was the target of a criminal investigation, rather than some other person or legal entity referenced in any material seized. Further, defendant made no claim or showing that the putative conflict operated on the defense. On October 6, 2008,...