People v. Payton

• Decision Date: 14 November 2012
• Citation: 955 N.Y.S.2d 72,2012 N.Y. Slip Op. 07701,100 A.D.3d 786
• Parties: The PEOPLE, etc., respondent, v. Wendell PAYTON, appellant.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 786

955 N.Y.S.2d 72

2012 N.Y. Slip Op. 07701

The PEOPLE, etc., respondent,

v.Wendell PAYTON, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 14, 2012.

Robert C. Mitchell, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant.

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

WILLIAM F. MASTRO, J.P., MARK C. DILLON, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

Appeal by the defendant (1) from a judgment of the County Court, Suffolk County (Hinrichs, J.), rendered October 6, 2008, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence, and (2), by permission, from so much of an order of the same court, dated June 7, 2010, as denied, without a hearing, that branch of his motion which was pursuant to CPL 440.10 to vacate the judgment of conviction.

ORDERED that the judgment is affirmed; and it is further,

ORDERED that the order is affirmed insofar as appealed from.

Viewing the evidence in the light most favorable to the prosecution, we find that the conviction of robbery in the second degree was supported by legally sufficient evidence ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

We find unpersuasive the defendant's contention that he was denied the effective assistance of counsel by reason of a purported conflict of interest on the part of his trial counsel. The record reveals that approximately 15 days prior to the commencement of the defendant's trial, the Suffolk County District Attorney's Office executed a search warrant at trial counsel's law office. Approximately two months after the defendant's conviction, but before sentencing, the trial court was made aware of the pending investigation and, at the defendant's request, assigned new counsel to represent the defendant. Thereafter, the defendant moved pursuant to CPL 330.30 to set aside the verdict on the ground that his trial counsel had labored under a conflict of interest. The trial court denied the motion. Following the imposition of sentence, the defendant eventually moved pursuant to CPL 440.10 to vacate the judgment of conviction, again on the ground of conflict of interest, and again the motion was denied.

“The right to effective counsel ensures not only meaningful representation but also the assistance of counsel that is ‘conflict-free and singlemindedly devoted to the client's best interests' ” ( People v. Berroa, 99 N.Y.2d 134, 139, 753 N.Y.S.2d 12, 782 N.E.2d 1148, quoting People v. Longtin, 92 N.Y.2d 640, 644, 684 N.Y.S.2d 463, 707 N.E.2d 418,cert. denied526 U.S. 1114, 119 S.Ct. 1760, 143 L.Ed.2d 791). Accordingly, “where a defendant makes a conflict-based claim of ineffective assistance of counsel, two questions arise. First, the court must determine whether there was a potential conflict of interest ( People v. Abar, 99 N.Y.2d 406, 409, 757 N.Y.S.2d 219, 786 N.E.2d 1255). Second, a ‘defendant must show that the conduct of his defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation’ ( People v. Ortiz, 76 N.Y.2d 652, 657, 563 N.Y.S.2d 20, 564 N.E.2d 630 [internal quotation marks omitted] )” ( People v. Konstantinides, 14 N.Y.3d 1, 10, 896 N.Y.S.2d 284, 923 N.E.2d 567;see People v. Harris, 99 N.Y.2d 202, 210, 753 N.Y.S.2d 437, 783 N.E.2d 502;People v. Tisone, 85 A.D.3d 1066, 925 N.Y.S.2d 843;People v. Guadmuz, 63 A.D.3d 1178, 881 N.Y.S.2d 314). Here, even if it is assumed that trial counsel was aware that he was a target of the investigation so as to satisfy the first prong of the foregoing inquiry, the defendant has failed to come forward with any evidence establishing that the conduct of his defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation. Therefore, his contention is unavailing ( see People v. Konstantinides, 14 N.Y.3d at 14, 896 N.Y.S.2d 284, 923 N.E.2d 567;see also People v. Solomon, 20 N.Y.3d 91, –––N.Y.S.2d ––––, ––– N.E.2d ––––;People v. Guadmuz, 63 A.D.3d 1178, 881 N.Y.S.2d 314). In this regard, while we share our dissenting colleague's concern that a criminal defendant's right to the effective assistance of counsel never be compromised by the personal interests of the attorney representing him, we decline to adopt the per se rule advocated by the dissent, which would require reversal absent a showing of any effect which the conflict may have had on the representation, as expressly contrary to clear and established precedent ( see People v. Konstantinides, 14 N.Y.3d at 14, 896 N.Y.S.2d 284, 923 N.E.2d 567;People v. Abar, 99 N.Y.2d at 411, 757 N.Y.S.2d 219, 786 N.E.2d 1255). Furthermore, the dissent's suggestion that the defendant's trial counsel in this case procured a more favorable disposition with regard to his own charges by failing to zealously represent the defendant at trial is unsupported by the record and is manifestly inconsistent with the evidence of meaningful representation afforded by trial counsel, who provided vigorous and competent representation to the defendant at every stage of the proceedings( see People v. Thomas, 201 A.D.2d 687, 688, 608 N.Y.S.2d 251;People v. Carney, 179 A.D.2d 818, 819, 579 N.Y.S.2d 157).

The defendant has failed to preserve for appellate review his contention that the sentence imposed by the County Court improperly penalized him for exercising his right to a jury trial, because he did not set forth the issue on the record at the time of sentencing ( see People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017;People v. Garcia, 66 A.D.3d 699, 701, 885 N.Y.S.2d 771;People v. Smith, 49 A.D.3d 904, 906, 855 N.Y.S.2d 572;People v. Gillian, 28 A.D.3d 577, 816 N.Y.S.2d 84,affd.8 N.Y.3d 85, 828 N.Y.S.2d 277, 861 N.E.2d 92;People v. Chapero, 23 A.D.3d 492, 493, 805 N.Y.S.2d 596). In any event, contrary to the defendant's contention, the fact that the sentence imposed after trial was greater than the term offered during plea negotiations is no indication that the defendant was punished for asserting his right to proceed to trial ( see People v. Pena, 50 N.Y.2d 400, 411, 429 N.Y.S.2d 410, 406 N.E.2d 1347,cert. denied449 U.S. 1087, 101 S.Ct. 878, 66 L.Ed.2d 814;People v. Brock, 69 A.D.3d 644, 891 N.Y.S.2d 292;People v. DeHaney, 66 A.D.3d 1040, 1041, 889 N.Y.S.2d 194;People v. Garcia, 66 A.D.3d at 701, 885 N.Y.S.2d 771;People v. Smith, 49 A.D.3d 904, 906, 855 N.Y.S.2d 572). Moreover, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

MASTRO, J.P., DILLON, and SGROI, JJ., concur.

MILLER, J.

I respectfully dissent and vote to reverse the order dated June 7, 2010, grant that branch of the defendant's motion which was to vacate the judgment of conviction, and dismiss the appeal from the judgment as academic in light of the determination of the appeal from the order.

The defendant was arrested on April 6, 2007, and later charged with one count of robbery in the second degree. On June 20, 2007, pursuant to County Law article 18–B, an attorney (hereinafter trial counsel) was assigned to represent him in his defense. The prosecution of the defendant's case was handled by the Office of the Suffolk County District Attorney.

The defendant's trial began on February 6, 2008, in the County Court, Suffolk County. Unbeknownst to the defendant, some days earlier, on January 23, 2008, the Office of the Suffolk County District Attorney executed a search warrant on the law office of trial counsel. The record does not reveal what was seized from trial counsel's law office.

Neither trial counsel nor the Office of the Suffolk County District Attorney disclosed to the defendant—or to the trial court—the fact that a search warrant had been executed on trial counsel's office days before the defendant's trial began. The trial proceeded to verdict with the defendant represented by trial counsel. A verdict was returned on February 19, 2008, finding the defendant guilty of one count of robbery in the second degree.

The defendant appeared for sentencing on April 16, 2008. When the matter was called, the court stated that since the date of the verdict, it had “learned of a potential conflict of interest” that had arisen with respect to trial counsel's continued representation of the defendant. Neither the court, the prosecutor, nor trial counsel disclosed the nature of the conflict on the record. Rather, the court merely stated that it had conducted an off-the-record conference in its chambers earlier that morning with trial counsel and the assistant district attorney. The court then asked trial counsel if he had discussed the matter with the defendant after the conference, and trial counsel said “Yes.”

The court advised the defendant that, “under these circumstances,” it was “prepared to assign a new attorney” to represent him. The defendant stated that he wanted the court to “[a]ssign a new lawyer right now.” Trial counsel was relieved and a new attorney was assigned to represent the defendant.

Prior to the rescheduled sentencing date, the defendant, by his new attorney, moved to set aside the verdict pursuant to CPL 330.30(1). The defendant...