People v. Sanchez
| Decision Date | 04 June 2013 |
| Citation | 21 N.Y.3d 216,2013 N.Y. Slip Op. 03933,969 N.Y.S.2d 840,991 N.E.2d 698 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Nicholas SANCHEZ, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Office of the Appellate Defender, New York City (Richard M. Greenberg and Margaret E. Knight of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Noah J. Chamoy, Joseph N. Ferdenzi and Rafael Curbelo of counsel), for respondent.
In this case we consider whether defendant has adequately demonstrated that he was deprived of meaningful legal representation based on defense counsel's alleged conflict of interest. On this record, we hold that defendant has not sustained his burden of establishing ineffectiveness, but that he is not precluded from raising this issue in a CPL article 440 proceeding that would permit further factual development of the circumstances pertaining to the claimed conflict.
One evening in December 2004, Freddy Penalo was working as a taxi driver when he received a call to pick up passengers at a certain location in the Bronx. When he arrived, two young men approached his taxi and asked to be driven to West 233rd Street. Once in the vehicle, Penalo spoke to the men in the rear seat and observed them in the rearview mirror during the 10 to 12 minute trip.
When the taxi was in the vicinity of the destination, one passenger grabbed Penalo, announced a robbery and displayed a handgun. He ordered Penalo to turn over his cash, jewelry and cell phone. The other passenger told the gunman to kill Penalo, but the initial aggressor assured Penalo that he would not be murdered if he gave all of his money to them, which he did. Penalo was then pulled out of the taxi and the men drove away in the vehicle.
The police found the taxi parked near 3460 Bailey Avenue. They discovered that a “taxi cam” inside the vehicle had taken photographs during the robbery. Penalo gave descriptions to the police, stating that the two assailants were Hispanic men, about 20 years old, approximately five feet, eight inches tall and weighed 150 pounds and 160 pounds, respectively. The police also dusted the vehicle for fingerprints.
An investigating detective printed the taxi cam photographs and recognized one of the rear-seat passengers as defendant Nicholas Sanchez, who had been the victim in an earlier case the detective had worked. Another detective who viewed the photographs also identified defendant as someone he had interacted with in the neighborhood during the preceding five years. The officers eventually located defendant at 3340 Bailey Avenue—less than a block from where the taxi had been abandoned—and they took defendant's photograph. That photograph was included in a photo array that Penalo reviewed and he identified defendant as the man with the gun in his cab. After Penalo subsequently selected defendant in a lineup, defendant was arrested for the robbery. He told the police that he was 20 years old, five feet, six inches tall and weighed 160 pounds.
Attorney Charles Ippolito, from the Legal Aid Society, represented defendant at trial. During jury selection, the People informed defense counsel that a fingerprint found in the taxi matched another person involved in a sealed criminal case. Supreme Court issued an order unsealing the file and the People revealed that the fingerprint was attributed to Elvis Montero. The People also gave defense counsel a copy of a detective's report memorializing a statement from defendant's brother, who indicated that he heard a rumor that the taxi robbery had been committed by “Macho” (also known as Franklin DeJesus). Defense counsel received photographs of Montero and was told that he had been arrested for a robbery in the Bronx two months after the crime involving Penalo, but that Montero had jumped bail.
Prior to opening statements, defense counsel alerted the court to a possible conflict of interest. Legal Aid had represented DeJesus in an unrelated robbery case that ended in an acquittal. Based on certain “privileged information,” Legal Aid believed that there was some connection between Montero and DeJesus. After internal discussions, defense counsel advised the trial judge that Legal Aid had concluded that “there is no conflict regarding the issue surrounding Mr. Montero” and that a conflict of interest would arise only if DeJesus had to be mentioned during defendant's trial. Defense counsel stated that this would not be necessary for “evidentiary reasons and for just reasons related to common sense ... since there is no physical evidence connecting [DeJesus] to this crime.” He further indicated that although Legal Aid recognized “the possibility of [a] potential for conflict” it was “not necessarily” an actual one and, therefore, the defense was “not asking the Court to act on this” since counsel wanted to avoid “going into” DeJesus as the possible unapprehended perpetrator in order to prevent a conflict or a mistrial. Counsel remarked that the matter had been discussed with defendant and the defense was “ready to proceed” with the trial. The prosecutor commented that the People had “no information about this Mr. DeJesus” and any link he had to the case was “all based on speculation.”
During the trial, Penalo identified defendant as the gunman. The two detectives testified over defendant's objection that they had recognized defendant from the taxi cam photographs and that defendant had gained weight since his arrest. The defense strategy was to establish an alibi for defendant and present evidence to support the theory that Montero was the actual perpetrator. The jury ultimately found defendant guilty of first-degree robbery.
After defendant's conviction, Legal Aid moved to set aside the verdict on various grounds, including newly discovered evidence consisting of DeJesus' alleged jailhouse confession to defendant. Legal Aid was then relieved as defendant's counsel and defendant was assigned a new attorney. Supreme Court ordered a hearing on DeJesus' purported confession, and defendant testified that DeJesus had admitted to him that he and Montero robbed Penalo. DeJesus, in contrast, acknowledged that he had a conversation with defendant while they were incarcerated, but denied that he confessed to the Penalo robbery or that he knew Montero. According to DeJesus, defendant attempted to bribe him into accepting responsibility for the crime. Defendant's former counsel also testified but did not claim personal knowledge of DeJesus' alleged admission. Supreme Court found DeJesus to be credible, denied the motion to set aside the verdict, and sentenced defendant to eight years of imprisonment and five years of postrelease supervision.
The Appellate Division affirmed (95 A.D.3d 241, 941 N.Y.S.2d 599 [1st Dept.2012] ). It determined that defendant had not been deprived of his right to effective legal assistance due to Legal Aid's dual representation of defendant and DeJesus because there was no conflict between their interests and, even if there were, it did not operate on the defense since defendant was able to present a third-party culpability theory focusing on Montero as the gunman. The dissenting Justice, who believed that defendant was entitled to a new trial because his Legal Aid attorney had a conflict of interest that affected the defense, granted defendant leave to appeal.
Defendant contends that trial counsel was ineffective as a result of a conflict of interest stemming from Legal Aid's dual representation of defendant and DeJesus. According to defendant, this conflict of interest provides the only reasonable explanation for his attorney's failure to inform the jury about DeJesus' possible connection to the Penalo robbery. Defendant also maintains that the trial court had a duty to conduct a Gomberg inquiry ( People v. Gomberg, 38 N.Y.2d 307, 379 N.Y.S.2d 769, 342 N.E.2d 550 [1975] ) in order to ensure that he was aware of the nature of the conflict and the risks associated with it.
The defendant bears the burden of establishing a denial of meaningful representation ( see e.g. People v. Baker, 14 N.Y.3d 266, 270, 899 N.Y.S.2d 733, 926 N.E.2d 240 [2010] ). When such a claim is premised on a perceived conflict of interest, our precedent differentiates between actual and potential conflicts ( see People v. Solomon, 20 N.Y.3d 91, 95, 956 N.Y.S.2d 457, 980 N.E.2d 505 [2012] ). An actual conflict exists if an attorney simultaneously represents clients whose interests are opposed ( see People v. Prescott, 21 N.Y.3d 925, 927–928, 967 N.Y.S.2d 887, 990 N.E.2d 125 [2013];People v. Solomon, 20 N.Y.3d at 97, 956 N.Y.S.2d 457, 980 N.E.2d 505) and, in such situations, reversal is required if the defendant does not waive the actual conflict ( see People v. Solomon, 20 N.Y.3d at 96, 956 N.Y.S.2d 457, 980 N.E.2d 505).
In contrast, a potential conflict that is not waived by the accused requires reversal only if it “operates” on or “affects” the defense ( see People v. Abar, 99 N.Y.2d 406, 409, 757 N.Y.S.2d 219, 786 N.E.2d 1255 [2003] )—i.e., the nature of the attorney-client relationship or underlying circumstances bear a “ ‘substantial relation to the conduct of the defense’ ” ( People v. Ennis, 11 N.Y.3d 403, 410, 872 N.Y.S.2d 364, 900 N.E.2d 915 [2008], quoting People v. Berroa, 99 N.Y.2d 134, 142, 753 N.Y.S.2d 12, 782 N.E.2d 1148 [2002] ). The “requirement that a potential conflict have affected, or operated on, or borne a substantial relation to the conduct of the defense—three formulations of the same principle—is not a requirement that [the] defendant show specific prejudice” ( People v. Ortiz, 76 N.Y.2d 652, 657, 563 N.Y.S.2d 20, 564 N.E.2d 630 [1990] ). Nevertheless, it is the defendant's “heavy burden” ( People v. Jordan, 83 N.Y.2d 785, 787, 610 N.Y.S.2d 952, 632 N.E.2d 1275 [1994] ) to show that a potential...
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