People v. De Sarno
| Decision Date | 12 March 1998 |
| Citation | 670 N.Y.S.2d 254,239 A.D.2d 74 |
| Parties | , 1998 N.Y. Slip Op. 2227 The PEOPLE of the State of New York, Respondent, v. Aalia DE SARNO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ira M. Pesserilo, Ithaca, for appellant.
George M. Dentes, District Attorney (Marcia J. Cunningham, of counsel), Ithaca, for respondent.
Before MIKOLL, J.P., and MERCURE, CREW, WHITE and YESAWICH, JJ.
Appeals (1) from a judgment of the County Court of Tompkins County (Sherman, J.), rendered May 23, 1996, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree, and (2) by permission, from an order of said court, entered May 9, 1997, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
On September 13, 1995, an undercover State Police Investigator approached defendant, Gerald Alexander and two other men in front of a residence located at 414 Madison Street in the City of Ithaca, Tompkins County. The Investigator asked one of the unidentified men for cocaine but was refused because the man did not know him. The second unidentified individual, however, indicated that he knew the Investigator and removed several packets of cocaine from his pocket. Alexander interrupted this transaction, telling the man not to sell to the Investigator. The Investigator then approached defendant, who engaged in a brief conversation with Alexander and then sold the Investigator a bag of cocaine for $20. As a result, defendant and Alexander were indicted and charged with criminal sale of a controlled substance in the third degree. Additionally, defendant was charged with criminal possession of a controlled substance in the third degree.
During the ensuing proceedings, defendant was represented by John Rowley and Alexander was represented by Benjamin Darden. Shortly before trial, defendant applied for permission to substitute Darden as her retained counsel in place of Rowley. Rowley expressed his dire concerns about such substitution, advising County Court that he had written to his client indicating that the substitution would not be in her best interest and warning that he could envision no decision more detrimental to her interest. The District Attorney likewise expressed a pointed concern regarding the proposed joint representation, specifically alluding to defenses such as agency and coercion which would be diametrically opposed to Alexander's interest. 1 1 County Court thereafter held an in camera Gomberg hearing (People v. Gomberg, 38 N.Y.2d 307, 379 N.Y.S.2d 769, 342 N.E.2d 550), at which time Darden assured the court that his dual representation presented no conflict in that Alexander had no role in the alleged transaction, as defendant was coerced into selling the drugs by someone other than Alexander. Both defendant and Alexander then expressed their desire to be represented by Darden in spite of any potential for conflict.
Following a jury trial, at which defendant testified that a third person had forced her to engage in the sale in question and that Alexander had no involvement therein, defendant was found guilty of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. Alexander was found guilty of criminal sale of a controlled substance in the third degree. Defendant was then sentenced to indeterminate concurrent terms of imprisonment of 3 1/3 to 10 years.
Following her conviction, defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction, which motion was denied without a hearing. This court then granted defendant permission to appeal from said denial. Defendant's sole contention on both her direct appeal and her appeal from the denial of her CPL 440.10 motion is that her constitutional right to effective assistance of counsel was violated because of a conflict of interest in the joint representation by Darden.
In support of her CPL 440.10 motion, defendant proffered a tape recording of a conversation between her and certain City of Elmira police officers made subsequent to her conviction but prior to sentencing. 2 In the taped interview defendant asserts, inter alia, that she had told her first attorney, Rowley, that Alexander forced her to sell cocaine to the Investigator. She further stated that Alexander had threatened her, at gunpoint, not to implicate him in the crime and that Alexander had arranged for her representation by Darden and had supplied Darden with her retainer from the proceeds of drug sales. Finally, she claimed that the events about which she testified at trial were perjurious and concocted by Darden.
Defendant's presentence statements, as well as her affidavit and that of her appellate counsel, if true, suggest that she may have been coerced into accepting the joint representation by Darden. Additionally, a letter written to defendant by Alexander while in prison advising her that he had retained an attorney to represent her on appeal and directing her to discharge her assigned appellate counsel lends further support to that contention. In these circumstances, we are of the view that while County Court conducted an appropriate Gomberg inquiry and satisfied itself that defendant, at that point in time, had made an informed decision to proceed with Darden as counsel despite the potential for conflict, the court erred in denying defendant's CPL 440.10 motion without a hearing. In our view, defendant raised a viable issue as to whether her waiver of the potential conflict was voluntary, thereby requiring a hearing, at the conclusion of which a factual determination concerning voluntariness could be made. Accordingly, the matter must be remitted to County Court for this purpose. Assuming County Court determines that the purported waiver was involuntary, it then will be necessary to determine if there was in fact a conflict of interest. 3
ORDERED that the decision is withheld, and matter remitted to the County Court of Tompkins County for further proceedings not inconsistent with this court's decision.
MIKOLL, Justice Presiding (dissenting).
Because I believe that defendant did not receive the effective assistance of counsel, I would reverse and order a new trial.
Defendant and her codefendant, Gerald Alexander, were charged with criminal sale of a controlled substance in the third degree based upon a sale of cocaine to an undercover State Police Investigator. 4 On September 13, 1995 at approximately 8:08 P.M., the Investigator approached a group of four individuals, including defendant, Alexander and two other men, in front of a house on Madison Street in the City of Ithaca, Tompkins County. He asked one of the unidentified men for $20 worth of cocaine, but the man refused, indicating he did not know the Investigator. The second unidentified man then indicated he did know the Investigator, and took a quantity of cocaine out of his pocket to sell to him. Alexander interrupted the second male before the transaction was made, directing him not to serve the Investigator, and pointed instead to defendant, stating "let her do it". The Investigator then approached defendant, who turned away from him, had a brief conversation with Alexander, and then turned back to the Investigator and sold him a bag of cocaine for $20, stating "Now you can say you bought it from me."
Following their indictment on September 27, 1995, defendant and Alexander were assigned counsel: John Rowley was assigned to represent defendant and Benjamin Darden was assigned to represent Alexander. On January 2, 1996, the date originally scheduled for trial, 5 County Court was presented with a consent to substitution of attorney form executed by defendant, Alexander and Darden, whereby Rowley would be relieved as counsel for defendant and replaced by Darden, on a retained basis, who would then represent both codefendants. Rowley advised the court that he had serious concerns about the proposed substitution of counsel and had expressed them in letter form to his client. In this letter, Rowley strongly cautions defendant that substituting Darden would not be in her best interest, and in fact warns that he could envision no "decision more detrimental to your interest".
The District Attorney expressed equally strong, and more specific, concern about the proposed joint representation. He cited lines of defense, such as agency and duress, "which do put [defendant] and Mr. Alexander at odds". He further noted defendant's young age, her minimal criminal history and the fact that the People's theory was that Alexander was the "kingpin" of the operation. He also raised questions concerning the financial arrangements leading up to defendant's retaining of Darden, speculating that Alexander had financed and orchestrated the change for his own purposes, noting that Alexander raised bail quickly, drove a very nice car [a Saab] and stated "I have every reason to think he makes a lot of money as a drug dealer". He concluded by asserting that
County Court then questioned Darden and the two defendants in chambers, with all three individuals present throughout the inquiry. Darden indicated that no conflict existed in the proposed dual representation because of the defense he intended to employ: that Alexander had no role whatsoever in the transaction and that while defendant did in fact sell the drugs to the Investigator, she did so under duress from a drug dealer to whom she was indebted and who had beaten her in the past. The court then questioned defendant and...
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People v. Alexander
...and the potential for conflict, defendant and De Sarno expressed their desire to be represented by Darden (see, People v. De Sarno, 239 A.D.2d 74, 77, 670 N.Y.S.2d 254). The action proceeded to trial, the jury rendered a guilty verdict and defendant was sentenced to a prison term of 3 1/3 t......