People v. Scotti

Decision Date05 July 1988
Citation530 N.Y.S.2d 271,142 A.D.2d 616
PartiesThe PEOPLE, etc., Respondent, v. Charles SCOTTI, Appellant.
CourtNew York Supreme Court — Appellate Division

Carlucci & Legum, Mineola (Robert J. Carlucci, of counsel), for appellant.

Patrick Henry, Dist. Atty., Riverhead (Glenn Green, of counsel), for respondent.

Before THOMPSON, J.P., and SPATT, SULLIVAN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (McInerney, J.), rendered January 3, 1985, convicting him of criminal sale of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

We find no violation of the defendant's Sixth Amendment right to retain counsel of his own choosing without unwarranted judicial interference ( see, Matter of Abrams, 62 N.Y.2d 183, 200, 476 N.Y.S.2d 494, 465 N.E.2d 1; People v. Gomberg, 38 N.Y.2d 307, 312-313, 379 N.Y.S.2d 769, 342 N.E.2d 550). Under the circumstances disclosed by defense counsel in requesting that he be permitted to withdraw from further representation of the defendant, in which application the People joined, the trial court properly relieved counsel over the defendant's objections. Defense counsel apprised the court that after listening to the results of a wiretap on the telephone of the defendant's alleged narcotics supplier, he realized that a conflict of interest barred his continued representation of the defendant because counsel also represented the supplier. The parties agreed that the recordings were likely to be introduced in evidence and the supplier called to testify against the defendant at trial. Counsel, of course, would be precluded from effectively cross-examining the supplier. Counsel further noted that the fact that he is heard on the recordings speaking with the supplier on personal friendly terms might result in further prejudice to the defendant.

As recognized by the trial court, the standards of Professional Responsibility preclude an attorney from representing both the defendant and a witness who will testify against the defendant in a criminal proceeding, even with the full consent of the defendant (see, NY State Bar Association, Ethics Opinion 290 Code of Professional Responsibility, DR 5-105 EC 5-14, 5-15). Once defense counsel demonstrated a clear conflict of interest, such that his continued representation of the defendant was likely to result in unfair prejudice to all those concerned, the defendant could not preclude counsel from withdrawing ( see, Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140; People v. Hall, 46 N.Y.2d 873, 875, 414 N.Y.S.2d 678, 387 N.E.2d 610, cert. denied 444 U.S. 848, 100 S.Ct. 97, 62 L.Ed.2d 63; cf., People v. Salcedo, 68 N.Y.2d 130, 506 N.Y.S.2d 154, 497 N.E.2d 292).

The defendant's claims regarding the sufficiency of his plea allocution are not preserved for appellate review in view of his failure to move to withdraw the plea before the court of first instance ( People v. Claudio, 64 N.Y.2d 858, 859, 487 N.Y.S.2d 318, 476 N.E.2d 644; People v. Panico, 130 A.D.2d 777, 515 N.Y.S.2d 849). In any event, we find...

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8 cases
  • People v. Amos
    • United States
    • New York Supreme Court — Appellate Division
    • October 13, 2021
    ...see People v. Haffiz, 77 A.D.3d at 768, 909 N.Y.S.2d 490 ; People v. Miranda, 67 A.D.3d 709, 710, 886 N.Y.S.2d 890 ; People v. Scotti, 142 A.D.2d 616, 617, 530 N.Y.S.2d 271 ; People v. Martin, 133 A.D.2d 852, 852, 520 N.Y.S.2d 214 ). "Where, however, the record raises a legitimate question ......
  • People v. Amos
    • United States
    • New York Supreme Court
    • October 13, 2021
    ...possession, or the defense of temporary and lawful possession, at the plea proceeding (cf. People v Haffiz, 77 A.D.3d at 768; People v Scotti, 142 A.D.2d at 617; People v Martin, 133 A.D.2d at 852), and the "rote colloquy" at that proceeding, relied upon by the court, did not otherwise refu......
  • People v. Haffiz
    • United States
    • New York Supreme Court — Appellate Division
    • October 12, 2010
    ...he cannot now be heard to complain that he did not make a knowing and voluntary waiver of those defenses ( see People v. Scotti, 142 A.D.2d 616, 617, 530 N.Y.S.2d 271). The defendant's claim that his plea was the product of ineffective assistance of counsel was belied by his acknowledgment ......
  • People v. Hine
    • United States
    • New York Supreme Court — Appellate Division
    • November 25, 1991
    ...77 N.Y.2d 846, 567 N.Y.S.2d 639, 569 N.E.2d 442; People v. Pellegrino, 60 N.Y.2d 636, 467 N.Y.S.2d 355, 454 N.E.2d 938; People v. Scotti, 142 A.D.2d 616, 530 N.Y.S.2d 271). In any event, the record shows that the defendant pleaded guilty knowingly and voluntarily (see, People v. Harris, 61 ......
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