People v. Slavik
| Decision Date | 14 April 1986 |
| Citation | 501 N.Y.S.2d 992,131 Misc.2d 795 |
| Parties | The PEOPLE of the State of New York v. Ernest F. SLAVIK, Sr., Defendant. |
| Court | New York County Court |
Jon S. Blechman, Binghamton, for defendant.
Gerald F. Mollen, Chief Asst. Dist. Atty., Binghamton, for the People.
Upon defendant's conviction of Criminal Possession of Stolen Property in the First Degree, the District Attorney filed an information alleging a prior felony conviction in January 1976. Defendant concedes the existence of that conviction, but alleges that he was deprived of the effective assistance of counsel during those proceedings in violation of his rights under the Sixth Amendment of the United States Constitution and Article 1, Section 6 of the New York State Constitution.
Defendant and his son were jointly indicted for the crime of Criminal Possession of Stolen Property in the First Degree in October, 1975 and were jointly represented by retained counsel at all proceedings. Pursuant to plea negotiations, defendant pleaded guilty to the crime charged and was sentenced to a conditional discharge for three years. His son pleaded guilty to Criminal Possession of Stolen Property in the Third Degree, a misdemeanor, and was sentenced to a conditional discharge for one year. A review of the record relating to the arraignment, plea and sentencing of each reveals that there was no inquiry by the trial court or comment by the attorney or either accused regarding representation by the same attorney.
The manner of conducting the hearing required to resolve such issues appears to be clearly spelled out in CPL Section 400.21, subdivision 7. However, the People raise some "nice questions" concerning its implementation.
In brief, they argue that subparagraph (b) of subdivision 7 is self-limiting to violations of the Constitution of the United States, and, since a state may not superimpose its interpretation of the federal constitution over those made by the federal courts, federal decisional law is controlling. They continue that such decisions clearly hold that (1) there is no constitutional requirement that a trial court inquire of a defendant concerning joint representation unless it has reason to believe that a conflict may actually exist or the defendant raises some objection to joint representation, and (2) a defendant raising this objection after conviction has the burden of proving that an actual conflict of interest existed and that it adversely affected his attorney's performance.
The defendant responds in the alternative. On the one hand, he maintains that although subparagraph (b) initially refers to the federal constitution, it later allows a defendant to controvert the conviction "on the grounds that the conviction was unconstitutionally obtained", including any violation of the New York State Constitution as interpreted by state courts. In the alternative, he argues that if federal law is controlling, decisions in the Second Circuit require inquiry by the trial court, and absent such inquiry, the burden of proof shifts to the prosecution to demonstrate that the defendant was not prejudiced.
Under the prosecution's interpretation of the statute, a defendant's relief from second felony offender status must be based on a violation of his Sixth Amendment rights as defined by the U.S. Supreme Court in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). There, the Court expressly rejected the views of the Third Circuit to the contrary and held that the Sixth Amendment imposed upon the trial court no affirmative duty to inquire unless it knows or reasonably should know that a particular conflict exists, that a defendant seeking to attack a prior conviction must demonstrate that an actual conflict of interest adversely affected the adequacy of his representation and that the mere possibility of a conflict of interest is insufficient.
Interestingly, the Court acknowledged by footnote its awareness that several federal courts of appeals had used their supervisory powers to require judicial inquiry in all cases of joint representation, that the then proposed (and since enacted) Federal Rule of Criminal Procedure 44(c) imposed a similar requirement, and that they viewed "such an exercise ... as a desirable practice" (at page 346 n. 10, 100 S.Ct. at 1717 n. 10). The Court of Appeals for the Second Circuit had so held in U.S. v. Carrigan, 543 F.2d 1053, 1055 (1976):
[Citations omitted.]
[Citations omitted.]
Most New York decisional law on this specific issue is in the context of direct appeal or post-judgment motions under CPL Section 440.10, subdivision 1(h), which permits a court to vacate a conviction if it "was obtained in violation of a right of the defendant under the constitution of this state or of the United States." (Emphasis added.) No decision is found where the same issue is raised in the procedure for determining whether a defendant is a second felony offender as set forth in Section 400.21 of the CPL. Subdivision 7(b) of that Section reads as follows:
(Emphasis added.)
The requirements of the New York courts have evolved from a similar base and developed along parallel lines. In considering a case in which the defendant had made no protest and the trial court had made no inquiry, the Court of Appeals acknowledged
"the rule that has developed that 'an appellant must show some conflict of interest between himself and the other defendants represented by his attorney before he can claim successfully that the joint representation deprived him of his right to counsel' ". People v. Gonzalez, 30 N.Y.2d 28, 32, 330 N.Y.S.2d 54, 280 N.E.2d 882 (1972) [quoting from U.S. v. Bentvena, 319 F.2d 916, 937 (2d Cir.) ]
In People v. Gomberg, 38 N.Y.2d 307, 379 N.Y.S.2d 769, 342 N.E.2d 550 (1975), the Court of Appeals first recognized the need for some inquiry by the trial court and held that while the joint representation of multiple defendants was not a per se denial of the effective assistance of counsel, trial courts were required to ascertain on the record whether each defendant was aware of the potential risks involved in such representation and had given his informed consent to so proceed.
Not unexpectedly, the court next considered the effect of a trial court's failure to inquire in People v. Macerola, 47 N.Y.2d 257, 417 N.Y.S.2d 908, 391 N.E.2d 990 (1979). After reaffirming the principles set forth in Gomber supra, it held that "there exists no compelling reason to adopt a rule which would automatically equate the trial court's failure to undertake proper precautionary measures with an error of constitutional magnitude requiring reversal in every instance" (at page 264, 417 N.Y.S.2d 908, 391 N.E.2d 990).
The Court further indicated that a defendant claiming the ineffective assistance of counsel under such circumstances has the burden of proof in establishing a conflict of interest:
"Where a trial judge has failed to make satisfactory inquiry and a defendant can demonstrate that a conflict of interest, or at least the significant possibility thereof, did exist, a new trial must be ordered ..." (at page 264, 417 N.Y.S.2d 908, 391 N.E.2d 990). See also People v. Baffi, 49 N.Y.2d 820, 427 N.Y.S.2d 615, 404 N.E.2d 737 (1980).
Thus, the Macerola Court recognized that a defendant might be hard pressed to show actual prejudice in the trial record and determined that a demonstrated "significant possibility" of a conflict of interest would serve as an adequate basis for relief. At first blush, this would appear a distinct departure from federal requirements, but the Second Circuit recognized the same peril and chose the remedy of shifting the burden of proof to the government to show that the defendant had not been prejudiced by the failure to inquire. [U.S. v. Carrigan, supra, at page 1056; U.S. v. DeBerry, 487 F.2d 448 (2d Cir.1973); see also U.S. v. Foster, 469 F.2d 1, 5 (1st Cir.1972).]
The notion of shifting burdens of proof also appealed to at least one New York court which took the matter one step further by placing the initial burden on the defendant to demonstrate a conflict of interest and then shifting it to the prosecution to show that it didn't really make any difference. In People v. Baldi, 76 A.D.2d 259, 429 N.Y.S.2d 677...
To continue reading
Request your trial
-
People v. Torres
...a second felony offender because his prior felony conviction was obtained in violation of the New York Constitution. People v. Slavik, 131 Misc.2d 795, 501 N.Y.S.2d 992 (Broome Co. Ct.1986). Without considering this question directly, the Second Department has considered pursuant to CPL § 4......