People v. Vasquez
| Decision Date | 30 June 1980 |
| Citation | 105 Misc.2d 958,430 N.Y.S.2d 501 |
| Parties | PEOPLE of the State of New York v. Valentin VASQUEZ. |
| Court | New York Supreme Court |
Bailey & Marshall, New York City, for defendant; Rita Hayman, New York City, of counsel.
Eugene Gold, Dist. Atty., Kings County, for the People; Lee Wasserman, Asst. Dist. Atty., of counsel.
Defendant moves for an order vacating the judgment of conviction pursuant to CPL 440.10(1)(h) on the ground that defendant was denied "adequate and effective assistance of counsel."
On March 28, 1978 after a jury trial, defendant was convicted of criminal sale of a controlled substance in the first degree, a Class A-1 felony. On May 4, 1978 he was sentenced to a minimum of 15 years and a maximum of life.
In accordance with People v. Brown, 45 N.Y.2d 852, 410 N.Y.S.2d 287, 382 N.E.2d 1149 a hearing on the motion was conducted on January 16, February 8, February 15 and March 17, 1980. In determining this motion the court has considered the information submitted by both parties in the motion papers, the defendant's memorandum of law, respondent's memorandum of law, defendant's reply memorandum, the court's observations at trial, the trial record, the credible evidence adduced at the hearing and all other papers on file with the court. The court makes the following findings of fact and conclusions of law.
Throughout most of the pretrial proceeding defendant and codefendant Cruz were both represented by one attorney. Shortly before the trial, it became apparent that a conflict of interest between defendant and codefendant existed (People v. Gomberg, 38 N.Y.2d 307, 379 N.Y.S.2d 769, 342 N.E.2d 550; People v. Macerola, 47 N.Y.2d 257, 417 N.Y.S.2d 908, 391 N.E.2d 990). Inasmuch as counsel was privately retained, and had received a retainer from defendant, it was determined that counsel would cooperate in finding new counsel.
New counsel was then retained a few days before trial. Prior to trial new counsel discussed the various aspects of this case with former counsel. On March 20, 1978 a representative from new counsel's office appeared for defendant. At that time defendant was asked if he was satisfied with new counsel, and defendant stated he was. No application for an adjournment or delay in trial was made. Voir dire of the jurors then commenced. On March 21, 1978, the second day of selection of jury, new counsel appeared for the first time. Codefendant Cruz, however, failed to appear on that day, and the case was then adjourned for one day. March 21, 1978 was the first time that new counsel had met or consulted with his client, with regard to this A-1 felony. Prior thereto, new counsel had discussed the matter with prior counsel. In order to expedite the trial, the district attorney opened his entire file to new defense counsel for his examination (cf. People v. Poole, 48 N.Y.2d 144, 422 N.Y.S.2d 5, 397 N.E.2d 697).
On March 22, 1978 the court conducted a hearing on the whereabouts of codefendant Cruz. After the hearing voir dire of the jurors continued and jury selection was completed.
On March 23, 1978 the People opened to the jury. New defense counsel was the only attorney for any of the defendants to open to the jury. The trial then commenced. During the trial defense counsel (formerly referred to as new defense counsel) vigorously cross examined witnesses, made motions, consulted with his client, and discussed defendant's testimony with him. After the People rested defendant testified (he was the only defendant to testify). Defendant appeared well prepared for his testimony, and gave no indication of any mental difficulty in understanding questions posed to him by defense counsel or by the People on cross examination. Defense counsel also made requests to charge. Throughout the trial defense counsel conducted a vigorous and diligent defense.
The sole issue with regard to this defendant at trial was whether or not defendant had the requisite mens rea to act in concert with his codefendant Cruz in the sale of the controlled substance. Defendant conceded that he was present at the time of the sale, overheard conversations during the narcotic sale, but claimed that he was present only because he had driven the codefendant, his nephew, to the place of the transaction. He claimed that codefendant's car broke down on the day in question, and as a favor, not knowing that any illegal activity was going to occur, drove his nephew, codefendant Cruz, to the location. Detective Sanchez testified that defendant, during the transaction, nodded in agreement to a statement that, "It is hard getting good stuff." Further, he testified that the defendant said, "he (defendant) had taken several packages to New Jersey where he works * * * " (p. 158, trial transcript). The jury was thus presented with a question of whether or not defendant had the requisite intent to be considered as acting in concert with codefendant. The jury, by its verdict, rejected defendant's position.
The People claim that the proper standard in assessing a claim of ineffective assistance of counsel is the "farce and mockery" standard. The standard to be used in such claims has been the subject of much debate (see Standard of Competency for Defense Counsel in a Criminal Case, 17 American Criminal Law Review, pp. 223-251 written by William H. Erickson). The Second Circuit Court of Appeals is the only circuit which uses the "farce and mockery" standard (Indiviglio v. U. S., 612 F.2d 624 (2nd Cir.)). All other circuits have adopted the "reasonable competence" standard (see concurring opinion in Indiviglio v. U. S., supra, and Dyer v. Crisp, 613 F.2d 275 (10th Cir.)).
In People v. Sellars, 74 A.D.2d 551 at p. 551, 425 N.Y.S.2d 117, 118, the Appellate Division, First Department said, "Considered as a whole we are not persuaded that he failed to exhibit the required 'reasonable competence ' (citations omitted)." (emphasis supplied) In People v. Jackson, 74 A.D.2d 585, 586, 424 N.Y.S.2d 484, at p. 484, the Appellate Division Second Department said, "Because we are unable to conclude on this record that trial counsel failed to demonstrate reasonable competence in defense of his client, we affirm." (emphasis supplied) Apparently, the First and Second Departments of the Appellate Division have adopted the "reasonable competence" standard.
This court concludes that the proper standard to be applied where defendant claims ineffective assistance of counsel is the "reasonable competence" standard (cf. People v. Aiken, 45 N.Y.2d 394, 408 N.Y.S.2d 444, 380 N.E.2d 272).
The court further notes that no distinction should be made between the standard applicable to appointed counsel and the standard applicable to retained counsel. In Cuyler v. Sullivan, --- U.S. ----, ----, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 the court said, "A proper respect for the Sixth Amendment disarms petitioner's contention that defendants who retain their own lawyers are entitled to less protection than defendants for whom the State appoints counsel." (see also People v. Aiken, 45 N.Y.2d 394, 408 N.Y.S.2d 444, 380 N.E.2d 272, supra).
The defendant argues that his retained counsel failed to make any investigation, and failed to consult with defendant prior to the commencement of trial.
It is well settled that ordinarily defense counsel has an obligation to investigate defendant's case, both factually and legally, and to consult with him (see Wallace v. Kern, 392 F.Supp. 834 (D.C.N.Y.), revsd. on other grounds, 481 F.2d 621 (2nd Cir.); ABA Standards, Defense Counsel §§ 3.1, 3.2 and 4.1). In Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 60, 77 L.Ed. 158, the court recognized that without "consultation, thoroughgoing investigation and preparation" by defense counsel, defendant would be deprived of the "aid of counsel in any real sense."
In Moore v. U. S., 432 F.2d 730, 735 (3rd Cir.), the court observed, "Adequate preparation for trial often may be a more important element in the effective assistance of counsel to which a defendant is entitled than the forensic skill exhibited in the courtroom." (See also People v. Bennett, 29 N.Y.2d 462, 466, 329 N.Y.S.2d 801, 280 N.E.2d 637; People v. Droz, 39 N.Y.2d 457, 462, 384 N.Y.S.2d 404, 348 N.E.2d 880; People v. LaBree, 34 N.Y.2d 257, 260, 357 N.Y.S.2d 412, 313 N.E.2d 730).
What has been said about investigation is equally applicable to consultation between defendant and his counsel (People v. McLaughlin, 291 N.Y. 480, 53 N.E.2d 356).
However, the failure to investigate or consult is not a per se violation of defendant's constitutional rights. The amount of time necessary in investigation and consultation will vary greatly depending on the nature of the case, the skill of the attorney, and the particular defendant (Turner v. Maryland, 318 F.2d 852 (4th Cir.); People v. Wight, 176 F.2d 376 (2nd Cir.)). As observed by the court in Rastrom v. Robbins, 440 F.2d 1251, 1253 (1st Cir.), "We recognize that the amount of time required for adequate preparation can widely vary."
In this case we have an attorney who has tried over 100 major felony cases; has tried several A-1 narcotic felony cases; and has been admitted to practice law for a period of about 12 years. The attorney was contacted by the prior attorney and was informed of defendant's claims (see U. S. v. Joyce, 542 F.2d 158 (2nd Cir.), cert. den. 429 U.S. 1100, 97 S.Ct. 1122, 51 L.Ed.2d 548). The attorney did not request an adjournment of the matter. The attorney was satisfied with the information received from prior counsel and saw no necessity for any further investigation; nor did he contact defendant until the second day of jury selection. The record is void as to what, if any, investigation or preparation the prior attorney did with regard to this defendant. Prior to trial the district attorney's file was open to new counsel for his information. The issue in the case is not difficult (the sole issue...
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