People v. Winkler

• Decision Date: 11 May 1987
• Citation: 515 N.Y.S.2d 488,128 A.D.2d 153
• Parties: The PEOPLE, etc., Respondent, v. Richard WINKLER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 488

515 N.Y.S.2d 488

128 A.D.2d 153

The PEOPLE, etc., Respondent, v. Richard WINKLER, Appellant.

Supreme Court, Appellate Division Second Department.

May 11, 1987.

Robert N. Isseks, Middletown, for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Diane E. Selker and Anthony J. Servino, of counsel), for respondent.

Before MOLLEN, P.J., and THOMPSON, RUBIN and KUNZEMAN, JJ.

MOLLEN, Presiding Justice.

The primary issue presented by this appeal is whether the existence of a contingency fee arrangement such as in the case at bar between the defendant and his attorney in a criminal case constitutes a denial of the defendant's constitutional right to counsel (U.S. Const. 6th amend; N.Y. Const., art. 1, § 6). We hold that such an arrangement violates the defendant's constitutional rights, as a matter of law, and accordingly grant the defendant's motion to vacate the judgment of conviction and order a new trial.

The defendant was charged along with an accomplice, Merrill Williams, with the crimes of murder in the second degree and criminal possession of a weapon in the fourth degree. The indictment charged that the defendant, while acting in concert with Williams, intentionally caused the death of the defendant's father, Irving Winkler, on August 2, 1980. According to the People's case, the defendant, Williams and one Robert Gruber had driven to the defendant's North Tarrytown home in the early morning hours of August 2, 1980. Gruber, who testified on behalf of the prosecution, remained in the car, which was parked a block or two away from the house, while the defendant and Williams entered the house. Approximately 45 minutes later, Gruber heard sounds like firecrackers. Shortly thereafter, the defendant and Williams returned to the car. Williams was holding a rifle wrapped up in a tee shirt and placed the rifle in the trunk of the car. The defendant told Gruber, "you don't know anything" and then turned to Williams and asked, "what do you want?" When Williams indicated that he wanted $10,000, the defendant replied, "You can have anything but my car". While driving home, Williams stated, "I can't believe it" and "I can't believe I shot him". Several youths from the neighborhood also testified that on July 31, 1980, another youth had given Williams a .22 caliber rifle similar to that of the murder weapon.

The defendant took the stand on his own behalf and testified that Williams had given him a .22 caliber rifle on July 31, 1980, which he asked the defendant to store in his house. The next day, the defendant and Gruber were together during the late evening hours snorting cocaine and smoking marijuana. The two men then met Williams at approximately 1:30 A.M. on August 2, 1980. During their conversation, Williams apparently demanded $100 from the defendant representing money the defendant owed him. The three men then drove to the defendant's home in North Tarrytown so that the defendant could get the money. Williams accompanied the defendant into the house and asked the defendant for the return of his rifle. The defendant complied. While the defendant was looking for money in his bedroom, Williams apparently wandered through the house and entered Irving Winkler's bedroom. The defendant then heard two gunshots. Williams came out of the bedroom holding money and told the defendant to leave with him. The defendant stated that on the way back to the car, Williams threatened to kill the defendant and his mother if the defendant said anything about the shooting.

Following a joint jury trial, the defendant and Williams were convicted of murder in the second degree. On October 30, 1981, the defendant was sentenced to 25 years to life imprisonment. The defendant filed a notice of appeal from his judgment of conviction.

While the appeal was pending, the defendant moved to vacate the judgment of conviction pursuant to CPL 440.10 based on a claim of ineffective assistance of counsel. In his moving papers, the defendant revealed for the first time that his trial counsel had represented him pursuant to a contingency fee retainer agreement. According to the moving affidavits, the defendant's mother, Lanie Sattler, and grandmother, Annie Winkler, entered into a written agreement with trial counsel's law firm to retain it for the representation of the defendant in defense of this indictment. The retainer agreement, which was executed at the law firm's offices, provided as follows:

"RETAINER AGREEMENT dated this 28th day of October, 1980, by and between LANIE SATTLER, residing at One Century Tower, Fort Lee, New Jersey, and ANNIE WINKLER, residing at 1920 Scheiffelin Avenue, Bronx, New York, and [trial counsel].

"WHEREAS, LANIE SATTLER desires to retain [trial counsel's law firm] to represent her son, RICHARD WINKLER, on a pending charge in Westchester County County Court; and

"WHEREAS, [trial counsel's law firm] agrees to accept said retainer; and

"WHEREAS, ANNIE WINKLER, grandmother of RICHARD WINKLER, agrees to assist in the payment of legal fees.

"NOW, THEREFORE, it is agreed as follows:

"FIRST: The fee for legal representation shall be paid as follows:

"(a) $2,000.00 on execution hereof, receipt of which is hereby acknowledged;

"(b) $18,000.00 to be paid by ANNIE WINKLER from a bequest to be received from the Estate of Irving Winkler, at such time as said bequest is received.

"SECOND: It is agreed that any disbursements for investigation or psychiatric examinations, etc., shall be in addition to the above fees.

"THIRD: It is agreed that the within retainer is for the trial only, and will not include any appeals, if necessary.

"FOURTH: ANNIE WINKLER has been advised and understands that in the event that RICHARD WINKLER is convicted in Westchester County Court, that she would stand to inherit the entire estate of Irving Winkler (subject to any objections by other interested parties).

"FIFTH: ANNIE WINKLER agrees that said money shall be paid by her heirs, executors, administrators and assigns in the event of her death prior to payment of said fees.

"SIXTH: It is understood and agreed, subject to the approval of RICHARD WINKLER, that in the event RICHARD WINKLER is acquitted or found not guilty by reason of insanity, or some other legal reasons, and inherits from the Estate of Irving Winkler, that RICHARD WINKLER shall pay, as additional legal fees, the sum of $15,000.00 (emphasis added)".

On November 5, 1980, trial counsel visited the defendant at the Westchester County Jail and presented the retainer agreement to him for his signature. Before signing the agreement, the defendant crossed out the $15,000 figure set forth in paragraph "SIXTH" of the agreement and inserted the figure of $25,000 in its place.

The defendant argues that the aforesaid contingency fee arrangement, which was in violation of the Code of Professional Responsibility, DR 2-106(C), establishes a per se denial of his right to effective assistance of counsel. Thus, the defendant asserts that the judgment of conviction must be vacated even in the absence of a showing of actual prejudice. The defendant also maintains that he was actually and substantially prejudiced by counsel's performance at trial as a result of counsel's conflict of interest. For example, the defendant argues that counsel improperly failed, inter alia, to request the submission of the lesser included offenses of manslaughter in the first and second degrees to the jury for its consideration, to adequately advise the defendant as to whether or not he should testify on his own behalf, and to pursue an intoxication defense. These alleged errors in defense counsel's representation, the defendant argues, were due to counsel's financial interest being solely dependent upon a complete acquittal of all charges rather than a possible conviction of a lesser count.

The County Court (Marasco, J.) ^* denied the defendant's CPL 440.10 application without a hearing. At the outset, the court determined that it was unnecessary for it to pass on the legality of the retainer agreement or any ethical issues involved. The court also rejected the defendant's contention that the contingency fee arrangement constituted a per se violation of his constitutional right to counsel. Applying the standards set forth in People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400, which are utilized to determine whether an accused was denied adequate and meaningful representation of counsel at trial, the court determin that the defendant was not deprived of his right to effective assistance of counsel.

We first address the People's contention that the retainer agreement between the defendant and his trial counsel did not constitute a contingency fee arrangement. The People interpret the agreement as providing for a set fee of $45,000 of which the attorney agreed to accept $20,000 from the defendant's grandmother, and to hold the defendant responsible for the balance of the fee only if he inherited from his father's estate. Thus, the People assert that it was not the fee or the amount thereof which was contingent on the outcome of the case, but rather it was counsel's ability to collect the agreed fee that was in question. We reject this contention. In civil litigation, contingency fees most commonly represent an arrangement between the attorney and client whereby the attorney agrees to represent the client with compensation to be a percentage of the amount recovered (see, Black's Law Dictionary 741 [4th ed] ). A bargain to conduct a criminal case in consideration of a fee in any degree contingent upon success or a particular outcome is also a contingency fee (see, Restatement of Contracts § 542[2] ). Thus, paragraph "SIXTH" of the retainer agreement involved in this case sets forth a contingency fee, since the $25,000 sum to be paid by the defendant was entirely contingent upon his acquittal of all charges arising out of his father's killing which, in turn, could permit him to...