People v. Winkler

• Decision Date: 13 January 1992
• Citation: 578 N.Y.S.2d 582,179 A.D.2d 711
• Parties: The PEOPLE, etc., Respondent, v. Richard WINKLER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 582

578 N.Y.S.2d 582

179 A.D.2d 711

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

Supreme Court, Appellate Division,

Second Department.

Jan. 13, 1992.

Robert N. Isseks, Goshen, for appellant.

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

Before THOMPSON, J.P., and KUNZEMAN, SULLIVAN and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

Appeals by the defendant (1) from a judgment of the County Court, Westchester County (Martin, J.), rendered October 30, 1981, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence, and (2), by permission, from an order of the same court (Silverman, J.), entered July 20, 1990, which denied his motion pursuant to CPL 440.10 to vacate the judgment of conviction. By decision and order dated July 24, 1989, this court held the appeal from the judgment in abeyance pending a hearing on the defendant's motion pursuant to CPL 440.10 (People v. Winkler, 152 A.D.2d 714, 544 N.Y.S.2d 494). Justice Sullivan and Justice Lawrence have been substituted for former Presiding Justice Mollen and former Justice Rubin, respectively, on the appeal from the judgment (see, 22 NYCRR 670.1[c].

ORDERED that the judgment and the order are affirmed.

The primary issue presented on these appeals is whether the defendant was deprived of effective assistance of counsel by virtue of a contingency fee arrangement between the defendant and his attorney. As the Court of Appeals held in People v. Winkler, 71 N.Y.2d 592, 596, 528 N.Y.S.2d 360, 523 N.E.2d 485, "fees contingent upon achieving a specific result in a criminal case are wrong [yet] such agreements do not collaterally constitute a per se violation of a criminal defendant's constitutional right to effective assistance of counsel". The defendant bears the burden of demonstrating the alleged ineffectiveness by showing that the contingent fee agreement existed and that "it affected the manner in which his attorney conducted the defense prejudicially to the defendant" (People v. Winkler, supra, 71 N.Y.2d at 597, 528 N.Y.S.2d 360, 523 N.E.2d 485; see also, People v. Winkler, 74 N.Y.2d 704, 706, 543 N.Y.S.2d 380, 541 N.E.2d 409). The hearing court correctly held that the defendant failed to meet his burden.

The evidence adduced at the hearing on the defendant's motion pursuant to CPL 440.10 demonstrated that the defendant was adamant about his innocence of the murder charge and that he was opposed to pleading guilty or having lesser included offenses submitted to the jury. His attorney discussed these matters with him, but the defendant did not want anything less than a complete acquittal. Thus, the hearing record demonstrated that the attorney's subsequent failure to pursue these possibilities was dictated by the defendant.

A defendant unquestionably has the right to chart his own defense (see, People v. DeGina, 72 N.Y.2d 768, 776, 537 N.Y.S.2d 8, 533 N.E.2d 1037). By acting in accordance with the defendant's instructions and not pursuing avenues which could have undermined or removed the defendant's chance of a complete acquittal (see, e.g., People v. Harris, 109 A.D.2d 351, 362, 491 N.Y.S.2d 678; People v. DeGina, supra, 72 N.Y.2d at 776, 537 N.Y.S.2d 8, 533 N.E.2d 1037), the defense counsel was not ineffective. Pursuing losing...