People v. Wise

• Decision Date: 03 November 1978
• Citation: 409 N.Y.S.2d 877,64 A.D.2d 272
• Parties: PEOPLE of the State of New York, Respondent, v. Clifford WISE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 877

409 N.Y.S.2d 877

64 A.D.2d 272

PEOPLE of the State of New York, Respondent, v. Clifford WISE, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Nov. 3, 1978.

Alfred P. Kremer, Rochester, for appellant.

Lawrence Kurlander, Dist. Atty., Rochester (Adam H. Bernstein, Rochester, of counsel), for respondent.

Before CARDAMONE, J. P., and DILLON, HANCOCK, SCHNEPP and WITMER, JJ.

HANCOCK, Justice:

On appeal from convictions of robbery in the second degree and grand larceny in the second degree, defendant argues that there should be a reversal and a new trial because he was deprived of the effective assistance of counsel and because the trial court was under an obligation to relieve defense counsel during the trial and to declare a mistrial.

On April 13, 1976, after a suppression hearing and completion of the jury selection and after a motion challenging the composition of the jury panel had been argued and denied, defendant for the first time advised the court of his dissatisfaction with his counsel, Mr. Charles Davis. In the ensuing colloquy, defendant claimed that although he had hired him three or four months prior to trial, he had just learned that this was Mr. Davis' first jury trial. (Mr. Davis said that he had informed defendant of this fact earlier.) Defendant asked for "an opportunity to get counsel that I feel would be qualified to represent me properly." In response to the court's inquiry as to whether he wished to withdraw, Mr. Davis replied, "I wasn't going to ask to withdraw from the case. What I was about to say was that under the circumstances the defendant not having full confidence in my ability to represent him * * * may have some effect upon my ability to represent him." The court noted that two months previously, with defendant and his attorney present, the case had been set for a day certain and that there had been ample time to prepare for trial and to obtain new counsel had defendant wished to do so. After determining that there was no animosity on the part of the defendant toward his counsel, the court ordered the trial to proceed.

When the court reconvened after a recess on the afternoon of the fourth day of trial, April 16, 1978 (after seven of the People's witnesses had taken the stand), Mr. Davis in the presence of the jury refused to continue with the trial. He berated the court, saying, "You made statements in private that I feel were a prejudgment on your part, and you have also influenced the jury with those statements (and) by your actions on the bench." As he stalked out of the courtroom, he exclaimed, "I refuse to proceed any further with this trial." The court excused the jury and dispatched a court attendant to bring Mr. Davis back to the courtroom. Upon his return a prolonged and sometimes heated colloquy took place. Mr. Davis repeated his accusations against the court ¹ and demanded that he be relieved as counsel, claiming mistakenly that on April 13 he had asked to withdraw from the case. He then moved for a mistrial. Justice Boomer categorically denied any prejudicial conduct including the specific charges made by Mr. Davis. He observed that the case had been set down for a day certain over a month in advance in the presence of defendant and Mr. Davis and that Mr. Davis was defendant's third attorney. ² Over Mr. Davis' persistent refusals, the court ordered him to continue with the trial under pain of being held in contempt of court.

There is nothing in the record to indicate that the outburst adversely affected Mr. Davis' ability to proceed with the trial. On the contrary, he subsequently conducted lengthy and thorough cross-examinations of the People's remaining witnesses, made his summation, and objected on several occasions both to the testimony and to the People's summation, all with the same effectiveness that he had demonstrated before the incident.

Defendant does not now assert that there was any substance to his mistrial motion founded on the allegedly prejudicial conduct by the court. Indeed, a review of the record demonstrates that there was none and that the trial was conducted throughout with meticulous fairness. Instead, defendant urges on appeal that a mistrial should have been granted to permit defense counsel to withdraw and that defendant was not afforded his right to adequate representation by counsel.

We hold that the court's denial of the motion for mistrial based on the defendant's dissatisfaction with counsel and counsel's belated motion to withdraw was a proper exercise of discretion. Mr. Davis was the defendant's third or fourth attorney and a day certain had been set for trial two months earlier. Moreover, although not determinative (People v. Aiken, 45 N.Y.2d 394, 401, 408 N.Y.S.2d 444, 448, 380 N.E.2d 272, 276), we note that Mr. Davis was not court-appointed but had been retained three or four months prior to trial and that the defendant had had a full opportunity to inquire into his experience and ability. There is no showing that Mr. Davis was incapable of proceeding after his attack upon the court or that any circumstance arose rendering it "physically impossible to proceed with the trial". (CPL § 280.10, subd. 3; cf. People v. Kelly, 9 N.Y.2d 697, 212 N.Y.S.2d 755, 173 N.E.2d 679; People ex rel. Brinkman v. Barr, 248 N.Y. 126, 161 N.E. 444). Nor can it be said that Mr. Davis' erratic conduct before the jury constituted "an error or legal defect in the proceedings, or conduct * * * which (was) prejudicial to the defendant and deprive(d) him of a fair trial" (CPL § 280.10, subd. 1; cf. People v. Byrne, 17 N.Y.2d 209, 270 N.Y.S.2d 193, 217 N.E.2d 23). The court promptly excused the jury when the incident occurred and properly instructed it upon its return. Indeed, for the court to have granted a mistrial founded on the possible prejudicial effect on the jury of defense counsel's willful behavior would have been to permit defense counsel by a "conscious strategic decision * * * to pressure the trial court into declaring a mistrial" (People v. Aiken, supra, 45 N.Y.2d, p. 399, 408 N.Y.S.2d p. 448, 380 N.E.2d p. 275; cf. People v. Epps, 71 Misc.2d 1075, 338 N.Y.S.2d 297, aff'd 46 A.D.2d 890, 361 N.Y.S.2d 689, aff'd 37 N.Y.2d 343, 372 N.Y.S.2d 606, 334 N.E.2d 566, cert. den. 423 U.S. 999, 96 S.Ct. 430, 46 L.Ed.2d 374; People v. Johnson, 45 A.D.2d 1030, 357 N.Y.S.2d 892, aff'd 37 N.Y.2d 778, 375 N.Y.S.2d 97, 337 N.E.2d 605).

Defendant also argues that he was not afforded his right to effective representation. The standard by which the earlier cases measured the adequacy of representation by defense counsel was whether it rendered the defendant's trial "a farce and a mockery of justice" (People v. LaBree, 34 N.Y.2d 257, 260, 357 N.Y.S.2d 412, 414, 313 N.E.2d 730, 731; People v. Bennett, 29 N.Y.2d 462, 467, 329 N.Y.S.2d 801, 804, 280 N.E.2d 637, 639; People v. Tomaselli, 7 N.Y.2d 350, 354, 197 N.Y.S.2d 697, 700, 165 N.E.2d 551, 553; People v. Brown, 7 N.Y.2d 359, 361, 197 N.Y.S.2d...