PEOPLE v. JONES (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated, and the matter is remitted to Monroe County Court for further proceedings on the indictment.

Memorandum: Defendant appeals from a judgment convicting him upon his guilty plea of burglary in the first degree (Penal Law § 140.30 [4] ).  We agree with defendant that he is entitled to vacatur of his guilty plea because County Court violated his right to counsel when it failed to conduct a sufficient inquiry into his complaint regarding defense counsel's representation of him.  “Under our State and Federal Constitutions, an indigent defendant in a criminal case is guaranteed the right to counsel” (People v. Medina, 44 N.Y.2d 199, 207, 404 N.Y.S.2d 588, 375 N.E.2d 768 [1978]; see U.S. Const., 6th Amend.; N.Y. Const., art. I, § 6; People v. Linares, 2 N.Y.3d 507, 510, 780 N.Y.S.2d 529, 813 N.E.2d 609 [2004]).  Consistent with that guarantee, trial courts have the “ongoing duty” to “ ‘carefully evaluate serious complaints about counsel’ ” (Linares, 2 N.Y.3d at 510, 780 N.Y.S.2d 529, 813 N.E.2d 609, quoting Medina, 44 N.Y.2d at 207, 404 N.Y.S.2d 588, 375 N.E.2d 768; see People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990]).

Whether to grant a defendant's request to substitute counsel is “within the ‘discretion and responsibility’ of the trial judge” (People v. Porto, 16 N.Y.3d 93, 99, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010], quoting Medina, 44 N.Y.2d at 207, 404 N.Y.S.2d 588, 375 N.E.2d 768), and “a court's duty to consider such a motion is invoked only where a defendant makes a ‘seemingly serious request[ ]’ ” (id. at 99–100, 917 N.Y.S.2d 74, 942 N.E.2d 283, quoting Sides, 75 N.Y.2d at 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233).  It is therefore “incumbent upon a defendant to make specific factual allegations of ‘serious complaints about counsel’ ” (id. at 100, 917 N.Y.S.2d 74, 942 N.E.2d 283, quoting Medina, 44 N.Y.2d at 207, 404 N.Y.S.2d 588, 375 N.E.2d 768).  If a defendant makes such a showing, “the court must make at least a ‘minimal inquiry,’ and discern meritorious complaints from disingenuous applications by inquiring as to ‘the nature of the disagreement [with counsel] or its potential for resolution’ ” (id., quoting Sides, 75 N.Y.2d at 825, 552 N.Y.S.2d 555, 551 N.E.2d 1233).

Here, during the plea colloquy, defendant attempted to inform the court that he was pleading guilty only because he was not receiving effective assistance of counsel.  Although vague and conclusory complaints about counsel generally are insufficient to trigger the court's duty to make an inquiry (see People v. Chess, 162 A.D.3d 1577, 1578–1579, 79 N.Y.S.3d 433 [4th Dept. 2018]; People v. Watkins, 77 A.D.3d 1403, 1404, 909 N.Y.S.2d 233 [4th Dept. 2010], lv denied 15 N.Y.3d 956, 917 N.Y.S.2d 116, 942 N.E.2d 327 [2010]), the court here “failed to provide defendant with an opportunity to explain his complaints” (People v. Tucker, 139 A.D.3d 1399, 1400, 31 N.Y.S.3d 377 [4th Dept. 2016]; see People v. Beard, 100 A.D.3d 1508, 1512, 953 N.Y.S.2d 805 [4th Dept. 2012]; People v. Branham, 59 A.D.3d 244, 245, 873 N.Y.S.2d 280 [1st Dept. 2009]; see also Sides, 75 N.Y.2d at 824–825, 552 N.Y.S.2d 555, 551 N.E.2d 1233).  The court refused to accept defendant's pro se letter regarding the matter and did not otherwise allow defendant to expand upon his claim of ineffective assistance of counsel.  Defendant's “request may well have been a frivolous delaying tactic” (People v. Rodriguez, 46 A.D.3d 396, 397, 848 N.Y.S.2d 94 [1st Dept. 2007], lv denied 10 N.Y.3d 844, 859 N.Y.S.2d 402, 889 N.E.2d 89 [2008]).  Nevertheless, we conclude that the court had “no basis to completely cut off the discussion without hearing any explanation” (id.).  A “defendant must at least be given an opportunity to state the basis for his [or her] application” (People v. Bryan, 31 A.D.3d 295, 296, 818 N.Y.S.2d 217 [1st Dept. 2006]).

Moreover, under the facts of this case, we reject the People's contention that defendant abandoned his request when he decided to plead guilty while still represented by the same attorney.  After refusing to allow defendant to articulate his complaints about defense counsel, the court essentially gave defendant an ultimatum: plead guilty with present counsel or proceed to trial with present counsel (cf. People v. Ocasio, 81 A.D.3d 1469, 1470, 917 N.Y.S.2d 803 [4th Dept. 2011], lv denied 16 N.Y.3d 898, 926 N.Y.S.2d 33, 949 N.E.2d 981 [2011], cert denied 565 U.S. 910, 132 S.Ct. 318, 181 L.Ed.2d 196 [2011]; People v. Hobart, 286 A.D.2d 916, 916, 731 N.Y.S.2d 127 [4th Dept. 2001], lv denied 97 N.Y.2d 683, 738 N.Y.S.2d 298, 764 N.E.2d 402 [2001]).  The People also contend that defendant's challenge to the court's denial of his implicit request for substitution of counsel is foreclosed by his guilty plea.  We reject that contention because, for the reasons discussed herein, defendant's contention “implicates the voluntariness of the plea” (People v. Morris, 94 A.D.3d 1450, 1451, 942 N.Y.S.2d 725 [4th Dept. 2012], lv denied 19 N.Y.3d 976, 950 N.Y.S.2d 358, 973 N.E.2d 768 [2012] [internal quotation marks omitted] ).

Based upon the foregoing, the judgment should be reversed and the plea vacated (see Sides, 75 N.Y.2d at 825, 552 N.Y.S.2d 555, 551 N.E.2d 1233; Branham, 59 A.D.3d at 245, 873 N.Y.S.2d 280).  In light of our conclusion, there is no need to address defendant's remaining contentions.