People v. Sawyer , 83 A.D.2d 205 ( 1981 )

OPINION OF THE COURT

SCHNEPP, J.

After a trial by jury defendant Robert E. Sawyer was convicted of common-law murder in the second degree (Penal Law, § 125.25, subd 1) and felony murder in the second degree (Penal Law, § 125.25, subd 3), and sentenced to an indeterminate term of 25 years to life imprisonment. He appeals essentially on the ground that he was denied his right to counsel at trial.

In our analysis it is unnecessary to consider the facts bearing on the commission of the crime itself and we limit our consideration to the events relating to the claimed impairment of the right to counsel. Following his indictment on the two counts of second degree murder and two counts of robbery for the shooting death of a cashier at a grocery store, the defendant was arraigned, informed of his right to counsel, and given one week to retain an attorney. On March 9, 1978 he appeared before the court with attorney Charles E. Fagan who informed the court that he was not presently retained to represent the defendant. Fagan inquired, however, about possible conflicts of interest involving the recent transfers of Mr. Ronald Gibb from the Public Defender’s office to the District Attorney’s office and Mr. Richard Slater from the District Attorney’s office to the Public Defender’s office. The court stated that there was no conflict of interest created by the transfers because a disassociation had been ordered. The court indicated that if the defendant had evidence bearing on any violation of its order it would hear the matter. The claim that Gibb’s transfer to the District Attorney’s office created a conflict of interest was not referred to again or developed on the record. On this appeal we concern ourselves solely with the contention that Slater’s transfer to the Public Defender’s office created a conflict of interest with regard to the defendant’s case.

On March 16 the defendant and Fagan appeared again before the court. Upon being informed that the defendant was indigent, the court appointed Mr. Bruce Carpenter of the Public Defender’s office to represent him. Defendant refused to consent to the assignment stating, “I don’t want the Public Defender”. Thereafter, defendant in a letter to the court rejected Carpenter’s services. On March 20 at his next court appearance with Carpenter, defendant reiterated his objection to representation by the Public Defender but stated that he nonetheless wanted counsel. The court denied defendant’s claim that he had the right to refuse the lawyer assigned by the court and to have specific counsel appointed. Carpenter indicated that the defendant had refused to co-operate with him, and requested that the court appoint an attorney to be in the courtroom with defendant to follow the case. This the court refused to do. Carpenter said that apparently defendant was echoing a previous argument of Fagan that defendant was entitled to assigned counsel of his choice. The assignment of Carpenter was continued. On March 22 defendant again advised the court that he wanted a lawyer, but that he could not accept the Public Defender, and, thus, he was unable to plead because he did not have counsel. The court entered a plea of not guilty on defendant’s behalf. Some colloquy then ensued between the court and defendant during which the court stated, “I am giving you another chance. You may make your own choice. One, represent yourself. Two, be represented by the Public Defender. You have no other choice”. The defendant answered that he was not competent to defend himself. On his next court appearance the defendant again expressed his unwillingness to accept the representation by the Public Defender. The court then relieved Carpenter of his assignment and noted for the record that the defendant would represent himself.

Throughout the remaining pretrial proceedings defendant was not represented by counsel. On October 3 defendant met with the court prior to jury selection and was given another chance to accept Carpenter as his attorney. Defendant rejected this offer, restated his desire for counsel, and claimed again that he was not competent to represent himself. Further, he declared that the court had appointed incompetent counsel and that Carpenter did not have a desire to defend him. The court advised defendant that Carpenter had no conflicts in the case and that he was an able lawyer, ready and willing to represent the defendant. Thereafter, the trial began. Defendant was not represented by counsel. In his opening statement he complained about being “forced” to represent himself and the over-all unfairness of the proceedings. Although he denied his guilt, defendant did not actively participate in the trial.

We hold that the court, which properly denied defendant’s request for a new counsel, committed reversible error in relieving the Public Defender of his assignment to represent defendant and in thus depriving defendant of his right to counsel at the trial.

It is well established that a criminal defendant has the right to retain an attorney of his own choosing (People v Arroyave, 49 NY2d 264, 270), but this right does not encompass the right to an appointed counsel of his choice.“[A]s long as assigned counsel are men of ability and integrity, the discretion and responsibility for their selection rest with the court, to be exercised free of outside interference” (People v Brabson, 9 NY2d 173, 181). This is not to suggest that an indigent’s request for new counsel should be treated casually. Where good cause is shown, assigned counsel should be substituted (People v Medina, 44 NY2d 199, 207).

Good cause did not exist in this case. The claim that a conflict of interest was created by Slater’s former employment in the District Attorney’s office is without merit. We are cognizant of the holding of the Court of Appeals in People v Shinkle (51 NY2d 417) that the transfer of a Public Defender to the District Attorney’s office creates a conflict of interest which constitutes a per se disqualification of the entire District Attorney’s staff from prosecuting a defendant who has been previously represented by the former Public Defender. Shinkle has no application, however, to the converse situation which creates no appearance of impropriety or opportunity for abuse of confidence. The danger that previously obtained confidential information will become available to the prosecution simply does not exist when a District Attorney becomes a Public Defender. We conceive of no prejudice to defendant resulting from Slater’s former employment; and, indeed, the defendant makes no such claim. Therefore, in the absence of a conflict of interest the court acted properly in denying defendant’s request for a change of counsel and in giving him the choice of either accepting the representation by Carpenter or deciding to proceed pro se. Defendant chose to do neither. He asserted that he did not want to be represented by a Public Defender, but, at the same time, claimed that he was not competent to represent himself and insisted upon the appointment of an attorney. The court construed these seemingly contradictory representations as a waiver of the right to counsel by defendant and an insistence to proceed pro se. They were not.

Clearly, defendant did not meet the requirements that the Court of Appeals has stated for the right to appear pro se: “A defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues.” (People v McIntyre, 36 NY2d 10, 17.) In fact, defendant never requested to represent himself. He insisted throughout the pretrial proceedings and during the course of the trial itself that he was incompetent to represent himself. And once the trial began, he did nothing to assis't his defense except to deny having committed the crime (cf. People v Yates, 45 AD2d 778).

This case is in many ways similar to People v Kelly (60 AD2d 220, affd 44 NY2d 725). In Kelly assigned counsel requested to be relieved of his assignment because the defendant told him that he wanted “Allah” as his attorney. When asked by the court if that was his wish, defendant responded that “Allah” would advise him. The First Department, citing People v McIntyre (36 NY2d 10, 17, supra), ruled that, in view of the defendant’s responses that he wanted his attorney dismissed but did not want to represent himself, the court had no choice but to deny defense counsel’s request to be relieved of counsel and to continue the representation of defendant by his assigned counsel (People v Kelly, 60 AD2d 220, 224, supra).

This is precisely the course which the court should have taken in this case (see United States ex rel. Testamark v Vincent, 496 F2d 641). Despite defendant’s insistence that his attorney be dismissed, he clearly did not want to represent himself. The conviction of an indigent defendant cannot stand if he was not represented at trial, unless there has been an intelligent and competent waiver of counsel (Faretta v California, 422 US 806). Carpenter should not have been relieved of his assignment. Defendant did not waive his right to counsel.

This is not the situation, as the dissent suggests, where the defendant’s “refusal without good cause to proceed with able appointed counsel is a ‘voluntary’ waiver” (Maynard v Meachum, 545 F2d 273, 278). A defendant may be properly given the choice of co-operating with his appointed attorney, or representing himself. That decision, however, is personal to the defendant. Here the court itself, when it relieved competent counsel in advance of trial, made the decision that defendant would defend himself.

Accordingly, the judgment of conviction should be reversed and a new trial granted.