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Investigation Of Defense Counsel May Cause Conflict Of Interest


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People v. Payton

2013 NY Slip Op 08289

Court of Appeals

Decided on December 12, 2013

The People’s Investigation of Defense Counsel Created A Potential Conflict of Interest.

Summary: Defendant Wendell Payton was arrested and charged with one count of second-degree robbery. Two weeks before Defendants trial, the District Attorney’s office executed a search warrant on defense counsel’s law office. At sentencing, the Judge revealed after the verdict that he had learned of a potential conflict of interest with respect to defense counsel’s representation of Defendant. The Judge advised Defendant that he would assign him a new counsel.Defendant’s new attorney moved to set aside the verdict pursuant to CPL 330.30. He argued that the People’s investigation of Defendant’s trial counsel on unrelated criminal charges created an actual conflict of interest that should have been disclosed to Defendant, and that, as a result, Defendant’s conviction had to be vacated because he did not waive the conflict.

The judge denied the motion and stated that the circumstances presented did not rise to the level of an actual conflict of interest, but constituted a potential conflict at most. Further, Defendant made no claim or showing that the putative conflict operated on the defense. Defendant subsequently moved to set aside his conviction pursuant to CPL 440.10 alleging an actual conflict of interest, but the County Court denied the motion and the Appellate Division affirmed. The Court Of Appeals held that The State and Federal Constitutions guarantee a criminal Defendant legal representation that is reasonably competent, conflict-free and single mindedly devoted to the client’s best interests. Even if the trial court fails to conduct such an inquiry and obtain Defendant’s informed consent, the error requires reversal only if the conflict is an actual one. Where the conflict is potential, reversal is mandated only if the Defendant can establish that the conflict operated on the defense.

See Also: No Notice Is Required For An Extreme Emotional Defense When Defendant Relies On Prosecution’s Evidence

Issue: Whether the People’s investigations of the defense counsel create an actual conflict of interest, and, as a result, should Defendant’s conviction be vacated.

Holding: The Court of Appeals held that The State and Federal Constitutions guarantee a criminal Defendant legal representation that is reasonably competent, conflict-free and single mindedly devoted to the client’s best interests.

A Defendant is denied the right to effective assistance of counsel when absent inquiry by the court and the informed consent of Defendant, defense counsel represents interests which are actually in conflict with those of Defendant. The trial Judge owes a duty independent of counsel to protect an accused’s right to effective assistance of counsel.

Facts:  Defendant Wendell Payton was arrested and charged with one count of second-degree robbery. Two weeks before his trial, the District Attorney’s office executed a search warrant on Defense counsel’s law office. This was not disclosed to the Defendant, County Court or the assistance District Attorney prosecuting the People’s case.

At sentencing, the Judge revealed that after the verdict, he had learned of a potential conflict of interest with respect to Defense counsel’s representation of Defendant. The Judge advised Defendant that he was prepared to assign him new counsel; Defendant acknowledged that he wanted a new lawyer.

        Defendant’s new attorney moved to set aside the verdict pursuant to CPL 330.30. He argued that the People’s investigation of Defendant’s trial counsel on unrelated criminal charges created an actual conflict of interest that should have been disclosed to Defendant; and that, as a result, Defendant’s conviction had to be vacated because he did not waive the conflict. The County Court Judge denied that motion concluding that the circumstances presented did not rise to the level of an actual conflict of interest, but constituted a potential conflict at most.

In the Judge’s view, the execution of the search warrant did not necessarily alert the Trial Attorney that he himself was the target of a criminal investigation, rather than some other person or legal entity referenced in any material seized. Further, Defendant made no claim or showing that the putative conflict operated on the defense. The Judge sentenced Defendant to 13 years in prison, followed by 5 years of post release supervision.  Defendant moved to set aside his conviction pursuant to CPL 440.10, alleging an actual conflict of interest; County Court denied that motion without a hearing. Defendant sought leave to appeal. The Appellate Division granted Defendant leave to appeal and then affirmed.

Legal Analysis: The Court Of Appeals held that The State and Federal Constitution guarantee a criminal Defendant legal representation that is reasonably competent, conflict-free and single mindedly devoted to the client’s best interests. A Defendant is denied the right to effective assistance of counsel when absent inquiry by the court and the informed consent of Defendant’s defense counsel, represents interests which are actually in conflict with those of Defendant. The trial Judge owes a duty independent of counsel to protect an accused’s right to effective assistance of counsel.

      Once a trial court is aware of the facts from which it appears that conflicting interests arguably exist, the Trial Judge must conduct a record inquiry of each Defendant whose representation is potentially conflict-ridden in order to ascertain whether he or she has an awareness of the potential risks involved in that course and has knowingly chosen it. But even if the trial court fails to conduct such an inquiry and obtain Defendant’s informed consent, the error requires reversal only if the conflict is an actual one. Where the conflict is merely potential, reversal is mandated only if the Defendant can establish that the conflict operated on the defense.

The Court of Appeals denied Defendant’s request to require automatic reversal anytime the Defense attorney is under investigation or being prosecuted by the same District Attorney’s office that is trying his client. An actual conflict of interest would exist where a Defense Attorney was implicated in the crimes for which his client stood trial, but that was not the case here. Accordingly, to obtain relief, the Court of Appeals held that Defendant must demonstrate at a hearing on his 440.10 application that the conduct of his defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation. The Court remitted the case back to County Court for a hearing on this issue.


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