People v. Arroyave

OPINION OF THE COURT Fein, J. The issue on this appeal is whether defendant was deprived of his right to counsel when the trial court denied a request by Frank Bress, an attorney who appeared from the New York University Criminal Law Clinic (Clinic), purporting to represent defendant, to delay the trial to allow him sufficient time to prepare. The application was made after the trial had commenced with preliminary instructions to the jury. Defendant at the time was represented by counsel appointed pursuant to article 18-B of the County Law and rule 606.1 of the Appellate Division, First Department (22 NYCRR 606.1), who had represented him throughout from the time of the indictment. A review of the record demonstrates that defendant’s right to counsel was not abridged. There is no basis shown, as suggested by the dissent, why this appeal should be held in abeyance pending a hearing to determine whether defendant intended to retain Mr. Bress and whether Mr. Bress agreed to represent defendant. Defendant was arrested on September 9, 1974, charged with 12 counts arising out of the sale and possession of cocaine and marihuana on three separate occasions. On September 11, 1974, article 18-B counsel was assigned. Two months later, in November, 1974, defendant’s request that new counsel be assigned was denied. Defendant’s next request for assignment of new counsel on January 29, 1975 was denied. Three weeks later, on February 19, 1975, defendant submitted a written motion for new counsel to be assigned which was also denied. So far as appears the denials were well founded. Defendant’s requests were based on the refusal of assigned counsel to make motions, which were unwarranted, or to obtain a reduction of bail. On April 28, 1975, when the case was called for the purpose of permitting defendant and his attorney to hear tapes in the District Attorney’s office, defendant declined to listen to the tapes. He asserted the District Attorney would comply with the law and that the transcriptions which his attorney had furnished him were sufficient. He asked for an adjourned date to begin trial. When defendant’s assigned attorney stated he thought it necessary to listen to the tapes, defendant asked — 129 — that the attorney be relieved and a Legal Aid attorney who specializes in narcotics be assigned. When the court declined to do so after explaining that the assigned article 18-B attorney was well qualified, defendant referred to his prior motions for new assigned counsel. He gave no reasons. There was then spread on the record the fact that assigned counsel had appeared for defendant on 19 occasions and had conferred with defendant on each occasion, that they had listened to certain tapes together in the District Attorney’s office, that various other steps on defendant’s behalf were taken with his knowledge. Counsel had even argued defendant’s pro se omnibus motion. Their differences were over counsel’s refusal to make a motion to suppress the tapes and to make a Wade motion, neither of which was warranted. The attorney stated he would be ready for trial as soon as he heard the remaining tapes. The court noted, contrary to defendant’s contentions, that the attorney had made several bail applications which were denied. The court denied defendant’s application for new assigned counsel and directed both sides to get ready for trial quickly. Defendant refused to listen to the tapes or to return the transcripts to the attorney. The District Attorney provided additional copies. The defendant was later to assert falsely that the Judge had promised to assign new counsel. Defendant did not then or at any other time tell the court that he had, in early April, 1975, written to the Clinic seeking assistance in his defense. The text of the letter is not part of the record so that it does not appear whether defendant was seeking advice or new assigned counsel, despite the suggestion in the dissent that defendant sought to retain Mr. Bress to represent him. On June 20, 1975, defendant’s pro se motion to dismiss the indictment was denied. On June 30, 1975 defendant filed a complaint against his assigned attorney with the Grievance Committee of the Bar Association. On September 4, 1975, defendant moved for more effective representation to require his assigned counsel to assist him in filing pro se and other motions. On September 18, 1975, the case was called for trial before Justice Coon. The People were ready and defendant’s assigned counsel stated the defendant was ready, except that defendant wished his pro se motions to be heard. When the court inquired whether defendant wished to make a pro se argument, the defendant re — 130 — sponded: "The attorney has the motion. He has read the motion. He can argue the motion.” The attorney then proceeded to argue the motion which was properly denied in all respects. Defendant then asked that the record show that the attorney refused to make the motion just decided. He then asserted that Judge Aarons had indicated he was going to assign new counsel, which, as has been noted, was contrary to the fact. When the court was apprised of this, defendant again asked for new assigned counsel, which the court refused after examining the history of the case. The court explained that defendant had not shown any reason for the assignment of new counsel and that the record showed assigned counsel was fully competent. The court advised defendant he could proceed pro se if he wished. Defendant stated: "Your Honor, I prefer to proceed to trial as my own—on my own, pro se.” The court then assigned the case to a trial part and advised defendant to tell the Trial Judge about his desire to proceed pro se, so that the proper formalities to that end could be accomplished. Defendant asked for a copy of the minutes which were directed to be furnished. The parties then proceeded to Part F for trial before Justice Pécora, where an audibility hearing was held. Assigned counsel participated and obtained rulings on behalf of defendant. Defendant also raised some questions. The case was adjourned to Monday, September 22, 1975, for further audibility hearings and trial. Assigned counsel again participated on behalf of defendant, and interposed certain objections. Defendant then asserted that the Calendar Judge had relieved assigned counsel and that assigned counsel had also been previously relieved by another Judge. He then stated: "I like to represent myself in this case so I ask you for some time to prepare my defense.” The court refused an adjournment and explained that it would be unwise for defendant to represent himself. Defendant insisted that other Judges had told him new counsel would be appointed. He referred to Justice Aarons, who had clearly and plainly denied his application and also to Justice Pécora and Justice Coon both of whom had clearly and plainly denied his application. He again asserted that he wished assigned counsel to be relieved because counsel had made no motions and had not obtained a bail reduction. He — 131 — stated: "I don’t want to try my own case, but the Court force me to do it.” The court denied defendant’s application for new counsel and directed that the case proceed to trial the next day, September 23, 1975. The record does not support the suggestion in the dissent that the applications were treated as an annoyance. At least three Judges carefully listened to and considered defendant’s applications for the assignment of new counsel. There was no merit to any of them. A defendant requesting assigned counsel may not dictate the choice. He has a right to assignment of new counsel on a proper showing, not made here. On September 23, 1975, while jury selection was in process, Mr. Bress of the Clinic appeared and advised the court of defendant’s April, 1975 letter request for assistance. Mr. Bress stated that he responded to that letter on April 10, 1975, seeking information from defendant about his case. The April 10 letter from Bress to Arroyave, however, was apparently held by the Department of Corrections until September 19, 1975, when it was given to defendant. Upon receipt, defendant responded, advising Bress of the current status of the case. Bress thereupon ascertained when the case was scheduled to be heard and appeared in court on September 23, 1975, although the transcript incorrectly indicates that Bress made his appearance on October 3, 1975. The colloquy between the court and Mr. Bress indicates quite clearly that Bress’ primary purpose was to assist defendant in obtaining the appointment or assignment of new counsel. Although Bress initially told the court that he would appear as counsel, when the court advised him that the trial had already commenced, Bress responded that it would not be reasonable for him to try the case under such circumstances. He thereupon made application "for a delay of the trial to allow me sufficient time to prepare myself to try it.” It is patent that the court, taking into consideration the numerous attempts by defendant during the past year to effect an assignment of new counsel, whenever trial was imminent, considered Bress’ application to be an additional delaying tactic, one which came too late since the trial had already commenced. The dissent would have the matter remanded for a hearing to determine whether defendant retained Bress, as opposed to having him assigned as counsel, and whether Bress agreed to — 132 — represent him. However, there is no basis in the record for any such hearing. We are in agreement that whether or not an attorney is in a retained capacity does not depend upon his receipt of a fee or some other form of compensation. An attorney may furnish free legal service to a criminal defendant and still be considered retained counsel. Here, Bress advised the court that he had spoken with defendant that day. He related the substance of the conversation and the prior letter from defendant to the Clinic as follows: "What the defendant discussed with me in the pen and in his letter, he told me he was dissatisfied with counsel then representing him and was attempting to have counsel relieved and new counsel appointed.” (Emphasis added.) The letter was apparently not preserved and has not been submitted for our review. Further inquiry by the court disclosed that Bress had never agreed to represent defendant. This is evident from the following colloquy: "The Court: You wrote to him saying you want more information and perhaps you might represent him. "Mr. Bress: Yes. "The Court: You never did come in and sign a slip of paper saying that you in fact represent this defendant the first time. (sic) "Mr. Bress: I never did.” On this basis Mr. Bress’ statement: "I will try the case. I think it would be unreasonable to ask me to try the case this morning” does not demonstrate he had been retained or chosen by defendant to try the case. Most significant is the fact that during this colloquy defendant did not express any desire to have Mr. Bress assume his defense. He voiced no objection when the court denied Mr. Bress’ request to delay the trial to enable Bress to prepare. Defendant’s silence is eloquent evidence that he had no desire to have Mr. Bress represent him, in view of the lengthy record on prior occasions when defendant freely and openly expressed his views to the court, although he was represented by counsel at the time. As noted, he was never before hesitant in making oral and written applications for new counsel and other relief. Although the record would be more satisfactory had the court inquired of the defendant whether he wished Mr. Bress to — 133 — represent him, the failure to do so is not determinative as suggested in the dissent. Under the circumstances, taking into account the willingness of defendant on prior occasions to make his desires known, the fact that he stood mute when Mr. Bress appeared is significant. His silence at that time compels the conclusion that his prior requests and motions to have counsel relieved and a new attorney assigned were mere delaying tactics. Since the trial had already commenced, any attempt at further delay would be a useless exercise. The sequence of events gleaned from the record also supports the conclusion that defendant only sought Bress’ assistance to effect assignment of new counsel and never actually intended to retain Bress. This is further supported by the colloquy on September 30, 1975, seven days after Mr. Bress’ appearance, and just before the opening statements to the jury: "The Court: Mr. Fortwl, is it still your intention to try your own case? "The Defendant: Your Honor, I will have the attorney as my attorney. I will be using Mr. Albert. "Mr. Albert: For the record, the defendant told me this morning that he called his wife last night and he wants to apologize to me for rejecting me and now wants me to try his case; is that correct? "The Defendant: Yes.” Once again there was no word from defendant about Mr. Bress. There is no proof on this record that defendant attempted or purported to retain Mr. Bress. The conclusory assertion that defendant was deprived of his right to counsel is insufficient. Defendant’s failure to offer any affirmative evidence on the issue is dispositive. Although this has little bearing on the issue of the right to counsel, it is noted that it is not seriously contended that defendant did not receive effective representation by able counsel. The record reveals that the assigned attorney had appeared in court on 25 occasions and had conferred with defendant on each such court appearance. The transcript of the trial further reflects the fact that defendant received able representation, with detailed cross-examination and a careful — 134 — attempt by counsel to develop defenses of entrapment and duress. We perceive no merit in defendant’s challenge to the constitutionality of the mandatory drug sentencing laws (see People v Broadie, 37 NY2d 100, cert den 423 US 950). Accordingly, the judgment, Supreme Court, New York County (Pecora, J,), rendered December 12, 1975, convicting defendant upon a jury verdict of two counts of criminal sale of a controlled substance in the first degree and sentencing him to concurrent terms of 15 years to life, should be affirmed.