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PEOPLE STATE NEW YORK v. LEON KENNEDY (06/06/68)

COURT OF APPEALS OF NEW YORK 1968.NY.41983 <http://www.versuslaw.com>; 239 N.E.2d 510; 22 N.Y.2d 280 decided: June 6, 1968. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.LEON KENNEDY, APPELLANT People v. Kennedy, 29 A.D.2d 521, reversed. Counsel S. S. Goldsmith for appellant. Frank S. Hogan, District Attorney (Laurence Leff and H. Richard Uviller of counsel), for respondent. Opinion by Chief Judge Fuld. All concur, Judge Breitel in result in an opinion in which Judge Keating concurs, except Judge Jasen who dissents and votes to affirm in a separate opinion in which Judge Scileppi concurs. Author: Fuld


People v. Kennedy, 29 A.D.2d 521, reversed.

Opinion by Chief Judge Fuld. All concur, Judge Breitel in result in an opinion in which Judge Keating concurs, except Judge Jasen who dissents and votes to affirm in a separate opinion in which Judge Scileppi concurs.

Author: Fuld

 The defendant pleaded guilty to the crime of attempted manslaughter in the second degree in satisfaction of an indictment charging him with second degree murder. Prior to the imposition of sentence, he applied to the court for permission to withdraw his plea on the ground that he had not committed the crime and was innocent. In point of fact, he claimed that he had been arrested in Coney Island within a half hour of the time that the crime was allegedly perpetrated in Manhattan, rendering it well-nigh impossible for him to have been at the scene. The court, properly concluding that the defendant was entitled to a hearing on his application (see, e.g., People v. Nixon, 21 N.Y.2d 338, 355), requested the defendant's assigned attorney to investigate the merits of his asserted alibi and report her findings. It is the defendant's contention that by virtue of this involvement of his lawyer he was denied the effective and affirmative representation of counsel and became entitled, at that juncture, to the appointment of new counsel.

Our decisions in People v. Boyd (22 N.Y.2d 707) and People v. Rozzell (20 N.Y.2d 712) point the conclusion here. When the trial judge asked the defendant's lawyer to check on the facts bearing on the alibi, the defendant was "deprived of the effective assistance of counsel" at a "critical stage of the proceeding" (People v. Rozzell, 20 N.Y.2d, at p. 713). The defendant's attorney was being asked, in effect, to abandon her role of active advocate for the defendant and to become, in a sense, an investigator for the court. From that point on, the accused could no longer communicate with his lawyer in the absolute and unimpaired confidence essential to the relationship of attorney and client. Indeed, even if such relationship had already been terminated formally, the court should not have assigned her to tasks which might in any way prejudice the interests of her former client or in which she might have to draw, in the slightest degree, on information received in confidence. To the defendant for whom he speaks, a lawyer's commitment must be wholehearted, complete and free of ambiguity. As it was, it became, to cull again from our Rozzell opinion (p. 713), "difficult, if not impossible, for counsel effectively to represent" the defendant. It necessarily follows that it was then incumbent upon the court to assign another attorney in her stead.

The suggestion contained in the concurring opinion (p. 283) that the defendant would not be prejudiced if, after checking the facts and finding the defense "not sustainable," counsel stood "mute," is most unrealistic. Silence under such circumstances would convey counsel's opinion, just as loudly as words, that the basis for her client's application (to withdraw his plea) lacked merit.

The judgment should be reversed and a new hearing ordered on the question whether defendant's motion to withdraw his plea should have been granted.

Disposition

Judgment reversed and case remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein.

Breitel, J. (concurring). I agree that there should be a reversal and a hearing to determine whether defendant should be permitted to withdraw his plea of guilty but on a much narrower ground than that suggested by the Chief Judge.

The facts and circumstances are described in detail in the dissenting opinion. I agree with the dissenters that the trial court properly requested of defendant's counsel that she investigate defendant's claimed alibi defense. This was not a request to investigate on behalf of the court but in the interest of the defendant. A similar request to the prosecutor would hardly assure the defendant (or the court) of an inquiry most likely to be favorable to the defendant. If defendant's lawyer found the defense sustainable the course for her was indicated. If, on the other hand, it was not sustainable she could in effect stand mute as she in fact did.

Up to this point neither lawyer nor court indulged in any impropriety. Up to this point to have appointed still another lawyer (the present one was defendant's third lawyer) would have been burdensome to all. Nor did the practice followed make the lawyer a witness, or the equivalent, or otherwise align her with the forces against defendant.

However, once the lawyer returned to court, unable to press defendant's views as to his alibi defense, and it being evident from past and present conduct that defendant did not rely on his legal representation, it was incumbent on the court now to appoint new counsel and direct a hearing on defendant's claims of an alibi defense in order to determine whether the plea of guilty should be permitted to be withdrawn (see, generally, People v. Nixon, 21 N.Y.2d 338).

Significant in the circumstances too was defendant's equivocal remark when he first took the plea of guilty, namely, that he was doing so "under the circumstances." When this remark was followed by persistent claims of innocence and the lawyer's inability, for whatever reason, to carry representation of defendant further, a new lawyer was needed. But not before.

It would be most unfortunate if Judges could not, without fear of disqualifying defendants' lawyers in criminal cases, ask them to consider, investigate, or explore facts or legal issues which might be of help to the defendant, and in many instances even to the court. Such requests should be permitted if they do not conflict with the proper interests of the client. True, this may carry the risk of the rare occasion, as occurred in this case, where the investigation develops an impasse between lawyer and client. At that time the assignment of new counsel, if the defendant wishes it, should be made.

Hence, my disagreement with the dissenters is limited. A hearing was required not because of anyone's fault, but because defendant's persisting claims of innocence required an airing in open court and because his lawyer could no longer represent him in pressing those claims. This result obtains not because the court asked the lawyer to investigate those claims, but because, for some reason she never disclosed, she could not represent defendant in pressing them. (One may only speculate that she had found the claims of innocence baseless, but even so defendant was entitled to have his claims passed upon.)

Accordingly, I concur in reversal of the judgment and the ordering of a new hearing to determine whether defendant's motion to withdraw his plea should be granted.

Jasen, J. (dissenting). The sole issue on this appeal is whether the trial court erred in denying defendant's motion to vacate his plea of guilty to a lesser included crime.

On December 2, 1967, the eve of trial upon the charge of murder in the second degree, defendant informed the court that his court-assigned attorney (Mrs. Dorothy Cropper) had "deliberately prejudged" him, and requested other representation.

The court denied the request on the grounds that no evidentiary facts were submitted by defendant to establish any prejudice to him by assigned counsel and that this was the third ...


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