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February 9, 1993

JOHN KEANE, Superintendent, Sing Sing Correctional Facility, Respondent.

The opinion of the court was delivered by: GERARD L. GOETTEL


 This habeas corpus petition raises two concise grounds which, surprisingly, do raise a constitutional issue. The grounds are:

 (1) Whether the existence of a contingency fee agreement between petitioner and trial counsel is per se violative of petitioner's Sixth Amendment right to effective assistance of counsel, and

 (2) Whether the contingency fee agreement in this case resulted in constitutionally deficient legal representation.


 Petitioner was indicted along with a co-defendant for the murder of his father on October 24, 1980. The co-defendant was hired by petitioner to murder the victim. They were tried on September 24, 1981 and were found guilty of murder in the second degree. Petitioner was then sentenced to a term of 25 years to life imprisonment. Through a torturous series of proceedings and appeals over the next decade, the petitioner has never protested the sufficiency of the overwhelming evidence against him but has limited his attack to the claims set forth in this petition.

 Initially, he brought a motion to vacate the judgment pursuant to New York's Criminal Procedure Law § 440.10. A hearing was held before Westchester County Court Judge Marasco, who denied the motion. In his decision of July 13, 1984, Judge Marasco made the following findings, inter alia:

 At the trial, defendant was represented by Robert A. Hufjay, Esq. as his attorney. An agreement dated October 28, 1980, retaining Robert Hufjay was signed by the defendant, Lanie Sattler, the defendant's mother, and Annie Winkler, the defendant's grandmother. The agreement provided that Robert Hufjay was to be compensated as follows: $ 2,000.00 on execution of the agreement and $ 18,000.00 to be paid by Annie Winkler from a bequest to be received from the Estate of Irving Winkler. The agreement further provided, subject to the approval of Richard Winkler, that in the event Richard Winkler is acquitted or found not guilty by reason of insanity or other legal reasons, and inherits the Estate of Irving Winkler, that Richard Winkler shall pay as additional legal fees the sum of $ 15,000.00. When that agreement was presented to Richard Winkler for his approval, Richard Winkler changed the sum of $ 15,000.00 to $ 25,000.00. Simultaneously with Richard Winkler's approval of the written agreement, he executed an assignment of $ 20,000.00 from his share of the inheritance to Robert Hufjay.

 People v. Winkler, Indictment No. 80-1085, slip op. at 2 (Westchester County Ct. July 13, 1984). Judge Marasco found it unnecessary to pass upon the legality of the retainer unless there was an actual deprivation of effective assistance of counsel. He found that, in fact, the petitioner had had effective assistance. An appeal was taken to the Appellate Division, Second Department which, in a decision on May 11, 1987, held that a contingency fee agreement amount to ineffectiveness per se. People v. Winkler, 128 A.D.2d 153, 515 N.Y.S.2d 488 (2d Dep't 1987). The New York Court of Appeals reversed, holding that the defendant had the burden of demonstrating the alleged ineffectiveness by showing that the potential conflict "affected the manner in which his attorney conducted the defense prejudicially to the defendant." ( People v. Winkler, 71 N.Y.2d 592, 597, 528 N.Y.S.2d 360, 523 N.E.2d 485 (1988); see also, People v. Winkler, 74 N.Y. 2d 704, 706, 543 N.Y.S.2d 380, 541 N.E.2d 409 . (1989).)

 In its decision, the Court of Appeals (per Bellacosa, J.) held that while the contingent fee retainer was unquestionably unethical, it did not constitute per se ineffectiveness of counsel. Although strongly supporting what it called the unanimous view that contingent fees in criminal cases are wrong, the court held that the agreements do not collaterally constitute a per se violation of a defendant's right to effective assistance of counsel. Consequently, the existence of a potential conflict should not automatically be equated with ineffective assistance. The opinion notes that an automatic reversal because of the acts of a retained attorney and his client would disproportionately penalize the public in a situation in which no advance state protection could be imposed or is even available. *fn1" The New York court also noted that most other state courts had rejected a per se test. Consequently, it remanded the matter to Westchester County Court for an evidentiary hearing on the question of whether the fee agreement affected the manner in which petitioner's attorney conducted the defense so as to prejudice the petitioner.

 The second proceeding was conducted before County Court Judge Silverman in July 1990. An extensive evidentiary hearing was held. Petitioner, represented by retained counsel, contended that his trial counsel should have raised an intoxication defense. The County Court disagreed with this contention noting that, according to his trial counsel's testimony, his client had never contended that his memory was impaired or that his actions were influenced by the use of drugs. To the contrary, petitioner claimed to have a vivid memory of the events and to be totally innocent of the murder. (He testified at trial.) Moreover, since the evidence indicated that this was a contract murder, with no spontaneous or irrational behavior involved, an intoxication jury charge would have been irrelevant.

 Another issue raised in this second coram nobis proceeding was the claim that defense counsel should have looked for some sort of plea bargain despite the fact that throughout, petitioner forcefully asserted his total innocence and was interested in nothing less than a complete acquittal. From the evidence adduced, the only discussion concerning the possibility of a plea was an inquiry from the trial judge as to whether the defendant would be interested in a plea resulting in the minimum sentence for murder, 15 years to life, and the defendant rejected the possibility of such a disposition. Judge Silverman concluded that most competent attorneys defending a case of this kind would have employed the same trial strategy. The ...

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