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The People &C v. William Porto

December 21, 2010

THE PEOPLE &C., RESPONDENT,
v.
WILLIAM PORTO, APPELLANT.
THE PEOPLE &C., RESPONDENT,
v.
RODRIGUECE GARCIA, ALSO KNOWN AS CARLOS RODRIGUEZ, APPELLANT.



The opinion of the court was delivered by: Jones, J.

This opinion is uncorrected and subject to revision before publication in the New York Reports.

The common issue presented in these appeals is whether defendants' motions to substitute counsel were properly denied in light of the "minimal inquiry" standard of People v Sides (75 NY2d 822 [1990]). Finding no reversible error, we affirm both convictions.

On July 24, 2006, complainant Sai Hung Chui returned to his apartment to find that he had been the victim of a burglary. The police recovered a fingerprint from a metal cookie tin that had been displaced during the crime and determined that it belonged to defendant William Porto. Subsequently, defendant was arrested on September 27, 2006 and charged with second, and third degree burglary.

On June 11, 2007, the first morning of jury selection, the trial court was informed that defendant had submitted a form, pro se motion seeking reassignment of counsel. The form motion contained three pre-printed grounds for the motion,*fn1 and a final, blank paragraph for the movant to further address the grounds of his application. Defendant circled the three grounds for the motion, but did not provide any information within the blank space to elaborate upon his motion for new counsel.

The court engaged in a colloquy with defense counsel, ascertaining whether he could effectively represent defendant. Defense counsel responded that he had been an attorney for the Legal Aid Society since 1989, had conducted 30-40 felony trials, and was not aware of any reason that would prevent him from providing defendant with effective representation. Counsel also stated that he was not seeking to be replaced and further explained his belief that defendant's motion was based on "frustration" regarding how fingerprint evidence had been addressed.*fn2 Defense counsel advised the court that he intended to move to preclude such evidence in order to remedy any of defendant's concerns. The trial court denied the motion for substitution of counsel, concluding that defense counsel was capable of providing effective assistance and that the matter was ready for trial.

Defendant's motion to preclude fingerprint evidence was denied. A jury convicted him of burglary in the second degree and he received an enhanced sentence, as a persistent violent felony offender, of sixteen years to life.

The Appellate Division unanimously affirmed the conviction, concluding that defendant's day-of-trial motion lacked specific allegations of a serious complaint to obligate the trial court to inquire about the basis of the application (66 AD3d 430 [1st Dept 2009]). Although there was no basis requiring the trial court to engage in an inquiry, its colloquy with defense counsel did not uncover any specific ground for substitution of new counsel. A Judge of this Court granted leave to appeal, and we now affirm.

People v Garcia a/k/a Rodriguez On August 23, 2006, complainant Wilson Crispin, a truck driver, discovered defendant Carlos Garcia inside the cab of his truck. Defendant displayed a knife, instructed complainant to not call the police, and fled. Complainant observed that the passenger window had been broken and that a CB radio and his identification card was missing. Defendant was later arrested, found carrying complainant's identification card.

On May 6, 2008, defendant accepted an offer to plead guilty to attempted robbery in the first degree in exchange for a sentence of seven years in prison with five years of post-release supervision. Defendant assured the court that he had not been influenced in any way to accept the plea offer. As a condition of the plea agreement, defendant was required to speak with a New York State Department of Probation officer regarding the facts of the incident to help in the preparation of a pre-sentence report. He acknowledged this obligation after being unequivocally warned by the court that failure to do so could result in the imposition of an enhanced sentence.

At the subsequent sentencing hearing, on May 28, 2008, the probation officer advised the court that defendant declined to speak about the facts, and instead informed the officer that he was considering withdrawing his plea. When the court inquired as to whether defendant wished to withdraw his guilty plea, defense counsel responded that defendant declined to do so. The court adjourned the hearing to provide defendant another opportunity to speak with probation.

At the final sentencing hearing on June 24, 2008, the probation officer apprised the court that defendant again declined to discuss the facts of the case, and consequently, failed to comply with the condition of the plea offer. When the court pronounced that it would enhance defendant's sentence for his violation of the court's prior directive, defendant moved to withdraw his plea and to substitute counsel. Defense counsel then indicated to the court that she was uncomfortable speaking on the matter because it appeared that defendant took issue with her performance as counsel, and she felt constrained by ethical considerations from fully explaining the issue to the court. However, defense counsel did proffer a general complaint that defendant believed he was coerced by counsel into accepting the plea offer. The court found this motion to be based on "a vague, unspecified claim," and appeared dubious of the application, referring to the prior hearings where defendant made assurances that he was pleading guilty and would comply with conditions of the plea offer.

The court also spoke directly with defendant, who alleged that he "was forced to take the plea bargain and [I] made a decision and plead guilty . . . without making the decision." The court similarly questioned defendant about the prior hearings where he had responded that his plea was voluntary and that nothing affected his competency in accepting the plea offer. The court also referred to the probation officer's pre-sentence reports where defendant reported that he was pleading guilty on advice of counsel and did not intend to withdraw the plea. The court denied the motion to substitute counsel and sentenced defendant to a term of seven years and six months, with five years of post-release supervision.*fn3

The Appellate Division affirmed defendant's conviction and found that the sentencing court engaged in a lengthy colloquy where defendant and his counsel were only able to proffer generalities as a basis of the motion to substitute counsel (71 AD3d 555 [1st Dept 2010]). The court rejected defendant's contention that the alleged conflict of interest prevented further explanation of the complaint, concluding that his attorney could have ...


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