Marc Fernich, for appellant.
David M. Cohn, for respondent.
National Association of Criminal Defense Lawyers et al., amici curiae.
Order affirmed. Defendant raises no error warranting a reversal of his conviction.
Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott and Abdus-Salaam concur. Chief Judge Lippman concurs in an opinion in which Judges Graffeo and Smith concur and Judge Abdus-Salaam concurs in an opinion in which Judges Read and Pigott concur. Judge Rivera took no part.
LIPPMAN, Chief Judge (concurring):
Defendant stands convicted upon a jury verdict of murdering Catherine Woods. At trial, there was evidence that he had felt himself to be romantically involved with Ms. Woods, but that after a time Ms. Woods made it clear that she did not want their relationship, such as it was, to continue. There was also evidence that defendant expressed anguish over his rejection by Ms. Woods, both to acquaintances and in his personal journals, and that, at or around the time Ms. Woods finally turned him away, he telephoned her with extraordinary frequency . Ms. Woods was murdered on the evening of November 27, 2005 — a little over a month after breaking with defendant — in the East 86th Street apartment she shared with her long-time boyfriend David Haughn. Haughn testified that on returning to the apartment just before 7:00 p.m., after an absence of about an hour, he found Ms. Woods on the bedroom floor lying in a pool of blood. There was forensic evidence that Ms. Woods had been stabbed repeatedly about the neck, and that the bedroom walls were spattered with her blood. Within a group of wall stains appearing to a Crime Scene Unit Detective to have been produced by the impression of a bloodied hand — a so-called "hand transfer" print — a latent fingerprint was discovered. The People's forensic experts testified that, after enhancement and analysis, the print had been determined to match that produced by defendant's left index finger. Defendant's cell phone records list some 14 calls to Ms. Woods on the day of the homicide and there was proof that of these, several, made between 5:27 p.m. and 6:33 p.m., originated from the vicinity of the victim's East 86th residence. Earlier calls from the same cell phone traced the user's progress from the neighborhood in which defendant lived toward the murder site.
Defendant acknowledges that the trial evidence, viewed as it must be on appeal, in the light most favorable to the People, was sufficient to support the murder verdict. His claim to appellate relief is premised instead upon two alleged defects in the underlying proceedings. He argues first, that he was ineffectively represented at trial because one of his attorneys had personal interests that conflicted with her professional obligations to him, and second, that the receipt in evidence of entries from his journals, dating from between six and three years before Ms. Woods' murder, documenting never-acted-upon misogynistic thoughts about two former girlfriends, was in error, because his prior bad thoughts were not properly relevant to proving his commission of the crime charged. These arguments were rejected by the Appellate Division (85 A.D.3d 409, 410-411 ) and are now before us on this further appeal, pursuant to leave granted by a Judge of this Court (19 N.Y.3d 972 ). We conclude, that while defendant's contentions are substantial and possess a fair measure of merit, they do not in the end make out a right to relief from the judgment of conviction.
Defendant was represented at trial by two attorneys; lead counsel Laura Miranda, Esq. was second-seated by an attorney (hereinafter "co-counsel") retained for her purported expertise in dealing with forensic evidence, the most crucial component of the People's case. Before the trial began, however, it was disclosed that co-counsel had been indicted by a New York County Grand Jury; she was alleged to have smuggled drugs to a client in prison. Inasmuch, then, as co-counsel faced prosecution by the Office of the New York County District Attorney, the same office that was concurrently prosecuting her client, Mr. Cortez, there was at least a potential conflict of interest; it was entirely plausible that co-counsel's natural concern over how she would be dealt with in her own case would inhibit the vigor of her opposition to her prosecutor's case against her client. A Gomberg hearing was thus held for the purpose of ascertaining on the record that defendant was knowingly electing to continue with co-counsel as his attorney notwithstanding any conflict that her prosecution might pose to her single-minded advocacy on his behalf (see People v Gomberg, 38 N.Y.2d 307 ).
At the hearing, the trial court first elicited from defendant that lead counsel had spoken with him about "[co-counsel's] pending matter." The court then acknowledged "an argument" that co-counsel had a conflict of interest — "that she might, for some reason, be more interested in her own matter than [that of defendant]" — but added that she was "not quite sure [she saw] it factually, frankly." Nonetheless, the court said it was important for defendant to understand that if co-counsel was convicted, she could lose her license to practice law. The inquiry concluded with the court asking defendant to make explicit that he understood what was "going on" and that he wished to proceed with co-counsel anyway. Defendant responded, "Yes. I understand that. And she has not compromised this case on account of her own, " whereupon the trial court affirmatively ended the inquiry, indicating that it would not be necessary for defendant to go into further detail about his understanding of what was "going on." Defendant contends that his waiver of co-counsel's conflict is not adequately made out by this colloquy.
While the constitutional right of a criminal defendant to effective representation entails the right to conflict-free representation (see Wood v Georgia, 450 U.S. 261, 271 ; People v Ortiz, 76 N.Y.2d 652, 655-656 ), most, but not all, attorney conflicts may be waived so as to permit continued representation by the defendant's attorney of choice (see People v Carncross, 14 N.Y.3d 319, 327-330 ). But waivers, particularly of fundamental constitutional entitlements, to be valid, must be demonstrably knowing, intelligent and voluntary (Edwards v Arizona, 451 U.S. 477, 482 ; Johnson v Zerbst, 304 U.S. 458, 464 ); there must be a record sufficient to overcome the presumption against them. Defendant's attorney conflict waiver then, may not be deemed effective unless the record unambiguously permits the inference that he knowingly, intelligently and voluntarily relinquished his constitutional right to unimpaired, i.e., conflict-free, assistance of counsel. Notwithstanding their potentially pivotal importance, we have resisted a uniform judicial catechism for the taking of attorney conflict waivers (see People v Caban, 70 N.Y.2d 695, 697 ; People v Lloyd, 51 N.Y.2d 107, 112 ), preferring to allow trial judges to tailor the inquiry to the particular circumstances to which the waiver relates. In Gomberg we required only that the court be "satisfied" that the waiver was informed (38 N.Y.2d at 313); the actual task of informing the defendant as to the conflict, we indicated, was the ethical and representational obligation of counsel (id. at 314). Indeed, Gomberg may be read to allow a trial judge, in assessing whether a purported waiver was adequately informed, to rely, nearly implicitly, upon counsel's assurance that the client has been appropriately advised of the conflict and its risks (id.). A different approach — one involving a more probing inquiry by the court — we said, risked intruding upon the attorney-client relationship (id. at 313).
Gomberg, it appears, may have overstated the extent to which a court may rely upon the assurance of a possibly conflicted attorney in judging whether a defendant's election to continue with that attorney was informed. Some four years after Gomberg, in People v Macerola (47 N.Y.2d 257 ), we emphasized that the Court's obligation in responding to a possible attorney conflict was independent of that of counsel, and would be met "[o]nly after sufficient admonition by the trial court of the potential pitfalls" posed by the conflict (id. at 263). And, in People v Baffi (49 N.Y.2d 820, 822 ) we reiterated that "[a]lthough the trial court may place some reliance on the statement by counsel that he has informed his clients of the pitfalls of joint representation and gotten their consent (People v Gomberg, 38 N.Y.2d 307), such a statement alone does not relieve the trial court of the obligation 'independent of the attorney's obligation' (People v Macerola, 47 N.Y.2d 257, 263) to probe the defendants' awareness of the risks in the manner suggested by our discussion in Macerola " (id. at 822). More recently, in People v Solomon (20 N.Y.3d 91 ), we found the record insufficient to document a valid attorney conflict waiver where, although counsel represented that she had discussed her conflict with the defendant (id. at 94), the nature of the conflict was "not even" made a matter of record by the court (id. at 95).
Defendant and amici point out that federal cases have understood inquiry respecting a possible attorney conflict and the validity of a defendant's election to waive it, to be, centrally, a judicial function (see e.g. United States v Levy, 25 F.3d 146, 158 ), and that the widely employed protocol for passing upon attorney conflict waivers set forth in United States v Curcio (680 F.2d 881, 888-890 ) contemplates a significantly more particular and searching judicial inquiry than that described by Gomberg — one establishing on the record that the court has "(1) advise[d] the defendant of his right to conflict-free representation, (2) instruct[ed] the defendant as to the dangers arising from the particular conflict, (3) permitt[ed] the defendant to confer with his chosen counsel, (4) encourag[ed] the defendant to seek advice from independent counsel, (5) allow[ed] a reasonable time for the defendant to make his decision, and (6) determin[ed], preferably by means of questions that are likely to be answered in narrative form, whether the defendant understands the risks and freely chooses to run them" (United States v Rodriguez (968 F.2d 130, 138-139 [2d Cir 1992] [summarizing the Curcio protocol]).
While we do not adopt or require the Curcio inquiry and do not view each of its six elements as invariably indispensable to a valid conflict waiver, the protocol appears well-designed to create a record from which the validity of a conflict waiver, or the lack thereof, may be readily discerned. It is an approach that has proved workable (see e.g. United States v Graham, 493 Fed.Appx 162 [2d Cir 2012]; United States v Williams, 372 F.3d 96, 109 [2d Cir 2004]; United States v Buissereth, 638 F.3d 114, 117 [2d Cir 2011]; United States v Basciano, 384 Fed.Appx 28 [2d Cir 2010]); United States v Iorizzo, 786 F.2d 52, 59 [2d Cir 1986]) and which ...