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People v. Pagan

Criminal Court of the City of New York, Bronx County

July 28, 2017

The People of the State of New York
v.
Jose Pagan, Defendant.

          Kinte Morgan, Esq. The Bronx Defenders.

          Bradley Thompson Assistant District Attorney Office of the Bronx District Attorney.

          David J. Kirschner, J.

         On October 17, 2016, defendant was charged with assault in the second degree (PL § 120.05 [2], a class D felony); assault in the third degree (PL § 120.00 [1], a misdemeanor); menacing in the second degree (PL § 120.14 [1], a misdemeanor); criminal possession of a weapon in the fourth degree (PL § 265.01 [2], a misdemeanor); menacing (PL § 120.15, a misdemeanor); and harassment in the second degree (PL § 240.26 [1], a violation). [1]

         The People now move for defense counsel to be relieved on the grounds that counsel previously had represented the complaining witness in his criminal case, at the same time he represented defendant in this case. The People contend that this prior simultaneous representation presents a conflict of interest.

         Defendant opposes. Defense counsel maintains that no conflict exists because the attorney from their organization who represents defendant did not and cannot obtain any confidential information about the complainant from their organization's records and files on that case. Defense counsel further asserts that they represented the complainant only at arraignment, and when they learned of the dual representation, they were relieved at the next court date.

         After a review of the moving and opposing papers, oral arguments, prior court proceedings, and papers on file with the court, the People's motion is denied.

         I. Background and Procedural History

         On October 16, 2016, at approximately 1:00 p.m. in front of 1137 Saint Lawrence Avenue in Bronx County, defendant allegedly pushed Robert Smith (hereinafter "Smith") and hit him in the back of the head with a wooden stick. As a result of defendant's purported actions, Smith received two staples in the back of his head. The police arrested defendant and he was charged as stated.

         On October 17, 2016, defendant was arraigned on the charges. Assigned counsel, The Bronx Defenders, by attorney Kinte Morgan, represented defendant. Defendant entered a plea of not guilty and was released on his own recognizance.

         On January 24, 2017, Smith, the complaining witness in defendant's case, was arrested and charged with assaulting his wife Indra Moreno on December 31, 2016, inside 1137 Saint Lawrence Avenue in Bronx County. Assigned counsel, The Bronx Defenders, by attorney Malika Lubell-Doughtie, represented Smith at arraignment. The matter was adjourned to February 17, 2017.

         On February 16, 2017, defendant's case was scheduled before this court. Before the parties appeared that day, the People interviewed Smith. They learned about Smith's pending criminal case and that The Bronx Defenders was representing him.

         The People reported this simultaneous representation by The Bronx Defenders to the court and maintained that it was a conflict of interest. They sought to have The Bronx Defenders relieved on defendant's case and requested the opportunity to submit written papers on the request.

         The Bronx Defenders, by attorney Karume James, opposed the request to be relieved and reported that his organization would ...


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