People v. Sears

Appellate Division, Supreme Court of New York, Fourth Department · 2020 · Criminal Law

Criminal LawRight to CounselConflict of Interestright to counselconflict of interestformer defense counseldistrict attorney's officeappearance of impropriety

Facts

At the time defendant committed the felony offenses, he was participating in drug treatment court in connection with three misdemeanor charges. He later entered a plea agreement under which he pleaded guilty to the felonies and continued in drug treatment court; after he failed to complete the program, the court sentenced him on the felonies and dismissed the misdemeanors as satisfied by the plea and sentence. The attorney assigned to represent defendant in the preliminary stages of the misdemeanor matters later joined the Onondaga County District Attorney's Office and was assigned to drug treatment court while defendant's cases were pending there. The People conceded that this attorney was employed by the District Attorney's Office when defendant entered the plea agreement resolving both the misdemeanor and felony charges.

Issue

Whether defendant's right to counsel was violated when the attorney who had represented him in the preliminary stages of related misdemeanor charges later became employed by the same District Attorney's Office prosecuting his ongoing matters and was assigned to drug treatment court while his cases were pending. If so, whether the resulting conviction based on defendant's guilty plea must be reversed and the plea vacated.

Rule

A criminal defendant's right to counsel is violated when a defense attorney who actively participated in the preliminary stages of the defendant's defense becomes employed as an assistant district attorney by the office prosecuting the defendant's ongoing case. In that circumstance, disqualification is required because the appearance of impropriety and the risk of prejudice from possible abuse of confidential information, however slight, are sufficient.

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In Rochester, Malik Torres was charged with felony burglary. Months earlier, attorney Dana Keller had represented him at arraignment and during initial negotiations on a separate petit larceny case that remained pending. Before either matter was resolved, Keller left private practice and became an assistant district attorney in the same county office prosecuting Malik.

If Malik later pleads guilty under a single agreement disposing of both the felony and misdemeanor matters, what is the strongest argument for vacating the plea?

Explanation. The governing rule is that a defendant's right to counsel is violated when a defense attorney who actively participated in the preliminary stages of the defense later becomes employed by the district attorney's office prosecuting the defendant's ongoing case. Actual misuse of confidences need not be shown; the appearance of impropriety and risk of prejudice from possible abuse of confidences are enough. That reasoning applies where the former representation concerned charges resolved in the same plea agreement. (Derived from People v. Sears (n.d.).)