People v Faulkner

[*1] People v Faulkner 2005 NY Slip Op 50664(U) Decided on May 3, 2005 Supreme Court, Queens County Flaherty, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 3, 2005
Supreme Court, Queens County

THE PEOPLE OF THE STATE OF NEW YORK

against

Jason Faulkner, Defendant.



2590-99

Timothy J. Flaherty, J.

Defendant moves, pro se, for an order vacating the judgment

of this Court dated March 12, 2001, convicting him, after a trial

by jury, of the crimes of Manslaughter in the First Degree,

Attempted Robbery in the First Degree, Criminal Possession of a

Weapon in the Second Degree and two counts of Assault in the

Second Degree and sentencing him to concurrent terms of

imprisonment of fifteen years on the manslaughter, attempted

robbery and weapons counts, and seven years on the two assault

counts. No appeal from the judgment has as yet been perfected.

The convictions arose out of a July 28, 1999 attempt by the

defendant and one Reco Sorey to rob a Chinese restaurant located

at 218-28 Merrick Boulevard in Queens County. While Sorey

entered the back of the restaurant the defendant waited outside

as a lookout. When the owners of the restaurant resisted Sorey's

attempt to rob them, defendant fired a gun inside in an effort to

aid his accomplice. The bullet struck Sorey, killing him.

In the instant application the defendant contends that the

judgment is constitutionally infirm because his trial lawyer, [*2]

Richard Calley, did not provide him with effective assistance in

violation of his Sixth Amendment right to counsel. In support of

this claim he does not challenge the manner in which Mr. Calley

defended him at trial. Instead he argues (1) that the fact that

Mr. Calley was himself under indictment created a fatal attorney-

client conflict of interest and (2) that Mr. Calley failed to

file a notice of appeal with the Clerk of the Court. The

District Attorney opposes the relief sought, largely disputing

defendant's factual allegations and arguing in any event even if

the facts were proven, that the defendant's motion must fail as a

matter of law.

As to the first matter it is true that the existence of a

genuine conflict of interest that adversely affects an attorney's

performance raises serious constitutional right to counsel

issues, Cuyler v. Sullivan, 446 US 335 (1980); People v. Allen,

88 NY2d 831 (1996). "A defendant's Sixth Amendment right to

effective assistance of counsel includes the right to

representation by conflict-free counsel.'" United States v.

Schwarz, 283 F.3d 76, 90 (2d Cir. 2002) (quoting United States v.

Blau, 159 F.3d 68, 74 (2d Cir. 1998)). '[A] defendant has

suffered ineffective assistance of counsel in violation of the

Sixth Amendment if his attorney has (1) a potential conflict of

interest that resulted in prejudice to the defendant, or (2) an

actual conflict of interest that adversely affected the [*3]

attorney's performance.'" United States v. Blau, 159 F.3d at 74.

But here the District Attorney correctly argues that no

conflict of interest existed by reason of counsel's own

difficulties with the law. It is undisputed that at the time of

defendant's trial defense counsel, Richard Calley, was himself

awaiting trial for an indictment brought against him not by the

Queens District Attorney but by the United States Attorney for

the Eastern District of New York. Mr. Calley's indictment

charged him with criminal conduct totally unrelated to the case

at bar. These two facts, taken individually or in combination,

fall far short of establishing the existence of a conflict since

the charges were brought by a different prosecutorial agency and

were factually unrelated to the issues at bar.

Defendant cites no authority for the proposition that

Mr. Calley's personal circumstances presented a conflict of

interest and this Court concludes that no such conflict existed.

Rather Mr. Calley had a serious personal situation - legally no

different then the serious business, personal or family pressure

that every attorney faces from time to time during the course of

his or her representation of a criminal defendant. These are

potential distractions but they are not conflicts, potential or

actual, as that term is defined by the applicable case law. As

such, standing alone and in the absence of demonstrated

prejudice, they are constitutionally irrelevant and therefore [*4]

cannot form the basis for the relief sought herein.

Since Mr. Calley's personal travail created no legal

conflict with his ability to represent the defendant, it follows

therefrom that whether or not he revealed his situation to him is

of no consequence. The Court does note, however, that the

District attorney has submitted proof by affidavit from Mr.

Calley himself stating that (1) he did in fact share his

difficulties with his client and his client's family and that (2)

they nevertheless desired that he continue his legal

representation of the defendant. But more to the point, since

the defendant herein points to no professional infirmity in Mr.

Calley's performance save an alleged failure to file a notice of

appeal, discussed infra, there is no factual or legal basis to

justify action by this Court.

Defendant's second claim is that his attorney failed to

serve and file a notice of appeal. He made similar claims in

support of two previous motions to the Appellate Division for

permission to serve and file a late notice of appeal. Those

motions papers included a letter from the office of former

Administrative Judge Steven W. Fisher which indicated that no

notice of appeal was found in any of the Court files.

In responding to the motions in the Appellate Division the [*5]

District Attorney took the position that the relief could not be

granted because defendant's motion was made after the one year

statutory limitation for such applications [CPL Section 460.30].

The motions were denied without opinion by the Appellate

Division.

But in responding to the instant motion the District

Attorney makes the following argument with respect to the issue

of whether or not a timely notice of appeal was served and filed

by Mr. Calley:

Defendant's claim that his trial counsel was ineffective for failing to file a notice of appeal is also meritless because it appears that trial counsel filed a notice of appeal. Indeed,

Exhibit A, attached here clearly indicates that trial counsel filed a timely notice of appeal. And although there is no record of this notice of appeal having been filed in the Supreme Court,

Queens County, there is, nevertheless, a strong presumption that such a notice was filed with the court. First, the notice itself indicates the parties to be served - the clerk of the

Supreme Court at 125-01 Queens Boulevard and the Queens County District Attorney. Second, the Queens County District Attorney was actually

served with this notice of appeal. Third, the

notice of appeal to the Queens County District

Attorney's was hand delivered to its office, located on the first floor of the Supreme Court

courthouse. Indeed, trial counsel would have only had to go to the sixth floor of the same courthouse building to serve the notice of appeal upon Supreme Court, Queens County. Thus, there is no merit to defendant's claim that his trial

attorney was ineffective for his failure to serve a timely notice of appeal.

District Attorney's Memorandum of Law page 17. [*6]

The District Attorney supplemented their argument with an

affidavit dated April 1, 2005 from Mr. Calley in which he avers

that "to the best of my recollection, as was my practice at the

time" he did indeed file a timely notice of appeal with the

appropriate clerk of the Supreme Court after serving the District

Attorney.

In short, the prosecutor advances strong factual evidence in

support of their position that this aspect of the motion has no

merit because Mr. Calley did indeed serve and file in a timely

manner a notice of appeal from the instant judgment.

Hence the prosecutor presumably takes the view that the

appeal, having neither been perfected by defendant nor dismissed

by the Appellate Division, is still pending. It follows

therefore that should defendant perfect a judgment of appeal the

District Attorney will respond to it on the merits, the defendant

will have his day in appellate court and the question of whether

Mr. Calley did or did not file a notice of appeal is academic.

For this reason the Court declines to hold an evidentiary hearing

on the question.

For these reason the Court finds the defendant's contentions

to be without merit.

Accordingly, the motion is denied. [*7]

Order entered accordingly.

The Clerk of the Court is directed to mail a copy of this

Memorandum and Order to the defendant at his last known address

and to the District Attorney.

DATED: May 3, 2005 ___________________________ TIMOTHY J. FLAHERTY, J.S.C.