People v Littlejohn
Annotate this CaseDecided on December 14, 2006
Supreme Court, Kings County
The People of the State of New York,
against
Darryl Littlejohn, Defendant.
8724/05
Cheryl E. Chambers, J.
Defendant moves for my recusal on the ground that he will present evidence of my actions as the presiding judge in this case as part of his defense at trial. Defendant's counsel, Joyce David, has affirmed that defendant will prove in his defense at trial that "he was a convenient scapegoat, who is being railroaded, and that the railroad did not stop at the Courthouse door." The allegations defendant wishes to prove, as relevant to this motion, largely concern my role in his representation by counsel.
Defendant's motion is denied.
STATEMENT OF FACTS
Upon defendant's indictment by a Kings County grand jury, Administrative Judge Neil Jon Firetog set an arraignment date of March 23, 2006, and, in accordance with 22 NYCRR 202.3 (c) (5), assigned the case to me. Prior to defendant's arraignment, Ms. David asked me to consider assigning her to represent defendant.
Defendant first appeared before me for his arraignment on March 23, 2006. Kevin O'Donnell appeared on his behalf, and informed me at the bench that he had been retained. He also served the People with a combined Demand to Produce and Request for a Bill of Particulars.
[*2]
Mr. O'Donnell filed an Omnibus Motion on May 9, 2006. The People filed their Response on June 19, 2006. I issued my Decision and Order on June 29, 2006.
It was not until September 2, 2006, that defendant, by pro se motion, asked me to relieve Mr. O'Donnell because he was dissatisfied with his representation. At the next scheduled court proceedings on September 20, 2006, Mr. O'Donnell joined defendant's application and asked to be relieved. I questioned both the defendant and Mr. O'Donnell regarding the basis for the application. Mr. O'Donnell explained that he was unable to devote sufficient time to defendant's case, just as defendant had complained in his motion. Mr. O' Donnell further stated that the retainer had been exhausted. Defendant stated that he had no other financial resources and asked that I assign counsel. Defendant did not contradict Mr. O'Donnell's statements regarding the terms of his representation, nor did he assert any other ground for seeking substitute counsel.
I adjourned the case to October 4, 2006, for the assignment of new counsel and directed my court clerk to communicate to the Assigned Counsel Plan that assigned counsel would be required.
Ms. David called my chambers, and for the second time, requested that she be assigned to the case. She also told me that she had informed Administrative Judge Neil Jon Firetog that she wanted to be assigned to defendant's case. By letter dated September 27, 2006, defendant asked me to appoint Ms. David. He wrote that he had been "in communication" with her, that she had expressed a "genuine interest' in his case, and that he had "a tremendous amount of confidence in her abilities."
I determined that the volume of complex work entailed in the defense of defendant required the appointment of two attorneys. In the meanwhile, however, the Assigned Counsel Panel selected Jeffrey Schwartz for assignment. In consultation with Administrative Judge Neil Jon Firetog, I decided to appoint James Koenig as lead counsel and Wayne Bodden as associate counsel. Mr. Koenig and Mr. Bodden are very experienced and well-respected. Both attorneys have tried high profile, complex cases. Mr. Koenig is Executive Vice President, and Mr. Bodden is a member of the Board of Directors, of the Kings County Criminal Bar Association. I spoke with James Murphy, Administrator of the Assigned Counsel Plan, and informed him of my determination.
During the court proceedings on October 4, 2006, I relieved Mr. O'Donnell and appointed Mr. Koenig and Mr. Bodden. Mr. O'Donnell did not appear.
On October 25, 2006, Ms. David transmitted by facsimile a notice of appearance to my chambers. The cover sheet noted that she would appear for defendant at the next scheduled court proceeding, and that she had contacted Messrs. Koenig and Bodden,and the Assistant District Attorney assigned to the case, Kenneth Taub. No other explanation or information was provided. When Mr. Koenig contacted my chambers regarding Ms. David's role in the case, I directed that he be told that he and Mr. Bodden continued to represent defendant until such time as I relieved them.
On the next court date, November 1, 2006, Ms. David appeared for defendant. I had an on-the-record conference with Ms. David and Mr. Koenig. Ms. David explained that defendant had retained her pro bono. Mr. Koenig said he had confirmed Ms. David's statement with defendant. Ms. David also said that Mr. Schwartz had volunteered to assist her with some "behind-the-scenes" work. In open court and, in defendant's presence, I relieved Mr. Koenig and Mr. Bodden.
CONCLUSIONS OF LAW
Right to Counsel
[*3]
A defendant's right to counsel is guaranteed by the Federal Constitution (US Const 6th Amend), the New York State Constitution (NY Const, art I, § 6) and by statute (CPL 170.10 [3], 180.10 [3], 210.15 [2]). This right incorporates the right to counsel of one's own choosing (People v Tineo, 64 NY2d 531, 536 [1985]). Prior to the commencement of criminal proceedings, the right to choose one's counsel may only be restricted under extraordinary circumstances (Matter of Abrams, 62 NY2d 183, 200 [1984]). The right to counsel of one's choice remains once the criminal action commences (People v Tineo, 64 NY2d at 536). However, during the pendency of a criminal case, a request to change counsel "must be addressed to the Trial Judge's discretion to insure that the defendant's purported exercise of the right does not serve to delay or obstruct the criminal proceeding [citation omitted]" (People v Tineo, 64 NY2d at 536).Assignment of Counsel
A defendant is entitled to the assignment of counsel when he is financially unable to retain counsel (CPL 170.10 [3] [c], 180.10 [3] [c], 210.15 [2] [c]). However, "defendants have no choice in selecting their assigned counsel" (People v Linares, 2 NY3d 507, 510 [2004] citing People v Brabson, 9 NY2d 173 [1961] ["It is an age-old rule, both in this State and elsewhere that, as long as assigned counsel are men of ability and integrity, the discretion and responsibility for their selection rest with the court, to be exercised free of outside interference."]).The court "has inherent power to assign counsel for an indigent defendant" (People v Ward, 199 AD2d 683, 684 [3d Dept 1993] citing Matter of Stream v Beisheim, 34 AD2d 329, 333 [2d Dept 1970]). Article 18-B of the County Law provides for the creation and operation of a plan in each county for the representation of, inter alia, indigent defendants in criminal proceedings. The statute is "designed to facilitate and implement the court's exercise of its inherent power. [It serves] to provide a constant, ready source of available counsel, to define the amount and source of their compensation, and the manner of payment" (Matter of Stream v Beisheim, 34 AD2d 329, 334 [2d Dept 1970]). "Under no circumstances can [it] be deemed to inhibit or override the trial court's exercise of its inherent power or the performance of its constitutional or statutory duty to furnish proper counsel to an indigent defendant" (Matter of Stream v Beisheim, 34 AD2d at 333).
Attorney-Client Relationship
Once counsel has been retained or assigned, "a court should be hesitant to interfere in an established attorney-client relationship'" (People v Knowles, 88 NY2d 763, 766 [1996], quoting People v Hall, 46 NY2d 873, 875 [1979]. Such reluctance "serves the paramount goal of securing effective legal representation for a defendant by creating an atmosphere of trust and respect' between an attorney and client, which is a cornerstone of the adversary system'" (People v Knowles, 88 NY2d at 766 [citations omitted]). The court should be "especially" hesitant to interfere where an attorney represents a client on more than one case (People v Jackson, 216 AD2d 323, 324 [2d Dept 1995], lv denied 86 NY2d 843 [1995]).Analysis
Guided by the principles explained in People v Knowles, 88 NY2d 763 and People v Jackson, 216 AD2d at 324, I did not question Mr. O'Donnell's statement that he was retained by defendant. Nor did I undermine or interfere with Mr. O'Donnell's relationship with defendant by questioning Mr. O'Donnell's competence, as present counsel suggests I should have, especially because I knew that Mr. O'Donnell represented defendant on at least one other matter.
Upon relieving Mr. O'Donnell, it was my responsibility to select and assign counsel "of ability and integrity" (People v Brabson, 9 NY2d at 181). In consultation with Administrative Judge Firetog, I, in fact, chose two such attorneys. While I considered defendant's expressed desire for Ms. David's assistance, the choice of assigned counsel is, in the end, the Court's decision.
[*4]
Contrary to counsel's suggestion in her affirmation, her notice of appearance transmitted by facsimile to my chambers on October 25, did not operate to terminate the attorney-client relationship between defendant and Messrs. Koenig and Bodden. Nor did it serve to establish such a relationship between Ms. David and defendant. It was only on the next court date, November 1, when I determined both that defendant in fact wished to retain her and that a change in counsel at this early stage would not serve to "delay or obstruct" the proceedings, that I relieved Messrs. Koenig and Bodden (People v Tineo, 64 NY2d at 536).My course of action with regard to defendant's representation has thus been consonant with the governing case law. This review of the law and the facts also reveals that the force of defendant's allegations about my actions lies in the rhetoric counsel employed in her affirmation, suggesting, through innuendo, that my actions were improperly motivated.[FN1] The affirmation does not present any evidence of improper motivation for the actions I took as presiding judge.
RECUSAL
Defendant has a constitutional right to present a defense (People v Hudy, 73 NY2d 40 [1988]). It is also "well established that the trial courts have broad discretion to keep the proceedings within manageable limits and to curtail exploration of collateral matters (People v Hudy, 73 NY2d at 56). Counsel has not demonstrated that my actions were improper. Consequently, evidence of those actions would not be relevant to his defense of being "railroaded." Thus, there is no ground for my recusal.Judiciary Law § 14 sets forth the legal criteria for disqualification of state judges.In relevant part it provides: "A judge shall not sit as such in, or take part in the decision of, an action, claim, matter, motion or proceeding to which he is a party, or in which he has been attorney or counsel, or in which he is interested, or if he is related by consanguinity or affinity to any party to the controversy within the sixth degree."
In addition, state judges are further governed by the Rules of the Chief Administrator of the Courts, at 22 NYCRR Part 100. These rules require disqualification in a proceeding in which the judge's impartiality might reasonably be questioned (22 NYCRR 100.3 [E] [1]). Unless there are grounds for mandatory recusal under the Judiciary Law, the trial judge "is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court" (People v Moreno, 70 NY2d 403, 405 [1987]). No grounds for mandatory recusal have been alleged.
Defendant contends that I could not impartially preside over a trial at which he would proffer evidence of my own wrongdoing. However, his allegations concerning my conduct do not in fact allege any wrongdoing. Moreover, the conduct at issue has no possible relevance to his defense and therefore would not be admissible at his trial. Accordingly, defendant's motion seeking my recusal is denied.This constitutes the decision and order of this court.
Dated: December 14, 2006
J.S.C.
Footnotes
Footnote 1:
Counsel explicitly states that she bases her allegation that I sent Messrs. Koenig and Bodden to visit defendant in order "to interfere with out [sic] attorney/client relationship" on what defendant "feels." As an experienced attorney, Ms. David should know that what her client may feel is not a good faith basis upon which to make what purports to be an allegation of fact.
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