Legal Aid's Criminal Appeals Bureau Wins Tremendous Victory; Unanimous Decision By The NY Court of Appeals Seen As Powerful Affirmation Of The Right To Counsel

The New York Court of Appeals, in a unanimous decision, affirmed the right to counsel and the right to raise the issue on appeal. In its ruling, the Court of Appeals reversed a conviction where the defendant's Legal Aid Society attorney was removed from the case because he requested an adjournment when he was leaving the Society in order to provide time for another Society attorney to prepare the case. There had been multiple adjournment requests by the prosecution that had been granted. The Manhattan District Attorney had argued that the defendant, Anthony Griffin, had forfeited his claim by pleading guilty.

In the unanimous opinion, Justice Jenny Rivera wrote that "[h]ere, the claim to counsel is so deeply intertwined with the integrity of the process…that defendant's guilty plea is no bar to appellate review. A claim that removal of counsel was part of the court's disparate, unjustifiable treatment of defense counsel goes to the fundamental fairness of our system of justice."

Harold Ferguson Jr., a Legal Aid Criminal Appeals Staff Attorney who represented Mr. Griffin on the appeal, told the New York Law Journal that the ruling "really stands for the proposition that courts have to treat assigned counsel and the prosecutor's office the same."

New York Law Journal
Right to Counsel Trumps Guilty Plea
By John Caher

ALBANY - In a powerful affirmation of both the right to counsel and the right to raise the issue on appeal, the state's top court yesterday unanimously held that reversal of a robbery conviction is required in a case where the defendant's Legal Aid Society lawyer was removed for requesting an adjournment.

The Court of Appeals, in an opinion by Judge Jenny Rivera (See Profile), rejected the Manhattan district attorney's arguments that the defendant forfeited his claim by pleading guilty.

"Here, the claim to counsel is so deeply intertwined with the integrity of the process…that defendant's guilty plea is no bar to appellate review," Rivera wrote for the 6-0 court. "A claim that removal of counsel was part of the court's disparate, unjustifiable treatment of defense counsel goes to the fundamental fairness of our system of justice."

&&People v. Griffin&, 46, resulted from a 3-2 opinion by the Appellate Division, First Department, which in December 2011 held that Acting Supreme Court Justice Micki Scherer wrongly removed the Legal Aid Society from the case for requesting an adjournment &(NYLJ, Dec. 16, 2011). Scherer had accommodated the prosecution's multiple requests for delay.

In other criminal appeals decided yesterday, the Court of Appeals:

  • Unanimously reversed the First Department in a Drug Law Reform Act case where a defendant argued that a plea to a non-drug case was induced by the promise of a sentence concurrent to a term later reduced. &&People v. Monroe&, 41.
  • Held that an accountant who signed a client's name on 40 checks without making any notation that he was acting under power of attorney did not commit the crime of forgery. &People v. Ippolito, 32.

In the Griffin case, records show that defendant Anthony Griffin, a repeat felon, was charged with holding up two Starbucks coffee shops in Manhattan. Because of his prior record, Griffin was potentially facing a life sentence for robbery.

During the first several months of the prosecution, the case was repeatedly delayed as 10 different assistant district attorneys appeared on the matter.

Scherer granted multiple adjournments at the request of the prosecution for various reasons, including the assignment of a new prosecutor and the unavailability of police witnesses.

However, when the defendant's Legal Aid attorney, David Cohen, told the court that he was leaving the organization and asked the judge to set a control date so a new attorney could become familiar with the case, Scherer refused.

A Legal Aid supervisor told the court that the defense could not be ready for the scheduled trial date, which was two weeks later, and Scherer removed Legal Aid from the case. Griffin did not speak during the exchange.

Eventually, 18-B counsel was appointed, and the case was transferred to Justice Edward McLaughlin (See Profile).

Griffin pleaded guilty to robbery charges in exchange for a sentence of 20 years to life.

The First Department held by a slim majority that Scherer had acted arbitrarily in her accommodation of the prosecution and lack of accommodation of the defense.

Yesterday, the Court of Appeals unanimously agreed with the First Department majority.

"While the right to counsel of choice is qualified, and may cede, under certain circumstances, to concerns of the efficient administration of the criminal justice system, we have made clear that courts cannot arbitrarily interfere with the attorney-client relationship and interference with that relationship for purpose of case management is not without limits, and is subject to scrutiny," Rivera wrote.

The court distinguished Griffin from People v. Petgen, 55 NY2d 529 (1982), where it found that a suspect who had pleaded guilty forfeited an ineffective assistance claim in a case where new counsel represented the defendant at the plea.

"An ineffective assistance of counsel claim is not the legal equivalent to a claim based on deprivation of counsel of choice—even though both fall under the umbrella of the Sixth Amendment," Rivera wrote. "Indeed, a counsel of choice violation cannot be cured by new counsel." Legal Aid attorney Harold Ferguson Jr., who represented Griffin on the appeal, said the ruling "really stands for the proposition that courts have to treat assigned counsel and the prosecutor's office the same." Ferguson said this case is unique.

"I've been doing this for nearly 30 years and I've never seen a situation where Legal Aid was forced off a case like this," Ferguson said. "So I am not sure how many more people this will affect, but it is a recognition of the right to counsel."

Manhattan Assistant District Attorney Sheila O'Shea appeared for the prosecution. The office declined comment.

Scherer retired in 2007.

Drug Law Resentencing

In Monroe, the defendant pleaded guilty in 2007 to conspiracy in exchange for a six-to-12-year term that would run concurrently with a 4 1/2-to-nine-year sentence for two drug felonies. At sentencing, Supreme Court Justice Bruce Allen (See Profile) explained to William Monroe that pleading guilty to the conspiracy would effectively extend his prison time by 1 1/2 to three years.

After the Drug Law Reform Act was enacted in 2009, Monroe moved for resentencing on the drug convictions and the original 4 1/2-to-nine-year sentence was reduced to three years. He then sought to withdraw his plea on the conspiracy, arguing that it was linked to the subsequently reduced sentence for the drug felonies.

The First Department rejected Monroe's motion, distinguishing his case from precedents such as People v. Rowland, 8 NY3d 342 (2007), which held that a defendant is entitled to withdraw a guilty plea that is induced by the promise of a concurrent sentence for a later vacated conviction.

Here, the First Department noted, Monroe's drug convictions were not vacated. Rather, it said he "invoked the ameliorative provisions of the Drug Law Reform Act to obtain a more lenient sentence."

The Court of Appeals reversed in a memorandum.

The panel said that when Monroe appeared before Allen in 2007 to plea to the conspiracy count, he had already been imprisoned about 18 months on the drug charges, during which he progressed through various rehabilitative programs, scored high marks in academic classes and had no disciplinary infractions. The high court said that Monroe "legitimately expected to be released from prison at his earliest parole eligibility date."

However, as a result of the sentence reduction under the Drug Law Reform Act, the gap between the minimum sentence for the drug crimes and the conspiracy was three years—double the time that Monroe had agreed to when he pleaded guilty.

"Defendant's plea to the conspiracy count was induced by the judge's specific representation to him that he would thereby extend his minimum incarceratory term by a year and a half only," the Court of Appeals said. "It simply cannot be said on this record that defendant, who was clearly working toward achieving the earliest release date possible, would have pleaded guilty absent this assurance."

Claudia Trupp of the Center for Appellate Litigation said that while the appeal was pending Monroe completed his prison term and parole sentence. Still, she said the ruling has implications for other defendants.

"I think this will be helpful to defendants who have [Drug Law Reform Act] motions pending but also have additional cases dependent on the conviction," Trupp said.

Manhattan Assistant District Attorney Frank Glaser argued for the prosecution. The office declined to comment.

Power of Attorney

In Ippolito, the court affirmed a 4-1 decision of the Appellate Division, Fourth Department. The case centered on an elderly woman, Katherine M.L., who gave the defendant, an accountant and businessman, full power of attorney in 2003.

Katherine revoked that power in 2006, shortly before Gerard Ippolito was charged with theft and forgery and accused of stealing nearly $700,000 from her. Ultimately, Ippolito was convicted, sentenced to a 14 1/2-to-29-year prison term and ordered to pay restitution of $696,595. On appeal, Ippolito argued that 40 of the forgery counts could not stand because at the time he signed the checks he had power of attorney.

The Fourth Department agreed.

Yesterday, Judge Susan Phillips Read (See Profile) said in affirming the appellate ruling that the evidence could not support a conviction for criminal possession of a forged instrument. "Where the ostensible maker or drawer of a written instrument is a real person, a signature is not forged unless unauthorized," Read wrote for the court. "Since Ippolito was empowered to sign Katherine M.L.'s name at the times when he drew or endorsed the 40 checks at issue on this appeal, the People's proof was legally insufficient."

Ippolito was represented by James Eckert of the Monroe County Public Defenders office.

Monroe County Assistant District Attorney Leslie Swift argued for the prosecution.