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Defendant Contends He Was Denied Effective Counsel, Files Appeal in New York Appellate Court


On October 11, 1994, the defendant is accused of having burglarized a person and forcibly stolen their wallet, a checkbook, and a car. On October 12 and 13, 1994, he is charged with forging and cashing two of the stolen checks. After a jury trial, he was convicted of eight of the 17 offenses that he was originally charged with. He was sentenced to 5 ½ to 16 ½ years of prison. He filed an appeal. His contention was that his trial counsel denied him effective assistance.

The situation that he referred to occurred during pretrial hearings of his case. His public defender was given the witness list. He recognized one of the names on the list as a woman who had previously been represented by his office. He pulled her file and discovered confidential information relating to her substance abuse problem and treatment. He immediately notified the county court that he had a conflict in representing the defendant because he felt that effective counsel would use this information to impeach the witness. He felt that the information was relevant to the credibility of the witness and should be used in cross-examination of her on the stand. However, he was not allowed to use the information because it was attorney client privilege that he would not have if his office had not defended her. The defendant stated repeatedly that he wanted the court to allow that information to be heard. He continued to demand it even after the court had advised him that the information could not be used to impeach the witness under the Mental Hygiene Law § 23.05.

The witness was produced and came with her own counsel to court. She advised that she was waiving her right to confidentiality with respect to any of the information in her file at the Public Defender’s office. She specifically agreed to allow the defense to raise questions concerning her prior drug use and criminal charges. Since she had agreed to allow the information to be raised and was questioned in reference to it, neither the defendant or the defense attorney had any more objections to the defense attorney continuing to act as council for the defendant.

The defendant claims that the defense attorney was not asked if he wanted to continue representing him after his disclosure of the “conflict of interest.” He contends that the court failed to ask him if he still wanted to be defended by that particular public defender. He presented his concern that the public defender was affected by his office’s previous representation of the witness. He stated his concerns that the public defender must have felt divided loyalties while cross-examining the witness. He fears that these divided loyalties may have undermined his defense. The court rejects these theories.

The court points out that the defendant was able to impeach the witness on information that under any other circumstances, he would not have been allowed to use. If he had any other attorney, that information would not have been divulged in court. That testimony only served to bolster the defense case. Even though he was not specifically asked if he still wanted that public defender, the defender did a good job.

The defendant also contended that his sentence was too harsh given the circumstances. The court states that the aggregate sentence is not harsh or excessive. They point out that it is within the statutory range for the crimes that the defendant was convicted of committing. The Supreme Court stated that the “Determination of an appropriate sentence rests within the sound discretion of the trial court and will not be reduced in the absence of extraordinary circumstances or a clear abuse of discretion.” People v. Wright, 214 A.D. 2d 759, 762, 624 N.Y. S. 2d 650.

Stephen Bilkis & Associates with its Criminal law Lawyers has convenient offices located throughout New York and the Metropolitan area. Our Drug Crime Attorneys can provide you with advice to guide you through difficult situations. Without a Drug Crime Lawyer, you could lose precious compensation to pay for your defense.

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