        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1099
KA 10-01864
PRESENT: FAHEY, J.P., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMES BEARD, ALSO KNOWN AS “POPS,”
DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered March 9, 2010. The judgment convicted defendant,
upon a jury verdict, of criminal sale of a controlled substance in the
third degree (two counts) and criminal possession of a controlled
substance in the third degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and a new trial is granted.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of two counts each of criminal possession of a controlled
substance in the third degree (Penal Law § 220.16 [1]) and criminal
sale of a controlled substance in the third degree (§ 220.39 [1]),
defendant contends that the evidence is legally insufficient to
support his conviction. Defendant contends that the People failed to
establish that he had constructive possession of the controlled
substance (drugs) because there is no evidence that he controlled the
premises where the drugs were sold or that he exercised control over
the unknown suspect who participated in the drug sales. That
contention is unpreserved for our review inasmuch as it was not
specifically raised in support of defendant’s motion for a trial order
of dismissal (see People v Latorre, 94 AD3d 1429, 1429-1430, lv denied
19 NY3d 998; People v Jones, 92 AD3d 1218, 1218, lv denied 19 NY3d
962; see generally People v Gray, 86 NY2d 10, 19). In any event, that
contention lacks merit because the evidence is legally sufficient to
establish that defendant “exercised ‘dominion or control’ over the
[drugs] by a sufficient level of control . . . over the [unknown
suspect] from whom the [drugs were] seized” (People v Manini, 79 NY2d
561, 573, quoting Penal Law § 10.00 [8]; see Penal Law § 220.39).
There is likewise no merit to defendant’s further contention, which is
preserved for our review, that the evidence is legally insufficient to
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                                                        KA 10-01864

establish defendant’s identity (see Jones, 92 AD3d at 1218). “It is
well settled that, even in circumstantial evidence cases, the standard
for appellate review of legal sufficiency issues is whether any valid
line of reasoning and permissible inferences could lead a rational
person to the conclusion reached by the [jury] on the basis of the
evidence at trial, viewed in the light most favorable to the People”
(People v Hines, 97 NY2d 56, 62, rearg denied 97 NY2d 678 [internal
quotation marks omitted]; see generally People v Bleakley, 69 NY2d
490, 495). Here, we conclude that the trial evidence, although
largely circumstantial, could lead a rational person to conclude that
defendant was the individual who arranged the drug sales (see Latorre,
94 AD3d at 1430; Jones, 92 AD3d at 1218). Further, although a
different result would not have been unreasonable (see People v
Danielson, 9 NY3d 342, 348; Bleakley, 69 NY2d at 495), we conclude
that, viewing the evidence in light of the elements of the crimes as
charged to the jury (see Danielson, 9 NY3d at 349), the verdict is not
against the weight of the evidence (see generally Bleakley, 69 NY2d at
495).

     We agree with defendant, however, that he is entitled to a new
trial because County Court violated his right to counsel. “Under our
State and Federal Constitutions, an indigent defendant in a criminal
case is guaranteed the right to counsel” (People v Medina, 44 NY2d
199, 207; see US Const, 6th Amend; NY Const, art I, § 6; People v
Linares, 2 NY3d 507, 510). That “right does not begin and end with
the assignment of counsel” (Linares, 2 NY3d at 510). Rather, trial
courts bear the “ongoing duty” to “ ‘carefully evaluate serious
complaints about counsel’ ” (id. at 510, quoting Medina, 44 NY2d at
207; see People v Sides, 75 NY2d 822, 824). Although “[t]he right of
an indigent criminal defendant to the services of a court-appointed
lawyer does not encompass a right to appointment of successive lawyers
at defendant’s option[,] . . . the right to be represented by counsel
of one’s own choosing is a valued one, and a defendant may be entitled
to new assigned counsel upon showing ‘good cause for a substitution’ ”
(Sides, 75 NY2d at 824, quoting Medina, 44 NY2d at 207). Thus, trial
courts are obligated to conduct, at the very least, a “ ‘minimal
inquiry’ ” when a defendant voices “ ‘seemingly serious’ ” complaints
about his or her assigned defense counsel (People v Porto, 16 NY3d 93,
100, quoting Sides, 75 NY2d at 824-825).

     Here, we conclude that defendant articulated complaints about his
assigned counsel that were sufficiently serious to trigger the court’s
duty to engage in an inquiry regarding those complaints (see Sides, 75
NY2d at 824-825). Before jury selection, defendant advised the court
that he was not comfortable proceeding with his assigned attorney
because he had never spoken to the attorney before that time, he had
not been informed that his trial was commencing that day, and he had
not been informed of certain pretrial hearings conducted in his
absence. The court interrupted defendant and engaged in an off-the-
record discussion with the attorneys. Thereafter, the court explained
to defendant that the trial was “going to have to go forward” with his
assigned counsel because “[t]he District Attorney’s Office has brought
up a confidential witness all the way from the State of Texas and
                                 -3-                          1099
                                                         KA 10-01864

they’re ready to go today,” the District Attorney’s office had “spent
a lot of money” to secure the confidential witness, and there were 50
prospective jurors in the courthouse. The court then proceeded to
explain the jury selection process and, when the court asked defendant
whether he would permit defense counsel to handle certain juror issues
at the bench, outside of defendant’s presence, defendant reiterated
that he did not “feel comfortable” with defense counsel. The court
replied that “if [defendant could] afford to hire [his] own attorney,
[he could] do so, but if [he could not] afford to do that, then the
Public Defender’s Office . . . has designated [defense counsel] as
[his] trial attorney and so [defense counsel would] be [his] trial
attorney.”

     Defendant’s allegations——in particular, the allegation that he
had never previously spoken to his assigned counsel and that he was
unaware his trial was commencing that day——are serious on their face
and should not have been “summarily dismiss[ed]” by the court,
especially in light of the fact that defendant’s allegations are
either supported by or uncontradicted by the record (Sides, 75 NY2d at
825; cf. People v Augustine, 89 AD3d 1238, 1240-1241, lv denied 19
NY3d 957). Indeed, the record established that an assistant public
defender other than defendant’s assigned counsel met with defendant
before trial and reviewed with him critical evidence, i.e., the police
surveillance videotapes, prepared an extensive omnibus motion, and
argued the motion. Additionally, the record does not contradict
defendant’s allegations that he was not apprised of a change in the
trial date and that a hearing was conducted in his absence.
Specifically, although the record establishes that defendant was
present when the court initially scheduled the trial date, there is no
evidence that he subsequently received notice of the change in the
trial date. Moreover, the minutes of the court clerk indicate that an
audibility hearing was held, but no transcript of that proceeding is
included in the record. Thus, there is no evidence that defendant was
present at that hearing.

     We therefore conclude, based on the record before us, that the
court violated defendant’s fundamental right to counsel by failing to
make any inquiry concerning his serious complaints regarding his
assigned counsel (see Sides, 75 NY2d at 824-825; cf. People v Haith,
44 AD3d 369, 370, lv denied 9 NY3d 1034; People v Reese, 23 AD3d 1034,
1035, lv denied 6 NY3d 779; People v England, 19 AD3d 154, 154-155, lv
denied 5 NY3d 805). The court did not, for example, ask defendant to
explain his position or ask defense counsel, on the record, to address
defendant’s allegations that they had never met or that defendant had
not been advised of the new trial date. Instead, as noted above, the
court advised defendant that the trial would proceed with his assigned
counsel because the District Attorney’s office had arranged for the
appearance of a confidential witness, who had traveled from Texas, and
prospective jurors were waiting. While “[t]he court might well have
found upon limited inquiry that defendant’s [complaints regarding his
assigned counsel were] without genuine basis, . . . it could not so
summarily dismiss [his complaints]” (Sides, 75 NY2d at 825; see People
v Graham, 169 AD2d 512, 512-513, lv denied 77 NY2d 906; see generally
People v Branham, 59 AD3d 244, 245; People v Rodriguez, 46 AD3d 396,
                                 -4-                          1099
                                                         KA 10-01864

397, lv denied 10 NY3d 844).

     We reject the People’s contention that the court had no duty to
conduct an inquiry regarding defendant’s complaints because his
assertions were “conclusory” (cf. People v Watkins, 77 AD3d 1403,
1404, lv denied 15 NY3d 956). To the contrary, defendant’s complaints
were highly specific and factual in nature. Additionally, we note
that the court failed to give defendant an opportunity to explain his
complaints. Indeed, the court cut defendant off, admonished him not
to interrupt, and advised him that, unless he could afford to hire his
own attorney, there would be no substitution of counsel (see Branham,
59 AD3d at 245; Rodriguez, 46 AD3d at 397; cf. People v Rodriguez, 166
AD2d 903, 904, lv denied 77 NY2d 910).

     In light of our conclusion, there is no need to address
defendant’s remaining contentions.




Entered:   November 16, 2012                    Frances E. Cafarell
                                                Clerk of the Court
