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

77
KA 09-00395
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JIMMY W. GIBSON, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered November 25, 2008. The judgment
convicted defendant, upon a jury verdict, of attempted murder in the
second degree and assault in the first degree.

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

     Memorandum: On appeal from a judgment convicting him following a
jury trial of attempted murder in the second degree (Penal Law §§
110.00, 125.25 [1]) and assault in the first degree (§ 120.10 [1]),
defendant contends that Supreme Court abused its discretion in denying
his request for assignment of new counsel. We agree, and we therefore
reverse the judgment and grant a new trial.

     Defendant requested new counsel in a letter he sent to the court
approximately one month prior to trial, and two weeks later defense
counsel himself moved to withdraw as assigned counsel. Defense
counsel stated in his letter-motion that he was “unable to communicate
effectively” with defendant and that he could therefore no longer
represent him. At the next court appearance, which was ten days
before trial, defendant specifically outlined his grievances against
defense counsel and stated that he could not communicate with him.
The court then turned to defense counsel, who stated that his most
recent meeting with defendant was “rather antagonistic” and that he
too believed that there had been an irreparable breakdown in the
attorney-client relationship. Defense counsel described his motion to
withdraw as a “drastic measure,” noting that he had never before made
such a request. In denying defendant’s request for new counsel and
defense counsel’s motion to be relieved of the assignment, the court
stated, inter alia, that a lack of communication between a defendant
and his attorney does not constitute good cause for appointment of
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                                                         KA 09-00395

substitute counsel, “[e]specially when there may be some indication
that lack of communication was initiated or promoted by the defendant
as opposed to defense counsel.”

     The determination “[w]hether counsel is substituted is within the
discretion and responsibility of the trial judge . . . , and a court’s
duty to consider such a motion is invoked only where a defendant makes
a seemingly serious request[]” (People v Porto, 16 NY3d 93, 99-100
[internal quotation marks omitted]; see People v Sides, 75 NY2d 822,
824; People v Medina, 44 NY2d 199, 207). Thus, where a defendant
makes “specific factual allegations” against defense counsel (Porto,
16 NY3d at 100), the court must make at least “some minimal inquiry”
to determine whether the defendant’s claims are meritorious (Sides, 75
NY2d at 825; see People v Smith, 18 NY3d 588, 592-593). Upon
conducting that inquiry, “counsel may be substituted only where ‘good
cause’ is shown” (Porto, 16 NY3d at 100; see People v Linares, 2 NY3d
507, 510).

     Here, the court erred in determining that a breakdown in
communication between attorney and client cannot constitute good cause
for substitution of counsel. Although the mere complaint by a
defendant that communications have broken down between him and his
lawyer is not, by itself, good cause for a change in counsel (see
People v Faeth, 107 AD3d 1426, 1427, lv denied 21 NY3d 1073), where a
complete breakdown has been established, substitution is required (see
Sides, 75 NY2d at 824-825; People v White, 288 AD2d 839, 839, lv
denied 97 NY2d 689). Here, both defendant and defense counsel agreed
that they were unable to communicate, and nothing said by either of
them during the court’s lengthy inquiry indicated otherwise.

     We conclude that the court also erred in suggesting that any
breakdown in communication was “initiated or promoted by the defendant
as opposed to defense counsel.” That conclusion is not supported by
the record, which shows that the breakdown in communication resulted
from legitimate concerns defendant had about defense counsel’s
performance. For instance, it is undisputed that defendant, who was
facing a maximum sentence of 25 years in prison, had not been informed
by defense counsel whether there were any plea offers in his case,
notwithstanding that the trial was impending. In addition, defense
counsel met with defendant only sporadically and had not yet discussed
with him what defense strategy he intended to pursue against the
charges. Defendant also informed the court without contradiction that
defense counsel refused to return or take phone calls from defendant’s
wife and failed to provide him with a copy of certain motion papers
that defendant had repeatedly requested. Under the circumstances, we
cannot conclude that the breakdown in the attorney-client relationship
was initiated by unreasonable demands or unrealistic expectations from
defendant.

     Finally, with respect to our dissenting colleague’s assertion
that a defendant’s complaints of infrequent contact with his or her
attorney do not constitute good cause for substitution, we note that
the cases cited for authority refer to “vague” (People v MacLean, 48
AD3d 1215, 1217, lv denied 10 NY3d 866, reconsideration denied 11 NY3d
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                                                         KA 09-00395

790) and “conclusory” (People v Benson, 265 AD2d 814, 814, lv denied
94 NY2d 860, cert denied 529 US 1076), assertions of infrequent
contact. Here, in contrast, defendant’s complaints of infrequent
contact were specific and supported by the record. In any event,
defendant’s request for substitution of counsel was not based solely
on complaints of infrequent contact with his attorney; as noted, the
motion was based primarily on the undisputed breakdown in
communication between defendant and his attorney.

     All concur except DEJOSEPH, J., who dissents and votes to affirm
in the following memorandum: I respectfully dissent. In my view,
Supreme Court did not abuse its discretion in denying defendant’s
request for substitution of defense counsel inasmuch as there was no
good cause for substitution (see People v Porto, 16 NY3d 93, 99-100;
People v Linares, 2 NY3d 507, 510; People v Sides, 75 NY2d 822, 824).
Therefore, I would affirm.

     At the outset, I note that the court conducted an extensive
inquiry into defendant’s allegations (see People v Smith, 18 NY3d 588,
592-593; cf. Sides, 75 NY2d at 825), which went beyond its “minimal
inquiry” obligation (Sides, 75 NY2d at 825; see People v Faeth, 107
AD3d 1426, 1427, lv denied 21 NY3d 1073).

     Defendant based his allegation of a breakdown in communication
with defense counsel largely on complaints of infrequent contact.
Such complaints, however, do not constitute good cause for
substitution (see People v MacLean, 48 AD3d 1215, 1217, lv denied 10
NY3d 866, reconsideration denied 11 NY3d 790; People v Benson, 265
AD2d 814, 814-815, lv denied 94 NY2d 860, cert denied 529 US 1076).
Defendant also asserted that there had been a breakdown in
communication inasmuch as defense counsel had failed to provide him
with motion papers or to inform him whether any plea offers had been
made. Based on my examination of the record, I conclude that
defendant’s assertions “ ‘do not suggest a serious possibility of good
cause for substitution’ ” (People v Moore, 41 AD3d 1149, 1150, lv
denied 9 NY3d 879, reconsideration denied 9 NY3d 992; see generally
People v Torres, 14 AD3d 801, 803, lv denied 4 NY3d 836). Defendant’s
remaining assertions concerning the alleged breakdown in communication
were conclusory and, thus, insufficient to establish good cause (see
People v Thagard, 28 AD3d 1097, 1098, lv denied 7 NY3d 795).

     Overall, in my view, even when defense counsel has moved for
substitution indicating that he is “unable to communicate effectively
with [defendant],” the court does not abuse its discretion in denying
substitution where the breakdown in communication was owing to
defendant’s uncooperative attitude and defense counsel has conducted
an otherwise effective defense (see People v Jessup, 266 AD2d 313,
313-314, lv denied 94 NY2d 921; see generally People v Johnson, 292
AD2d 871, 871-872, lv denied 98 NY2d 652).


Entered:   March 20, 2015                       Frances E. Cafarell
                                                Clerk of the Court
