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DEFENDANT SHOULD HAVE BEEN PRESENT WHEN DEFENSE COUNSEL, DURING THE TRIAL, REQUESTED TO BE RELIEVED FROM REPRESENTING DEFENDANT, NEW TRIAL ORDERED.

The First Department, reversing defendant's conviction, determined defendant should have been present when defense counsel explained his concerns about defendant to the judge and asked to be relieved from representing the defendant. The request was denied:

In conducting a colloquy on defense counsel's request to be relieved, the court erred in failing to permit defendant to provide any input, or to even be present. At least by the time that the substance of counsel's ex parte application became clear, defendant should have been included in the proceeding.

…[T]his proceeding was an “ancillary proceeding[] [at which] he . . . may have [had] something valuable to contribute” … , and thus that his exclusion from it was error. While defendant may not have been able to justify counsel's removal, we cannot say that the “new matter” brought to light at the ex parte proceeding — where counsel revealed the content of a privileged communication with the court, and expressed the belief that defendant's criticisms of his performance were insincere attempts to sow error in the record — implicated “no potential for meaningful input from [] defendant” … on the subject of whether continued representation by counsel was appropriate.

The proceeding also implicated the court's obligation to make a “minimal inquiry” regarding whether the new facts justified substitution of counsel… . People v Moya, 2016 NY Slip Op 03241, 1st Dept 4-28-16


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