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THE JUDGE SHOULD HAVE INQUIRED INTO DEFENDANT’S ALLEGATION HIS ASSIGNED COUNSEL WAS BEING PAID BY HIS FAMILY; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the judge should have, but did not, conduct an inquiry into defendant’s allegation his assigned counsel was being paid by his family:

… Supreme Court violated his right to counsel when it failed to conduct a sufficient inquiry into defendant’s complaint that his assigned counsel accepted payment from his family. … [T]rial courts have the “ongoing duty” to ” ‘carefully evaluate serious complaints about counsel’ ” … . * * *

Here, defendant sent a letter to the court alleging … that his assigned counsel was being paid by his family, which is a serious complaint involving unethical and illegal conduct (see generally County Law § 722-b [4]). Although the court began to engage defense counsel in a discussion concerning defendant’s letter, before defense counsel was able to address the concerns raised by defendant in the letter, the court interjected and said, “You are going to represent [defendant] at trial.” The court then addressed defendant directly and concluded its comments to him by stating … “You are not going to get another attorney.” At no time did the court make any inquiry into defendant’s allegation that his family had paid defense counsel to represent him. … [W]e conclude that the court violated defendant’s right to counsel by failing to make a minimal inquiry concerning his serious complaint … . People v Jackson, 2023 NY Slip Op 03609, Fourth Dept 6-30-23

Practice Point: Here defendant requested new counsel on the ground his assigned attorney was being paid by his family (apparently a violation of County Law). The judge’s failure to inquire into the complaint violated defendant’s right to counsel.

 

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