Opinion
12-16-2015
The PEOPLE, etc., respondent, v. Jacqueline WESLEY, also known as Jacqueline Wesley–Rosa, appellant.
Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant, and appellant pro se. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, and Brian D. Mogck of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant, and appellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, and Brian D. Mogck of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, and COLLEEN D. DUFFY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered July 12, 2012, convicting her of murder in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, her request for an adjournment to retain private counsel, made on the eve of trial, was properly denied. "[A]bsent exigent or compelling circumstances, a court may, in the exercise of its discretion, deny a defendant's request to substitute counsel made on the eve of or during trial if the defendant has been accorded a reasonable opportunity to retain counsel of his [or her] own choosing before that time" (People v. Arroyave, 49 N.Y.2d 264, 271, 425 N.Y.S.2d 282, 401 N.E.2d 393 ). Here, the criminal action had been pending against the defendant for more than one year prior to the defendant's eve-of-trial request for an adjournment. Accordingly, the defendant had a reasonable opportunity to retain counsel of her own choosing before requesting an adjournment for that purpose (see People v. Campbell, 54 A.D.3d 959, 863 N.Y.S.2d 827 ; People v. Goodwine, 46 A.D.3d 702, 848 N.Y.S.2d 243 ;
People v. Persad, 306 A.D.2d 359, 760 N.Y.S.2d 673 ; People v. Davis, 299 A.D.2d 420, 421, 749 N.Y.S.2d 284 ; People v. Gloster, 175 A.D.2d 258, 259–260, 572 N.Y.S.2d 370 ). Moreover, there were no "exigent or compelling circumstances" warranting a late adjournment (People v. Arroyave, 49 N.Y.2d at 271, 425 N.Y.S.2d 282, 401 N.E.2d 393 ). In that respect, although the defendant made certain generalized complaints about her assigned counsel, "the defendant's assertions did not suggest the serious possibility of a[n] ... impediment to the defendant's representation by assigned counsel" (People v. Jerrick, 69 A.D.3d 740, 740, 892 N.Y.S.2d 516 ; see People v. Gloster, 175 A.D.2d at 259–260, 572 N.Y.S.2d 370 ).
Further, the defendant was not deprived of due process or a fair trial by the Supreme Court's response to defense counsel's request to elicit the defendant's testimony in narrative form. "[A]n attorney faced with a client who intends to commit perjury has the initial responsibility to attempt to dissuade the client from pursuing the unlawful course of action" (People v. Andrades, 4 N.Y.3d 355, 360, 795 N.Y.S.2d 497, 828 N.E.2d 599 ; see Nix v. Whiteside, 475 U.S. 157, 170, 106 S.Ct. 988, 89 L.Ed.2d 123 ; People v. DePallo, 96 N.Y.2d 437, 441, 729 N.Y.S.2d 649, 754 N.E.2d 751 ). If such an attempt is unsuccessful, "defense counsel, bound to honor defendant's right to testify on his own behalf, should refrain from eliciting the testimony in traditional question-and-answer form and permit [the] defendant to present his testimony in narrative form" (People v. Andrades, 4 N.Y.3d at 360, 795 N.Y.S.2d 497, 828 N.E.2d 599 ; see People v. Mercure, 47 A.D.3d 950, 851 N.Y.S.2d 603 ).
Contrary to the defendant's contention, where defense counsel indicates an intention to present the defendant's testimony in narrative form, due process does not require that a record be made of either defense counsel's reasons for believing the defendant will commit perjury or of defense counsel's advice to the defendant regarding the intention to commit perjury or the consequences of that course of action. "A lawyer with a perjurious client must contend with competing considerations—duties of zealous advocacy, confidentiality and loyalty to the client on the one hand, and a responsibility to the courts and our truth-seeking system of justice on the other" (People v. DePallo, 96 N.Y.2d at 440, 729 N.Y.S.2d 649, 754 N.E.2d 751 ). Requiring counsel to put on the record his or her reasons for anticipating perjured testimony and the advice proffered to the defendant related to his or her testimony would not strike the appropriate balance between these competing considerations but rather, would present too great a risk that defense counsel would be forced to reveal client confidences (see generally People v. Darrett, 2 A.D.3d 16, 24–25, 769 N.Y.S.2d 14 ). A defendant who seeks to challenge counsel's judgment to elicit testimony in narrative form or counsel's advice in that regard may raise those issues in a motion pursuant to CPL 440.10.Relatedly, the defendant contends that her counsel was ineffective in relation to the decision to present her testimony in narrative form and advising her in that regard, and in eliciting testimony on her direct examination about certain incidents of domestic violence between her and her husband. The defendant further contends, in her pro se supplemental brief, that her counsel was ineffective in failing to retain an expert to contradict certain evidence presented by a medical examiner. The defendant's ineffective assistance claim is based, in part, on matter appearing on the record and, in part, on matter outside the record and, thus, constitutes a " mixed claim" of ineffective assistance (People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ; see People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (cf. People v. Crump, 53 N.Y.2d 824, 825, 440 N.Y.S.2d 170, 422 N.E.2d 815 ; People v. Brown, 45 N.Y.2d 852, 853–854, 410 N.Y.S.2d 287, 382 N.E.2d 1149 ). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions, raised in her pro se supplemental brief, are unpreserved for appellate review and, in any event, without merit.