Upon the foregoing papers, defendant’s motion has been decided in accordance with the accompanying memorandum.The People, by Notice of Motion, have moved this Court for an Order disqualifying defendant’s counsel, alleging a conflict of interest that infringes upon the defendant’s constitutional rights and violates the Rules of Professional Conduct. Defense counsel and the defendant oppose the requested relief. In resolving this motion, I have considered the People’s moving papers and Reply, the defendant’s Affirmation in Opposition, letters submitted by both counsel1 and the oral arguments of September 20, 2018.FACTUAL BACKGROUNDIt is alleged that on April 5, 2018, at approximately 2:30 am, in the Town of Southampton, the defendant, intoxicated by alcohol and impaired by a combination of alcohol and drugs, recklessly drove a vehicle at a high rate of speed and struck sixty-three year old Joseph McAlla, causing a traumatic amputation of his leg which resulted in Mr. McAlla’s death. The defendant is charged, inter alia, with leaving the scene of this incident. It is further alleged that in the days following the incident, the defendant attempted to compel a witness to refrain from speaking to law enforcement and to conceal evidence of the crime through threats and intimidation.The People claim that the defendant, and the other occupants of his vehicle, Brandon Bess, Travon Pettaway and Roberson Coard, were out drinking and consuming drugs at local bars prior to the crash. The defendant, Bess, Pettaway and Coard are long-time friends who grew up together on the Shinnecock Reservation in Southampton. Brandon Bess is charged under a separate indictment with Intimidating a Witness in connection with a witness in this case.The People further allege that after the crash, the defendant left the scene and fled to the Shinnecock Reservation where he and his friends concealed the vehicle. Shortly thereafter, Imani Quinn, the defendant’s sister, confronted the defendant after observing the damaged vehicle and hearing media reports about the fatal crash. Imani Quinn then drove the defendant to their mother’s residence.On April 8, 2018, Peter Smith, an attorney who had represented members of the Bess family for nearly a decade, arranged to meet with a number of individuals at the Shinnecock Reservation to discuss the ongoing police investigation into the April 5th crash. At this meeting they discussed what was described as their concern about “…an aggressive police presence on the Reservation questioning numerous people about this incident.”2 Present at the meeting were Brandon Bess, Travon Pettaway, Roberson Coard, the defendant’s sister, Amani Quinn and although the defendant did not attend the meeting himself, members of his family were present. The meeting lasted between thirty and sixty minutes.Mr. Smith advised the group that they had the right to speak to the police or not to speak to the police and that they could retain an attorney if they preferred to have an attorney speak on their behalf. He was asked general questions by the group and told the group that they could retain him as their attorney. Mr. Smith provided legal advice to Brandon Bess, Travon Pettaway, Roberson Coard and Amani Quinn in connection with their appearance before the Grand Jury related to this matter. At the conclusion of the meeting, Brandon Bess and Travon Pettaway retained Mr. Smith and signed retainer agreements. The defendant’s family also retained Mr. Smith on behalf of the defendant.On May 15, 2018, Pettaway was arrested on an unrelated criminal matter. He retained Mr. Smith to represent him on that matter as well and Mr. Smith made two appearances in Southampton Town Court on that case. On May 29, 2018, the defendant was arrested in connection with this Indictment and arraigned in Southampton Town Court where he was represented by Peter Smith.Throughout the course of the Grand Jury investigation, Mr. Smith had numerous conversations with investigators and witnesses. On one occasion, after one of Pettaway’s court appearances on the unrelated Southampton case, Mr. Smith was approached by investigators who asked to speak to Pettaway in connection with this investigation. After speaking with Pettaway, Mr. Smith advised the investigators that his client declined to speak with them. On another occasion, after Amani Quinn was served with a subpoena to testify before the Grand Jury, she told investigators that Mr. Smith was her attorney and that she needed to talk to him. After speaking to Mr. Smith on the telephone, Amani Quinn told investigators that she had been advised not to comply with the Grand Jury subpoena. Additionally, Mr. Smith received calls from Pettaway’s family and Bess regarding Grand Jury subpoenas they received or attempts that were made to serve them with subpoenas. At some point, knowing that the target of the investigation was his client, Chace Quinn, Mr. Smith advised Pettaway, Bess and Amani Quinn to hire separate counsel and provided the names of three attorneys.Aside from advising Pettaway, Amani Quinn, Coard and Bess about their rights in connection with the Grand Jury investigation, Mr. Smith also interviewed a number of witnesses and obtained their accounts of the incident. Mr Smith interviewed these witnesses by himself without an investigator present. According to Mr. Smith, given the number of witnesses he has spoken to about this case, he doesn’t presently recall what these witnesses said to him, but he acknowledges it is possible that when they testify at trial, their testimony will “ring a bell”,3 enabling him to recall whether their trial testimony is consistent with the prior statements they made to him.Mr. Smith acknowledges that potential conflicts exist. He argues, however, that these conflicts may be waived and asks this Court to engage in a Gomberg4 inquiry of the defendant to ascertain whether he would knowingly and voluntarily waive these conflicts and have Mr. Smith continue to represent him. Additionally, Mr. Smith proposes to create a ‘legal firewall’ by having a different attorney, not associated with this case, cross-examine those witnesses that are the subject of conflict at trial.5CONCLUSIONS OF LAWA determination to disqualify counsel is within the trial court’s discretion, People v. Carncross, 14 NY3d 319 (2010); People v. Watson, 26 NY3d 620 (2016); People v. Lawrence, 156 AD3d 652 (2nd Dept., 2017), and the Court is not required to wait until trial to see if a potential conflict comes to fruition, Carncross, supra. Where the conflict has yet to fully materialize, the Court has discretion to determine whether the circumstances are of such nature as to raise a serious conflict which the defendant cannot waive, US v. Rivera, 571 Fed. Appx. 55 (2d Cir 2014).This is a rare situation where the court is being asked, prospectively, unaware of how the witnesses will testify and unaware of what defenses will be raised, to determine what implications these conflicts will have upon the defendant’s constitutional rights and to predict whether these potential conflicts of interest will become actual conflicts as a trial progresses, requiring a mistrial, Carncross, supra. In doing so, the Court must weigh the competing interests of the defendant’s right to be represented by a counsel of his choosing, and his constitutional right to effective representation. Either way, the defendant will have a basis for appellate review since protecting one of those rights necessarily means infringing upon the other, People v. Watson, 26 NY3d 620 (2016).Although a Court should not arbitrarily interfere with the attorney-client relationship, the Court has a duty to protect a defendant’s right to effective assistance of counsel, People v. Gomberg, 38 NY2d 307 (1975). The Sixth Amendment right to counsel seeks to ensure that criminal defendants have effective counsel, US v. Wheat, 486 US 153 (1988). It is not designed to ensure that a defendant will inexorably be represented by the lawyer he prefers, Id. The presumption in favor of a client being represented by counsel of his or her choosing may be overcome by a demonstration of an actual conflict or a serious potential for conflict, in which case, the Court is not required to accept a defendant’s waiver of his lawyer’s conflict of interest, US v. Arrington, 867 F2d 122 (2d Cir. 1989). Courts must be allowed to refuse waivers where a potential for conflict may become an actual conflict resulting in a mistrial, Carncross, supra.To determine whether the issues raised herein rise to the level of an actual conflict or a conflict so severe that a rational defendant would not knowingly and intelligently desire the conflicted lawyer’s continued representation, the Court must examine the facts and details of the attorney’s interest, US v. Levy, 25 F.3d 146 (2d Cir. 1994). Where lesser or only potential conflicts exist, the Court must conduct a Gomberg or Curcio6 hearing to determine whether the defendant will knowingly and intelligently waive his right to conflict-free representation, Id. If an actual or potentially serious conflict exists, no such inquiry is necessary and counsel must be disqualified, Id.Two critical issues are raised here. The first is whether defense counsel’s prior representation of Bess, Coard, Pettaway and Amani Quinn, all of whom will undoubtedly be called by the People at trial, creates an actual conflict requiring disqualification. The second, and possibly the more serious concern, is whether the fact that defense counsel personally interviewed witnesses about this incident, without an investigator present, raises the possibility that defense counsel will be called as a witness at trial.I. Defense Counsel’s Representation of Witnesses During the Investigation.The People’s position is that Mr. Smith’s representation and communications with Bess, Pettaway, Cord and Amani Quinn, all of whom the People intend to call as trial witnesses on their case-in-chief, creates an actual conflict requiring removal. They claim that Mr. Smith will need to refrain from pursuing particular lines of cross-examination and pursuing particular defenses given the attorney-client relationship he had with these witnesses and that the advocate-witness rule of professional conduct requires disqualification, see NY Code of Professional Responsibility DR 5-102.7Counsel’s prior representation of a witness which affects his ability to cross-examine that witness, establishes an actual conflict, People v. Amato, 173 AD2d 714 (2nd Dept., 1991); People v. Robinson, 121 AD3d 1179 (3rd Dept., 2014). Whether and how to impeach a witness’ credibility to whom the attorney owes a duty of loyalty creates an awkward scenario in which prejudice to the defendant must be presumed, Carncross, supra citing People v. McDonald, 68 NY2d 1 (1986). The loyalty counsel owes to former client witnesses and to the defendant will either infringe upon his trial strategy or upon his cross-examination strategy, each of which undermines the defendant’s interests, Carncross, supra. The ‘legal firewall’ suggested by the defense may, in some cases, be enough to remedy this conflict, however, in this case, it does not do enough to remedy the actual and serious conflict raised by the possibility that defense counsel may become a witness at trial in order to impeach prosecution witnesses with prior inconsistent statements.II. Defense Counsel’s Interviews of Prosecution Witnesses.During the course of his representation or communication with Bess, Pettaway, Coard, Amani Quinn and others, statements were made by one or more people to Mr. Smith regarding the facts of this case. This not only affects Mr. Smith’s ability to thoroughly cross-examine these witnesses, but makes him a witness should any of these witnesses testify in a manner that is inconsistent with the statements they previously made to him. Mr. Smith is unable to definitively state whether any of the statements that the witnesses made to him have the potential to become the subject of conflict at trial. This Court is well aware that further inquiry into this issue must be curtailed in order to avoid intrusion upon the confidential nature of the attorney-client relationship; that of this defendant and his attorney as well as this attorney and his former clients, 22 NYCRR 1200.0 rules 1.6 & 1.9; People v. Watson, 26 NY3d 620 (2016); and even those that he did not formally represent, see People v. Waite, 145 AD3d 1098 (3rd Dept., 2016). As a result, this Court is being asked, prospectively, unaware of what the defenses are, unaware of what the witnesses will say at trial, and unaware of the substance of the statements they gave to Mr. Smith, to decide whether Mr. Smith will ultimately become a witness mid-trial thereby necessitating a mistrial.Where the conflict is borne by the defendant’s advocate becoming a witness, a waiver by the defendant is insufficient to cure the conflict, US v. Locascio, 6 F.3d 924 (2d Cir. 1993); People v. Swanson, 43 AD3d 1331 (4th Dept., 2007); Code of Professional Responsibility DR 5-101 and 5-102. There is no requirement that the Court be certain the attorney will testify before disqualifying him or her, Locascio, supra; Amato, supra, [Court was concerned with the potential for defense counsel to become a witness at trial and disqualified the attorney]. In fact, counsel would be required to withdraw from representing the defendant if called as a witness about a disputed issue of fact, Id; see Code of Professional Responsibility DR 5-101 and 5-102.The Second Department recently addressed this issue in People v. Lawrence, 156 AD3d 652 (2nd Dept., 2017). There, defense counsel was the sole witness to a witness’ recantation of his identification of the defendant as the shooter. The People argued that this created an actual conflict and that defense counsel would either have to refrain from presenting the exculpatory evidence, which would necessarily include refraining from asking about it on cross-examination, or have to testify on behalf of his client, which would require being disqualified and result in a mistrial. After inquiry by the Court, the defendant stated that he wished to continue with his attorney, acknowledging that the attorney would not cross-examine that eyewitness about his recantation. The Appellate Division found that waiving the right to cross-examine a crucial witness about a recantation of an identification was a non-waivable actual conflict that severely prejudiced the defendant and that the Court should have disqualified the attorney citing Wheat v. US, 486 US 153 (1988).The actual conflicts raised here are so severe and the risk of prejudice to the defendant is so great, that they would seriously infringe upon the defendant’s constitutional rights and would create a substantial likelihood that the trial would result in a mistrial. Additionally, the risks for the defendant created by these conflicts are ones this Court cannot allow the defendant to waive. Accordingly, the People’s application to disqualify defendant’s counsel is granted.Order entered accordingly.Dated: April 16, 2019Suffolk, New York
