People v. Hilliard — 73 N.Y.2d 584

Majority

p. 584

The People of the State of New York, Respondent, v Otis Hilliard, Appellant.

Submitted May 2, 1989;

decided June 6, 1989

POINTS OF COUNSEL

Paul L. Gruner, Public Defender (Denise Y. Dourdeville of counsel), for appellant.

I. The court erred in requiring appellant to appear before the Grand Jury in handcuffs and shackles. (People v Davis, 119 Misc 2d 1013 ; People v Lindenborn, 23

p. 585

Misc 426 ; People v Monroe, 125 Misc 2d 550 ; People v Roman, 35 NY2d 978 ; People v Gonzalez, 115 AD2d 899 .) II. The court erred in refusing to charge justification. (People v Padgett, 60 NY2d 142 ; People v Watts, 57 NY2d 299 ; People v Astle, 117 AD2d 382 .) III. The verdict was against the weight of the evidence as a matter of law. (People v Contreras, 108 AD2d 627 ; Matter of Philip A., 49 NY2d 198 ; People v Almonte, 102 Misc 2d 950 ; People v Reed, 83 AD2d 566 ; Matter of John G., 82 AD2d 861 .) IV. The Town Justice’s deliberate interference with appellant’s right to counsel constitutes judicial misconduct and cannot be considered harmless. (People v Felder, 47 NY2d 287 ; Spano v New York, 360 US 315 ; Powell v Alabama, 287 US 45 .) V. A hearing should have been held to determine whether racially motivated peremptory challenges deprived appellant of due process and a fair trial. The failure of trial counsel to raise the issue in a timely manner as requested by appellant constituted ineffective assistance of counsel. (Batson v Kentucky, 476 US 79 ; People v Scott, 70 NY2d 420 ; People v McLucas, 15 NY2d 167 ; People v Claudio, 59 NY2d 556 ; People v Baldi, 54 NY2d 137 .)

Michael Kavanagh, District Attorney (Joan Lamb of counsel), for respondent.

I. Defendant was not denied his right to appear and testify before the Grand Jury but voluntarily elected not to testify. (People v Mendola, 2 NY2d 270 ; People v Gonzalez, 115 AD2d 899 ; People v McCloud, 69 AD2d 957 ; People v Rittenhouse, 37 AD2d 866 ; People v Dawson, 125 AD2d 860 ; People v Gonzalez, 55 AD2d 656 .) II. The trial court properly refused to charge the defense of justification. (People v Padgett, 60 NY2d 142 ; People v Watts, 57 NY2d 299 ; People v Astle, 117 AD2d 382 ; People v Cruickshank, 105 AD2d 325 ; People v Alston, 104 AD2d 653 .) III. The proof adduced at trial sufficiently established that the victim suffered the requisite physical injury necessary to sustain his conviction for assault in the second degree. (People v McDowell, 28 NY2d 373 ; People v Almonte, 102 Misc 2d 950 ; Matter of Philip A., 49 NY2d 198 ; People v Rojas, 61 NY2d 726 ; People v Greene, 70 NY2d 860 ; People v Williams, 105 AD2d 465 ; People v Starling, 101 AD2d 704 ; People v Coward, 100 AD2d 628 ; People v Thompkins, 97 AD2d 593 ; People v Chesebro, 94 AD2d 897 .) IV. Defendant was not deprived of effective assistance of counsel. The interference with defendant’s access to counsel for 30 days was harmless error. V. Defendant’s failure to make a timely objection to the prosecutrix’s exercise of her peremptory chai

p. 586

lenges bars defendant from raising this issue on appeal. Defendant was not denied effective assistance of counsel. (Batson v Kentucky, 476 US 79 ; People v Hockett, 121 AD2d 878 ; People v Scott, 70 NY2d 420 .)

OPINION OF THE COURT

Defendant, while an inmate of Eastern Correctional Facility, was charged with assault, second degree, as a result of an altercation with a correction officer. Prior to trial he moved to dismiss the indictment, claiming he was denied the opportunity to appear before the Grand Jury and that he had been denied effective assistance of counsel. The motion was denied and defendant was found guilty as charged after trial. On appeal he claimed several errors in the proceedings but the Appellate Division, finding no merit in them, affirmed.

On this appeal, we find it necessary to address only defendant’s claim that he was denied effective assistance of counsel.

Defendant was arrested August 7, 1985 and arraigned later that day by the local Town Justice. While being arraigned, defendant continually failed to comply with the Judge’s orders to quiet down. As a result, he was found in contempt of court and the Judge ordered his counsel not to have contact with him for a period of 30 days following the arraignment.

The People concede that the Town Justice erred in barring defendant’s counsel from visiting his client for 30 days but contend that the error was harmless since defendant was represented at arraignment and at his trial which took place two months after the order had expired.

Defendant’s right to assistance of counsel attached at his arraignment (see, Powell v Alabama, 287 US 45 , 57-59; Coleman v Alabama, 399 US 1 , 17; Kirby v Illinois, 406 US 682 , 688-689; People v Meyer, 11 NY2d 162 , 164-165; CPL 210.15). It was not absolute but was subject to the right of the court to impose reasonable rules to control the conduct of the trial (compare, People v Narayan, 58 NY2d 904 , 906, with Geders v United States, 425 US 80 , 90-91). As the People concede, however, the court’s order denying defendant his constitutional right to counsel after such right had attached was purely punitive and without justification. Thus, the inquiry is whether the order constituted reversible error.

In People v Crimmins ( 36 NY2d 230 , 238), we stated that there are some errors which are so serious that they operate

p. 587

to deny defendant’s fundamental right to a fair trial. In such cases the reviewing court must reverse the conviction and grant a new trial, without evaluating whether the errors contributed to the defendant’s conviction. We applied this rule to the denial of the constitutional right to counsel in People v Felder ( 47 NY2d 287 ) in reversing defendant’s conviction and ordering a new trial.

Similarly, we refuse to apply the harmless error doctrine here. The court’s ruling, entered at the time of arraignment, affected defendant’s representation in such a way that the error cannot be corrected by a new trial (see, People v Felder, supra, at 296 ).

Accordingly, the order of the Appellate Division should be reversed and the indictment dismissed.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion.

Order reversed, etc.

Cases cited

People v. Davis 119 Misc 2d 1013 N.Y. Sup. Ct. 1983-05-23 p. 584
People v. Monroe 125 Misc 2d 550 N.Y. Sup. Ct. 1984-07-12 p. 585
People v. Roman 35 NY2d 978 N.Y. 1975-01-20 p. 585
People v. Padgett 60 NY2d 142 N.Y. 1983-10-25 p. 585
People v. Watts 57 NY2d 299 N.Y. 1982-11-16 p. 585
People v. Astle 117 AD2d 382 N.Y. App. Div. 1986-06-05 p. 585
People v. Contreras 108 AD2d 627 N.Y. App. Div. 1985-02-07 p. 585
In re Philip A. 49 NY2d 198 N.Y. 1980-01-08 p. 585
People v. Almonte 102 Misc 2d 950 N.Y. Sup. Ct. 1980-02-13 p. 585
People v. Felder 47 NY2d 287 N.Y. 1979-06-07 p. 585, p. 587
Spano v. New York 360 US 315 SCOTUS 1959-06-22 p. 585
Powell v. Alabama 287 US 45 SCOTUS 1932-11-07 at 57-59 p. 585, p. 586
Batson v. Kentucky 476 US 79 SCOTUS 1986-04-30 p. 585, p. 586
People v. Scott 70 NY2d 420 N.Y. 1987-11-19 p. 585, p. 586
People v. McLucas 15 NY2d 167 N.Y. 1965-02-11 p. 585
People v. Claudio 59 NY2d 556 N.Y. 1983-07-07 p. 585
People v. Baldi 54 NY2d 137 N.Y. 1981-10-29 p. 585
People v. Mendola 2 NY2d 270 N.Y. 1957-01-10 p. 585
People v. Rittenhouse 37 AD2d 866 N.Y. App. Div. 1971-10-21 p. 585
People v. Dawson 125 AD2d 860 N.Y. App. Div. 1986-12-31 p. 585
People v. Cruickshank 105 AD2d 325 N.Y. App. Div. 1985-01-17 p. 585
People v. Alston 104 AD2d 653 N.Y. App. Div. 1984-09-24 p. 585
People v. McDowell 28 NY2d 373 N.Y. 1971-05-13 p. 585
People v. Rojas 61 NY2d 726 N.Y. 1984-01-12 p. 585
People v. Greene 70 NY2d 860 N.Y. 1987-11-24 p. 585
People v. Starling 101 AD2d 704 N.Y. App. Div. 1984-04-12 p. 585
People v. Coward 100 AD2d 628 N.Y. App. Div. 1984-03-26 p. 585
People v. Thompkins 97 AD2d 593 N.Y. App. Div. 1983-10-13 p. 585
People v. Chesebro 94 AD2d 897 N.Y. App. Div. 1983-05-26 p. 585
People v. Hockett 121 AD2d 878 N.Y. App. Div. 1986-07-01 p. 586
Coleman v. Alabama 399 US 1 SCOTUS 1970-06-22 at 17 p. 586
Kirby v. Illinois 406 US 682 SCOTUS 1972-06-07 at 688-689 p. 586
People v. Meyer 11 NY2d 162 N.Y. 1962-04-05 at 164-165 p. 586
People v. Narayan 58 NY2d 904 N.Y. 1983-02-17 at 906 p. 586
Geders v. United States 425 US 80 SCOTUS 1976-03-30 at 90-91 p. 586
People v. Crimmins 36 NY2d 230 N.Y. 1975-02-25 at 238 p. 586