The opinion
Pigott, J. (dissenting).
I respectfully dissent. In my view, the trial court’s failure to ask defendant William Porto about his motion for assignment of new counsel before denying it was reversible error.
I don’t disagree with the majority’s statement of basic principles, i.e., that the right to counsel is guaranteed by both the Federal and State Constitutions. However, the trial court’s responsibility to protect a defendant’s right to counsel does not end with the assignment of a lawyer (People v Linares, 2 NY3d 507, 510 [2004]). Because assigned counsel must be effective, we have repeatedly held that “trial courts must carefully evaluate serious complaints about counsel” (id., quoting People v Medina, 44 NY2d 199 , 207 [1978] [internal quotation marks omitted]), and “should substitute counsel when a defendant can *103 demonstrate ‘good cause’ ” for substitution (Linares, 2 NY3d at 510 ).
Where defendant’s request for new assigned counsel on its face suggests “a serious possibility” of good cause for substitution, the trial court must inquire into the nature of the problem and whether it may be resolved (People v Sides, 75 NY2d 822, 824-825 [1990]). Indeed, although we used the term “minimal inquiry” in People v Sides ( 75 NY2d at 825 ), implying that a lengthy or extensive inquiry is not necessarily required, we evaluate such an inquiry by considering whether or not it was “diligent and thorough” (Linares, 2 NY3d at 511 ).
Whether the trial court is always obliged to make inquiries of defendant himself is less clear; and this, in my view, is where the experience of the court is most important and where record support for the court’s ruling must be found. What is certain is that a defendant must be given the opportunity to demonstrate whether he has good cause for new assigned counsel, and it seems to me that—at least when the defense counsel whom defendant wants replaced does not state in any detail defendant’s reasons for seeking new counsel—a “diligent and thorough” evaluation of defendant’s complaint would necessarily require making an inquiry of defendant himself. One way or the other, “the defendant must at least be given an opportunity to state the basis for his application” (People v Bryan, 31 AD3d 295, 296 [1st Dept 2006]).
Here, defendant’s written pro se motion on its own suggests a “serious possibility” that he was in irreconcilable conflict with a lawyer who, according to defendant, would not visit him or keep him apprised of motion practice—until the eve of trial. And certainly defense counsel’s casual assertions about defendant’s frustration tend to support the conclusion of a breakdown of trust. * Significantly, these remarks do not explain away defendant’s complaint, or give the trial court a basis on which to make a careful evaluation of whether trusting communication between attorney and client had been irretrievably broken. *104 Defendant’s motion, in conjunction with assigned counsel’s comments, warranted such an inquiry.
The People argue that the trial court was able, on the basis of counsel’s remarks, to ascertain that the disagreement between defendant and his lawyer concerned the mishandling of the cookie tin issue and would be resolved by a motion to preclude the cookie tin evidence. It is far from clear that the cookie tin issue was defendant’s only concern about counsel’s representation, and I don’t see how even that disagreement could reasonably be thought to have been resolved by defense counsel’s (unsuccessful) eve-of-trial oral motion to preclude.
The majority rests its decision primarily on the failure of defendant to make “specific factual allegations that would indicate a serious conflict with counsel, despite being provided the space to develop such a complaint” (majority op at 100-101). In fact, defendant made three factual allegations in his pro se application and, if they lack specificity, it is only because they are negative in character, as one would expect from a complaint that a lawyer has failed to communicate.
Like the Appellate Division, the majority of this Court makes much of the fact that defendant’s motion was a mere “form” motion (see majority op at 96, 100-101, 101). Leaving aside the fact that most motions are a form of one nature or another, the majority’s conclusion seems to be that this type of pro se motion is to be frowned upon. To the contrary, I find the fact that a defendant went to the trouble to find such a form, fill it out and submit it to the court to be a strong indication of the seriousness of defendant’s claim. Many, if not most, such motions are either made verbally at the time of appearance in court or through counsel—not, as here, in written form. Rather than being criticized, this practice should be encouraged and taken seriously.
I also believe that the majority unfairly highlights the “timing of the request on the morning of jury selection” (majority op at 101), when defendant’s motion was apparently completed and signed 10 days earlier, defendant told the trial court that he had sent the application to the court, and the thrust of the application is that defense counsel failed to communicate effectively with defendant. Defense counsel’s motion to preclude the fingerprint evidence, let it be noted, was oral and also made on the day of trial.
Defendant’s motion and defense counsel’s remarks taken together suggest a serious possibility of irreconcilable conflict *105 between defendant and counsel. Whether defendant actually had good cause for assignment of new counsel is a different matter, which should be carefully separated from whether defendant’s request suggested a serious possibility that he had good cause.
Finally, I note that harmless error analysis is not applicable (People v Arroyave, 49 NY2d 264, 273 [1980] [“(W)e reject the People’s contention that defendant is entitled to a new trial only if he can demonstrate that he was prejudiced by the court’s denial of the request for substitution of retained counsel and an adjournment to prepare for trial. The constitutional guarantee to be represented by counsel of one’s own choosing is a fundamental right, and the doctrine of harmless error is inapplicable upon a showing that such right has been abridged”]).
In my view, reversal is mandated in light of our clear direction in Sides and Linares. A defendant is entitled to a new trial where the trial court asked him no questions concerning a serious pro se motion seeking substitution of counsel, but instead limited its inquiry to a cursory questioning of the very counsel with whom the defendant is alleging a conflict: in essence hearing only one side of the story.
Chief Judge Lippman and Judges Ciparick, Graffeo, Read and Smith concur with Judge Jones; Judge Pigott dissents in a separate opinion.
In People v Porto: Order affirmed.
Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith and Pigott concur.
In People v Garcia: Order affirmed.
Porto may reasonably have felt that his lawyer’s representation was flawed. Defense counsel admitted that it was only on May 29, 2007 that he became aware that defendant’s fingerprint had been taken from a cookie tin in complainant’s apartment and initiated the process of finding out whether the tin had been photographed or vouchered. Counsel must not have read the voluntary disclosure form and attachment that he received from the District Attorney, at the time of defendant’s indictment some eight months earlier, carefully enough to see that the cookie tin needed to be preserved.