Petition for Writ of Certiorari — New York v. Mattison

Supreme Court, U.S,

FILED

JUL 30 1986

JOSEPH F. SPANIOL, JR,

CLERK

86-151. |

No.

IN THE

Supreme Court of the United States

October Term, 1986

THE PEOPLE OF THE STATE OF NEW YORK,

Petitioner,

against

DONALD CALVIN MATTISON,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT

OF APPEALS OF THE STATE OF NEW YORK

PETITION FOR CERTIORARI—CRIMINAL CASE

JAMES T. HAYDEN

Chemung County District Attorney

Attorney for Petitioner

226 Lake Street

P. O. Box 588

Elmira, NY 14902

(607) 737-2944

i.

Question Presented for Review.

The question presented for review is whether a defend-

ant, whose retained attorney has a potential conflict of in-

terest, is denied his right to effective assistance of counsel

absent a finding that an actual conflict of interest ad-

versely affected his lawyer’s performance. The defend-

ant’s retained attorney was an associate of a law firm in

which a partner represented an accomplice of the defend-

ant who testified against the defendant pursuant to a plea

bargain which resulted in a more favorable sentence for

said accomplice. The New York State Court of Appeals

ruled that the existence of such a conflict constituted a

denial of the defendant’s right to effective assistance of

counsel without a finding that the existence of such a con-

flict adversely affected the lawyer’s performance. The

People contend that the existence of a conflict, standing

alone, is ‘‘insufficient to impugn a criminal conviction. In

order to demonstrate a violation of the Sixth Amendment

rights, a defendant must establish that an actual conflict

of interest adversely affected his lawyer’s performance.’”’

(emphasis added). Cuyler v. Sullivan, 446 U.S. 335, 350,

100 5.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980). The People

contend that the New York State Court of Appeals erred

in utilizing an inferential approach in determining whether

respondent’s right to effective assistance of counsel had

been violated. While the awkward position of defense

counsel may arouse suspicion as to his ability to provide

effective assistance, the true test should be whether or not,

in fact, a true adversarial criminal trial has been con-

ducted. United States v. Cronic, 466 U.S. 648, 104 S.Ct.

2039, 80 L.Ed.2d 657 (1984).

il.

Table of Contents.

Question Presented for Review ..................

Table of Cases and Authorities Cited.............

I 5 vk oiteVieesa kee aden es ase

es. sok. add aed ae ee x Oe ta ea ces

Index to Appendix.

Appendix A—Decision of Chemung County Court,

Dated OCosater 2B, 198 a5. . i0c cen veccduce

Appendix B—Decision of the Appellate Division,

Third Department, Dated April 18, 1985....

Appendix C—Opinion of the New York State

Court of Appeals, Decided June 5, 1986....

la

1b

Ic

iii.

TABLE OF CASES AND AUTHORITIES CITED.

Page

TABLE OF CASES:

Abrahams v. United States, 549 F.2d 236 (2nd Cir.

SE ae rae are ear eee 6

Olshen v. McMann, 378 F.2d 993 (2nd Cir. 1967),

cert. denied 398 U.S. 874, rehearing denied

I, ob cos ces scsdsescsecss 5

People v. Alicea, 61 NY2d 23 (1983).............. 7

People v. Gomberg, 38 NY2d 307 (1975).......... 4,7

People v. Hunt, 31 AD2d 846 (3rd Dept. 1969)..... 6

People v. Lombardo, 61 NY2d 97 (1984).......... 7

People v. Macerola, 47 NY2d 257 (1979).......... 5

People v. Olshen, 30 Misc.2d 1078 (Co. Ct. Kings

1961), aff’d. 17 AD2d 971 (2nd Dept. 1963),

cert. denied 374 U.S. 846 (1963)........... 5

People v. Pelio, 24 AD2d 500 (2nd Dept. 1965)..... 6

People v. Richetti, 302 NY 290 (1951)............. 6

iv.

Page

United States v. Bynum, 485 F.2d 490 (2nd Cir.

1973), vacated on other grounds 417 U.S.

903, conformed to 386 F. Supp. 449, aff’d.

513 F.2d 533, cert. denied 423 U.S. 952..... 6

United States v. Cronic, 466 U.S. 648 (1984)....... i, 8

United States v. Keogh, 391 F.2d 138 (2nd Cir. 1968) 6

United States v. Mari, $26 F.2d 117 (2nd Cir. 1975). 6 |

STATUTE:

SEE N55 505 cisdassianesanseesss 1

4

i

j

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IN THE

SUPREME COURT OF THE UNITED STATES

&

THE PEOPLE OF THE STATE OF NEW YORK,

Petitioner,

against

DONALD CALVIN MATTISON,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT

OF APPEALS OF THE STATE OF NEW YORK.

PETITION FOR CERTIORARI.

Opinion Below.

The opinion of the New York State Court of Appeals

rendered June 5, 1986, is reported at 67 NY2d 462.

Jurisdiction.

The judgment of the court below was entered on June 5,

1986. Rehearing was not sought. The jurisdiction of this

Court is invoked under 28 USC §1257(3).

2

Constitutional Provision Involved.

The Sixth Amendment, United States Constitution,

which provides, inter alia, that in all criminal prosecutions

the accused shall have the assistance of counsel for his

defense.

Statement of the Case.

On November 10, 1977, Donald Mattison and Dennis

Maggese were indicted on charges of robbery in the first

degree. Dennis Maggese was already under indictment on

unrelated burglary and drug charges and represented by

Joseph Balok in his capacity as an assistant public

defender. Balok was also a partner in the law firm of

Miller and Balok. Donald Mattison was represented on the

robbery charge by Raymond Urbanski, who was

associated with the firm of Miller and Balok. The trial

court assigned James Carmody to represent Dennis Mag-

gese in place of the public defender’s office on the robbery

charge. With Balok and Carmody coordinating plea

negotiations, Dennis Maggese pled guilty to several

charges, including the robbery, and agreed to testify

against his co-defendants in exchange for a sentence of

five years. Attorney Urbanski went on to represent Mat-

tison at trial on the robbery charge. Dennis Maggese

testified against Mattison at that trial. On September 28,

1978, the defendant was found guilty as charged. On Oc-

tober 5, 1978, the defendant was sentenced to seven to

twenty-one years. At no time prior to the entry of judg-

ment was there any inquiry, on the record, concerning any

potential conflict that Mattison’s retained attorney might

have. On November 14, 1978, the Appellate Division

assigned Attorney Urbanski to represent Mattison on ap-

peal. Ineffective assistance of counsel was not raised on

ee ee ee ee _ _

OE EAPO RN RL elt etal he RACE nl ii Hitlist

3

appeal. Mattison’s judgment of conviction was, in all

respects, affirmed on direct appeal. In 1983, Mattison

brought a motion to vacate his conviction upon several

grounds, including a denial of effective assistance of

counsel because his retained counsel had a conflict of in-

terest. The trial court denied the motion to vacate, finding

that no conflict existed and that Attorney Urbanski con-

ducted a competent, effective and independent defense.

The intermediate appellate court affirmed the hearing

court’s decision, without opinion. The New York State

Court of Appeals reversed on the basis that, ‘‘absent in-

quiry by the court and consent by the defendant, an at-

torney may not represent a criminal defendant in a trial at

which a star prosecution witness is a co-defendant whose

plea bargain—including the promise to testify against the

defendant—was negotiated by a partner in the same firm.

In these circumstances, the defendant is denied his right to

effective assistance of counsel.’’ Opinion of the court

below. Upon these facts, the New York State Court of Ap-

peais presumed prejudice to the defendant rather than re-

quiring the defendant to establish that an actual conflict of

interest adversely affected his lawyer’s performance. The

questions sought to be reviewed were first raised in the

nature of coram nobis in the Chemung County Court,

State of New York, which resulted in the decision of

Chemung County Court Judge William A. Danaher, Jr.,

dated October 28, 1983. A federal question sought to be

reviewed was passed upon by the court of first instance in

the following manner.

**3, In the matter of the alleged ineffective

assistance of counsel, the Court finds that no con-

flict existed, that the defense was competently con-

ducted and that the defendant, in retaining Mr. Ur-

4

banski as counsel on appeal, has waived any claim

to ineffective assistance of counsel.

It must be emphasized that this is not a case of

multiple defendants being represented by the same

attorney. The facts have shown that Mr. Mattison

was represented by a member of tne law firm who,

in his capacity as an assistant public defender,

represented a prosecution witness on prior

unrelated charges. The cases cited by the defendant

relate to cases in which there was a clear conflict,

one attorney representing multiple defendants. The

Court does not believe these cases capable of being

stretched to fit defendant’s situation.

The defendant knew at least as early as during

the trial that Mr. Balok was a partner of the firm

with which Mr. Urbanski was associated, and had

represented Mr. Maggese on unrelated charges in

his position as an assistant public defender. He ap-

parently discussed this matter with Mr. Urbanski

and resolved it to his satisfaction. No objection was

made to the trial court by Mr. Mattison, nor did he

bring the subject up again to Mr. Urbanski until,

following his direct appeal, he faced his sentence

with the State Corrections Department. The Court,

in People v. Gomberg, 38 NY2d 307 (1975), found

that the defendant, by retaining the same firm to

represent him on appeal, was ‘deemed to have

waived any claims arising out of (the attorney’s)

prior representation.’ Jd. at 316. This Court

believes, as did the Gomberg court, that the de-

fendant could not have been seriously troubled by

the effectiveness of counsel’s representation when,

knowing the facts, he retained the same counsel for

appeal. If the defendant was concerned with this

issue he would have retained new counsel and rais-

5

ed the issue on direct appeal. As the Court has

previously stated, the coram nobis application was

not meant to create an additional avenue of appeal

when the defendant had the opportunity to bring

the issue up on direct appeal.

The alleged conflict of interest we are dealing

with was not apparent on the face of the record

below. This is undoubtedly why there was no in-

quiry by the trial court as to defendant’s under-

standing and waiver of any possible conflict. The

failure to inquire is error if there is ‘significant

possibility’ of a conflict of interest. People v.

Macerola, 47 NY2d 257 (1979). The trial court was

not faced with any such significant possibility and

was thus not required to conduct an inquiry.

Olshen v. McMann, 378 F.2d 993 (2nd Cir. 1967);

cert. den., 389 U.S. 874, reh. den., 389 U.S. 964

(1967). However, while the trial court was not

aware of the underlying facts, the defendant was

aware of them and presented no objection during

trial or on appeal.

Faced with very similar circumstances, if not

facts more favorable to the defendant, the court, in

People v. Olshen, 30 Misc.2d 1078 (C. Ct., Kings,

1961), aff'd. 17 AD2d 971 (2nd Dept. 1963), cert.

den., 374 U.S. 846 (1963), found that no conflict of

interest existed and that the defendant had not been

prejudiced. The court denied the petitioner’s coram

nobis application. Petitioner in that case had been

represented by the same counsel who had

represented the prosecution’s prime witness on two

prior charges. This matter was reviewed on a

federal habeas corpus proceeding with the same

result. Olshen v. McMann, supra. In the case at

bar, the possibility of conflict is even more remote

6

than in Olshen since here, two separate attorneys

were involved.

The Court in U.S. v. Bynum, 485 F. 2d 490 (2nd

Cir. 1973), vacated on other grounds, 417 U.S. 903,

conformed to 386 F. Supp. 449, aff’d., 513 F. 2d

533, cert. den. 423 U.S. 952, also found no conflict

where the defense attorney had represented a prose-

cution witness on previous unrelated charges.

Based upon these cases, the testimony received

by this Court and the record below, the Court finds

no actual conflict of interest existed nor was there

any prejudice suffered by the defendant in this

respect. Mr. Urbanski provided the defendant with

very competent, effective and independent legal

assistance. This is born out in the record below and

in particular, by Mr. Urbanski’s cross-examination

of Mr. Maggese. The petitioner has failed to show

that any real conflict of interest existed and thus his

allegation must be dismissed. U.S. v. Mari, 526 F.

2d 117 (2nd Cir. 1975), cert. den., 429 U.S. 941;

Abrahams v. U.S., 549 F.2d 236 (2nd Cir. 1977)

(both joint representation cases).

Coram nobis relief should be granted only under

circumstances compelling such action to achieve

justice. U.S. v. Keogh, 391 F.2d 138 (2nd Cir.

1968); Goitia v. U.S., 335 F. Supp. 1044(D.C.N.Y.

1971). Viewing the petitioner’s contentions and

evidence, the Court is not convinced justice re-

quires such relief.

The petitioner has not met his burden of proof

and his application for relief under Section 440.10

of the Criminal Procedure Law is denied. People v.

Hunt, 31 AD2d 846 (3rd Dept. 1969); People v.

Pelio, 24 AD2d 500 (2nd Dept. 1965); People v.

Richetti, 302 N.Y. 290 (1951).’’

itaensiee

-

The decision of the New York State Court of Appeals

was rendered without a plain statement that the decision

rested upon adequate and independent State grounds.

While the decision cites only prior New York State deci-

sions throughout its opinion, each of those prior cases

relied upon by the New York State Court of Appeals were

decided primarily upon consideration of federal constitu-

tional and decisional law. The three primary cases relied

upon by the New York State Court of Appeals were Peo-

ple v. Gomberg, supra; People v. Lombardo, 61 N.Y.2d

97 (1984), and People v. Alicea, 61 N.Y.2d 23 (1983). As

can be seen by an examination of those opinions, the New

York State Court of Appeals relied heavily on the United

States Constitution, prior federal decisional case law and

American Bar Association code of professional respon-

sibility. Indeed, in People v. Alicea, supra, the New York

State Court of Appeals relied on Cuyler v. Sullivan, supra,

in reaching its decision.

Argument.

In the case at bar, it is the People’s contention that the

New York State Court of Appeals has decided a federal

question in a way which is in conflict with the applicable

decisions of this Court. The People contend that the New

York State Court of Appeals did not apply the appropriate

standard announced in Cuyler v. Sullivan, supra, in that

the New York State Court of Appeals did not require a

showing that an actual conflict of interest adversely af-

fected the defense lawyer’s performance and did not ex-

8

amine whether a true adversarial criminal trial had been

conducted on defendant’s behalf. United States v. Cronic,

supra.

Respectfully submitted,

JAMES T. HAYDEN

Chemung County District Attorney

Attorney for Petitioner

226 Lake Street

P. O. Box 588

Elmira, NY 14902

(607) 737-2944

la

Appendix A—Decision of Chemung County Court, Dated

October 28, 1983.

STATE OF NEW YORK,

COUNTY COURT, COUNTY OF CHEMUNG.

THE PEOPLE OF THE STATE OF NEW YORK,

Plaintiffs,

against

DONALD CALVIN MATTISON,

Defendant.

Appearances:

Weeden Wetmore, Esquire, Assistant District Attorney,

for the People, Lake Street, Elmira, New York 14901.

John R. McGlenn, Esquire, Attorney for the Defend-

ant, 100 Baldwin Street, Elmira, New York 14901.

Before:

Hon. William A. Danaher, Jr., Chemung County

Judge.

2a

DANAHER, J.:

The defendant is before the Court on a motion, under

Section 440.10 Criminal Procedure Law, to vacate the

judgment of conviction entered against him on October 5,

1978. Following a review of the defendant’s pro se mo-

tion, the Court scheduled a hearing and appointed counsel

to represent the defendant. Hearings were held on August

19, August 23 and September 1, 1983. It is defendant’s

contention in his motion papers, in the hearing and in the

comprehensive brief submitted by his attorney that (1) he

was denied effective assistance of counsel at his trial, (2)

the trial court erred in respect to its charge on the issue of

intent, and (3) exculpatory material in the hands of the

District Attorney was not provided to the defendant.

Having reviewed the papers and the testimony at the

hearing, the Court makes the following Findings of Fact:

1. The defendant was indicted by the Chemung County

Grand Jury on November 10, 1977, indictment number

77-280, on the charge of robbery in the first degree for the

armed robbery of a gas station in Chemung, New York.

2. Dennis Maggese was indicted on the same charge for

the same robbery under indictment number 77-279.

3. Defendant was represented on indictment number

77-280 by Raymond Urbanski, Esq., who was associated

with the law firm of Miller and Balok. As a co-defendant,

Mr. Maggese was represented at his arraignment on

November 16, 1977 by Samuel J. Castellino, Esq.,

Chemung County Public Defender. The court relieved the

Public Defender’s office of its representation of Mr. Mag-

gese the day after his arraignment. James Carmody, Es-

3a

quire, was assigned to represent Mr. Maggese on the rob-

bery charge from that point.

4. Mr. Maggese had previously been charged with four

separate crimes under indictments numbered 77-17 and

77-251 which were pending in November 1977. Joseph

Balok, Esq., an Assistant Chemung County Public

Defender, was representing Mr. Maggese on the charges

under indictments numbered 77-17 and 77-251.

5. Mr. Balok was an Assistant Chemung County Public

Defender and a partner in the firm of Miller and Balok in

1977 and 1978.

6. Mr. Urbanski was responsible for conducting Mr.

Mattison’s defense under indictment number 77-280 and

he did so independently. Mr. Mattison’s testimony that

Mr. Miller and Mr. Balok represented him through most

of his pretrial hearings in the case was controverted by the

testimony of Mr. Urbanski and Mr. Balok.

7. Through his attorneys, Mr. Balok and Mr. Car-

mody, Mr. Maggese entered into plea negotiations on

charges pending against him under indictments numbered

77-17, 77-251 and 77-279. Mr. Balok was the spokesman

in court appearances. However, each attorney negotiated

for and represented Maggese solely for the charge or

charges under the indictment for which the attorney had

been assigned.

8. On January 4, 1978, Mr. Maggese pled guilty to cer-

tain charges under indictments numbered 77-17, 77-251

and 77-279. The plea bargain called for Mr. Maggese to

testify against any co-defendants.

4a

9. Mr. Mattison went to trial on September 18, 1978 on

indictment number 77-280. Mr. Maggese testified against

Mr. Mattison at the trial.

10. Mr. Balok informed Mr. Urbanski of his represen-

tation of Mr. Maggese and of a possible conflict. This ap-

parently took place during or after the Maggese plea

negotiations. Part of Mr. Balok’s notice to Mr. Urbanski

was to inform him of Mr. Maggese’s plea agreement to

testify against Mr. Mattison.

11. Mr. Mattison was on actual notice of Mr. Balok’s

representation at least as early as during his trial. The

testimony showed that he became upset when he saw Mr.

Balok in the back of the courtroom speaking to In-

vestigator Freeman. Mr. Urbanski testified that he was

concerned about Mr. Balok’s representation of Mr. Mag-

gese. Mr. Mattison and Mr. Urbanski discussed these con-

cerns and apparently resolved them.

12. Though aware of Mr. Balok’s representation of Mr.

Maggese on earlier charges and aware that Mr. Balok and

Mr. Urbanski were associated with the same law firm, Mr.

Mattison did not object to Mr. Urbanski’s continued

representation during trial or on appeal.

13. The trial judge did not inform Mr. Mattison of any

possible conflict of interest.

14. The alleged conflict of interest was not brought up

on appeal even though the defendant was aware of the cir-

cumstances at the time of appeal.

15. No exception was taken to the judge’s jury charge

on intent at trial, nor was the alleged error brought up on

appeal.

Sa

16. The defendant has not produced evidence to show

prosecutorial misconduct in the withholding of ex-

culpatory material. Mr. Crew testified that he went

through his trial material before the date of trial and

turned over material to Mr. Urbanski. The defendant did

not raise the issue of prosecutorial misconduct on appeal.

17. The record of defendant’s trial shows that the

defense was aware of tests made to the pistol involved in

the case (Record, P. 7). Defendant was to receive a copy of

the test report from the District Attorney and Mr. Urban-

ski’s testimony reflects that the results of such weapon

tests were made available to him verbally if not in writing.

The weapon test was in fact not exculpatory.

18. The statements of Mr. Maggese to police were made

available to the defense.

19. No promises or threats were made to Shelly

Houghtaling in return for her testimony.

20. Defendant Mattison made a sworn statement to the

prosecution, with his counsel present and following his

conviction, in which he fully admitted the crime, giving

details thereof.

21. The record of the defendant’s trial shows that Mr.

Urbanski comprehensively prepared his defense and

vigorously represented his client.

The Court makes the following Conclusions of Law:

1. Petitioner cannot collaterally attack his judgment of

conviction by coram nobis application due to an alleged

error in the jury charge. People v. Beli, 31 Misc. 2d 814

6a

(Gen. Sess. N.Y. County 1961), aff’d., 16 A.D. 2d 624 (Ist

Dept. 1962), cert. den., 371 U.S. 872; U.S. ex rel

Kulikauskas v. Murphy, 293 F. 2d 563 (2nd Cir. 1961).

The alleged error was apparent on the face of the record

but was not objected to either at the trial or on appeal. The

petitioner’s post-judgment motion cannot be used as an

additional appeal for matters apparent on the face of the

trial record. People v. Cunningham, 104 Misc. 2d 298 (S.

Ct. Bronx 1980); Section 440.10 (2) (c) Criminal Pro-

cedure Law. The Cunningham court noted that its result

remained unchanged by the decision in Sandstrom vy.

Montana 442 U.S. 510 (1979), since that decision did not

substantively alter New York law. Cunningham, supra, at

303-304. The nature of the alleged error does not affect the

inability of the defendant to use a coram nobis proceeding

as another avenue of appeal beyond direct appeal. People

v. Howard, 12 N.Y. 2d 65, 67 (1967); People v. Peterson,

33 Misc. 2d 861, 863 (C. Ct. Kings 1962), aff’d., 18 A.D.

2d 1054 (2nd Dept. 1963).

2. The defendant has failed to meet his burden of

establishing prejudice due to prosecutorial misconduct.

The evidence does not support the defendant’s contentions

of prosecutorial misconduct in the withholding of

evidence from the defense or in making secret deals with

prosecution witnesses in exchange for their testimony.

a. The test report on the pistol involved in the robbery

was made available to the defense either in written or oral

form. This report was in fact not exculpatory and the

defendant was not prejudiced by the timing of its release

or the form of its release since the defense was in fact

aware of the contents of the report. See U.S. v. Keogh,

316 F. Supp 921 (D.C.N.Y. 1970), aff’d., 440 F. 2d 737,

cert. den., 404 U.S. 941.

7a

b. Based upon the testimony of Mr. Crew and the

record at trial relative to material turned over to the

defense by the District Attorney, the Court is satisfied that

the statement of Mr. Maggese to police, Exhibit ‘‘8’’, was

turned over to the defense. The Court is also satisfied that

Exhibit ‘‘9’’ was made available to the defense.

c. Mr. Urbanski was aware of Mr. Maggese’s plea

negotiation and of its requirement that Maggese testify

against Mr. Mattison. While Mr. Urbanski did not

specifically refer to the plea negotiation as such on cross-

examination, he did make use of the effect of that negotia-

tion, Maggese’s reduced sentence, to impeach the

witness’s credibility.

3. In the matter of the alleged ineffective assistance of

counsel, the Court finds that no conflict existed, that the

defense was competently conducted and that the defend-

ant, in retaining Mr. Urbanski as counsel on appeal, has

waived any claim to ineffective assistance of counsel.

It must be emphasized that this is not a case of multipie

defendants being represented by the same attorney. The

facts have shown that Mr. Mattison was represented by a

member of the law firm who, in his capacity as an assistant

public defender, represented a prosecution witness on

prior unrelated charges. The cases cited by the defendant

relate to cases in which there was a clear conflict, one at-

torney representing multiple defendants. The Court does

not believe these cases capable of being stretched to fit

defendant’s situation.

The defendant knew at least as early as during the trial

that Mr. Balok was a partner of the firm with which Mr.

Urbanski was associated, and had represented Mr. Mag-

gese on unrelated charges in his position as an assistant

8a

public defender. He apparently discussed this matter with

Mr. Urbanski and resolved it to his satisfaction. No objec-

tion was made to the trial court by Mr. Mattison, nor did

he bring the subject up again to Mr. Urbanski until,

following his direct appeal, he faced his sentence with the

State Corrections Department. The Court, in People v.

Gomberg, 38 N.Y. 2d 307 (1975), found that the defend-

ant, by retaining the same firm to represent him on appeal,

was ‘‘deemed to have waived any claims arising out of (the

attorney’s) prior representation.’’ Jd. at 316. This Court

believes, as did the Gomberg court, that the defendant

could not have been seriously troubled by the effectiveness

of counsel’s representation when, knowing the facts, he

retained the same counsel for appeal. If the defendant was

concerned with this issue he would have retained new

counsel and raised the issue on direct appeal. As the Court

has previously stated, the coram nobis application was not

meant to create an additional avenue of appeal when the

defendant had the opportunity to bring the issue up on

direct appeal.

The alleged conflict of interest we are dealing with was

not apparent on the face of the record below. This is un-

doubtedly why there was no inquiry by the trial court as to

defendant’s understanding and waiver of any possible

conflict. The failure to inquire is error if there is ‘‘signifi-

cant possibility’? of a conflict of interest. People v.

Macerola, 47 N.Y. 2d 257 (1979). The trial court was not

faced with any such significant possibility and was thus

not required to conduct an inquiry. Olshen v. McMann,

378 F.2d 993 (2nd Cir. 1967); cert. den., 389 U.S. 874, reh.

den., 389 U-S. 964 (1967). However, while the trial court

was not aware of the underlying facts, the defendant was

aware of th€m and presented no objection during trial or

on appeal.

9a

Faced with very similar circumstances, if not facts more

favorable to the defendant, the court, in People v. Olshen,

30 Misc. 2d 1078 (C. Ct., Kings, 1961), aff’d., 17 A.D.2nd

971 (2nd Dept. 1963), cert. den., 374 U.S. 846 (1963),

found that no conflict of interest existed and that the

defendant had not been prejudiced. The court denied the

petitioner’s coram nobis application. Petitioner in that

case had been represented by the same counsel who had

represented the prosecution’s prime witness on two prior

charges. This matter was reviewed on a federal habeas cor-

pus proceeding with the same result. O/shen v. McMann,

supra. In the case at bar, the possibility of conflict is even

more remote than in O/shen since here, two separate at-

torneys were involved.

The Court in U.S. v. Bynum, 485 F. 2d 490 (2nd Cir.

1973), vacated on other grounds, 417 U.S. 903, conformed

to 386 F. Supp. 449, aff’d., 513 F. 2d 533, cert. den., 423

U.S. 952, also found no conflict where the defense at-

torney had represented a prosecution witness on previous

unrelated charges.

Based upon these cases, the testimony received by this

Court and the record below, the Court finds no actual

conflict of interest existed nor was there any prejudice suf-

fered by the defendant in this respect. Mr. Urbanski pro-

vided the defendant with very competent, effective and in-

dependent legal assistance. This is born out in the record

below and in particular, by Mr. Urbanski’s cross-

examination of Mr. Maggese. The petitioner has failed to

show that any real conflict of interest existed and thus his

allegation must be dismissed. U.S. v. Mari, 526 F. 2d 117

(2nd Cir. 1975), cert. den., 429 U.S. 941; Abrahams yv.

U.S., 549 F. 2d 236 (2nd Cir. 1977) (both joint representa-

tion cases).

Coram nobis relief should be granted only under cir-

cumstances compelling such action to achieve justice. U.S.

i. JQ2

v. Keogh, 391 F. 2d 138 (2nd Cir. 1968); Goitia v. U.S.,

335 F. Supp. 1044 (D.C.N.Y. 1971). Viewing the peti-

tioner’s contentions and evidence, the Court is not con-

vinced justice requires such relief.

The petitioner has not met his burden of proof and his

application for relief under Section 440.10 of the Criminal

Procedure Law is denied. People v. Hunt, 31 A.D. 2d 846

(3rd Dept. 1969); People v. Pelio, 24 A.D. 2d 500 (2nd

Dept. 1965); People v. Richetti, 302 N.Y. 290 (1951).

Appeal dismissed.

WILLIAM A. DANAHER, JR.

Chemung County Judge

Dated: October 28, 1983

Se ee OS ee ae

lb

Appendix B—Decision of the Appellate Division, Third

Department, Dated April 18, 1985.

April 18, 1985 46830

*

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent,

y

DONALD CALVIN MATTISON,

Appellant.

Appeal, by permission, from an order of the County

Court of Chemung County (Danaher, Jr., J.), entered

November 16, 1983, which denied defendant’s motion

pursuant to CPL 440.10 to vacate the judgment convicting

him of the crime of robbery in the first degree, after a

hearing.

Order affirmed. No opinion.

MAHONEY, P.J., CASEY, WEISS and LEVINE, JJ., con-

cur,

Ic

Appendix C—Opinion of the New York State Court of

Appeals, Decided June 5, 1986.

COURT OF APPEALS,

STATE OF NEW YORK.

3 No. 182

THE PEOPLE &c.,

Respondent,

v.

DONALD CALVIN MATTISON,

Appellant.

(182) Cynthia S. Hutchinson, Elmira, for appellant.

James T. Hayden, DA, Chemung County (Weeden A.

Wetmore of counsel) for respondent.

KAYE, J.:

Absent inquiry by the court and consent by the defend-

ant, an attorney may not respresent a criminal defendant

in a trial at which a star prosecution witness is a codefend-

ant whose plea bargain—including the promise to testify

against defendant—was negotiated by a partner in the

2c

same firm. In these circumstances defendant is denied his

right to effective assistance of counsel.

The following factual recital is derived from the un-

disturbed findings made after a hearing held pursuant to

CPL 440, as well as the hearing and trial records.

Defendant, Donald Mattison, was indicted on Novem-

ber 10, 1977, together with Dennis Maggese, on charges of

robbery in the first degree. Maggese was already under in-

dictment on unrelated burglary and drug charges, and was

represented by Joseph Balok, in his capacity as an assist-

ant public defender. Balok was also a partner in the firm

of Miller & Balok. Mattison was represented on the rob-

bery charge by Raymond Urbanski, who was associated

with the firm of Miller & Balok, and was recently admitted

to the Bar. '

After Maggese’s arraignment, the court assigned James

Carmody to represent Maggese in place of the public

defender’s office on the robbery charge. Ther °after, Balok

and Carmody coordinated plea negotiations on Maggese’s

behalf to dispose of all pending charges, with Balok as the

spokesman in court appearances. On January 4, 1978,

Maggese, facing up to 42 years imprisonment, pleaded

guilty to some charges under each indictment as part of a

plea bargain pursuant to which he agreed to testify against

his co-defendants in exchange for a prison sentence of zero

to five years. During the plea hearing, Balok asked that

'The court in its findings after the 440 hearing did not refer to the

testimony of Mattison, his mother, father and sister, to the effect that

their initial discussions regarding representation, and payment of a re-

tainer, were with Balok, and also with Miller. Balok himself testified

that the firm file ‘‘reflects that [Mattison] retained the firm in

November 1977,’’ and that while he was without specific recollection,

he ‘‘might have met with [Mattison] in connection with the indictment

that was pending against him or other matters,’’ and ‘‘took no notes

whatsoever during any interviews [he] may have had with [Mattison]

or members of the family either in connection with this particular in-

dictment or any other matters.’’ Miller did not testify.

3c

the record reflect that in his presence Maggese had dis-

cussed with the assistant district attorney ‘‘his involvement

and the involvement of [Mattison] on the robbery

charge.’’ Maggese was then placed under oath and

testified about the robbery, claiming that Mattison had

obtained the gun and planned, organized and participated

in the crime.

As the hearing court found, Urbanski conducted his

defense of Mattison without any help from Balok. During

or after Maggese’s plea negotiations Balok informed Ur-

banski that he represented Maggese and that Maggese had

agreed to testify against Mattison. Urbanski told Mattison

about Balok’s representation of Maggese at least as early

as during his trial.? During trial before the same Chemung

County Court judge who some months earlier had taken

Maggese’s plea, Mattison became upset when he saw

Balok, whom he knew to be a member of Urbanski’s firm,

talking in the courtroom to a police investigator. Urbanski

told Mattison that Balok had represented Maggese on

unrelated charges, which apparently assuaged Mattison.

No objection was made to Urbanski’s continued represen-

tation, and the trial judge, unaware of the underlying

facts, did not inform Mattison of any possible conflict of

interest. Maggese, on direct, testified that he was serving a

five-year sentence; in his brief cross examination of Mag-

gese, Urbanski made no reference whatever to the plea, or

the negotiated sentence, but simply asked that the court

?The court by this finding implicitly rejected Mattison’s

testimony that he first learned of Balok’s representation of Maggese in

July 1980, nearly two years after his conviction, in the course of a con-

versation with Urbanski in which Urbanski allegedly expressed

distaste for the fact that no plea bargain had ever been offered to Mat-

tison whereas Balok had been ‘‘able to work out a very successful and

comfortable deal for Maggese.’’ On this appeal Mattison urges that by

negotiaiing a plea for Maggese, Balok effectively precluded any

similar arrangements for him.

4c

take judicial notice of the maximum sentences for the

crimes Maggese had committed. In summation Urbanski

‘*speculat[ed]’’ that Maggese’s reduced sentence possibly

influenced his testimony.

At trial Maggese testified that Mattison obtained the

gun, planned the robbery, created an alibi, and persuaded

him to go along. Mattison, in his own defense, testified

that Maggese was the instigator, that he (Mattison) had

previously served as a police informant, that he was

watching Maggese at the request of the State Police, that

he could not alert authorities before the robbery, that he

had accompanied Maggese intending to turn him in, and

that he lacked intent to commit a robbery.’ Mattison was

found guilty of robbery in the first degree and sentenced to

seven to 21 years in prison.

On November 14, 1978, the Appellate Division assigned

Urbanski to represent Mattison on appeal. Ineffective

assistance of counsel was not raised on appeal, and the

conviction was affirmed.

In early 1983, Mattison made the present motion to

vacate his conviction and for a new trial pursuant to CPL

440, in which he claimed that Balok, Miller and Urbanski,

a firm of three lawyers, had a confiict of interest, and that

he was denied effective assistance of counsel. Concluding

that it was unable to resolve the questions raised on the

papers, the court held a hearing at which several witnesses

including Balok, Urbanski and Mattison testified. The

court ultimately denied the motion, finding that no con-

flict existed, that Urbanski conducted a competent, effec-

tive and independent defense, and that by retaining Ur-

banski as counsel on appeal Mattison waived any ineffec-

*Mattison was an acknowledged confidential police informant,

and had in the past been paid for his services. At the 440 hearing Mat-

tison testified that he had in fact furnished the police with information

regarding several specific crimes, including crimes involving Maggese.

.

A Sits usted

Sn an alntinct dans

5c

tive assistance claim. The Appellate Division unanimously

affirmed without opinion, and a judge of this Court

granted Mattison leave to appeal.

At the outset, we reject the People’s contention that

Mattison waived his ineffective assistance claim because

Urbanski represented him on appeal. The People rely

upon People v. Gomberg (38 NY2d 307, 316), in which we

stated that the defendant must be deemed to have waived

any claims arising out of his trial counsel’s representation

because he retained the same attorney on appeal. Here,

however, Urbanski was assigned, not retained, as Mat-

tison’s appellate counsel. Moreover, in Gomberg the court

had inquired prior to trial whether the joint representation

would result in a conflict and advised that any defendant

who felt there was a conflict could have other counsel.

Thus, it was plain that defendants were aware of a poten-

tial conflict and of their right to new counsel. Here, Mat-

tison knew that Balok, a partner at Urbanski’s firm, had

represented Maggese on unrelated charges. There is no

evidence that he was aware that Balok’s involvement in-

cluded related charges, that joint representation in these

circumstances might constitute a breach of professional

ethics, or that it could furnish grounds for a new attorney

or a new trial.

Joint representation of defendants is, of zourse, not in

and of itself a conflict of interest or a denial of effective

assistance of counsel (People v. Gomberg, 38 NY2d 307,

312). When jointly represented defendants proceed to trial

together, a ‘‘conflict exists oniy when the individual

defenses ‘run afoul of each other’ ”’ (id., quoting People

v. Gonzalez, 30 NY2d 28, 34, cert denied 409 US 859). Ac-

tual conflict between defendants ‘‘may be shown, for ex-

ample, through the existence of ‘pronounced variations in

the type and quantum of evidence against each defendant

{which suggests] different theories and tactics of defense

6c

for each’ ’’ (People v. Cruz, 63 NY2d 848, 850, quoting

People v. Baffi, 49 NY2d 820, 822). Once a conflict be-

tween codefendants at trial is established, prejudice is

presumed, for ‘‘courts will not enter into ‘nice calcula-

tions’ as to the amount of prejudice resulting for the con-

flict’’ (People v. Gomberg, 38 NY2d 307, 312, supra).

In the interest of avoiding such conflicts, and because

defendants may not always sense when a conflict exists or

perceive how it might undermine effective representation

the trial judge ‘‘has a duty to protect the right of an

accused to effective assistance of counsel’’ (People v.

Gomberg, 38 NY2d 307, 313, supra; People v. Macerola,

47 NY2d 257, 263, supra). Before the trial begins, ‘‘it is

the responsibility of the Trial Judge, independent of the

attorney’s obligation to inform his clients of any conflict-

ing interests which may hinder his representation, to

‘ascertain, on the record, whether each defendant

{represented by the same attorney] has an awareness of the

potential risks involved in that course and has knowingly

chosen it’ ’’ (People v. Macerola, 47 NY2d 257, 263,

quoting Peuple v. Gomberg, 38 NY2d 307, 313-314,

supra). A judge’s failure to make the appropriate inquiry,

when circumstances require it, may result in reversal of a

conviction and a new trial. In People v. Macerola (47

NY2d 257), for example, a new trial was necessary where

the judge had failed to make the appropriate inquiry, and

each defendant’s defense implicitly incriminated the other,

placing their common counsel ‘‘in a very awkward posi-

tion at trial’? (47 NY2d at 264).

Macerola and Gomberg are of course distinguishable in

that counsel there simultaneously represented at trial

codefendants with competing interests, whereas here Mag-

gese had struck his plea bargain during the period of com-

mon representation but before the commencement of Mat-

tison’s trial. But the principies articulated in those cases

Ee Se a ee Ne NE IO OE eee A A pe OY eee Fe ee NE) yt Oe cite Ue

- a 7 4

Tc

govern this situation as well: to assure his right to effective

assistance of counsel, defendant should have been in-

dependently informed of a conflicting interest on the part

of Miller & Balok and the potential risks involved, so that

he could intelligently choose whether to proceed with his

attorney. Mattison was entitled to know of Balok’s in-

volvement with Maggese in this matter as he proceeded to

trial in which, in furtherance of the plea bargain ad-

vocated by Balok, Maggese was a principal antagonist

whose credibility and testimony had to be undermined.

A similar issue was presented in People v. Lombardo

(61 NY2d 97), where defendant’s attorney had previously

represented the People’s chief witness on unrelated

charges. We concluded that the trial court’s failure to con-

duct a Gomberg inquiry was error, but that reversal was

not required because ‘‘defendant has not demonstrated

‘that a conflict of interest, or at least the significant

possibility thereof, did exist’ ’’ (People v. Lombardo, 61

NY2d 97, 103, quoting People v. Macerola, 47 NY2d 257,

264, supra). We conclude, as in Lombardo, that error oc-

curred when Mattison was permitted to proceed to trial

uninformed about the association of his retained counsel

with Maggese. The clash between Maggese and Mattison,

even if not previously apparent, was evident from the

outset of the trial, as the defense was laid bare in opening

statements and Maggese, the People’s first witness, took

the stand. Although the trial judge might not—as the

lower courts found—have been aware of the underlying

facts, the People knew that Maggese would be a principal

witness against Mattison and that he had been represented

by Balok. These facts should have been brought to the at-

tention of the trial judge and appropriate inquiry made

(see, People v. Lombardo, 61 NY2d at 102, supra).

Unlike Lombardo, however, reversal is required here.

First, a plea by one defendant in exchange for testimony

8c

against the other in the same matter is virtually certain to

place lawyers involved in representing both in an

untenable position (see, People v. Deli, 60 AD2d 18 [Han-

cock, J.]; see also, Moore, Conflicts of Interest in the

Simultaneous Representation of Multiple Clients: A Pro-

posed Solution to the Current Confusion and Contro-

versy, 61 Tex L Rev 211, 273-274 [1982]; Tague, Multiple

Representation of Targets and Witnesses During a Grand

Jury Investigation, 17 Am Crim L Rev 301, 312 [1980]; R.

Girgenti, Problems of Joint Representation of Defendants

in a Criminal Case, 54 St. John’s L Rev 55, 64-65 [1979];

Note, Criminal Codefendants and the Sixth Amendment:

The Case for Separate Counsel, 58 Geo L J 369, 379

[1969]). Moreover, this case presents an actual rather than

potential conflict.‘ The stories of Maggese and Mattison

are in direct collision—indeed, as Urbanski testified, they

were inconsistent in every respect—each pointing to the

other as the major culprit while exonerating himself.

Finally, notwithstanding Carmody’s representation of

Maggese on the robbery charge, Balok cannot be cast in

the limited role of having formerly represented a prosecu-

tion witness on unrelated charges (see, e.g., People vy.

Lombardo, 61 NY2d 971, supra). It is apparent that Balok

negotiated for Maggese on related as well as unrelated

charges, at the same time his associate represented Mat-

tison. All sides viewed Maggese’s plea to the three indict-

ments as a package. Thus, while advancing the plea

bargain for Maggese, which Balok characterized as a

**good plea’’ and ‘‘more than fair’’, Balok had an obvious

interest that Maggese appear less culpable, which

necessarily meant that Mattison had to appear more

“We are not barred from reaching this conclusion, despite the

trial court’s undisturbed finding that there was no conflict, because it

is a conclusion of law, not a finding of fact (see, Cuyler v. Sullivan,

446 US 335, 341).

9c

culpable. Indeed, at the time the plea was taken

Balok—lending personal force to the bargain he had

negotiated—insisted the record reflect that Maggese in his

presence had discussed his involvement and that of the co-

defendants both in the burglary and in the robbery. The

success of Mattison’s defense, however, turned on con-

vincing the jury that that very testimony was false, and

concocted in Maggese’s self-interest simply to reduce his

sentence. Such a situation necessarily placed trial counsel

in a very awkward position, where prejudice to Mattison

need not be precisely delineated but must be presumed

(see, People v. Gomberg, 38 NY2d 307, 312).

People v. Alicea (61 NY2d 23), on which the People

rely, is not a case where any actual conflict was shown. At

his trial Alicea testified that Torres had shot the victim.

Torres, represented by the same attorney, had pleaded

guilty three years earlier—indeed the plea was taken even

before defendant’s arrest—and absconded, and _ his

whereabouts were unknown. We proceeded on the

assumption that a potential conflict of interest existed but

concluded that in these circumstances a showing of a

possible or potential conflict, without more, was ‘‘insuffi-

cient to entitle defendant to a new trial; he must

demonstrate that the conduct of his defense was in fact af-

fected by the operation of the conflict’’ (61 NY2d at 31).

Significantiy, in Alicea the plea was not taken during the

period of common representation and Torres did not

testify against Alicea as a condition of his bargain.

Finally, the People emphasize that Urbanski handled

Mattison’s defense without help from Balok, who acted as

assistant public defender, and that Urbanski as a personal

matter had no divided loyalties. However, if Balok by vir-

tue of his involvement with Maggese was precluded from

representing Maitison in this matter, so was Urbanski. We

have made clear that, ‘‘for the purpose of disqualification

10c

of counsel, , nowledge of one member of a law firm will be

imputed by jinference to all members of that law firm’’

(see, People Wilkins, 28 NY2d 53, 56; see also, Car-

dinale v. Gollinello, 43 NY2d 288, supra). Given the clear

conflict here, W& are not called upon to decide whether a

public defen det’s office, or the law firm of a part-time

assistant pulblic defender, must be disqualified from

representing codefendants (see, People v. Wilkins, 28

NY2d 53, 562 SMPTa).

In view of OU decision, it is unnecessary to pass on Mat-

tison’s other 28uments in support of reversal.

Accordingi!¥> the order of the Appellate Division should

be reversed, (defendant's motion to vacate the judgment of

ceive giranted, and the case remitted to Chemung

County Cour" for a new trial.

ersed, defendant’s motion to vacate the judg-

Order reve’. ’.

onviction granted, and case remitted to

ment of cc ae

yunty Court for a new trial. Opinion by Judge

womans Co Judge Wachtler and Judges Meyer, Simons,

Kaye. Chief —.

Titone and Hancock concur.

Alexander, T

Decided June >» 1986