Opposition Brief — Gonzalez v. New York

INDEX

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PoINT I—Appellant and his co-defendant had no

conflicting interests and one attorney properly

represented both .............0 cece eee eeeee

CONCLUSION ........ cc ccc cece cece ec cececccecs

Respondents Appendix A

Opinion of the New York Court of Appeals .....

Respondents Appendix B

Order of Affirmance, with dissenting memoran-

dum of the Appellate Division, Second Depart-

DE Kanes she Keb bs bb beebaecndanbedees

AUTHORITIES CITED

Cases

Dukes v. Warden —— U.S. —— (slip opinion May

I esa PB pal a aye ne a

Englehart v. Commonwealth, 353 Mass. 561 ......

Glasser v. United States, 316 U.S. 60 ............

Gonzalez v. United States, 314 F. 2d 750 .........

a ah aR a eS oe

Peo. v. Cesare, 30 A.D. 2d 868 ..................

Peo. v. Chacon, 73 Cal. Rpt.10 ..................

Peo. v. Dolgin, 415 Ill. 434 .................00..

Peo. v. Gallardo, Cal. Rpt. 572 ..................

United States v. Bentvena, 319 F. 2d 916 .........

United States v. Borrelli, 435 F. 2d 500 ..........

United States v. Dardi, 330 F. 2d 316 ............

United States Constitution, Sixth Amendment ....

United States Constitution, Fourteenth Amendment

_ <a

IN THE

Supreme Court of the United States

October Term, 1972

No. 71-6648

ay.

bi

LUIZ GONZALEZ,

Petitioner,

—against—

THE PEOPLE OF THE STATE OF NEW YORK,

Respondents.

dy.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Statement

Petitioner seeks a writ of certiorari to review a judgment

of the Court of Appeals of the State of New York, rendered

on February 10, 1972, unamimously affirming a judgment

of the Appellate Division, Second Department, entered on

December 21, 1970 which affirmed (one judge dissenting)

a judgment of the Supreme Court of the State of New

York, County of Kings, rendered on September 30, 1968,

convicting petitioner for the crimes of assault in the first,

second and third degrees and possession of a dangerous

weapon and sentencing him to serve concurrent terms in

a State Prison of 5 to 10 years on the assault 1 charge, 214

to 4 years on the assault 2 charge, 314 to 7 years on the

dangerous weapon charge and 1 year, execution suspended,

mentrantneenial a

on the assault 3 charge. The opinion of the Court of Appeals

is reported in 30 N.Y. 2d 28 (1972) and is attached hereto

as appendix “A”. The opinion of the Appellate Division is

reported in 35 A.D. 2d 980 (1970) and is attached hereto

as appendix “B”.

Jurisdiction

The jurisdiction of this court is invoked under 28 U.S.C.,

sec. 1257 (3). It is contended that the petitioner’s rights

were violated in contravention of Amendments VI and

XIV of the U. S. Constitution by depriving him of the ef-

fective assistance of counsel as a result of the alleged

conflicting interests of appellant and his co-defendant who

were represented by one attorney. Respondent’s reply is

that petitioner and his co-defendant had no conflicting in-

terests and one attorney properly represented both.

Statement

On December 19, 1967 petitioner was indicted by a grand

jury of Kings County, together with a co-defendant, Efrain

Rodriguez, in two indictments which on April 8, 1968 were

consolidated for the purpose of a joint trial. One indict-

ment charged petitioner with the crime of murder in the

first degree on whici: he was acquitted, and the other

charged him with the other crimes on which he was con-

victed. On June 10, 1967 George Luis Feliciano was shot

and killed with a loaded firearm, resulting in the murder

indictment. On June 10, 1967 Lorenzo Kindred was as-

saulted with a loaded firearm, resulting in the indictment

on which petitioner was convicted.

3

An April 8, 1968, the trial was commenced before Hon-

orable John R. Starkey, a Supreme Court Judge, and a

jury.*

People’s Case

LORENZO KINDRED testified that on June 10, 1967, between

7:30 and 8:00 P.M., he was part of a group of people,

including petitioner and his co-defendant Efrain Rodriguez,

playing in a dice game. When petitioner and Rodriguez

became broke and the game was at an end, they complained

that the game had been “crooked” and demanded the return

of their money (T 70-74, 75). He rejected the demand.

After he had crossed the street and was standing on the

stoop of his home, he was followed by petitioner, Rodriguez,

and some others. Rodriguez pulled out.a .22 or .32 caliber

gun and “started the firing”, while he was in a squatting

position near his stoop. Whereupon he, too, fired one shot

but his gun, a .22 caliber six-shot gun, jammed.** He tried

unsuccessfully to fire more shots. Rodriguez fired in rapid

succession four or five shots and ran away when, he be-

lieves, Rodriguez had no more bullets (77-79, 100, 104-05,

129). Thereafter, petitioner and others attacked him and

took his gun from his hand. When his sister approached

* The nature of appellant’s contentions requires that the facts

developed on the trial be set forth insofar as is pertinent to the

assault indictment.

** Kindred admitted later to the police that he had a gun and as a

reSult was arrested on an assault and gun charge. He pleaded

guilty to assault against petitioner and Rodriguez. Aside from

that he has never been convicted of a crime (122). The District

Attorney’s files show that Kindred was indicted and charged

with assault one and assault two on Rodriguez and possession

of dangerous weapons as a felony. On March 18, 19€7 he

pleaded guilty to possession of « dangerous weapon as a misde-

meanor and no sentence was to be imposed until after his testi-

mony in this case.

mg

with a garbage can and struck one of his attackers with it,

he was enabled to escaped. While escaping he heard a

couple of shots and looking behind him, he saw a gun for

the first time in the hand of petitioner (85-87, 119). No

promises were made to him for his testimony (136-37).

SAMMY GASTON, 16 years of age, testified mainly with

respect to the shooting of the deceased, a friend of his. He

did hear petitioner and Rodriguez arguing with Kindred -

but could not hear what was said. Rodriguez pulled out

a shiny object which was pointed toward Kindred but he

cannot say whether or not it was a gun (146-47, 152).

Later he said that before he entered a yard te seek shelter,

he saw Kindred as well as Rodriguez pull out a gun (153,

168). He did not see anyone fire a gun but he heard the

shots (155). Although he saw petitioner “make a motion”

and “saw a shiny object,” he at no time saw a gun in peti-

tioner’s hand (162).

ISNOEL RODRIGUEZ (not related to the co-defendant) , 24

years of age, testified that on June 10, at about 8:00, look-

ing out of a window in a third story apartment, he saw a

dice game in progress. He heard an argument over money

and the demand made by Rodriguez in the presence of peti-

tioner for the return of his money (186-90). Rodriguez

said “[I]f you don’t give the money back I am going to

shoot you,” whereupon Rodriguez took out a gun and

started shooting at Kindred. Kindred pulled out a gun

from his pocket after Rodriguez had already taken out his,

attempted to fire but no bullet came out. Petitioner was

just a few feet from Rodriguez, “quite close,” at that time

(191, 206-07). Descending the staircase to the street, he

saw a colored woman strike Rodriguez with a garbage can.

ww

5

Petitioner took away Kindred’s gun from him while a num-

ber of people were on top of Kindred (192-93).

OLGA Lopez, a sister of the deceased, Feliciano, testified

that she noticed petitioner and Rodriguez arguing with

Kindred. Rodriguez said “[G]ive me my money back or

I'll kill you”. Rodriguez took out his gun and fired in the

direction of Kindred (231-33). Kindred pulled out his gun

but it jammed (234). She saw the handle of a gun which

petitioner was “trying to take out” (237). She then ob-

served petitioner and Rodriguez jump on Kindred and

take away his gun (238, 266-67). Kindred’s sister ap-

proached and struck Rodriguez with a garbage can, at

which point Kindred escaped (288). Although testifying

at first on cross-examination that she did not see petitioner

shoot at Kindred, she then stated that both petitioner and

Rodriguez were shooting in the direction of Kindred.* She

saw a gun in petitioner’s hand (251, 253, 268).

ANTONIO QUINONES,** 14 years of age, testified that she

observed petitioner, Rodriguez and Kindred engaged in

an argument and she saw Rodriguez pull out a gun and

point it at Kindred, in whose hands she did not see any-

thing. She heard shots but by that time she had already

escaped inside an alley (273-77, 291). Although she did

not see anything in petitioner’s hand, she saw him place

his hand inside his jacket (280).

FRANK GLOVER, who has known Kindred for seven years

and was engaged in the dice game, testified that Kindred

* The testimony lends itself to the possible inference that she was

referring to two intervals of time.

** She was with her little, handicapped brother who was in a wheel-

chatr being pushed by the decedent.

POLE Se RNP A FERRE PE Be RE? rm rT WE EIEN RS ONS CRN a IN I Reucry

and he had won a couple of dollars and walked across the

street, followed by petitioner and Rodriguez, the latter of

whom asked for the return of his money while simultane-

ously raising up his shirt. When Rodriguez pulled out his

gun, Kindred ran down the block and when Rodriguez

started shooting, Kindred pulled out his gun but it jammed.

He then noticed petitioner on top of Kindred, who had in

his hand a gun which petitioner took away from him. He

saw Kindred’s sister throw a garbage can top at Kindred’s

assailants. Kindred was then released and Rodriguez

started shooting at Kindred’s sister who was wounded.

After that, he grabbed Kindred who was bruised and while

he was running with Kindred, petitioner fired at him once

(351-55, 384-86).

ANNA FELICIANO, sister-in-law of the decedent, testified

that while sitting on the stoop in front of her house, she

observed a dice game in progress across the street. When

the game came to an end, Kindred crossed the street, Rod-

riguez and petitioner walking behind him. Rodriguez asked

for the return of the dice and his money. Although peti-

tioner told Rodriguez to ask for the return of $25, Rod-

riguez demanded only the return of $5. Kindred replied

“(N]o, I was not cheating you”. Rodriguez pushed Kin-

dred, who started backing away. Rodriguez then took out

a gun and shot wildly at Kindred who, too, took out a gun

but it did not shoot. Petitioner also started “shooting

crazy”. Both Rodriguez and petitioner shot at Kindred

(397, 419, 421, 430). Later, petitioner took away Kin-

dred’s gun from him and started shooting wildly with two

guns. When the shooting foray was over, Kindred, who

was running, was being chased and beaten. Kindred’s

sister took a garbage can and struck petitioner with it,

enabling Kindred to effect his escape (401).

ROBERT WILLIAMS testified that he was sitting on the

steps of his house across the street from a dice game in

progress. When it was over, participants, including Kin-

dred, crossed the street. Kindred started to walk away

when Rodriguez and petitioner walked up to him and en-

gaged him in conversation. He heard Rodriguez say to

Kindred, “I want my money back,” claiming that the dice

had been loaded. Rodriguez asked for the return of at

least $5, contending that Kindred had won $25. Kindred

replied: “Come on, let’s take a walk”. When they started

walking towards the corner, Rodriguez pushed Kindred

against garbage cans, and both Rodriguez and petitioner

pulled out guns and started shooting in the direction of

Kindred. Kindred reached into his pocket, removed a gun,

tried to shoot with it but it did not shoot. After the shoot-

ing, they beat Kindred while he was on the ground. Rod-

riguez and petitioner, their guns still in their hands,

dragged him across the street and beat him with a garbage

can top. Kindred’s sister ran out and swung at Rodriguez

and petitioner with a broom. They then released Kindred,

who started to run, fell, and was again grabbed. This

time they took Kindred’s gun out of his hand. After the gun

was taken from Kindred, a shot was fired which struck

Lorenzo Kindred’s sister’s arm (436-40, 453, 456, 474-77).

After Kindred was released, Rodriguez and petitioner were

running down the block, firing their guns perhaps eight or

ten times (442-43).

JULIO SANTIAGO testified that he was in his automobile,

stopped for a light on the corner, about a car and a half

aid ORE ES LENE SS Ae Sa ee a

length from the scene of the incident (535-36, 552). From

his car, he witnessed an argument in progress between a

Negro and a Puerto Rican. The Negro started walking

away while the Puerto Rican was demanding $5. “Give

me $5.” The Puerto Rican tried to jump on the Negro

who, however, jumped back towards a wall. The Puerto

Rican then pulled out a gun from his shirt. As he started

shooting, the Negro also pulled out a gun which did not

fire. He cannot identify the Puerto Rican (537-38). He

estimated the duration of his observation as 30 to 45 sec-

onds, and when the light changed he proceeded in his car

to pick up a police officer and return to the scene (553-54).

The Defense

JUAN RIVERA, 20 years of age, a participant in the dice

game, testified that Rodriguez asked a colored man, whose

name he does not know, for the return of money which he

had won by cheating. He was across the street at the time

(565-68, 570). As Rodriguez was removing his coat, one

of the colored men (there were two colored men present)

shot at Rodriguez three times (569, 573). Rodriguez was

“covering himself” and did nothing else (570). The colored

man then ran away and several of the people, including

petitioner, jumped on the colored man. During the struggle,

a woman struck “him” with a garbage can (572-73). He

never spoke to the police about this case and does not recall

when he first spoke to defense counsel (574).

FELIX R. RODRIGUEZ, the co-defendant’s brother, testified

that two colored men were arguing with his brother, who

claimed that crooked dice had been used. One colored man

crossed the street but the other colored man continued the

9

argument with his brother and said that he did not have

the money, did not win anything and that Rodriguez should

see his colleague. He left his car and screamed at Rodriguez,

“(T)hink what you are going to do”. One of the colored

men took out a gun and-started to shoot while Rodriguez

ducked. In self-defense Rodriguez also fired about four

or five times. He believes the colored man’s gun jammed

after he had fired three shots. Although at first stating

that he does not remember seeing petitioner at the scene, he

later stated that the colored man went away, followed by

petitioner and others (576-81, 585, 590).

Luis GONZALEZ, petitioner, 26 years of age, testified that

he has never been convicted of a crime and had known

Rodriguez for about two-and-a-half months prior to June

10, 1967 (599). Frank Glover was throwing the dice when

someone exclaimed “[{T] hese dice are not good”. Rodriguez

remarked that if the dice were not good, his money would

have to be returned to him (600-01). Kindred crossed the

street. Rodriguez and Glover who were arguing also crossed

over. Kindred fired two or three shots and his gun “stopped

working”. Rodriguez took out his gun and fired about four

or five times. When Kindred’s gun became jammed, Rod-

riguez’s brother Felix and he tried to restrain Kindred, who

was running at the time, by holding him. However, Kindred

got loose of his grip, turned around, tried to shoot but the

revolver again did not work (600-65). Continuing his run,

Kindred stumbled. He wrestled with Kindred in an effort to

take Kindred’s gun away when a colored woman came and

hit him on the back of his neck with a garbage can cover.

However, he took Kindred’s gun away from him, ran away

with the gun in his hand and threw it into a yard (607-14).

—

LILLIAN RODRIGUEZ, wife of the co-defendant, testified

that she observed her husband crossing the street together

with petitioner and a colored man (627-28). The colored

man took out his gun and fired two shots, when her husband

took out his gun and fired about five times. The colored

man then ran, with petitioner walking after him. She

ducked behind some cars during the incident (627-30).

Petitioner did not do any firing (632-34).

10

POINT I |

Appellant and his co-defendant had no conflicting

interests and one attorney properly represented both.

Petitioner contends that early in the trial a conflicting

interest became apparent between him and his co-defendant,

Efrain Rodriguez, who were represented by one lawyer,

and the Court sua sponte should have appointed additional

counsel so that the interests of each defendant could be

represented exclusively by individual counsel. At no time

during the trial did petitioner, his co-defendant or their

retained lawyer complain of the joint representation. We

submit that a conflicting interest never became apparent

during the course of the trial between petitioner and

Rodriguez.

Petitioner and Rodriguez were charged in the indictment

with “acting in concert” and each aiding and abetting the

other. The testimony indicates that both men were in close

proximity to each other within a “few feet, quite close”

(191) during the entire affray, from start to climax.

Several of the People’s witnesses saw a gun in petitioner’s

hand; others did not. An apparently disinterested witness,

11

Robert Williams, seated across the street from the dice

game and thus enjoying an excellent vantage point, saw

both petitioner and Rodriguez shoot in Kindred’s direction

and saw both of them after the shooting beat Kindred, who

was then on the ground. ‘Two other witnesses—Olga Lopez

and Anna Feliciano—saw petitioner shoot.* Williams

testified further that it was the two defendants again who

dragged Kindred across the street after the shooting and

beat him with the top of a garbage can. When Kindred’s

sister swung at them with a broom enabling him to escape,

both of them managed to grab Kindred again and took his

gun away from him.** Both petitioner and Rodriguez

ran down the block firing from guns perhaps eight or ten

times and injuring the arm of Kindred’s sister. Many other

witnesses, including Kindred, testified to the fact that

petitioner beat Kindred and took his gun out of his hand.

Petitioner arrogates unto himself the authority to decide

which witnesses of the People to believe and which to dis-

believe. Whoever he deems most damaging to himself is

disbelieved and so he dismisses out of hand the testimony

both of the disinterested witness, Robert Williams, and the

sister-in-law of the decendent, Anna Feliciano, both of

whom testified that petitioner, as well as Rodriguez, was

shooting at Kindred. It, of course, is not petitioner’s

function to pass on the credibility of witnesses but the

* Although Sammy Gaston testified that he at no time saw a gun

in petitioner’s hand, however he did see “a shiny object.”

** Petitioner made much of the point in the Appellate Division that

since the testimony showed Kindred’s gun had jammed, there

was no point in seizing it. However, a momentary jamming

does not prove that the gun could not be made to fire, or the

defendants wanted to wrest the gun, whether functioning or not

at the moment, as a prize. In any event, they wanted to beat

Kindred, and they succeeded.

———— a

12

function of the jury, and the jury heard the testimony of all

the witnesses on both sides, and it is submitted that it was

ample to prove the guilt of petitioner beyond a reasonable

doubt.

Petitioner was intimately involved in the dispute between

Rodriguez and Kindred. Both petitioner and Rodriguez,

who were friends, believed that the dice game was won

by Kindred because of crooked dice. Even if petitioner had

no gun—which is not the evidence according to several of

the People’s witnesses—he could nevertheless be found

guilty as an accomplice of Rodriguez. According to the

testimony of witnesses both for the Peopie and for the de-

fense, Rodriguez had a gun and used it. Rodriguez and

petitioner were close together at all times during the shoot-

ing spree. Even a defense witness, Juan Rivera, testified

that Kindred later ran away from the scene of the affray

and several people, including petitioner, jumped on him.

Petitioner himself testified that he wrestled with Kindred,

took Kindred’s gun away from him and threw the gun into

a yard. Lillian Rodriguez, wife of the co-defendant, and

Felix Rodriguez, brother of the co-defendant, also testified

that Kindred was running from the scene and petitioner

was either “walking” after him or following him.

There is no dispute that petitioner, who was engaged in

a dice game, felt aggrieved because of allegedly crooked dice

used by Kindred and that he accompanied his co-defendant

Gonzales to demand the return of his money. Both the

People’s witnesses and the defense witnesses are agreed

on that score. Petitioner was bent on doing anything to at-

tain his end. One witness testified that although Rodriguez

demanded the return of $5, it was petitioner who told

Rodriguez to ask for $25 (430). Upon Kindred’s refusal

13

to submit to his ultimatum for the return of the money,

war broke out. It is immaterial that several witnesses for

the People did not see a gun in petitioner’s hand but did see

one in Rodriguez’s hand. Three of the People’s witnesses

testified that petitioner had a gun and was shooting with

it. The credibility of the witnesses is one for the jury and

it is not for petitioner to pick whom he believes and dis-

believes. But regardless of the issue of whether appellant

had and wielded a gun, the charge against him is not de-

pendent upon his possession of a gun. The charge against

him is one of acting in concert with his co-defendant. The

evidence is undisputed that after Gonzalez started shooting

at Kindred, petitioner remained with Gonzalez at all times

and continued his active participation in pursuit of Kindred

and finally seized Kindred, beat him, and disarmed him.

On his own testimony he then threw away Kindred’s gun.

The pursuit of Kindred by petitioner continued after Rod-

riguez had fired four or five shots at Kindred. Petitioner

did not desist from further activity after witnessing Rod-

riguez’s attempt to wound or kill Kindred with his gun.

Even assuming arguendo that petitioner had no gun, if he

actively participated with Rodriguez in pursuing Kindred

after he was made aware of the firing of a gun by Rodriguez

directed at Kindred, petitioner is equally culpable with

Rodriguez as a full-fledged accomplice. Petitioner himself

testified that Kindred opened fire and that Rodriguez then

fired four or five times. He further testified that Kindred’s

gun jammed and that he subsequently took Kindred’s gun

away from him and threw it away. He had been to Rod-

riguez’s home about two weeks before the incident and saw

the gun in his home. (622-24). Of great significance in the

testimony is the fact that both Kindred and Glover crossed

14

the street apparently in an effort to get away from Rod-

riguez and petitioner, but it was Rodriguez and petitioner

who insisted on following them across the street where the

action took place (602). Although Kindred was running

away, petitioner together with Rordiguez’s brother Felix

pursued him. Petitioner’s vengance was not yet expended

but had to be wreaked even on a fleeing man. Finally,

petitioner, who insists upon glorifying the testimony of

the defense witnesses and those of the People’s witnesses

whom he deems satisfactory to himself, overlooks the fact

that one of the defense witnesses, Juan Rivera, testified

that he saw no firing at all by both defendants and claimed

that they did nothing but cover themselves. The testimony

of this witness should clearly be discounted, as it is in direct

contradiction of the testimony by the other two defense

witnesses, Felix Rordiguez and petitioner. The jury was

apparently confronted with no difficulty in coming to the

conclusion that petitioner, acting in concert with Rodriguez,

had committed an assault upon Kindred because of the

latter’s refusal to return monies demanded of him. This

is a reasonable inference flowing from all the testimony.

Petitioner argues that in the instance of Olga Lopez, he

was clearly prejudiced because on direct examination she

testified to a shooting only on the part of Rodriguez, but on

cross-examination for the first time she implicated peti-

tioner as well as Rodriguez in the shooting. He overlooks,

however, completely the testimony on direct given by Miss

Lopez that she heard petitioner as well as Rodriguez

arguing with Kindred, and that she observed both petitioner

as well as Rodriguez jump on Kindred and take away his

gun. But most importantly, she testified on direct that she

saw the handle of a gun which petitioner was “trying to

15

take out” (237). These facts testified to on direct examina-

tion were sufficient to involve petitioner as a conspirator

with Rodriguez in the assault. The fact that on cross-

examination she for the first time testified to her observa-

tion regarding appellant’s shooting simply added more fuel

to the fire. But it did not in any way change the picture

to the detriment of petitioner.

We believe we have amply demonstrated that appellant

and his co-defendant had no conflicting interests. The

leading case, Glasser v. United States, 316 U.S. 60 (1941),

cited by appellant, is inapposite. In that case one of the

defendants, Glasser, specifically stated to the Court, “(I)

would like to have my own lawyer representing me.” His

retained lawyer told the Court, upon appointing him to

represent also the co-defendant Kretste, that certain con-

versations would be binding on Kretste and not on Glasser

and that Glasser felt if the same lawyer also represented

Kretste, “the jury would get the idea that they are to-

gether.” 316 U.S. at 68. Despite this specific request, de-

spite the fact that a conflict of interest was apparent

between Glasser and the other defendant, the Court did

not honor his request to have another lawyer appointed

to represent Kretste. As the Supreme Court stated: “The

possibility of the inconsistent interest of Glasser and

Kretste was brought home to the Court but instead of

jealously guarding Glasser’s rights, the Court may fairly

be said to be responsible for creating a situation which

resulted in the impairment of those rights,” 316 U.S. at

71. Nothing remotely analogous to this appears in the

instant case. The courts have held that “(A)ppellant

must show some conflict of interest between himself and the

16

other defendants represented by his attorney before he can

claim successfully that the joint representation deprived

him of his right to counsel”. U.S. v. Bentvena, 319 F. 2d 916

(2d Cir., 1963). And it has been held that where a motion

for a severance is made based on an alleged claim of a

conflict of interests, a defendant “must demonstrate sub-

stantial prejudice from a joint trial, not just a better

chance of acquittal at a separate one... a trial court’s

refusal to grant severance will rarely be disturbed on

review.” U.S. v. Borrelli 485 F. 2d 500 (2d Cir., 1970).

We submit that the principle which should govern this

case is that enunciated in People v. Cesare, 830 A.D. 2d 868

(1968) :

In our opinion, there has been no persuasive

showing of any such conflict of interest between

the co-defendants. Moreover, our review of the

record demonstrates that not only were the interests

of the defendant not inconsistent as for example

they might be in the case where each of the defend-

ants has made statements exculpating himself and

inculpating his co-defendant (cf. People v. Sprinkler,

supra) but also the attorney’s representation, which

fully protected and preserved the rights of each de-

fendant, was no less effective than it would have

been if he had represented either defendant alone.

To find a conflict of interest on the basis of the record

in this case would be in the words of the opinion rendered

by the Court of Appeals in this case “tantamount to a

holding that joint representation is, per se, a denial of

effective assistance of counsel, a result not dictated by the

Sixth Amendment.” “[Tjhe mere fact that the co-defend-

ants are represented by the same counsel is not grounds for

ww

17

reversal.” People v. Cesare, 30 A.D. 2d 868 (1968), aff’d.

27 N.Y. 2d 969 (1970). To the same effect see; United States

v. Dardi, 330 F. 2d 316, 335 (1964), cert. den. 379 U.S. 845

(1964) ; U.S. v. Bentvena, supra, p. 937, Gonzalez v. United

States, 314 F 2d 750, 752 (1963) ; Englehart v. Common-

wealth, 353 Mass. 561, 562 and People v. Dolgin, 415 Il.

434-438.

Most significantly, petitioner was represented not by

assigned counsel but by retained counsel. At no point was

any objection raised by anyone regarding this joint repre-

sentation. We submit that it would have been an unwar-

ranted interference with the attorney-client relationship

for the Court to have interjected itself and to have sug-

gested a mistrial during the course of the trial. It is not

suggested at what point the alleged conflict of interest be-

came apparent. Assuming arguendo that it did become

apparent and that the Court suggested a mistrial and

that both petitioner and his counsel objected to a mistrial,

the reductio ad absurdum would be that the Court on its

own motion would have to declare a mistrial and run the

risk that an appellate court would declare the Court’s action

to have been unwarranted, thereby preventing the People

from ever prosecuting petitioner again on the ground of

double jeopardy.

Petitioner claims that the prejudice he suffered was

not limited to the trial of the action but was also apparent

in the sentencing procedure. In Dukes v. Warden ——U.S.

——(slip opinion, May 15, 1972), the appellant’s attorney

representing two co-defendants as well as the appellant on

a charge unrelated to that in which the appellant entered a

plea, made critical remarks in the other case about ap-

SST en OF ea

18

pellant when he argued for leniency of sentence for the

two co-defendants. This Court rejected the claim of con-

flict of interest, noting that the appellant had retained his

attorney, knew that he was representing two co-defendants

in another case and never complained to the Court that

he was not satisfied with his representation. Similarly, in

the instant case petitioner retained his own attorney, knew

that his attorney was representing a co-defendant and never

complained about his representation.

At the sentencing proceeding in this case after the im-

position of sentence, the sole reference by defense counsel

to the possibility of a difference in treatment to be accorded

between petitioner and his co-defendant was the following

remark addressed to the Court. “Doesn’t the Court feel

that there is a difference between the two defendants with

reference—with reference to the degree of punishment?”

(Sentence Minutes, Sept. 30, 1968, p. 9). The Court’s reply

to this query is a very cogent one and points up the fact that

petitioner, because he was acting in concert with his co-

defendant, was equally guilty with him. The Court said:

The Court: I don’t, Mr. Ortiz. They were acting

in concert. Rodriguez, it is true pulled out the gun

and started to fire. Kindred drew a gun which he

began to fire in return to Rodriguez. Rodriguez

was not hit but Kindred was hit in the right side-

and the deceased boy tried to move the crippled boy

in the wheelchair out of the line of fire. The bullet

found in the deceased’s body was a twenty-two

caliber and Kindred admitted that he used a twenty-

two caliber but Gonzales and others grabbed, fought

and struggled and Gonzales succeeded in taking it

from him after Kindred fell down. These two de-

fendants, to my mind, are equally guilty.

(S.M., p. 9).

19

In support of the proposition that defense counsel’s al-

leged position of “divided loyalty” lessened his effective-

ness on petitioner’s behalf at the sentencing procedure,

petitioner cites two California cases. In addition to our

argument that there was no conflict of interest in this

case, we submit that the California cases (not binding

upon this Court) are readily distinguishable. In both

cases—People v. Chacon, 73 Cal. Rpt. 10 (1968) and

People v. Gallardo, 74 Cal. Rpt. 572 (1969) —the defendants

were not represented by retained counsel. Thus, in People

v. Gallardo, supra, the public defender was assigned to

represent both defendants. One defendant at the selection

of the jury told the Court that there was a conflict of inter-

est with his co-defendant. The attorney stated that both

defendants were agreed that there was a conflict of interest

but he did not see it. He went as far as calling one of the

defendants a liar during the colloquy. The Court found as

a matter of fact that there was a conflict of interest. In

People v. Chacon, supra, a capital case, the Court assigned

one lawyer to represent three defendants. The Court did

not advise the defendants of their right to separate counsel

if a conflict of interest was present and the appellate court

would not imply from their silence a waiver of that right.

The Court found that the facts of the case were “fraught

with potentially effective individual defenses,” 73 Cal. Rpt.

at 16. In addition, because two defendants were sentenced

to the chair (and one to life imprisonment) the Court

stated: “Often the strongest argument that separate

counsel can make on the issue of penalty is that his client

was less culpable than the others and that he at least should

not be executed.” We do not believe that the strictures of

the California Court on the joint representation by counsel

BLS Sooty ee fas) ea aba ah eae ma ew TREY ‘

° ? SSS ODI Ney ee NTA RY OE pr ea eT aR a My UE ihe

20

at time of sentence of two or more co-defendants would be

extended to other than capital cases even in California.

In any event, as indicated hereinabove, petitioner’s counsel

did seek to impress upon the Court a difference in culpability

between petitioner and his co-defendant, but the Court

properly concluded from the evidence that petitioner and

his co-defendant were equally guilty.* }

It is respectfully submitted that petitioner’s premise of

a conflict of interest, which would have necessitated the

appointment of additional counsel in the midst of trial for

the sole representation of petitioner and for the declara-

tion of a mistrial even over the objection of petitioner, is

without foundation in law or in fact.

CONCLUSION

The petition for a writ of certiorari should be denied.

Dated: Brooklyn, New York

June, 1972

Respectfully submitted,

EUGENE GOLD

District Attorney

Kings County

J. MITCHELL ROSENBERG

Assistant District Attorney

of Counsel

* Defense Counsel on sentence argued that Rodriguez shot in

self-defense and that petitioner never assaulted Kindred. “Gon-

zalez involvement in the case was only to the extent of an im-

pulse to go to the aid of Rodriguez thinking that he was hurt,

and to wrest the gun from Kindred and nothing else.” (From

opinion of the Court of Appeals, p. A-8).

A-1

APPENDIX A

Opinion of the New York Court of Appeals

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v.

Luis GONZALEZ, Appellant.

Argued November 30, 1971; decided February 10, 1972.

Crimes—assault—right to counsel—no error in permit-

ting defendant to share retained attorney with his co-

defendant—no conflict of interest between defendant and

codefendant—both had same interest in discrediting tes-

timony of People’s witnesses—counsel protected interests

of both clients.

POINTS OF COUNSEL

1. Defendant and his codefendant Rodriguez were con-

victed of the crimes of assault and illegal possession of a

deadly weapon. About 10 individuals, including defendant

and Rodriguez, were engaged in a gambling game when

an argument occurred, in the presence of defendant, be-

tween Rodriguez and one Kindred, and, in the course of

the argument, an innocent bystander was killed. The

People’s evidence tended to establish that both defendants

shot at Kindred. Defendant claimed that Kindred fired

the initial shots. The trial court, in permitting defendant

to share a retained attorney with his codefendant, did not

deprive defendant of his constitutional right to the effec-

tive assistance of counsel. There was no apparent conflict

ee Se OR TIS OA te I REE

TS SER LET RRC NAc tts Dt

A-2

Appendix A—Opinion of the New York Court of Appeals

of interest between defendant and his codefendant. Sev-

eral of the People’s witnesses testified that both defendants

shot at Kindred and later beat him, and both defendants

were accused in the indictments with “acting in concert”

and “aiding and abetting” each other in the commission

of the crimes charged. Both defendants had the same

interest in discrediting the testimony of the People’s wit-

nesses.

2. Moreover, the record shows that counsel, in addi-

tion to arguing that Rodriguez acted in self-defense, con-

tended that defendant never shot at Kindred, and that

he never assaulted Kindred. The record establishes that

counsel was thorough and diligent in preparing this case

and protecting the interests of both of his clients.

People v. Gonzalez, 35 A D 2d 980, affirmed.

APPEAL, by permission of a Justice of the Appellate

Division of the Supreme Court in the Second Judicial De-

partment, from an order of said court, entered December

21, 1970, affirming a judgment of the Supreme Court

(JOHN R. STARKEY, J.), rendered in Kings County upon

a verdict convicting defendant of the crimes of assault,

in the first, second and third degrees and illegal posses-

sion of a deadly weapon.

David H. Smith and Robert Kasanof for appellant. The

trial court improperly permitted a single attorney jointly

to represent appellant and his codefendant since appellant

and codefendant had conflicting interests. (Glasser v.

United States, 315 U. S. 60; United States v. Hayman, 342

U. S. 205; People v. Byrne, 17 N Y 2d 209; Randazzo v.

United States, 339 F. 2d 79; Porter v. United States, 298

A-3

Appendix A—Opinion of the New York Court of Appeals

F. 2d 461; United States v. La Vallee, 282 F. Supp. 968;

Taylor v. United States, 226 F. 2d 337; Application of

Buffalo Chief, 297 F. Supp. 687; Ford v. United States,

379 F. 2d 123.)

Eugene Gold, District Attorney (J. Mitchell Rosenberg

of counsel), for respondent. Appellant and his codefend-

ant had no conflicting interests and one attorney properly

represented both. (Glasser v. United States, 315 U. S. 60;

United States v. Hayman, 342 U. S. 205; United States v.

La Vallee, 282 F. Supp. 968; Taylor v. United States, 226

F. 2d 337; United States v. Bentvena, 319 F. 2d 916;

United States v. Borelli, 435 F. 2d 500.)

OPINION PER JASEN, J.

JASEN, J. The sole question presented upon this appeal

is whether the appellant was deprived of his constitutional

right to the effeciive assistance of counsel.

Appellant and his codefendant, Efrain Rodriguez, were

arrested on June 11, 1967, and subsequently charged in

two indictments with the crime of murder in the first

degree, the crimes of assault in the first, second and third

degree, and illegal possession of a deadly weapon. After

a jury trial both of the accused were acquitted of the

murder charge, but were convicted of the other charges.

On June 10, 1967, about 10 individuals, including ap-

pellant and Rodriguez, were engaged in a game of craps.

The game had been in progress for some time when one

Lorenzc Kindred and a friend of his, Frank Glover, joined

the game. They played for approximately 15 to 20 min-

utes, after which the game ended with Kindred and

A-4

Appendix A—Opinion of the New York Court of Appeals

Glover the principal winners. An argument thereupon

ensued, in the presence of appellant, between Rodriguez

and Kindred, in which Rodriguez, complaining that

“crooked” dice were used in the game, demanded the re-

turn of his money.

Precisely what occurred after the commencement of that

argument, which resulted in the killing of an innocent

bystander, was sharply disputed at the trial. The People’s

evidence, consisting primarily of the testimony of Kindred

and several other witnesses who observed the argument

and subsequent events, tended to establish that Rodriguez

pulled out a gun and started shooting at Kindred, and

that appellant also shot at Kindred in addition to phys-

ically assaulting him. At the close of the People’s case,

appellant took the stand and gave his version of the events.

He claimed that Kindred fired the initial shots. While he

denied shooting at any time at Kindred, appellant did

state that he tried to restrain Kindred “so that he could

not keep on firing.” The appellant’s version as to how the

shooting started, and his actions following it, were sub-

stantiated by the testimony of three witnesses.

Upon this evidence, the jury acquitted both defendants

of the murder charge, but convicted them of the other

afore-mentioned charges.

On this appeal, the appellant asserts that the trial court,

in permitting him to share a retained attorney with his

codefendant, deprived him of his constitutional right to

the effective assistance of counsel. Specifical!y, appellant

contends that early in the trial a conflicting interest be-

came apparent between him and his codefendant which

required the court to take necessary steps to protect his

A-5

Appendix A—Opinion of the New York Court of Appeals

right to effective representation.' Appellant does not sug-

gest that this court adopt the rule in Ford v. United States

(379 F. 2d 123), which presumes a conflict of interests

when two or more defendants are represented by one at-

torney. What appellant does seek is that we examine the

conflict of interests which he elaims existed with respect

to this appellant, and apply the applicable and previously

announced constitutional rules thereto. In support of this

view, he cites Glasser v. United States (315 U. S. 60);

United States v. Hayman (342 U. S. 205); United States

ex rel. Williamson v. La Vallee (282 F. Supp. 968); and

Taylor v. United States (226 F. 2d 337, revg. 126 F. Supp.

764).

In Glasser v. United States (supra), the Supreme Court

in setting aside a conspiracy conviction against the de-

fendant Glasser, addressed itself directly to the Sixth

Amendment ramifications of joint representation. Glasser

and another defendant, Kretske, were represented at the

trial by the same attorney, although Glasser had objected

to sharing his lawyer with Kretske. Despite Glasser’s ob-

jection and the attorney’s notice to the court that the de-

fenses may be inconsistent, the Trial Judge, nevertheless,

designated Glasser’s personal attorney as counsel for co-

defendant Kretske. After enumerating the various ways

in which Glasser had been significantly prejudiced, the

Supreme Court determined that his Sixth Amentiment

rights had been violated.? The rule that emerged from

1. At no time during the trial did the appellant, his codefendant,

or their lawyer complain that their defense was hampered by the fact

that they were jointly represented.

2. The court, however, sustained Kretske’s conviction, as there

was no showing that he had been prejudiced by the joint representa-

tion.

———

A-6

Appendix A—Opinion of the New York Court of Appeals

Glasser is that where a conflict of interests is shown, the

courts need not precisely calculate the degree of prejudice

in order to find a violation of Sixth Amendment rights.

(See, also, Commonwealth ex rel. Whitling v. Russell, 406

Pa. 45, 48; People v. Ware, 39 Ill. 2d 66, 68; State v. Tapia,

75 N. M. 757, 760.)

In United States v. Hayman (supra), a principal wit-

ness against the petitioner was a defendant in a related

case wherein she had pleaded guilty but testified against

the petitioner before sentence, and was represented by the

same attorney as the petitioner. Likewise, in United

States ex rel. Williamson v. La Vallee (supra), the attor-

ney for the petitioner also represented an important prose-

cution witness, a defendant in another case. In Taylor v.

United States (supra), the petitioner was represented by

counsel also representing the prosecution’s witness, an in-

former, as a defendant in another case.

One need not tax his imagination to detect the potential

dangers that faced the petitioners in these cases when

defended by an attorney who is also representing an im-

portant prosecution witness as a defendant in another

ease. In all of the cases-relied upon by the appellant, a

persuasive showing of a conflict of interests was made.

(Cf. People v. Wilkins, 28 N Y 2d 53.) The holdings are

consistent with the rule that has developed that “an ap-

pellant must show some conflict of interest between him-

self and the other defendants represented by his attorney

before he can claim successfully that the joint representa-

tion deprived him of his right to counsel.” (United States

v. Bentvena, 319 F. 2d 916, 937 [2d Cir.]; Glasser v.

United States, 315 U. S., at pp. 72-76; United States v.

-

A-7

Appendix A—Opinion of the New York Court of Appeals

Dardi, 330 F. 2d 316, 335 [2d Cir.], cert. den. 379 U. S.

845; Gonzales v. United States, 314 F. 2d 750, 752 [9th

Cir.]; Englehart v. Commonwealth, 353 Mass. 561, 562;

People v. Dolgin, 415 Ill. 434, 448; cf. People v. Wilkins,

28 N Y 2d 58, 55-56, supra.)®

But, even where such a conflict of interest is found to

exist and, as a result, one of the defendants is prejudiced,

this does not automatically inure to the benefit of his co-

defendants, unless they, too, were in some manner harmed

by the fact that they were represented by the same attorney.

(Kruchten v. Eyman, 406 F. 2d 304; Janovic v. Eyman, 406

F. 2d 314; Campbell v. United States, 352 F. 2d 359; ef.

People v. Byrne, 17 N Y 2d 209, 216.) In the Campbeli

ease, for instance, the court reversed the conviction of

Glenmore, one of the defendants, for the reason that he had

been “clearly prejudiced” (p. 361) by the joint representa-

tion, but affirmed the conviction of Campbell, his codefend-

ant, stating (p. 361) : “we are unabie to perceive anything

indicating that his defense suffered from sharing an at-

torney with Glenmore.”

In the case before us, we conclude that there was no

apparent conflict of interest between the appellant and his

codefendant. Contrary to appellant’s contention, both de-

fendants has the same interest in discrediting the testimony

of the People’s witnesses. Several of these witnesses testified

that both defendants shot at Kindred and later beat him.

__ It is immaterial that-other witnesses for the People did not

3. See, also, United States v. Youpee (419 F. 2d 1340, 1345-1346

[9th Cir.]) ; United States v. Long (415 F. 2d 307, 308 [6th Cir.]) ;

Curry v. Burke (404 F. 2d 65, 67 [7th Cir.]) ; State v. Reppin (35

Wis. 2d 377, 386-387) ; Commonwealth ex rel. Corbin v. Myers (419

Pa. 139, 141, 423 Pa. 243, cert. den. 386 U. S. 1013).

——

A-8

Appendix A—Opinion of the New York Court of Appeals

see a gun in appellant’s hand, but did see one in the code-

fendant’s hand, since both defendants were accused in the

indictments with “acting in concert” and “aiding and abet-

ting” each other in the commission of the crimes charged.

The evidence is undisputed that after Rodriguez started

shooting at Kindred, appellant remained with Rodriguez

throughout the fracas and continued his active participation

in pursuit of Kindred, culminating in appellant’s seizure of

Kindred, beating him and disarming him. At this point his

own testimony reveals that he threw away Kindred’s gun

and continued to pursue him after Rodriguez had fired

four or five shoots at Kindred. It should be obvious that

even if we were to assume arguendo that the appellant had

no gun, the evidence is overwhelming that he actively partic-

ipated with Rodriguez in pursuing Kindred after he was

made aware of the firing of a gun by Rodriguez directed

at Kindred. Thus, we can perceive of no conflict in the

appellant and Rodriguez as both had the same interest in

discrediting the testimony of the People’s witnesses, and

it is to be noted their lawyer pursued that course vigorously

through cross-examination and the use of prior inconsistent

statements.

Appellant also argues that his attorney was unable in

summation to argue that “Rodriguez assaulted Kindred, but

that appellant was innocent of any assault on Kindred”

because he also represented Rodriguez, and, consequently,

a conflict of interest was present. The record, however,

shows that counsel, in addition to arguing that Rodriguez

acted in self-defense, did, in fact, contend that appellant

never shot at Kindred, and that he never assaulted him,

“Gonzalez’s involvement in the case was only to the extent

_

A-9

Appendix A—Opinion of the New York Court of Appeals

of an impulse to go to the aid of Rodriguez thinking that he

was hurt, and to wrest the gun from Kindred and nothing

else.” In-no respect did the individual defenses of appellant

and his codefendant run afoul of each other, nor did the

efforts of counsel on behalf of Rodriguez interfere with

appellant’s defense.

In sum, a careful review of the record discloses no conflict

of interests. To the contrary, the record establishes that

counsel was thorough and diligent in preparing this case

and protecting the interests of his clients. A finding of a

conflict here, in effect, would be tantamount to a holding

that joint representation is, per se, a denial of effective

assistance of counsel, a result not dictated by the Sixth

Amendment. Moreover, for the Trial Judge to have inter-

vened in this case (see Glasser v. United States, 315 US.,

at pp. 71-72; People v. Byrne, 17 N Y 2d; at pp. 215-216)

would have been an entirely unwarranted interference with

the attorney-client relationship and might well have con-

stituted an infringement upon the defendant’s right to re-

tain counsel of his own choosing. (Cf. Chandler v. Fretag,

348 U.S. 3, 9; Powell v. Alabama, 287 U.S. 45, 58; People v.

Silverman, 3 N Y 2d 200, 202; People v. Price, 262 N.Y.

410, 412.) 5

The order should be affirmed.

Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN,

BREITEL and GIBSON concur.

Order affirmed.

B-1

APPENDIX B

Order of Affirmance, with dissenting memorandum,

of the Appellate Division, Second Department.

THE PEOPLE OF THE STATE OF NEW YoRK, Respondent,

v. LUIS GONZALEZ, Appellant.—Judgment of the Supreme

Court, Kings County, rendered September 30, 1968, af-

firmed. No opinion. Hopkins, Acting P. J., Latham, Bren-

nan and Benjamin, JJ., concur; Martuscello, J., dissents

and votes to reverse the judgment and to grant a new

trial on the ground that there was a conflict of interest

between appellant and his codefendant and the trial court

should have appointed different counsel for each defendant.