# Opposition Brief — Gonzalez v. New York

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 859

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1000%3A1. Public record. Not legal advice.