The constitutional right of a defendant “to stand before a court with counsel at his side to safeguard both his substantive and procedural rights” is fundamental to our system of justice (People v. Settles, 46 NY2d 154, 161 [1978]; see People v. Henriquez, 3 NY3d 210, 215 [2004]; People v. Arroyo, 98 NY2d 101, 102 [2002]). Thus, “an accused who requests legal representation cannot be forced to stand trial without the services of an attorney” (People v. Henriquez, 3 NY3d at 215, citing Gideon v. Wainright, 372 US 225, 344 [1963]). Nevertheless, there are instances in which “egregious conduct by defendants can lead to a deemed forfeiture of the fundamental right to counsel” (People v. Smith, 92 NY2d 516, 521 [1998]). Although finding a forfeiture of the right to counsel is a “last resort” (People v. Smith, 92 NY2d at 521), this case represents a rare instance where such a finding is warrantedThe 44-year-old defendant is a Queens resident who is a member of the Connecticut bar and practices law in that state. He has no prior criminal history. On September 10, 2016, the defendant was arrested on charges, inter alia, of assault in the second degree stemming from an incident in which he allegedly pushed an elderly neighbor down the stairs. Between September 11, 2016 and September 25, 2018, the defendant has been assigned by seven different attorneys. All seven of these attorneys have asked to be relieved, in most instances citing conflicts with the defendant and his abusive behavior.The defendant’s conflicts with assigned counsel began in the early stages of this case. At the defendant’s first appearance in Criminal Court on September 11, 2016, Queens Law Associates was assigned to represent him, and the case was adjourned to October 21, 2016 to allow the defendant to retain counsel. At the defendant’s next appearance in Criminal Court on October 21, 2016, he was represented by Carol Siegel of Queens Law Associates. Ms. Siegel advised Judge Melendez that to the best of her knowledge, the defendant had been “directed to retain counsel.” Ms. Siegel also stated that her office had had a “series of communications” with the defendant, and that the defendant had told her “that he does not wish to be represented by [Queens Law Associates] and would rather represent himself.” The defendant denied telling Ms. Siegel that he did not want to be represented by Queens Law Associates and claimed that he was unable to afford retained counsel because his arrest and the pending criminal charges had caused him to lose clients. Judge Melendez instructed the defendant to either retain counsel or bring in proof that he could not afford to do so. The matter was then adjourned to December 2, 2016.At the defendant’s next court appearance on December 2, 2016, Judge Melendez apparently determined that he could not afford to pay for private counsel, and the case was adjourned to January 6, 2017 for the assignment of an attorney from the 18-b panel.On January 6, 2017, a second attorney, Joseph Sulik, was assigned to represent the defendant. However, two months later, on March 8, 2017, Mr. Sulik submitted a written request to Judge Melendez asking to be relieved. In his request Mr. Sulik noted that the defendant had filed charges against him with the Appellate Division and stated that “in view of this any contact between us would be inappropriate.”The defendant’s third attorney, Joseph Justiz, was assigned on April 7, 2017. During the period of his representation, Mr. Justiz negotiated a highly favorable plea offer on the defendant’s behalf which would have allowed the defendant to plead guilty in exchange for a conditional discharge. However, the defendant declined the proposed plea agreement. The People subsequently presented the case to a grand jury, and on October 12, 2017, the defendant was indicted on charges including assault in the second degree. At a court appearance the next day, Mr. Justiz asked to be relieved, and Judge Melendez granted his request. The case was then adjourned to October 26, 2017 for arraignment on the indictment and the appointment of a new attorney from the 18-b panel.On October 26, 2017, the case appeared before this court for the first time in TAP B. On that date, a fourth attorney, Susan Silverman, was assigned to represent the defendant, and the defendant entered a plea of not guilty to the indictment. The case was adjourned to November 21, 2017, and the defendant was instructed to provide documentation to show his financial eligibility for assigned counsel.At the very next court appearance on November 21, 2017, Ms. Silverman asked to be relieved from the defendant’s case. The defendant objected to relieving Ms. Silverman and indicated that he had shown his bank statements to her to demonstrate his inability to retain counsel. The court denied Ms. Silverman’s request, and set a schedule for pretrial motions. One week later, on November 28, 2017, the defendant wrote the court claiming that Ms. Silverman was refusing to file motions on his behalf and intended to make a second application to be relieved. The defendant requested that the court either order Ms. Silverman to defend him or assign new counsel. In light of the defendant’s correspondence, the court advanced the case to December 11, 2017. On that date, the court spoke to Ms. Silverman at sidebar, and she revealed that the defendant had engaged in verbally abusive behavior toward her, and that she was afraid of him. Accordingly, the court relieved Ms. Silverman, and adjourned the case to January 5, 2018 for the assignment of new counsel. The court then assigned Anne D’Elia to represent the defendant.On January 5, 2018, Ms. D’Elia asked to be relieved based upon the defendant’s conduct. The court granted the request, and assigned a sixth attorney, Anthony Battisti, to represent the defendant. The case was then adjourned to January 29, 2018 to allow Mr. Battisti to obtain the defendant’s file and familiarize himself with the case. At the January 29, 2018 appearance, the court set a new schedule for pretrial motions. Two days later, on January 31, 2018, Mr. Battisti wrote the court asking to be relieved. In his letter, Mr. Battisti stated that the defendant had become angry at him for failing to return a message left on his answering machine and had resorted to “name-calling”. Mr. Battisti further stated that the defendant had lectured him on how he should be interacting with clients, and “all the things” he was “doing wrong” in the case. At the court’s request, however, Mr. Battisti agreed to continue his representation and file a pretrial omnibus motion on the defendant’s behalf. Mr. Battisti subsequently filed an omnibus motion, and the motion was decided by this court on May 4, 2018.At the next court appearance on May 9, 2018, Mr. Battisti renewed his request to be relieved based upon the defendant’s conduct, and the case was briefly adjourned to May 16, 2018. When the defendant returned to court on May 16, 2018, the court relieved Mr. Battisti and assigned a seventh attorney, Wyatt Gibbons, to represent the defendant. On that date, the court expressed warned the defendant that if he engaged in abusive conduct toward new counsel, it would grant counsel’s request to be relieved, and would not assign an eighth attorney. At the defendant’s request, Mr. Gibbons prepared a motion on the defendant’s behalf seeking dismissal of the indictment on speedy trial grounds, which was filed on July 23, 2018.When the defendant returned to court on September 25, 2018 for decision on the speedy trial motion, Mr. Gibbons asked the court to be relieved. He explained that a “miscommunication” between the defendant and himself had caused conflict. Mr. Gibbons further indicated that the defendant had sent him numerous emails, and that in some of these emails the defendant had accused him of being a liar. For the reasons which follow, the court grants Ms. Gibbons’ application, and will not assign an eighth attorney to this case.As noted, the Court of Appeals has recognized that egregious conduct by a defendant can result in a forfeiture of the fundamental right to counsel (see People v. Smith, 92 NY2d at 521). However, a deemed forfeiture of the right to counsel is a “last resort” (People v. Smith, 92 NY2d at 521, see People v. Bullock, 75 AD3d 1148, 1149 [4th Dept. 2010]). Forfeiture of the right to counsel has been found where a defendant engaged in a “persistent course of egregious conduct toward successive assigned counsel, consisting of threats and other abusive behavior” (People v. Cooper, 128 AD3d 1431, 1433 [4th Dept. 2015]; where a defendant threatened several attorneys and attacked one of them (People v. Wilkerson, 294 AD2d 298] [1st Dept. 2002]); and where a defendant engaged in a “persistent pattern of threatening, abusive, obstreperous, and uncooperative behavior with successive assigned counsel” (People v. Sloane, 262 AD2d 431, 432. [2nd Dept. 1999]). Federal courts have also found that the right to counsel may be forfeited by a defendant’s abusive behavior toward counsel (see Gilchrist v. O’Keefe, 260 F.3d 87 [2nd Cir. 2001] [affirming the denial of a petition for habeas corpus relief based on state trial court's refusal to appoint new counsel for the petitioner after he punched his appointed trial counsel in the head, causing that attorney to withdraw from representing him. Although this was a single incident, the state courts were not unreasonable in finding the petitioner's assault on his attorney and the events surrounding it to be sufficient justification for forfeiture of the right to counsel]; People v. McLeod, 53 F3d 322, 325 [11th Cir. 1995] [defendant forfeited his right to counsel where he was verbally abusive and threatened to harm him during a telephone conversion, and where the defendant had threatened, on at least four occasions, to sue counsel, and had attempted to persuade him to engage in unethical conduct]; Josey v. Poole, No. 07-CV647, 2009 WL 909599 [E.D.N.Y. April 3, 2009] [a defendant may forfeit his right to counsel through a pattern of verbal abuse, threats, and unjustified refusals to cooperate with court-appointed attorneys]).Here, as in Cooper, Wilkerson, and Sloane, the defendant has exhibited a pattern of abusive and uncooperative behavior toward successive assigned counsel. Such conduct persisted even after this court expressly warned the defendant, upon appointing Mr. Gibbons as his eighth attorney, that it would not assign new counsel in the event Mr. Gibbons were to be relieved. Although this court is mindful of the fundamental importance of the right to counsel, the defendant’s conduct in this case rises to the level warranted to support a forfeiture of that right. Accordingly, Mr. Gibbon’s application to be relieved is granted, and this court will not assign new counsel to represent the defendant.The clerk of the court is directed to serve a copy of this decision upon the defendant and upon the District Attorney.Kew Gardens, New YorkDated: October 3, 2018
