By: Daily Record Staff//March 23, 2015
By: Daily Record Staff//March 23, 2015//
A new trial is being granted for a Rochester man who was convicted of attempted second-degree murder in a 2008 shooting in the city.
The Appellate Division, Fourth Department, in a divided decision issued Friday, reversed the conviction of Jimmy W. Gibson, 31, finding the trial judge should have let Gibson change his assigned counsel.
Gibson had been convicted of attempted murder and first-degree assault. It is alleged he shot 32-year-old Dax Samuels in the head and chest on April 13, 2008, in a Rochester apartment.
“We’re pleased with the outcome of the appeal,” said Drew R. DuBrin, an assistant public defender in the Monroe County Public Defender’s Office who represented Gibson on appeal. “We’re pleased that the court upheld our argument that when a court is faced with a serious complaint about assigned counsel, the court has an obligation to not only inquire into the serious complaint, but to exercise sound discretion as to whether or not to replace counsel.”
He added that the obligations are necessary to protect the accused’s right to effective assistance of counsel.
Robert Shoemaker, an assist district attorney with the Monroe County District Attorney’s Office, prosecuted the matter on appeal.
“We respectfully disagree with the majority, but do agree with the dissent,” Shoemaker said. noting consideration is being given to seek leave to the Court of Appeals.
DuBrin said Samuels paid a surprise visit to his former girlfriend’s apartment about 2 a.m. to get a DVD. He said Gibson, her boyfriend at the time, was accused of shooting Samuels, who survived and was able to testify at Gibson’s trial.
DuBrin said Gibson claimed someone else was in the apartment and shot Samuels, who is now 39 years old.
A month before his trial, according to the decision, Gibson sent a letter to the court, asking for new counsel. Two weeks later, his defense counsel, Michael Schmitt, asked to withdraw, saying he could not effectively communicate with Gibson and could no longer represent him.
Gibson appeared in court 10 days before the trial, specifically outlining his grievances, which included an inability to communicate with his attorney. Schmitt said Gibson was “rather antagonistic” and that there was an irreparable breakdown in the attorney-client relationship. He also noted his request was a “drastic measure” and he had never asked to withdraw from a case before.
Supreme Court Justice Francis A. Affronti denied both motions, finding a lack of communication was not good cause for appointment of substitute counsel, “[e]specially when there may be some indication that lack of communication was initiated or promoted by the defendant, as opposed to defense counsel.”
The Appellate Division, in People v. Gibson (2015 NY Slip Op 02236), found Justice Affronti erred in deciding a communication breakdown was not a good cause for substituting counsel.
“Although the mere complaint by a defendant that communications have broken down between him and his lawyer is not, by itself, good cause for a change in counsel, where a complete breakdown has been established, substitution is required,” the majority wrote.
The majority consisted of Justice John V. Centra, presiding, and Justices Erin M. Peradotto, Stephen K. Lindley and Rose H. Sconiers.
They also found the court erred in suggesting the breakdown was initiated by Gibson, saying it resulted from his legitimate concerns about not being informed if there were any plea offers, what defense strategy was planned, motion papers he repeatedly asked for that were never provided, and that counsel met with him sporadically and refused to take phone calls from his wife or call her back.
“My position is that I zealously represented my client,” Schmitt said. “I met with him. Although I disagree with his assertion that I didn’t meet with him or provide those documents to him, the Appellate Division did not rule that I in any way did not provide a good or appropriate defense for him. If Mr. Gibson’s position was that I wasn’t being an advocate for him, there was no issue raised in the appeal that I did not effectively represent him or that I created any errors at the trial. Nor was the decision critical of my performance at trial.”
Justice Brian F. DeJoseph dissented, saying Supreme Court did not abuse its discretion in denying a request for new counsel, finding there was no good cause; that Gibson based his allegation of a communication breakdown mainly on complaints of infrequent contact and this his other complaints did not “suggest a serious possibility of good cause for substitution.”
The majority countered the cited cases referred to “vague” and “conclusory” assertions of infrequent contact.
“Here, in contrast, defendant’s complaints of infrequent contact were specific and supported by the record,” the majority wrote. “In any event, defendant’s request for substitution of counsel was not based solely on complaints of infrequent contact with his attorney; as noted, the motion was based primarily on the undisputed breakdown in communication between defendant and his attorney.”
Gibson, who was sentenced to 25 years in prison, is housed at the Elmira Correctional Facility in Chemung County.