Define That Term #203
The New York Minute

Was the Sixth Amendment Violated Where Court Failed to Relieve Assigned Counsel and Substitute Pro Bono Attorney?

In People v Mack, 2007 NY Slip Op 02824, the defendant was initially assigned counsel for pending felony murder in the second degree and robbery in the first degree.  On May 23, 2003, the defendant entered a guilty plea while still represented by the Public Defender's Office.  Compentency exams were then ordered and a competency hearing was scheduled for December 11, 2003.

However, on October 10, 2003, before the competency exam had been ordered, the defendant executed a Consent to Change Attorney, requesting that his assigned appellate counsel, who was taking on the case on pro bono, be substituted as counsel of record.  A Notice of Appearance was filed with the trial court by the defendant's chosen attorney that same day. 

Nevertheless, the trial court judge did not allow the defendant  to change counsel until May 6, 2004, nearly 6 months later, after he'd been declared competent to proceed.  In the interim, his chosen attorney was present at subsequent proceedings and provided assistance to his assigned counsel. 

Shortly after she was substituted, his new counsel moved to vacate his plea, which the trial court denied prior to imposing sentence.

The Third Department concluded that the defendant was denied his Sixth Amendment right to counsel of his choosing:

Defendants have the right to choose who will represent them as long as they can afford to hire the attorney or the attorney is willing to represent them pro bono, provided the attorney is qualified and able to provide conflict-free representation...

Here, defendant signed a change of attorney form in October 2003 and his retained attorney simultaneously filed a notice of appearance, putting County Court on notice that he no longer required or wanted representation by the previously assigned counsel. No concern was raised on the record regarding retained counsel's qualifications, willingness to undertake defendant's representation, or ability to provide conflict-free representation...

(T)he fact that his competency had been called into question did not provide sufficient, cognizable grounds to deny (or delay) his constitutional right to promptly substitute retained counsel of his choice.

(W)e...restore defendant to the postplea status he occupied in October 2003 prior to the competency hearing or motions to, among other things, vacate the plea.

A victory for the defense, but depending on the temperament of the trial judge who was overturned on appeal, quite possibly a meaningless one.  It would be interesting to learn whether the substitution of new counsel had an effect upon the end result in this case, given the defendant's post-plea status and prior denial of the motion to withdraw his plea.  But, then again, perhaps the new counsel will have better luck at the competency hearing.  You never know...


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Jennifer Stergion

I am a third-year law student at UB Law (hereinafter, "UBLAW!"). My mother was the attorney (the pro bono attorney) in this case. If you are interested in following it, her contact information is:


I am the attorney Susan BetzJitomir, for those who are interested, there will be no new competency hearing as Mr. Mack has been in treatment for years and is competent now. We are fighting the issue as of April 2008, of whether he was capable of entering a knowing intelligent and voluntary plea in 2003, with the same Judge, who is very professional.

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