This memorandum is uncorrected and subject to revision before

publication in the New York Reports.

-----------------------------------------------------------------

No. 110 

The People &c.,

 Respondent,

 v.

Kareem Washington, 

 Appellant.

Kami Lizarraga, for appellant. 

Marc I. Eida, for respondent.

MEMORANDUM:

The order of the Appellate Division should be affirmed.

Defendant Kareem Washington was arrested in 2008 in

connection with a gunpoint robbery that occurred in the Bronx. 

Prior to trial, he filed a pro se motion seeking new defense

counsel; defendant's application included a form "Affidavit in

- 1 -
- 2 - No. 110

Support of Motion for Reassignment of Counsel," in which he

circled every one of the 10 possible grounds of ineffectiveness

listed. Defendant also included a "Statement of Facts," in which

he alleged that his attorney "failed to produce . . . discovery

materials" and "denied to formulate an Omnibus motion to contest

. . . lack of identification, or to preserve requested pre-trial

hearings." Defendant further asserted that his attorney ignored

his requests to counter "the lack of identification and the

negative results of the DNA test," and "refused to take heed to

defendant's factual version of events, and to further discuss or

develop possible defense strategies beneficial to him." The

motion papers were postmarked May 14, 2011, about six weeks

before trial, but defendant mailed the materials to "Part 80,"

and the trial was moved to Part 13. Although it is not clear

from the record whether defense counsel or the District Attorney

actually received the papers prior to trial, defendant did not

mention the motion to Supreme Court or counsel before or during

trial.

On July 7, 2011, a jury convicted defendant of firstdegree robbery (Penal Law § 160.15). At the sentencing hearing

on July 28, 2011, the judge advised the People and defense

counsel that he had received the pro se motion four days after

the guilty verdict. Supreme Court asked defense counsel if he

wanted to comment on the motion, to which counsel responded that

he "d[id]n't want to put [him]self in opposition to [defendant]." 

- 2 -
- 3 - No. 110

Counsel added that certain items in the motion were "incorrect,"

but he did not elaborate.

The judge then asked defendant why he did not call

attention to the motion or any of his complaints. Defendant

claimed that he had tried to talk with the judge about the motion

before trial, but a court officer prevented him. The judge

expressed disbelief about this explanation and noted that, in any

event, the defendant "had many, many, many, many other moments

after that" when he and the judge "spoke[] person to person and

[defendant] never raised this." On the merits, the judge viewed

defendant's allegations skeptically, "based on [his] observations

during the course of the trial." Specifically, the judge

addressed defendant as follows:

"You say things in here that are not true. 

You say that you had no discovery. It was

evident to me that you had discovery. It was

evident to me you had all the discovery. You

complained about negative DNA results. The

testimony in the trial is that there [were]

positive DNA results. You complained that

[your attorney] didn't discuss strategy with

you. I know he discussed strategy with you. 

I don't see anything in here based on my

observations during the course of the trial

that any of this is true." 

The judge then invited defendant to air his complaints

of ineffective assistance. Defendant asserted that defense

counsel "never did discuss any strategy" with him before trial,

despite defendant's numerous requests. Defendant also alleged

that counsel failed to meet with him before trial, except for a

"seven to eight minute[]" video conference a week or two

- 3 -
- 4 - No. 110

beforehand, during which he and his attorney didn't really

"connect." Apart from this video conference, defendant

complained, he "never really had a chance to discuss anything

with [counsel] prior to being in court." Finally, defendant

alleged that his attorney provided him only "some of the

discovery" that he had sought. Defendant eventually admitted,

however, that he did receive the discovery he requested. 

The judge next asked defense counsel to respond to

defendant's statements, and counsel explained what he had done

prior to trial; specifically, he

"recall[ed] speaking to [defendant] on the

phone. The video conference was, in fact, we

had one, it was longer than that. The only

problem was they had delivered [defendant]

late to the conference area and I think it

went for about fifteen minutes or so. From

the outset, I think it's pretty clear that

strategy here was to indicate to the jury that

the identification was incorrect. We

challenged identification here during the

hearing before the trial, cross examination

dealt with identification. I think that was

clearly what the strategy was according to

what [defendant] was dealing with." 

The judge also asked defense counsel if he discussed trial

strategy with his client and if he provided defendant with

discovery. Counsel stated that he was "sure" he discussed

strategy with defendant before trial, and that he gave defendant

"a good deal of discovery," "everything I had up until the

beginning of trial." 

Supreme Court summarized that while defendant claimed

that his attorney "refused to take heed to the defendant's

- 4 -
- 5 - No. 110

factual version of events and to further discuss or develop

possible strategies beneficial to the defendant, [defense

counsel] says that happened and the defense of lack of

identification was presented at the trial." The judge also noted

that defense counsel stated that he had given defendant all the

discovery materials he possessed, once he had them. The judge

commented that the motion was untimely and, in any event, "from

what [he] heard from [defendant] and [counsel], [he] would not

have granted the motion" because defendant had not been truthful

about what his attorney "did and did not do," and he "accept[ed]"

defense counsel's version of events. Indeed, the judge added, 

he had observed that defendant "c[a]me into court every day with

discovery in [his] hands, consulted with counsel during jury

selection and trial, [and] decided not to testify after

conferring with counsel."

Based on his personal observations and inquiry, the

judge denied defendant's motion and sentenced him as a persistent

felony offender to an indeterminate prison term of twenty-two

years to life. Defendant appealed, and the Appellate Division

affirmed (115 AD3d 451 [1st Dept 2014]). The court determined

that the verdict was not against the weight of the evidence and,

relying on People v Nelson (7 NY3d 883 [2006]), that defendant

was not deprived of the effective assistance of conflict-free

counsel when his attorney explained the actions he took on his

client's behalf. A Judge of this Court granted defendant leave

- 5 -
- 6 - No. 110

to appeal (24 NY3d 965 [2014]), and we now affirm.

"The right of an indigent criminal defendant to the

services of a court-appointed lawyer does not encompass a right

to appointment of successive lawyers at defendant's option"

(People v Sides, 75 NY2d 822, 824 [1990]). A defendant may be

entitled to new counsel, however, "upon showing good cause for a

substitution, such as a conflict of interest or other

irreconcilable conflict with counsel" (id. [internal quotation

marks omitted]). Here, defendant claims that he was entitled to

new defense counsel because counsel's responses to the

allegations of ineffectiveness created an actual conflict of

interest.

Although an attorney is not obligated to comment on a

client's pro se motions or arguments, he may address allegations

of ineffectiveness "when asked to by the court" and "should be

afforded the opportunity to explain his performance" (People v

Mitchell, 21 NY3d 964, 967 [2012]; Nelson, 7 NY3d at 884).

We have held that counsel takes a position adverse to his client

when stating that the defendant's motion lacks merit (Mitchell,

21 NY3d at 966), or that the defendant, who is challenging the

voluntariness of his guilty plea, "made a knowing plea . . .

[that] was in his best interest" (People v Deliser, decided with

Mitchell, 21 NY3d at 966). Conversely, we have held that counsel

does not create an actual conflict merely by "outlin[ing] his

efforts on his client's behalf" (People v Nelson, 27 AD3d 287,

- 6 -
- 7 - No. 110

287 [1st Dept 2006], affd Nelson, 7 NY3d at 884) and "defend[ing]

his performance" (Nelson, 7 NY3d at 884). 

Applying these settled principles to the facts in this

case, we conclude that defense counsel's comments in response to

the judge's questions did not establish an actual conflict of

interest. Defense counsel did not suggest that his client's

claims lacked merit. Rather, he informed the judge when he met

with defendant and for how long, what they discussed, what the

defense strategy was at trial and what discovery he gave or did

not give to defendant. Thus, he never strayed beyond a factual

explanation of his efforts on his client's behalf.

* * * * * * * * * * * * * * * * *

Order affirmed, in a memorandum. Chief Judge Lippman and Judges

Read, Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur.

Decided June 25, 2015

- 7 -