By Daniel Wiessner
ALBANY, N.Y., Nov 19 (Reuters) - A man convicted of selling
drugs has won a new trial, after an appeals court found that the
trial judge failed to heed "serious complaints" related to the
defendant's court-appointed attorney.
A unanimous panel of the Appellate Division, Fourth
Department, found that Oneida County Court Judge Michael Dwyer
violated James Beard's right to counsel by failing to conduct an
inquiry after Beard said he was uncomfortable with his attorney,
whom he met only shortly before his trial began.
"Indeed, the court cut defendant off, admonished him not to
interrupt, and advised him that, unless he could afford to hire
his own attorney, there would be no substitution of counsel,"
the court wrote in vacating the conviction and ordering the new
Beard, 36, in 2010 was arrested and charged with two counts
of third-degree criminal sale of a controlled substance and two
counts of third-degree possession. According to the court, an
assistant public defender met with Beard and reviewed evidence,
including surveillance videos, and filed and argued an omnibus
motion on Beard's behalf.
At a subsequent court date, Beard was assigned a different
attorney, who was not named in the decision. Prior to jury
selection, Beard told the judge that he was uncomfortable
proceeding to trial because he had never met the lawyer and had
not been informed that his trial would commence that day.
The judge interrupted Beard, the Fourth Department said, and
held a conference with the defense attorney and the prosecutor.
He then announced that the district attorney had flown a witness
to New York from Texas at great expense and that the trial would
commence. He told Beard that "the public defender's office ...
has designated your trial attorney and so (he) will be your
trial attorney," the Fourth Department said.
Beard was ultimately convicted and sentenced to five years.
The Fourth Department on Friday found that Beard's concerns were
serious enough to warrant a further inquiry and ordered a new
"While the court might well have found upon limited inquiry
that (Beard's) complaints regarding his assigned counsel were
without genuine basis ... it could not so summarily dismiss his
complaints," the court wrote.
The panel included Justices Eugene Fahey, Erin Peradotto,
Edward Carni, Gerald Whalen and Salvatore Martoche.
Oneida County Assistant District Attorney Steven Cox said
his office has not decided whether to pursue a new trial. He
noted that the court found the evidence against Beard sufficient
to secure a conviction.
Beard's appellate attorney, Bradley Keem, said they were
"happy" with the decision.
Neither Cox nor Keem knew the identity of the trial
The case is People v. James Beard, New York State Supreme
Court, Appellate Division, Fourth Department, No. KA 10-01864.
For the prosecution: Oneida County Assistant District
Attorney Steven Cox.
For Beard: Bradley Keem.
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