
    The People of the State of New York, Respondent, v Jose Tineo, Appellant.
    Argued February 15, 1985;
    decided April 4, 1985
    
      POINTS OF COUNSEL
    
      Richard A. Greenberg and David S. Zapp for appellant.
    Disqualification of retained counsel on the eve of trial of serious criminal charges, based only on a “possibility” of conflict resulting from counsel’s previous representation of a prosecution witness, violates a defendant’s right to counsel guaranteed by the New York and Federal Constitutions, or at least constitutes an abuse of discretion. (People v Arroyave, 49 NY2d 264; Matter of Abrams [John Anonymous], 62 NY2d 183; United States v Cunningham, 672 F2d 1064; United States v Armedo-Sarmiento, 524 F2d 591; United States v James, 708 F2d 40; People v Hall, 46 NY2d 873, 444 US 848; Board of Educ. v Nyquist, 590 F2d 1241; In re Yarn Processing Patent Validity Litig. v Leesona Corp., 530 F2d 83; Island Pa-Vin Corp. v Klinger, 47 AD2d 627.)
    
      Robert M. Morgenthau, District Attorney (Susan Corkery and Norman Barclay of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a Reasonable doubt. II. The trial court properly granted defense counsel’s motion to be disqualified on the ground that he had previously represented the People’s confidential informant, and correctly rejected the lawyer’s subsequent request to be reinstated. (Matter of Abrams [John Anonymous], 62 NY2d 183; United States v James, 708 F2d 40; People v Medina, 44 NY2d 199; United States v Fisher, 563 F Supp 1369; United States v Ostrer, 597 F2d 337; People v Hall, 46 NY2d 873, 444 US 848; People v Gomberg, 38 NY2d 307; People v Arroyave, 49 NY2d 264; United States v Rogers, 471 F Supp 847, affd sub nom. United States v Raife, 607 F2d 1000; People v De Chiaro, 48 AD2d 54, 423 US 894.)
   OPINION OF THE COURT

Jasen, J.

We are asked on this appeal whether the trial court erred in granting defense counsel’s motion to be relieved on the ground that he had previously represented the People’s confidential informant, and rejecting counsel’s subsequent request, three days later, to be reinstated.

This criminal prosecution arose from the participation of defendant, Jose Tineo, in a scheme to sell heroin to an undercover police officer during October and early November of 1978. Defendant was arrested on November 16, 1978, and the indictment, filed on November 22, 1978, charged defendant and a coconspirator with two counts of criminal sale of a controlled substance in the first degree, one count each of conspiracy in the second degree and criminal sale of a controlled substance in the second and third degrees, and six related counts of criminal possession of a controlled substance in various degrees.

On January 4, 1980, during a pretrial hearing which was to precede the selection of a jury, defendant sought to discharge his retained attorney, Kenneth Linn. Defendant contended that Linn was “not cooperating” and had “done nothing” for him. The court denied the motion, noting that defendant had not previously voiced dissatisfaction with counsel, defense counsel was capable and had thoroughly prepared for trial, and the motion, made on the eve of trial, was a dilatory tactic. On the morning of January 7, 1980, Linn informed the court that a confidential informant would testify at trial on behalf of the People and that Linn had previously represented the informant. Linn advised the court that there could very easily be a conflict of interest, and requested that the court relieve him as defense counsel. Upon Linn’s own application, the court “reluctantly” relieved Linn. Although present in court, defendant did not object to the removal of his retained lawyer.

On January 10,1980, Frederick Seligman appeared as defendant’s assigned lawyer, and asserted that he was “ready, willing, and able to proceed” provided that he secured a continuance of one or two weeks. Linn and Seligman informed the court of defendant’s objection to representation by Seligman, and Linn informed the court that he had reassessed his earlier position and now sought to be reinstated as defense counsel. Linn, who never unequivocally stated that he had no confidential information derived from his prior relationship with the informant, asserted that any potential conflict of interest resulting from his previous representation of the confidential informant could be avoided by limiting his cross-examination of the informant to matters contained in the informant’s criminal record (“rap sheet”). The court, in response to Seligman, noted that defendant had made an application on the previous Friday to have Linn removed or relieved. The prosecutor objected to reinstatement of Linn based on his view that “it’s a clear conflict of interest for an attorney to be cross-examining a former client while he is representing him as an attorney.” The record does not reveal whether or not the confidential informant had a view as to Linn’s removal.

In response to Seligman and Linn, the court observed that “trial delay” would result from removal, the reason for relieving him must be a “very important issue”, potential prejudice could result if “Linn knew something about the confidential informant that he learned from his relationship as an attorney”, and the court and parties had advance knowledge of the potential conflict. Defendant supported Linn’s application for reinstatement, stating that he was no longer dissatisfied with his representation and thought that Linn was “more familiar with the case” than Seligman, further delay would be undesirable, and Linn had already been paid for his services. The court adhered to its earlier decision relieving Linn, but permitted Linn to assist with the defense, if Linn wished, albeit in a position other than attorney of record.

Defendant, dissatisfied with assigned counsel, represented himself at certain pretrial hearings and at trial. Assigned counsel Seligman, acting as legal advisor to defendant, also participated in the proceedings. Supreme Court, New York County, convicted defendant, upon a jury verdict, of criminal sale of a controlled substance in the first degree and lesser related offenses, and sentenced him to concurrent terms of imprisonment with a maximum of life imprisonment and a minimum of 15 years imprisonment. The Appellate Division, First Department, affirmed the judgment, without opinion, and leave to appeal was granted by this court. For the reasons that follow, the order of the Appellate Division should be affirmed.

On appeal to this court, defendant claims that the trial court’s order relieving his retained attorney was error. Notably, he makes no argument that he was deprived of effective assistance of counsel at trial, only that he was deprived of counsel of his choice. This alleged error is not preserved for our review as defendant did not voice any objection to his attorney’s application to be relieved as defense counsel. The only question properly before us is whether the trial court correctly denied, in its discretion, defendant’s request to reinstate his former counsel to defend him.

There can be little doubt that the right to counsel, as guaranteed by both the State and Federal Constitutions (NY Const, art I, § 6; US Const 6th amend) incorporates the right of a criminal defendant to representation by an attorney of his own choosing (People v Arroyave, 49 NY2d 264, 270; Chandler v Fretag, 348 US 3, 9) and that judicial restriction or governmental intrusion upon the exercise of this fundamental right will be carefully scrutinized (United States v Hobson, 672 F2d 825; Matter of Abrams [John Anonymous], 62 NY2d 183, 196). The constitutional contours of an individual’s right to select an attorney of his own choice, prior to the commencement of a criminal proceeding, have been recently explored in Matter of Abrams (John Anonymous) (supra). In that case, we held that until defendants are charged with a crime, they are free, absent a clear showing of extraordinary circumstances or overriding public necessity, to employ the attorney or attorneys of their choice without judicial interference. (Matter of Abrams [John Anonymous], 62 NY2d 183, 200, supra.) The right to counsel of choice is not diminished once the criminal action has been commenced. However, when the case is pending in the courts, a request to change counsel previously retained or assigned must be addressed to the Trial Judge’s discretion to insure that the defendant’s purported exercise of the right does not serve to delay or obstruct the criminal proceedings. (People v Arroyave, 49 NY2d 264, supra, at p 271.) That discretion is especially broad when the defendant’s actions with respect to counsel place the court in the dilemma of having to choose between undesirable alternatives, either one of which would theoretically provide the defendant with a basis for appellate review.

Under the circumstances present in this case, it cannot be said, as a matter of law, that the trial court abused its discretion upon granting defense counsel’s motion to be relieved or denying the said counsel’s subsequent motion for reinstatement. Linn’s own motion to be relieved was made on the eve of trial, supported by his own assertion that a conflict of interest could very easily arise, and not contested by defendant. Under these circumstances, the trial court did not err, as a matter of law, in granting Linn’s application to be relieved. Nor did the trial court err in denying Linn’s motion for reinstatement. It is no abuse of discretion for a trial court, acting on the eve of trial, to consider the interests of judicial economy, the integrity of the criminal process, and continuous vacillation of both defendant and counsel, in denying a motion for reinstatement. (People v Arroyave, 49 NY2d 264, 270, 273, supra.)

Accordingly, the order of the Appellate Division should be affirmed.

Kaye, J.

(dissenting). The majority gives insufficient weight to defendant’s right to counsel of his choice, and strikes an improper balance between this right and perceived countervailing considerations.

Embraced within the right to counsel, guaranteed by both the Federal and State Constitutions, is the right of a criminal defendant to be represented by counsel of his own choosing (People v Arroyave, 49 NY2d 264, 270). This right is not limited to the period before trial begins, so long as the exercise of defendant’s right is not employed for delay (id., at p 271). While the right is not absolute, restrictions must be carefully scrutinized (Matter of Abrams [John Anonymous], 62 NY2d 183,196). This judicial reluctance to interfere with choice of counsel serves many vital interests, among them fostering an atmosphere of trust which facilitates the free communication necessary for effective representation (People v Arroyave, 49 NY2d 264, 270, supra). Accordingly, as this court has recently held, an individual’s right to select counsel “will not yield unless confronted with some overriding competing public interest” (Matter of Abrams [John Anonymous], 62 NY2d 183, 196, supra).

The question presented is whether any overriding competing public interest was shown supporting the denial of defendant’s right to counsel of his choice.

Counsel’s prior representation of a prosecution witness does not on this record support the denial. Faced with similar questions, this court and others have balanced defendant’s constitutional right to counsel against the prosecution’s legitimate interest in protecting its witnesses from unfair tactics (see, e.g., People v Hall, 46 NY2d 873, cert denied 444 US 848; United States v James, 708 F2d 40; United States v Cunningham, 672 F2d 1064, cert denied_US_, 104 S Ct 2154; United States v Armedo-Sarmiento, 524 F2d 591). An important consideration in the balance is the effect of the prior representation on the witness’s willingness to testify. In Cunningham, for instance, the defendant’s attorney had previously represented a prosecution witness and the prosecutor moved to disqualify him. The witness, while refusing to waive the attorney-client privilege, did not object to the participation of defense counsel. The defendant having waived his right to an attorney without the conflict of interest, the court held that his interest in representation by counsel of his choice outweighed the prosecution’s interest in disqualifying his attorney (see also, United States v Armedo-Sarmiento, 524 F2d 591, supra). On the other hand, in Hall, defense counsel discovered that he had previously represented an important prosecution witness and joined the People’s disqualification motion. The witness backed away from identifying defendant when he learned of counsel’s representation of defendant. Noting that courts should be hesitant to interfere in an established attorney-client relationship even where the attorney joins the motion, we nonetheless found disqualification proper under those circumstances (see also, United States v James, 708 F2d 40, supra).

Here, there was no indication that the witness in any way objected to cross-examination by Linn, and no basis appears in the record to conclude that the witness would have been inhibited in testifying. The sole ground for the prosecutor’s objection, accepted by the trial court, was a possible conflict inherent in the situation. However, as counsel informed the court — and no one questioned — he had no access to information beyond that present in the witness’s record of arrests and convictions. The court took no steps to determine if there was indeed any conflict, or even a realistic potential for conflict that could delay a trial. The information before the court did not establish a conflict requiring disqualification and did not support denial of defendant’s right to counsel of his choice.

The trial court rested its decision only on the perceived conflict. But even if the other considerations now identified by this court are taken into account, the result is unchanged.

The majority’s concern for delay or the interest of judicial economy does not in this case support the denial of defendant’s right. As distinct from Arroyave, the question here arose not during trial but “on the eve of trial.” When the court appointed Linn’s replacement, an attorney unfamiliar with the case, defendant had a right to retain a different attorney, so long as the exercise of that right was not employed for delay (People v Arroyave, 49 NY2d 264, 271, supra). Indeed, as the court recognized, had defendant at that time selected any attorney other than Linn, the substitution would have been permitted. Since the reinstatement of Linn would have enabled the trial to go forward immediately, whereas denial of the motion and any substitution of counsel for defendant required postponement of the trial date to permit new counsel to learn the case, the interest of judicial economy was hardly served, and was in fact disserved, by denial of the motion.

Nor does the “continuous vacillation of both defendant and counsel” referred to by the majority support the denial of defendant’s right to counsel of his choice. In the brief few days between January 4 and 10, defendant changed his mind once and counsel changed his mind once, and both gave their reasons on the record. Defendant’s change of mind regarding Linn does not justify the denial of his right to counsel of his choice, and the court properly did not base its decision on that ground. Facing a life sentence, defendant was justifiably concerned with obtaining adequate representation. A defendant incarcerated for months pending trial and having seen his attorney infrequently might feel neglected and complain to the court about counsel’s performance even if the attorney was diligently preparing for trial, and might understandably change his mind after conferring with counsel and learning of his efforts. Defendant’s failure to object on Monday, January 7, to counsel’s request to be relieved demonstrates no more than a failure to appreciate the ramifications of a change so late in the proceedings. As defendant personally explained to the court on January 10, he and Linn had straightened out their prior misunderstanding, he had paid Linn for his representation, and he wanted him to remain because of his familiarity with the case. Similarly, Linn explained that, having further reflected and having conferred with other defense attorneys, it was his belief that he could and should stay on the case. This was not a picture of “continuous vacillation” or manipulation of the court, and the change of mind in the brief period was wholly without consequence. Indeed, the court rested its decision on what it believed to be an ethical conflict, not any “vacillation” of defendant or his counsel.

The right to counsel of choice is not diminished once the criminal action has been commenced (majority opn, at p 536). The measure of discretion permitted a trial court does not reduce its responsibility to make appropriate inquiry so that, in a choice between difficult or undesirable alternatives (id.), defendant’s rights will be protected and the risk of reversible error will be mitigated. Here, defendant’s right to counsel of his choice was denied on nothing more than a theoretical possibility of conflict. The proceedings would not have been delayed if counsel had been reinstated. On this record, no overriding competing public interest has been shown justifying the denial of defendant’s right to counsel of his choice. I would therefore reverse the conviction and order a new trial.

Chief Judge Wachtler and Judges Simons and Lynch* concur with Judge Jasen; Judge Kaye dissents and votes to reverse in a - separate opinion in which Judge Meyer concurs; Judge Alexander taking no part.

Order affirmed. 
      
      . The court relieved Linn in the following manner:
      “the court: * * * I learned this morning that there is a confidential informant in the case and I also learned that Mr. Linn, the attorney for Mr. Tineo, has previously represented, as an attorney, the confidential informant; and, since the confidential informant is going to testify in this case, as I am advised, there could very easily be a conflict of interest, and, under those circumstances, Mr. Linn, on your own application, I’m going to relieve you.
      “mr. linn: Yes.
      “the court: I do it reluctantly because it means postponing the case. However, I’m going to put the case down for Thursday, Mr. Linn.
      “mr. linn: Yes, sir.”
     
      
      . While the confidential informant’s case was still pending, Linn no longer represented the informant at the time of this pretrial hearing.
     
      
      . This observation, of course, represents an appropriate concern for the trial delay that would necessarily arise if the conflict were to cause disqualification of counsel during the trial.
     
      
      . In view of the fact that no question of effective assistance of counsel has been raised, the dissent’s assertion that “defendant was justifiably concerned with obtaining adequate representation” is superfluous.
     
      
      . This court’s decision in Matter of Abrams (John Anonymous) (62 NY2d 183) was expressly limited to interference with an individual’s choice of counsel before a criminal proceeding has been commenced. (Matter of Abrams [John Anonymous], supra, at p 197, n 5.)
     
      
      . The sentiments expressed by the dissent underscore the impropriety of displacing a trial court’s properly founded exercise of discretion. For example, the dissent questions the basis of the trial court’s decision to relieve Linn. Such concern is misplaced since Linn, the only individual with actual knowledge of the prejudicial impact that the prior representation of the confidential informant could have upon the instant proceeding, represented to the trial court that a conflict of interest could very easily arise. To justify defendant’s original decision to discharge Linn, the dissent hypothesizes that under the circumstances, defendant “might feel neglected” and his change of mind to retain Linn was “understandable”. It is emphatically not the function of this court to investigate the feelings or state of mind of a defendant in an effort to uncover conceivable rationalizations for his conduct. Such considerations are to be weighed by the trier of fact.
     
      
      . While no question of effective assistance is raised, attention to the facts of the case, as well as defendant’s situation, can hardly be dismissed as “superfluous” or otherwise disparaged (see, majority opn, nn 4, 5). So long as this court chooses to consider defendant’s initial complaint and change of mind regarding Linn’s representation as among the “circumstances” supporting the disqualification, it is relevant and entirely appropriate to consider the explanations.
     
      
      . While defendant on January 7 made no objection to his attorney’s application to be relieved, the issue is without doubt preserved for our review. On January 7, defendant, in effect left without counsel by virtue of his attorney’s application to withdraw, was never asked his view of the application. On the very next return date, only three days later, defendant voiced his objection, and the precise issue was fully ventilated.
     
      
       Designated pursuant to NY Constitution, article VI, § 2.
     