People v. Leslie, 86 N.Y.2d 186 (1995)

When a defendant is represented by a licensed attorney, the participation of a non-lawyer as co-counsel does not mandate per se reversal of a conviction unless the defendant can demonstrate prejudice as a result of the non-lawyer’s participation.

Summary

Defendant was convicted of grand larceny. It was later discovered that one of his two attorneys, Shamis, was not a licensed attorney. The New York Court of Appeals held that because defendant was at all times represented by a licensed attorney (Cartier-Giroux), the participation of the non-lawyer Shamis did not require per se reversal of the conviction. Instead, the defendant needed to demonstrate prejudice resulting from Shamis’s participation. The Court reasoned that the active participation of a licensed attorney generally suffices to protect a defendant’s rights.

Facts

Defendant was charged with robbery, assault, and related crimes in a 10-count indictment. At his bench trial, he was represented by Lisa Cartier-Giroux and Diane Shamis, both employed by the Bronx Defenders. After the defendant was convicted of grand larceny in the fourth degree, it was discovered that Shamis had never been licensed to practice law, despite holding herself out as an attorney for six years. Shamis had graduated from law school and passed the bar exam but never completed the character and fitness review required for admission.

Procedural History

Following his conviction, the defendant appealed, arguing that Shamis’s lack of a law license required per se reversal. The Appellate Division affirmed the conviction, finding that Cartier-Giroux acted as lead counsel and Shamis’s participation was minimal. The New York Court of Appeals granted leave to appeal.

Issue(s)

Whether a conviction must be automatically reversed when a defendant is represented by a licensed attorney, but a non-lawyer also participates in the defense as co-counsel?

Holding

No, because when a defendant is represented by a licensed attorney, the participation of a non-lawyer as co-counsel does not mandate per se reversal of a conviction unless the defendant can demonstrate prejudice resulting from the non-lawyer’s participation.

Court’s Reasoning

The Court of Appeals distinguished this case from People v. Felder, where the defendant was represented *only* by a layperson. The Court emphasized that a defendant is entitled to effective assistance of counsel, which generally means a licensed attorney. However, where a licensed attorney actively participates throughout the trial, their presence should generally ensure the defendant’s rights are protected. The Court noted that other jurisdictions that have addressed this issue have similarly held that a showing of prejudice is required for reversal when a licensed attorney is also representing the defendant.

The Court reviewed the record and determined that Cartier-Giroux acted as lead counsel. The Court noted that “Cartier-Giroux filed and subscribed all pretrial defense motions and discovery demands; argued against the People’s applications made pursuant to People v Molineux…and in support of defendant’s application under People v Betts…signed the waiver of defendant’s right to a jury trial; cross-examined the prosecution’s witness; negotiated the stipulation by which all defense exhibits were introduced into evidence; argued in support of defendant’s request for an adverse inference; made most of the objections and legal arguments at trial; delivered defendant’s closing argument; made a bail application on defendant’s behalf after the guilty verdict; moved to set aside the verdict; and represented defendant at sentencing.”

In contrast, Shamis’s participation was minimal. The Court highlighted that Shamis delivered the opening statement and conducted a brief direct examination of a defense witness. “At each of these stages, Cartier-Giroux was present and available to ensure that defendant received the effective assistance of counsel.” Moreover, the defendant failed to point to any errors committed by Shamis during her limited participation.

The Court also cited People v. Kieser, 79 N.Y.2d 936, 937 (1992), explaining that “not every defect in an individual’s ability to practice law renders his representation a deprivation of th[e] right [to counsel]. Thus, courts have distinguished between those defects that are ‘technical’ . . . and those that are ‘serious and substantive.’”