People v. Jacobs

OPINION OF THE COURT

Chief Judge Kaye.

In People v Felder (47 NY2d 287, 291 [1979]), this Court held that when “a defendant in a criminal proceeding has unwittingly been represented by a layman masquerading as an attorney but in fact not licensed to practice law, his conviction must be set aside without regard to whether he was individually prejudiced by such representation.” We decline to extend this rule of per se reversal to every situation, such as that before us, in which a nonlawyer participates in a trial as cocounsel with an admitted attorney.

Defendant was charged in a 10-count indictment with robbery, assault and related crimes. At his bench trial, he was represented by two persons employed by the Bronx Defenders, Lisa Cartier-Giroux and Diane Shamis. Defendant was ultimately acquitted of nine of the charges against him, and convicted of the single count of grand larceny in the fourth degree.

After defendant’s conviction, it was discovered that Shamis, unbeknownst to her employer and despite having held herself *190out for six years as an admitted attorney, had never been licensed to practice law. Although Shamis had graduated from an accredited law school and passed both the bar examination and the multistate professional responsibility examination, she never appeared before the Committee on Character and Fitness as required for her ultimate admission to the New York bar (see Judiciary Law §§ 460, 478; 22 NYCRR 520.12).1

A defendant is entitled to the effective assistance of counsel (see US Const Amend VI; NY Const, art I, § 6). And because counsel “can mean nothing less than a licensed attorney at law” (Felder, 47 NY2d at 293), a defendant who is represented only by a layperson has been completely deprived of counsel and is entitled to per se reversal of a resulting conviction.2 But when, as here, a defendant has been at all times represented by an admitted attorney, mere participation of a nonlawyer in the defense does not, without more, mandate reversal.

Rather, because the active participation of a licensed attorney throughout a defendant’s trial should generally suffice to ensure that the defendant’s rights are protected, a conviction should not be reversed in the absence of a showing of prejudice. Indeed, every jurisdiction to have addressed the issue before us has reached a similar conclusion (see e.g. United States v Novak, 903 F2d 883, 890-891 [2d Cir 1990]; Commonwealth v Sellon, 380 Mass 220, 227-228, 402 NE2d 1329, 1336 [1980]; People v Cox, 12 Ill 2d 265, 273-274, 146 NE2d 19, 24 [1957]; Riggs v State, 235 Ind 499, 504, 135 NE2d 247, 250 [1956]; Higgins v Parker, 354 Mo 888, 191 SW2d 668 [1945]).

In this case, the Appellate Division’s findings that CartierGiroux acted as lead counsel throughout defendant’s trial and that Shamis’s trial participation was minimal have support in the record. As the dissent points out, Cartier-Giroux filed and subscribed all pretrial defense motions and discovery demands; argued against the People’s applications made pursuant to *191People v Molineux (168 NY 264 [1901]), People v Ventimiglia (52 NY2d 350 [1981]) and People v Sandoval (34 NY2d 371 [1974]), and in support of defendant’s application under People v Betts (70 NY2d 289 [1987]); argued against recusal of the Justice originally assigned to preside over the trial; 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.

Shamis, by contrast, delivered the opening statement in this nonjury trial and conducted a brief direct examination of the sole defense witness,3 whose only purpose was to introduce an alleged prior inconsistent statement of the People’s witness. In addition, Shamis made a few objections and moved to dismiss the People’s case.4 At each of these stages, Cartier-Giroux was present and available to ensure that defendant received the effective assistance of counsel. Moreover, defendant fails to point to a single error arguably committed by Shamis in the course of her minimal participation in the trial.

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

. Shamis later pleaded guilty to the crime of practicing or appearing as an attorney-at-law without being admitted and registered (see Judiciary Law §§ 478, 485).

. Nevertheless, in People v Kieser (79 NY2d 936, 937 [1992]), we explained 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’ ” (citations omitted). We therefore held that the defendant was not deprived of his right to counsel by the failure of his attorney, who was licensed to practice law in New Jersey, to secure admission pro hac vice to practice in New York.

. This examination—including objections made by the People and ruled on by the court—spans less than four transcript pages. The redirect examination, with objections and rulings, spans an additional two pages.

. Further, when Cartier-Giroux argued in opposition to the People’s motion to recuse the original trial judge, Shamis stated that her recollection matched Cartier-Giroux’s (and the Judge’s) as to what the Judge had said on a prior occasion.