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Argued February 18, 2004; decided April 6, 2004
People v Lewis, 305 AD2d 993, reversed.
People v Lewis, 305 AD2d 996, reversed.
{**2 NY3d at 226} OPINION OF THE COURT
Rosenblatt, J.
On this appeal, we reverse defendant's conviction because his attorney testified against him at a Sirois hearing (see Matter of Holtzman v Hellenbrand [Sirois], 92 AD2d 405, 415 [2d Dept 1983]).
I.
Defendant was indicted for possessing and selling controlled substances. The charges were based, in part, on the seizure of drugs and paraphernalia pursuant to a search [*2]warrant covering defendant's premises. In addition to the seized evidence, the People planned to introduce testimony from a witness who had bought cocaine from defendant and returned to the premises when the police executed the warrant. The witness signed a statement to that effect.
Shortly after jury selection, the prosecution furnished the defense with a copy of the statement. Within an hour, the witness received a threatening telephone call. The following day, the witness contacted the police and reported that he had been threatened and would not testify. The prosecution brought this to the attention of the court, asserting that defendant was out on bail and behind the threats. The People argued that by threatening the witness, defendant had forfeited his right of confrontation (see People v Cotto, 92 NY2d 68, 76 [1998]; People v Geraci, 85 NY2d 359, 366 [1995]) and that the witness's statement should therefore be revealed to the jury. In response,{**2 NY3d at 227} defendant's attorney denied that his client was involved in any witness intimidation. He said he had shared the statement with defendant because he wanted defendant to know of it, but that defendant responded indifferently, dismissing the statement as too recent and unreliable to be of any concern.
To test the People's claim, the court began a Sirois hearing. The prosecutor called a State Police investigator, who testified that he spoke with the witness. The witness told the investigator that he received a call from an unknown male, telling him he had better not testify, adding that he knew where the witness and his family lived. The threat served its purpose; the witness said he would rather go to jail than testify. With that, the prosecution rested. Defendant then took the stand and acknowledged that his attorney had shown him the statement. He denied, however, conveying or arranging for any threats to the witness. He said he told only one person, "[m]y friend Dale over there," about the witness's statement, but did not reveal who the witness was (implying that Dale could not have made the threat because he would not know whom to threaten). Defendant added that the statement was "bogus" and did not worry him.
Both sides told the court they had no other witnesses. The prosecutor then asked to call defendant's attorney to the stand. Counsel did not object, nor did the court suggest that there was anything improper about the People calling defendant's attorney as a witness against defendant. The prosecutor asked defendant's attorney: "Did you tell anybody other than [defendant] about this statement, that is the, either the identity of the declarant or the substance of the statement?" Defendant's attorney answered no. With that testimony, the prosecution sought to enhance the circumstantial proof against defendant by showing that only defendant was aware of the statement (his attorney testified he told no one else) and therefore was obviously the author of the threats. The prosecutor pointed out that no one other than defendant and his friend knew of the statement and only defendant had something to gain by either delivering or arranging for the threat. The court agreed, placed the blame for the threats at defendant's doorstep and ruled the witness's statement admissible.
After a jury found defendant guilty, a divided Appellate Division affirmed defendant's conviction (305 AD2d 993 [2003]). A dissenting Justice of that Court granted leave to appeal. Defendant challenges his conviction on several grounds. He asserts that {**2 NY3d at 228}the search warrant was not based on probable cause and that it was executed improperly. He also contends that the proof at the Sirois hearing was insufficient as a matter of law for the trial court to have concluded that defendant was responsible for the threat. While we reject these contentions, we agree with defendant, and with the Appellate Division dissenters, that because he was denied effective assistance of counsel, his conviction must be reversed, requiring a new trial.
[*3]II.
In reaching this result, we need look no further than People v Berroa (99 NY2d 134 [2002]). There, two defense witnesses testified that the defendant was in Philadelphia when the crime was committed. The prosecutor objected because the defense had not served an alibi notice. In response, the defendant's attorney stated that the alibi testimony came as a surprise to her as well. Perceiving a problem, the court and the parties discussed the undesirable possibility of the defendant's attorney being called as a witness to refute the alibi. Confronted with the dilemma, the defendant's attorney stipulated, before the jury, that when she spoke with the witnesses, neither said anything about the defendant's having been in Philadelphia at the time of the crime. In reversing the defendant's conviction, we held that he was denied effective assistance of counsel. The stipulation, we determined, converted the defendant's attorney into a defense witness who undermined the defendant's other witnesses.
Here, in effect, much the same happened. Instead of stipulating, defendant's attorney testified adversely to his client and thereby transformed himself from defendant's advocate into his adversary. Because defense counsel's testimony was in conflict with defendant's position, defendant was denied effective representation. As we pointed out in Berroa, attorneys should withdraw when
called to testify against their client on a significant issue.[FN1] When the prosecution expressed its intention to call defendant's lawyer as a witness, the lawyer should have objected{**2 NY3d at 229}[FN2]

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