Failure to Request Adverse Inference Jury Instruction Re: Missing Material Evidence, Under the Facts, Did Not Constitute Ineffective Assistance of Counsel

The Court of Appeals, in a full-fledged opinion by Jude Lippman, determined defense counsel's failure to request an adverse inference jury instruction did not constitute ineffective assistance of counsel.  The defendant shot four men.  He claimed the men were about to attack him with razors. A videotape which apparently would have shown the altercation had been destroyed.  The trial took place in 2009, before the ruling in People v Handy, 20 NY3d 663 (2013), which established the adverse interest charge is mandatory upon request where evidence likely to be of material importance has been destroyed by the state. The Court of Appeals found that defense counsel's failure to request the adverse inference charge, if it was a mistake, was not enough to support a claim of ineffective assistance.  Proof presented at trial was at odds with defendant's assertion he acted in self-defense:

It is well-established that the effectiveness of a representational effort is ordinarily assessed on the basis of the representation as a whole … . One error — and only one is identified here — in the context of an otherwise creditable performance by counsel generally will not suffice in support of the conclusion that the representation was not “meaningful” … or fell below the objective standard of reasonableness required by the Federal Constitution … . There are, of course, exceptional cases in which an error is so clear-cut, egregious and decisive that it will overshadow and taint the whole of the representation …, but this is not that rare sort of case. Allowing for argument's sake that counsel erred in omitting to request the charge, that lone error was not in the context of this prosecution sufficiently egregious and prejudicial to constitute a predicate for the relief now sought. The entitlement to an adverse inference charge, such as the one defendant's attorney allegedly neglected to seek, was not conclusively established until 2013 when we decided People v Handy (20 NY3d 663 [2013]). It was in Handy that we first held such a charge to be mandatory upon request “when a defendant in a criminal case, acting with due diligence, demand[ed] evidence . . . reasonably likely to be of material importance, and that evidence ha[d] been destroyed by the State” (id. at 665). Before Handy, the availability of the charge was discretionary. At the time of defendant's trial, in 2009, competent counsel would naturally have seized upon the government's unexplained failure to preserve probably material evidence to encourage an inference adverse to the prosecution and favorable to her client, precisely as defendant's trial counsel did, but there was then no legal authority absolutely entitling her client to the judicial instruction she is now faulted for not having sought (see Handy, 20 NY3d at 669-670). Perhaps it was a mistake not to seek the charge, which likely would have been given as a matter of discretion, but if it was a mistake, it was not one so obvious and unmitigated by the balance of the representational effort as singly to support a claim for ineffective assistance. * * *

We do not exclude the possibility that, post-Handy, the failure to request a Handy charge could support an ineffective assistance claim. But the viability of such a claim, conditioned upon a demonstration of prejudice attributable to counsel's inadequacy …, would depend, in crucial part, upon facts making the adverse inference Handy merely makes available at least reasonably plausible. The present facts do not meet that condition. On this record, it cannot be said that there was even a reasonable possibility, much less a reasonable probability …that the jury, if offered the opportunity, would have elected to draw an inference adverse to the prosecution as to what the missing video would have shown. People v Blake, 2014 NY Slip Op 07086, CtApp 10-21-14