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In the Face of Defendant’s Claims Defense Counsel Did Not Adequately Represent Him, Counsel’s Answering the Judge’s Questions About Defendant’s Allegations (Which Were Rejected by the Court) Did Not Place Defense Counsel in a Position Adverse to the Defendant’s

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined that defense counsel’s answering the judge’s questions about his performance did not place the attorney in a position adverse to his client’s.  The client, prior to trial, sought the appointment of new counsel by filing a form (“Affidavit in Support of Motion for Reassignment of Counsel”) circling every reason for the appointment of new counsel listed on the form, including the failure to discuss strategy, the failure to seek discovery, the failure to contest identification evidence, and the failure to communicate with the defendant. The form did not reach the judge until after the defendant’s trial and conviction. The defendant did not mention the motion or his concerns during the trial.  The judge, based on his observations during the trial, determined many of the circled claims on the form were not true. The judge asked the attorney about what he had done prior to trial and the attorney explained what he had done.  In so doing, the attorney did not take a position adverse to the defendant’s:

“The right of an indigent criminal defendant to the services of a court-appointed lawyer does not encompass a right to appointment of successive lawyers at defendant’s option” … . A defendant may be entitled to new counsel, however, “upon showing good cause for a substitution, such as a conflict of interest or other irreconcilable conflict with counsel” (id. [internal quotation marks omitted]). Here, defendant claims that he was entitled to new defense counsel because counsel’s responses to the allegations of ineffectiveness created an actual conflict of interest.

Although an attorney is not obligated to comment on a client’s pro se motions or arguments, he may address allegations of ineffectiveness “when asked to by the court” and “should be afforded the opportunity to explain his performance” … .

We have held that counsel takes a position adverse to his client when stating that the defendant’s motion lacks merit …, or that the defendant, who is challenging the voluntariness of his guilty plea, “made a knowing plea . . . [that] was in his best interest” … . Conversely, we have held that counsel does not create an actual conflict merely by “outlin[ing] his efforts on his client’s behalf” … and “defend[ing] his performance” … .

Applying these settled principles to the facts in this case, we conclude that defense counsel’s comments in response to the judge’s questions did not establish an actual conflict of interest. Defense counsel did not suggest that his client’s claims lacked merit. Rather, he informed the judge when he met with defendant and for how long, what they discussed, what the defense strategy was at trial and what discovery he gave or did not give to defendant. Thus, he never strayed beyond a factual explanation of his efforts on his client’s behalf.  People v Washington, 2015 NY Slip Op 05511, CtApp 6-25-15

 

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Defense Counsel’s Failure to Pursue a Minimal Investigation (i.e., Failure to Access Defendant’s Psychiatric Records and Failure to Have the Defendant Examined by an Independent Psychiatrist) Constituted Ineffective Assistance of Counsel—Conviction Reversed

The Second Department determined defendant’s motion to vacate his conviction should have been granted.  Defendant suffered from mental illness and had been hospitalized for psychiatric disorders.  The trial court had granted defense counsel permission to access to defendant’s psychiatric records and had granted authorization for the appointment of an independent psychiatrist to evaluate defendant.  Defense counsel did not seek the psychiatric records, nor the evaluation by the independent psychiatrist.  The Second Department, after an in-depth explanation of the criteria, held that defendant was deprived of effective assistance of counsel.  The court noted that the ground at issue here, defense counsel’s failure to pursue minimal investigation, required reversal without a showing that the result of the trial would have been different had the investigation been conducted:

A criminal defendant is guaranteed the effective assistance of counsel under both the federal and the state constitutions (see US Const Amend VI; NY Const, art I, § 6). Generally, to prevail on a claim of ineffective assistance of counsel under the United States Constitution, a defendant must show, first, “that counsel’s representation fell below an objective standard of reasonableness” …, and, second, “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” … .

Under the New York Constitution, a defendant must show that he was not afforded “meaningful representation” … , which also entails a two-pronged test, “with the first prong identical to its federal counterpart” …, and the second being a “prejudice component [which] focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case'” … and, thus, is “somewhat more favorable to defendants” … . A reviewing court must examine whether “the evidence, the law, and the circumstances of [the] particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” … .

Under both state and federal law, a defendant’s right to the effective assistance of counsel includes assistance by an attorney who has conducted a reasonable investigation into the relevant facts and law to determine whether matters of defense can be developed … .

Generally, in order to make out a claim of ineffective assistance under the New York Constitution, a defendant is required to make some showing of prejudice, albeit not necessarily the “but for” prejudice required under federal law … . However, prejudice is not an “indispensable element in assessing meaningful representation” … . The Court of Appeals has indicated that counsel’s failure to pursue the minimal investigation appropriate with respect to an issue central to the defense itself “seriously compromises [the] defendant’s right to a fair trial,” regardless of whether the information would have altered the uninformed strategy counsel employed, or otherwise helped the defense … .

Here, the People’s case hinged almost entirely on their ability to prove the defendant’s state of mind, and trial counsel undisputedly failed to take the minimal steps of obtaining the defendant’s psychiatric records and having him evaluated by an expert, which were necessary to make an informed decision as to whether or not to present a psychiatric defense. Under the circumstances of this case, the People’s argument that, even with the benefit of the evidence trial counsel should have obtained, there is no reasonable chance that a mental disease or defect or EED defense would have been successful, or that the outcome of the trial would otherwise have been different, misconstrues the central issue in this case. The issue is not whether trial counsel’s choice to have certain documents excluded from the record constitutes a legitimate trial strategy, but whether the failure to secure and review crucial documents, that would have undeniably provided valuable information to assist counsel in developing a strategy during the pretrial investigation phase of a criminal case, constitutes meaningful representation as a matter of law … . Trial counsel’s “total failure” in this regard deprived the defendant of meaningful representation … . People v Graham,2015 NY Slip Op 04862, 2nd Dept 6-10-15

 

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Hearing Required to Determine Whether Defense Counsel’s Failure to Take Appropriate Steps to Have a Federal Prisoner Testify for the Defense Constituted Ineffective Assistance

The Fourth Department determined a hearing was necessary to address defendant’s motion to vacate his conviction.  The motion papers raised the issue of whether defense counsel’s failure to take adequate steps to ensure a federal prisoner would be available to testify on behalf of the defense constituted ineffective assistance.  Defense counsel submitted an affidavit stating he believed the prisoner’s testimony would have been helpful to the defendant and his failure to have the prisoner appear was not part of a defense strategy. The court also directed that the hearing look into the credibility of the co-defendant who, in his plea colloquy, stated that he acted alone.  People v Becoats, 2014 NY Slip Op 03088, 4th Dept 5-2-14

 

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The Decision Whether to Raise the Defense of Justification Is for the Defendant, Not Defense Counsel, to Make—Counsel Was Not Ineffective for Failing to Raise the Defense Over Defendant’s Objection—The Court Did Not Err By Failing to Instruct the Jury, Sua Sponte, on the Justification Defense In Response to a Jury Note Which Indicated the Jury Was Considering It

The Second Department, in a detailed and extensive opinion by Justice Mastro (not fully summarized here), over an equally detailed and extensive two-justice dissent, determined that defense counsel was not ineffective, and the court did not err, in rejecting the justification defense.  The defendant, accused of murder, insisted on a misidentification defense in this one-eyewitness case.  The defendant made it clear he did not want to rely on the justification defense (which would contradict his claim of innocence). In response to a jury note which implied the jury was considering whether the defendant had acted in self-defense, the judge, in accordance with the wishes of defense counsel, did not explain the justification defense to the jury and directed the jury to consider only the issue of intent.  On appeal, the defendant argued defense counsel was ineffective in not raising the justification defense and the judge erred by not instructing the jury on the defense sua sponte in response to the jury’s note.  In rejecting those arguments, the Second Department held that the decision whether to rely on the justification defense was for the defendant, not defense counsel, to make, and no error was made by defense counsel or the judge in following defendant’s wishes:

…[W]hen a defendant accepts the assistance of counsel, he or she retains authority only over certain fundamental decisions, such as whether to plead guilty, whether to waive a jury trial, whether to testify at trial, and whether to take an appeal … . Matters of strategy and tactics, such as whether to request the submission of lesser-included offenses for the jury’s consideration …, whether to seek or consent to a mistrial … , or whether to introduce certain evidence at trial …, generally fall within the purview of counsel. However, and of particular significance in the present case, the Court of Appeals has made clear that “a defendant unquestionably has the right to chart his own defense” … . Contrary to the defendant’s current position, his decision to pursue a defense based solely on misidentification, and to affirmatively reject an alternate defense based on justification in steadfast furtherance of that misidentification defense, involved a matter that was “personal” and “fundamental” to him …, and “did not implicate a matter of trial strategy or tactics” … . Indeed, under our law there simply is no more personal and fundamental right than that of the accused to rise before the trial justice and proclaim—to the court and to the world—his or her complete factual innocence of the crimes with which he or she has been charged. To require defense counsel in this case, over his client’s objection, to undermine that assertion of innocence by the injection into the case of a factually and logically inconsistent defense would, under the circumstances presented, impermissibly compromise that personal right. People v Clark, 2015 NY Slip Op 03558, 2nd Dept 4-29-15

 

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Reversal Due to Ineffective Assistance Affirmed Over Forceful Dissent

The Court of Appeals, in a brief memorandum decision, affirmed the Appellate Division’s reversal of defendant’s conviction due to ineffective assistance of counsel, noting counsel’s failure to invoke the court’s prior preclusion order and the presentation of an alibi defense for the wrong day.  Judge Pigott wrote a long and detailed dissent.  People v Jarvis, 2015 NY Slip Op 02869, CtApp 4-7-15

 

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Failure to Warn Defendant His Guilty Plea Could Lead to Deportation, Prior to the Supreme Court’s 2010 Decision in Padilla v Kentucky, Did Not Constitute Ineffective Assistance of Counsel

The Second Department determined that the failure to notify the defendant prior his guilty plea (in 2000) could be the basis of deportation proceedings did not constitute ineffective of counsel:

On March 31, 2010, the United States Supreme Court held in Padilla v Kentucky (559 US 356) that the Sixth Amendment requires defense attorneys to inform noncitizen clients of the deportation risks of guilty pleas. However, Padilla does not apply retroactively to persons whose convictions became final before Padilla was decided … . Without the benefit of the Padilla rule, the alleged failure of the defendant’s attorney to properly advise him of the possibility that he might be deported as a result of his plea does not constitute deficient performance under the United States or New York Constitutions. At the time that the defendant entered his plea of guilty in 2000, defense counsel’s performance was governed by the rule that “the failure of [defense] counsel to warn [a] defendant of the possibility of deportation [did not] constitute ineffective assistance of counsel” … . People v Taylor, 2015 NY Slip Op 00563, 2nd Dept 1-21-15

 

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Failure to Make a Motion to Suppress Constituted Ineffective Assistance

The Fourth Department determined defendant was denied his right to effective assistance of counsel because counsel failed to move to suppress drugs seized during a traffic stop and the motion was likely to succeed.  The police questioning defendant whether he had anything illegal on him was not prompted by a reasonable suspicion of criminal activity:

In a supporting deposition, a police officer stated that he stopped defendant’s vehicle after observing defective brake lights, in violation of Vehicle and Traffic Law § 375 (40). He observed that defendant was nervous, and defendant gave responses to questions concerning where he was coming from and where he was going that did not make sense considering the direction in which he was traveling. The officer ordered defendant out of the vehicle and asked him “if he had anything illegal on him,” and defendant responded that he had “coke” in his pocket. The officer then searched defendant’s pocket and retrieved what was later determined to be cocaine.

We conclude that defendant established that a motion to suppress would likely be successful, and that defense counsel had no strategic or other legitimate explanation for not moving to suppress the evidence … . The officer’s question whether defendant had anything illegal on him constituted a level two common-law inquiry, which required a founded suspicion that criminal activity was afoot … . Defendant’s nervousness and discrepancies in describing where he was coming from and going are not enough to give rise to a reasonable suspicion that criminal activity is afoot … . We further conclude that defendant’s contention survives his guilty plea inasmuch as defense counsel’s error infected the plea bargaining process … . People v Dealmeida, 2015 NY Slip Op 00169, 4th Dept 1-2-15

 

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Reversible Error to Deny For Cause Challenge to Biased Juror/Defendant’s Counsel Ineffective

The Fourth Department reversed defendant’s conviction because one of the jurors indicated a bias in favor of police officers [the for cause challenge to the juror was denied and the peremptory challenges were exhausted] and because the defendant was denied his right to effective assistance of counsel:

Upon questioning by defense counsel, a prospective juror stated that there was a possibility that he would have “sympathy” for police officer witnesses. Despite further questioning on the issue, the prospective juror did not provide an unequivocal assurance that he would not be biased in favor of the police. It is well settled that, once a potential juror has indicated a possible bias, he or she “must be excused unless [he or she] provide[s] unequivocal assurance that [he or she] can set aside any bias and render an impartial verdict based on the evidence’ ” … . Inasmuch as the court erred in denying defendant’s challenge for cause, we reverse the judgment and grant a new trial.

We further agree … that reversal is also required on the ground that he was denied effective assistance of counsel based upon, inter alia, defense counsel’s elicitation of testimony that had been precluded by the court’s pretrial ruling and defense counsel’s characterization of defendant as a “drug dealer” on summation … . Although “[i]solated errors in counsel’s representation generally will not rise to the level of ineffectiveness” … , here defense counsel’s failures were “so serious, and resulted in such prejudice to the defendant, that he was denied a fair trial thereby” … . People v Tapia-DeJesus, 2015 NY Slip Op 00167, 4th Dept 1-2-15

 

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Defendant’s Attorney Not Ineffective for Failing to Make a Motion to Suppress—Nature of a Motion Which, If Not Made, Would Constitute Ineffective Assistance Addressed by the Majority and the Dissent

The Fourth Department, over a two-justice dissent, determined that defendant’s attorney was not ineffective for failure to move to suppress a few of the items of stolen property seized after a traffic stop.  The majority and the dissent disagreed about whether the appeal questioned the validity of the traffic stop or the arrest after the stop.  The dissent felt that a motion to suppress all of the evidence based upon the arguable invalidity of the vehicle stop should have been made. The majority felt that the validity of the stop had not been questioned on appeal. The majority noted that, because the defendant testified, even if the evidence had been suppressed, the defendant could have been impeached with the suppressed evidence. The most useful discussion in the decision concerns the general nature of a motion which, if not made, would constitute ineffective assistance:

We respectfully disagree with our dissenting colleagues that the threshold standard to be applied in determining whether an attorney was ineffective for failing to file a particular motion is “whether the motion at issue had more than little or no chance of success.” It is true, as the dissent points out, that the Court of Appeals has repeatedly stated that “[t]here can be no denial of effective assistance of trial counsel arising from counsel’s failure to make a motion or argument that has little or no chance of success’ ” … . By so stating, however, the Court was not articulating the standard for what does constitute ineffective assistance of counsel; instead, the Court was explaining what does not constitute ineffective assistance of counsel. As noted, the Court has made clear in other cases that the standard to be applied is whether defense counsel failed to file a “colorable” motion and, if so, whether counsel had a strategic or legitimate reason for failing to do so … . Although neither the Court of Appeals nor the Appellate Division has defined “colorable” in this context, the term is elsewhere defined as “appearing to be true, valid, or right” (Black’s Law Dictionary 301 [9th ed 2009]). Federal courts have described a colorable claim as one that has ” a fair probability or a likelihood, but not a certitude, of success on the merits’ ” … . Here, for the reasons previously stated, we do not believe that a motion to suppress evidence as the product of an unlawful arrest would likely have been granted. People v Carver, 2015 NY Slip Op 00046, 4th Dept 1-2-15

 

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Defendant Invoked His Right to Counsel By Asking a Police Officer to Retrieve Defendant’s Lawyer’s Phone Number from Defendant’s Wallet—Subsequent Statements Should Have Been Suppressed/Defense Counsel’s Failure to Move to Suppress Weapon Seized from Defendant’s Person Deprived Defendant of Effective Assistance

The Fourth Department determined statements made after defendant invoked his right to counsel should have been suppressed. Defendant, after he was read the Miranda rights, asked a police officer to retrieve the defendant’s lawyer’s phone number from the defendant’s wallet.  The court further found defendant was not afforded effective assistance of counsel due to defense counsel’s failure to move to suppress the weapon seized from defendant’s person:

“Whether a particular request [for counsel] is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request including the defendant’s demeanor [and] manner of expression[,] and the particular words found to have been used by the defendant” (People v Glover, 87 NY2d 838, 839). Here, the testimony at the suppression hearing established that, before defendant was informed of his Miranda rights at the police station, defendant asked a police officer to retrieve the telephone number of defendant’s attorney from defendant’s wallet. The hearing testimony further established that an investigator acknowledged defendant’s request but asked defendant to continue speaking with the police. That testimony was confirmed by a videotaped interview submitted at the hearing as an exhibit. ” [V]iewed in context of the totality of circumstances, particularly with respect to events following [defendant’s request for his attorney’s phone number]’ ” … ,we conclude that defendant unequivocally invoked his right to counsel and that his statements should have been suppressed  … .

We agree with defendant … that he was denied effective assistance of counsel based on defense counsel’s errors with respect to suppression … . We note that defense counsel moved to suppress evidence seized from defendant’s residence although there was no indication that any evidence was seized therefrom but failed to move to suppress the gun found on defendant’s person. The record establishes that defendant was arrested after a police officer observed defendant and three other individuals standing “approximately 8-10 houses away” from the location of reported gunfire. According to a police report, “[f]or officer safety purposes, [the officer] ordered [defendant and the other three individuals] to the ground and they were taken into custody,” and a police officer found defendant in possession of a loaded weapon. There is no indication in the record on appeal that the police had a founded suspicion that defendant and his companions were the source of the gunfire or were involved in any other criminal activity … . On the record before us, we conclude that there are no strategic reasons for moving to suppress evidence that did not exist while failing to move to suppress a gun that was seized from defendant’s person and that was the factual basis for the charges in the indictment … . We further conclude that defense counsel’s errors prejudiced defendant and deprived him of the right to effective assistance of counsel … . People v Barber, 2015 NY Slip Op 00058, 4th Dept 1-2-15

 

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