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Failure to Investigate Constituted Ineffective Assistance of Counsel

In affirming the vacation of defendant’s conviction, the Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the defendant did not receive effective assistance of counsel.  The People’s case rested on the defendant’s statement.  The defense was based on the defendant’s mental weakness, which undermined the voluntariness of the statement.  Yet the defense attorney did not investigate critical documents relevant to the defendant’s mental condition. The Court of Appeals wrote:

The record reveals that trial counsel sought to build a defense based on defendant’s mental weakness undermining the voluntariness of his admissions of guilt. Despite the focus on defendant’s mental abilities, trial counsel chose to forgo any investigation of the critical documents concerning defendant’s mental condition, and instead, sought to present this defense through the testimony of defendant’s mother, an obviously biased witness. Regardless of whether the decision to present defendant’s condition through his mother’s testimony was a valid strategy, it was, as trial counsel admitted at the post-conviction hearing, a “strategy” “born in the blind.” One he admittedly pursued without benefit of the contents of defendant’s records.

This is not simply a case of a failed trial strategy …. Rather, this is a case of a lawyer’s failure to pursue the minimal investigation required under the circumstances. Given that the People’s case rested almost entirely on defendant’s inculpatory statements, trial counsel’s ability to undermine the voluntariness of those statements was crucial. The strategy to present defendant’s mental capacity and susceptibility to police interrogation could only be fully developed after counsel’s investigation of the facts and law, which required review of records that would reveal and explain defendant’s mental illness history, and defendant’s diagnosis supporting his receipt of federal SSI benefits. People v Oliveras, No 105, CtApp, 6-6-13

 

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Absent Defendant Did Not Receive Effective Assistance of Counsel​

The Court of Appeals held that a defendant who was absent from his trial received ineffective assistance of counsel:

It is well established that a defendant may not, by his absence alone, “waive his right to effective assistance of counsel” …. Although a defendant’s willful absence from trial surely hampers an attorney’s ability to represent the client adequately and must be taken into consideration, under the circumstances of this case, we conclude that counsel’s lack of participation during the jury trial amounted to the ineffective assistance of counsel. On this record, including defendant’s cooperation with his attorney in formulating a defense before absconding, there was a “reasonable basis for an active defense” ….  People v Diggins, No 96, CtApp, 5-30-13

 

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Defense Counsel Deemed Ineffective/Failed to Examine Evidence

The First Department determined defense counsel was ineffective (requiring a new trial) because he emphasized the difference between the Ziploc bags (containing drugs) the defendant was alleged to have sold to an undercover officer and the bags which were in defendant’s possession upon his arrest without ever comparing them.  When the jury asked to see the bags which were in defendant’s possession, defense counsel was forced to acknowledge that they matched those purchased by the undercover officer:

In focusing on the Ziploc bags, counsel eviscerated his entire strategy. No longer could the jury believe that no physical evidence tied defendant to the charges; to the contrary, counsel pointed them in the direction of strong physical evidence. Further, the jury could not be expected to acquit defendant on the theory that the People’s case lacked credibility when his own counsel demonstrated a lack of believability on a critical issue at trial. In addition, defendant’s own credibility was directly undermined by counsel’s failure to conduct due diligence, since he testified about a discrepancy between the drugs purchased by the undercover and those recovered from him by the police. There was no sound strategy underlying counsel’s decision to focus the jury on the evidence bags. By his own admission, it was a mistake, and he would not have highlighted the Ziploc bags had he known their actual contents. This self-sabotage of counsel’s defense strategy, albeit inadvertent, was inherently unreasonable and prejudiced defendant’s right to a fair trial under New York law… .  People v Barnes, 2013 NY Slip Op 03757, 1st Dept, 5-23-13

 

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Defense Attorney’s Conflict of Interest Amounted to Ineffective Assistance

The Court of Appeals reversed the Appellate Division and granted defendant’s writ of coram nobis finding a conflict of interest on the part of defendant’s counsel, of which defendant was never made aware, amounted ineffective assistance.  Defendant’s appellate counsel had represented a co-defendant, Martin, who testified against the defendant at his trial.  During sentencing of Martin, counsel argued for leniency based upon his testifying against the defendant.  In appealing defendant’s conviction, counsel argued Martin was a liar and his testimony should be ignored.  The Court of Appeals wrote:

It is undisputed that appellate counsel represented defendant and his codefendant simultaneously, that appellate counsel argued at Martin’s sentencing hearing for leniency based on Martin’s trial testimony adverse to the defendant, and that defendant neither knew nor had the opportunity to waive any conflict arising from appellate counsel’s representation of defendant and Martin. Under these circumstances, an actual unwaived conflict existed.

An attorney may not simultaneously represent a criminal defendant and a codefendant or prosecution witness whose interests actually conflict unless the conflict is validly waived …. Simultaneous representation of two clients with conflicting interests means the lawyer “cannot give either client undivided loyalty” …. Counsel has the duty to inform the client and the court so that the court may ascertain the nature of the conflict and give the client an opportunity to waive it ….  People v Prescott, No 80, CtApp, 5-7-13

 

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Conviction Reversed on Ineffective Assistance of Counsel Grounds

After reviewing a litany of errors made by defense counsel which demonstrated a lack of familiarity with the procedural and evidentiary principles underlying a criminal prosecution, the Court of Appeals, in a full-fledged opinion by Judge Pigott, reversed defendant’s conviction because of the ineffectiveness of his counsel:

In order to sustain a claim of ineffective assistance of counsel, a court must consider whether defense counsel’s actions at trial constituted “‘egregious and prejudicial’ error such that defendant did not receive a fair trial” ….. While a single error by defense counsel at trial generally does not constitute ineffective assistance …, courts must examine defense counsel’s entire representation of defendant …. “[T]he claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole” …. “Defense counsel are charged with managing the day-to-day conduct of defendant’s case and making strategic and tactical decisions” …. Counsel’s performance in fulfilling this role is “objectively evaluated” …”to determine whether it was consistent with strategic decisions of a ‘reasonably competent attorney'” ….  While defense counsel’s errors in thiscase individually may not constitute ineffective assistance, “the cumulative effect of defense counsel’s actions deprived defendant of meaningful representation” …. Defense counsel’s actions throughout this case showed an unfamiliarity with or disregard for basic criminal procedural and evidentiary law. At the very least, a defendant is entitled to representation by counsel that has such basic knowledge, particularly so, when that defendant is facing a major felony with significant liberty implications. Considering the seriousness of the errors in their totality, we conclude that defendant was deprived of a fair trial by less than meaningful representation. People v Oathout, No 81, CtApp, 5-2-13

 

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Failure to Inform Defendant of People’s Appeal of Trial Court’s Dismissal of His Indictment Required Grant of a Writ of Coram Nobis

On a writ of coram nobis, the Fourth Department determined the failure to inform defendant of the People’s appeal of the trial court’s dismissal of the indictment required that the writ be granted.  The Fourth Department wrote:

“It is well settled that criminal defendants are entitled under both the Federal and State Constitutions to effective assistance of appellate counsel” … . In addition, “defendants have important interests at stake on a People’s appeal” … . “Given the consequences of a reversal and the possible resumption of criminal proceedings, the defendant certainly has an interest in being informed that the People’s appeal is pending and continuing” (id. at 684-685). “Moreover, . . . other rights requiring protection upon the People’s appeal include the right to appellate counsel of the defendant’s own choice, the right to appear [pro se] on the appeal, and the right to seek appointment of counsel upon proof of indigency” … . However, due process does not require that a defendant be personally served with the People’s appellate briefs ….  There is no showing on this record that the court upon dismissing the indictment complied with 22 NYCRR 200.40 (a) (1) through (3) by advising defendant that the People had the right to take an appeal; that defendant had the right to counsel on the appeal or to appear pro se; and that defendant had the right to assigned counsel on the appeal if he was financially unable to retain counsel … . Nor is there any showing that the People or defense counsel advised defendant of those rights.  People v Forsythe, KA 10-01359, 368, 4th Dept, 4-26-13

 

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Guilty Plea Forfeits All Ineffective Assistance Claims Except those Relating to Plea Bargain

The Second Department noted that a guilty plea forfeits all ineffective assistance claims except those related to the plea-bargaining:
…[T]o the extent that the defendant’s claim of ineffective assistance of counsel does not directly involve the plea-bargaining process, it was forfeited upon his plea of guilty …. ​People v Barrett, 2013 NY Slip Op 02410, 2011-04637, Ind No 1727/10, 2nd Dept 4-10-13

 

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Failure to Verify Weight of Cocaine May Constitute Ineffective Assistance

In a decision by Justice Lahtinen, the Third Department determined the defendant had raised a question whether he was afforded ineffective assistance of counsel because counsel did not independently verify the weight of the cocaine he was charged with possessing.  The matter was sent back to the motion court for a hearing on defendant’s CPL 440 motion to vacate his conviction.  The Third Department wrote:

While failing to independently verify the weight of drugs does not necessarily  constitute  ineffective assistance …, this record contains sufficient factual issues as to whether  defendant  was  affirmatively given incorrect information by his counsel on an issue assertedly important in his decision to accept the plea and, as such, a hearing is required on his claim of ineffective assistance of counsel … People v Johnson, 103457, 3rd Dept 3-28-13

 

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Representation of Co-defendants by Attorneys In Same Firm Constituted Ineffective Assistance

Defendant brought a motion pursuant to Criminal Procedure Law Article 440 to vacate his conviction on the ground that he was deprived of effective assistance of counsel.  Defendant’s attorney was “of counsel” to the law firm of the attorney who represented a co-defendant.  The co-defendant agreed to testify against the defendant in return for a lesser sentence.  Ultimately the defendant pled guilty.  In reversing the judgment of conviction, the Third Department, in a decision by Justice Stein, wrote:

When a single attorney or multiple attorneys associated with the same firm simultaneously represent clients in a criminal matter, “if the clients’ interests actually conflict, and if the defendant has not waived the conflict, the defendant is deprived of the effective assistance of counsel”… People v Lynch, 104852, 104945, 3rd Dept 3-26-13

 

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Failure to Request Jury Charge for Lesser Included Offense Constituted Ineffective Assistance

In finding that defense counsel’s failure to request that the jury be charged with a lesser included offense constituted ineffective assistance, the Court of Appeals wrote:

In his closing argument, [defense] counsel asked the jury to acquit defendant of attempted murder, but virtually invited a conviction for first degree assault. After saying: “on that particular charge [attempted murder], I’m going to ask that you actually check off the box that says ‘not guilty,'” he added, as to the assault charges: “Make your decision . . . . I’m sure, whatever it is, it will be the right decision.” *  *

Counsel’s belief that his client was without a defense to first degree assault was mistaken. The record affords a good-faith basis for an argument that the injuries the victim received did not result in serious and protracted, or serious and permanent, disfigurement … .  We conclude that counsel’s error in overlooking that issue rendered his assistance to defendant ineffective …. People v Nesbitt, 28, CtApp 3-26-13

 

 

 

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