| People v Smith |
| 2016 NY Slip Op 04745 [140 AD3d 1403] |
| June 16, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Leon Smith, Also Known as L,Appellant. |
William T. Morrison, Albany, for appellant.
D. Holley Carnright, District Attorney, Kingston (Lisa M. Bondarenka of counsel),for respondent.
Clark, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered July 17, 2014, upon a verdict convicting defendant of the crimes of criminalsale of a controlled substance in the third degree and criminal possession of a controlledsubstance in the third degree.
Defendant was arrested after selling crack cocaine to a confidential informant(hereinafter CI) in a "buy and bust" operation in the City of Kingston, Ulster County andwas subsequently indicted on the charges of criminal sale of a controlled substance in thethird degree and criminal possession of a controlled substance in the third degree.Thereafter, defendant unsuccessfully moved to suppress the physical evidence found onhis person as the product of an unlawful arrest and the statements he made to the policeas involuntary. Following a jury trial, defendant was convicted as charged and sentenced,as a second felony offender, to an aggregate prison term of 10 years, followed by threeyears of postrelease supervision. He now appeals.
Although defendant advances several arguments, we focus our discussion ondefendant's claim that he was deprived of the effective assistance of counsel. To succeedon an ineffective assistance of counsel claim, a defendant bears the burden ofdemonstrating that defense counsel deprived him or her of a fair trial by providing lessthan meaningful representation (see People v Heidgen, 22 NY3d 259, 278 [2013]; People v Sanchez, 21 NY3d216, 222-223 [2013]; People v Hammond, 107 AD3d 1156, 1156 [2013]). "Thetest is not whether defendant received 'perfect [*2]representation,' but whether the attorney's assistance was'consistent with [that] of a reasonably competent attorney' " (People v Thiel, 134 AD3d1237, 1240 [2015], quoting People v Oathout, 21 NY3d 127, 128 [2013]). In evaluatingthe representation afforded to a defendant, "courts must examine defense counsel's entirerepresentation of defendant" (People v Oathout, 21 NY3d at 131-132; accord People v Bush, 107AD3d 1302, 1303 [2013]).
Upon a review of the record as a whole, we agree that defendant did not receivemeaningful representation. Although defense counsel lodged some successful objectionsat trial, he largely permitted the People's police witnesses to provide lengthy,nonresponsive answers to questions asked on both direct and cross-examination, evenafter County Court commented on his failure to object or request that the nonresponsivetestimony be stricken from the record. Defense counsel's repeated failures in this regardresulted in prejudice to defendant, particularly when Detective Eric Paulding stated, inresponse to defense counsel's yes-or-no question, that the CI had purchased crack cocainefrom defendant on 15 prior occasions. While defense counsel stated outside the presenceof the jury that he did not object because he did not want to further highlight thetestimony, he later sat idle when the People referenced this improper and prejudicialtestimony in summation.
Even more perplexing, however, was defense counsel's absolute failure to addressthe absence of the CI,[FN*] a pivotal player in the "buy and bust"operation. Initially, the record is devoid of any indication that defense counsel recognizedthe possibility of requesting a missing witness charge (see People v Donovan,184 AD2d 654, 656 [1992]). It is difficult to imagine any legitimate trial tactic for notrequesting such a charge under the particular circumstances of this case (see People v Peake, 14 AD3d936, 937-938 [2005]; People v Cruz, 165 AD2d 205, 207-208 [1991], lvdenied 77 NY2d 959 [1991]). The evidence against defendant was plentiful and,seemingly, the only strategy pursued by—and perhaps availableto—defense counsel was to attack the credibility and reliability of the CI. With thisapparent strategy in mind, and considering the favorable inference that may potentiallyflow from a missing witness charge (see CJI2d[NY] Missing Witness), weperceive no legitimate reason for defense counsel's failure to request the charge.
Moreover, defense counsel neither raised the absence of the CI in his summation norobjected to the prosecutor's improper statement in summation that he "wouldn't insult[the jurors] by putting [the CI] on the stand" (compare People v Rowe, 105 AD3d 1088, 1090-1091[2013], lv denied 21 NY3d 1019 [2013]). Additionally, we note that defensecounsel failed to elicit certain beneficial testimony during the suppression hearing. Whilethe foregoing errors would not, in isolation, necessarily constitute ineffective assistanceof counsel, the cumulative effect of those errors was such that defendant was deprived ofmeaningful representation and, thus, a fair trial (see People v Bush, 107 AD3d at1303; People v Hull, 71AD3d 1336, 1338-1339 [2010]). Accordingly, given defense counsel's overalldeficient performance, we must reverse the judgment of conviction and remit for a newtrial.
We are unpersuaded by defendant's contentions that County Court erred in denyinghis motion to suppress the physical evidence recovered from his person (see People v Cruz, 131 AD3d724, 726 [2015], lv denied 26 NY3d 1087 [2015]; People v Vanhoesen, 31 AD3d805, 806 [2006]) and the statements he made to the police while in custody (seePeople v Rankin, 127 [*3]AD3d 1335, 1339 [2015],lv denied 26 NY3d 1149 [2016]; People v Cavallaro, 123 AD3d 1221, 1223 [2014]). Finally,in light of our determination, we need not reach defendant's contention that County Courtconsidered improper factors when it imposed sentence.
Peters, P.J., Lahtinen, Garry and Mulvey, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Ulster County for a newtrial.
Footnote *:The People failed to callthe CI as a witness and there is no discussion on the record concerning her whereaboutsor her failure to testify.