| People v Rivera |
| 2007 NY Slip Op 08488 [45 AD3d 1249] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Isidro Rivera,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), rendered June18, 2004. The judgment convicted defendant, upon a jury verdict, of criminal possession of acontrolled substance in the third degree and criminally using drug paraphernalia in the seconddegree.
It is hereby ordered that the judgment so appealed from be and the same hereby is reversedon the law and a new trial is granted on counts one and two of the indictment.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of criminalpossession of a controlled substance in the third degree (Penal Law § 220.16 [1]) andcriminally using drug paraphernalia in the second degree (§ 220.50 [2]), defendantcontends that he was denied effective assistance of counsel based solely on defense counsel'sdecision not to join in the prosecutor's challenge for cause to a prospective juror. We agree withdefendant that this is one of those rare cases "in which a single failing in an otherwise competentperformance is so 'egregious and prejudicial' as to deprive a defendant of his constitutional right"to effective assistance of counsel (People v Turner, 5 NY3d 476, 480 [2005]).
In response to a question by the prosecutor whether any prospective juror would havedifficulty being fair and impartial with respect to the charge that defendant possessed heroin withthe intent to sell it, a prospective juror raised her hand and stated that she was "embarrassed toreally say it, but [she had] trouble with the intent to sell" and, for defendant's "sake, [she]probably wouldn't be able to go in with an open mind." In response to a question by CountyCourt whether she "would have difficulty setting aside that feeling," the prospective jurorresponded "Uh-huh." The court thereafter asked whether either the prosecutor or defense counselobjected to excusing the prospective juror, and defense counsel indicated that he had a problemexcusing her at that point. Defense counsel then reminded the prospective juror that the court hadinstructed the prospective jurors that, if a vote with respect to defendant's guilt were to be takenat that time, the jury would have to find defendant not guilty because no evidence had beenpresented. When asked whether she would have difficulty "rendering that verdict now if asked todo so," the prospective juror responded "I don't know." Defense counsel stated that, if there wasno evidence, "[y]ou can't find him guilty of anything. Is that okay?" The prospective [*2]juror then responded "Um-hum." The prosecutor challenged theprospective juror for cause, despite his belief that she would be "beneficial" to his case. Defensecounsel stated that there "might be a question" with respect to the prospective juror but hebelieved that, when questioning her, "she indicated pretty clearly that she would decide the caseon the evidence." The court stated to defense counsel, "She seemed to indicate that she has aproblem with the intent to sell drugs." The court then asked defense counsel, "[it] doesn't botheryou?" and defense counsel responded in the negative.
We conclude that the prospective juror "cast serious doubt on [her] ability to render afair verdict" (People v Bludson, 97 NY2d 644, 646 [2001]), and she "never 'thereaftergave the requisite unequivocal assurances that [her] prior state of mind would not influence [her]verdict and that [she] could be fair and impartial' " (People v Bracewell, 34 AD3d 1197, 1199 [2006]). Althoughdefense counsel's decision not to consent to the removal of the prospective juror from the panelfor cause may have been one of strategy (see People v Thomas, 244 AD2d 271 [1997],lv denied 91 NY2d 898 [1998]), we conclude that any such strategy "fell short of anobjective standard of reasonableness" (Turner, 5 NY3d at 485), and we thus concludethat defendant was denied a fair trial.All concur except Centra and Pine, JJ., who dissent and vote to affirm in the followingmemorandum.
Centra and Pine, JJ. (dissenting). We respectfully dissent and would affirm the judgment ofconviction. In our view, the contention of defendant that he was denied effective assistance ofcounsel based solely on defense counsel's failure to join in the prosecutor's challenge for cause tothe prospective juror in question involves matters of strategy outside the record on appeal (see People v Vilfort, 33 AD3d 368[2006], lv denied 7 NY3d 929 [2006]). "The record does not reveal on what basis counselmight have concluded that [this was a] desirable juror[ ] for the defense . . ., [and]counsel may have been influenced by [this prospective juror's] demeanor, which is not reflectedin the record" (id. at 369).
To the extent that we are able to review defendant's contention on the record before us,we cannot agree with the majority that defendant was denied effective assistance of counsel(see generally People v Baldi, 54 NY2d 137, 147 [1981]; People v Wright, 297AD2d 875 [2002]). Although in certain rare cases "a single failing in an otherwise competentperformance is so 'egregious and prejudicial' as to deprive a defendant of his constitutional right"to effective assistance of counsel (People v Turner, 5 NY3d 476, 480 [2005]), this is not one of thoserare cases. While certain initial comments of the prospective juror during voir dire indicated thatshe had prejudged the case, she later indicated in response to questioning by defense counsel thatshe understood that she could not find defendant guilty without first hearing any evidence.Defense counsel's strategic decision not to join in the prosecutor's challenge for cause to theprospective juror should not be second-guessed in hindsight (see People v De Marco, 33 AD3d 1045, 1046 [2006]; People v Davis, 15 AD3d 930,932 [2005], lv denied 5 NY3d 761 [2005]; see also People v Thomas, 244 AD2d271 [1997], lv denied 91 NY2d 898 [1998]). In any event, even assuming, arguendo, thatdefense counsel erred in failing to join in the prosecutor's challenge for cause to the prospectivejuror, we conclude that defense counsel's "single failing in an otherwise competent performance"did not deny defendant effective assistance of counsel (Turner, 5 NY3d at 480; seePeople v Turck, 305 AD2d 1072, 1073 [2003], lv denied 100 NY2d 566 [2003]).Present—Scudder, P.J., Martoche, Centra, Green and Pine, JJ.