| People v Dean |
| 2008 NY Slip Op 03663 [50 AD3d 1052] |
| April 22, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JoettaDean, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Peter A. Weinstein and Judith R.Sternberg of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Berkowitz,J.), rendered May 24, 2006, convicting her of a course of sexual conduct against a child (threecounts) and sexual abuse in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interestof justice, and the matter is remitted to the County Court, Nassau County, for a new trial before adifferent judge.
The defendant was convicted of a course of sexual conduct against a child (three counts) andsexual abuse in the second degree arising from an alleged course of conduct over a period ofyears during which time she is said to have sexually abused two of her children. The defendantcontends that she was denied the effective assistance of trial counsel (see US Const, 6thAmend; NY Const, art I, § 6).
In an adversarial system of justice, the fundamental right to the effective assistance ofcounsel is essential to a criminal defendant's due process entitlement to a fair trial (see Peoplev Benevento, 91 NY2d 708, 711 [1998]; People v Claudio, 83 NY2d 76, 80 [1993]).In reviewing the defendant's contention, we are guided by the instructions "to avoid bothconfusing true ineffectiveness with mere losing tactics and according undue significance toretrospective analysis" (People v Baldi, 54 NY2d 137, 146 [1981]; see People v Stultz, 2 NY3d 277,284 [2004]) and to view the record in its totality in order to determine whether the defendant wasdenied meaningful representation (see People v Benevento, 91 NY2d at 712; People vBaldi, 54 NY2d at 147). Upon our review of the totality of the record we find that defensecounsel engaged in "an inexplicably prejudicial course" of conduct throughout the [*2]trial, as opposed to merely misguided tactical errors, the cumulativeeffect of which was to deprive the defendant of the effective assistance of counsel and her rightto a fair trial (People v Zaborski, 59 NY2d 863, 865 [1983]; see People v Cortez,296 AD2d 465, 466 [2002]).
Here, the ineffective assistance of trial counsel commenced from the opening statements. Thedefendant correctly contends that defense counsel erroneously assumed the burden of proof whenhe made the following representation to the jury: "[W]e're going to prove to you not only that thePeople can't prove guilt beyond a reasonable doubt, we're going to prove to you that she'sinnocent" (emphasis added). It is impossible to reconcile defense counsel's assumption of theburden of proving the defendant innocent with the defendant's constitutional right to thepresumption of innocence. Notwithstanding the trial court's correct charge to the jury on theburden of proof, her counsel's impermissible assumption of the burden of proof (see People vDaley, 172 AD2d 619 [1991]; seealso People v Pagan, 2 AD3d 879, 880 [2003]) was so egregious and prejudicial that itcontributed to the deprivation of the defendant's right to a fair trial (see People v Turner, 5 NY3d 476,480-481, 484 [2005]; People vCaban, 5 NY3d 143, 152 [2005]; cf. People v Hobot, 84 NY2d 1021, 1024[1995]; People v Flores, 84 NY2d 184, 188-189 [1994]).
In addition, defense counsel failed to fulfill his "duty to protect the interests of his client. . . [in that he failed to follow] . . . the required and proper practice"which is for counsel to object to the prosecutor's improper statements (People v De Jesus,42 NY2d 519, 526 [1977]). Indeed, the absence of a timely and specific objection fails topreserve the issue of the propriety of a prosecutor's statement to the jury for appellate review(see generally CPL 470.05 [2]; People v Thompson, 27 AD3d 495, 496 [2006]). During heropening statement, the prosecutor improperly advised the jury that the father was awardedexclusive custody of the children in a separate proceeding in the Family Court. Notwithstandingthe lower standard of proof in the custody proceeding, the lack of the identity of issues, and theabsence of the same rights of confrontation (cf. People v Goodman, 69 NY2d 32, 40[1986]; People v Cortes, 4 Misc 3d575, 590 [2004]), defense counsel inexplicably failed to object to the prosecutor's statement,request a curative instruction, and move for a mistrial (see generally People v Fleegle,295 AD2d 760, 763 [2002]; see alsoPeople v Montgomery, 22 AD3d 960, 962-963 [2005]). To the contrary, defense counselcompounded the error in his own opening statement by conceding that the determination waswithin the Family Court's "prerogative," thereby lending credibility to its determination.
Defense counsel's deficient representation with respect to the opening statements was furtherexacerbated by his failure to object to certain unduly prejudicial testimony (see People vLindo, 167 AD2d 558 [1990]) during the direct examination of the Family Court Judge whohad presided over the custody proceeding. During his direct examination, the Family Court Judgetestified, without objection, as to the defendant's admission in the custody proceeding regardingcertain questionable sleeping arrangements involving the defendant and her children and howthat factored into his custody determination. Moreover, after the father testified, again withoutobjection, that the Family Court had awarded him custody of the children, defense counsel, in hisclosing statement, merely made light of the custody award by arguing that it was the FamilyCourt's "call."
Although the mother's admission in the custody proceeding as to the sleeping arrangements(see People v Caban, 5 NY3d at 151) was relevant background information necessary tocomplete the narrative (see People vPhilips, 30 AD3d 618, 619 [2006]), defense counsel should have objected to the jury'shaving been advised of the ultimate custody determination as it was irrelevant to a determinationof the defendant's guilt (cf. People v Goodman, 69 NY2d at 40; People v Cortes,4 Misc 3d at 590). The record reveals that defense counsel may have decided to forgo a [*3]well-placed objection because he intended to contest thesignificance of the custody award. However, he was unable to do so because he failed to obtainan advance ruling from the court allowing him to advise the jury during his opening statementthat a forensic psychiatrist and the attorney for the children each had recommended that custodyof one of the infant children be awarded to the defendant based, in part, on the child's expresseddesire to remain with the defendant. Defense counsel was similarly precluded from pursuing thisline of inquiry when he had the opportunity to cross-examine the father. Under thesecircumstances, defense counsel's failure to object was not an "objectively reasonable andlegitimate trial strategy" (People v Berroa, 99 NY2d 134, 138 [2002]) or merelymisguided strategic calculations (see People v Bell, 48 NY2d 933, 935 [1979]), but ratherdemonstrated a failure to properly comprehend the tactical process necessary to set the stage forthe defense.
Defense counsel also failed to recognize the strategic significance of acceding to the People'sproposed stipulation of facts regarding the questionable sleeping arrangement or submit acounterproposal thereto which would have obviated the "prejudicial impact" of the Family CourtJudge's testimony bolstered by the prestige of his office and his impressive credentials (People v Alford, 33 AD3d 1014,1015 [2006]). Instead, the cumulative effect of these errors (see People v Zaborski, 59NY2d at 865; People v Cortez, 296 AD2d at 466) was that the jury was left with theimpression that a highly-experienced Judge of the Family Court found the defendant to be anunfit mother and in all probability relied on that testimony in reaching its verdict (see Peoplev Fleegle, 295 AD2d at 763).
During his opening statement, defense counsel also erroneously promised the jury that hewas going to prove that the children were having consensual sex with each other and that thestepmother discovered them doing so, again without getting an advance ruling on theadmissibility of this highly salacious testimony. After several attempts to elicit this testimonyfrom one of the children were thwarted by the sustained objections of the prosecutor, defensecounsel failed to make an offer of proof or otherwise demonstrate how this evidence was relevantto the credibility of the witnesses or the issue of the defendant's guilt or innocence (see Peoplev Brown, 300 AD2d 314, 315 [2002]). In the absence of a timely motion in limine toestablish the propriety of this line of inquiry, defense counsel's assumption of the burden ofproving that the children were engaged in consensual sexual conduct was not a reasonablyplausible defense strategy (see People v Berroa, 99 NY2d 134 [2002]; People vFlores, 84 NY2d 184 [1994]; People v Droz, 39 NY2d 457, 462 [1976]; People vBartley, 298 AD2d 160 [2002]; People v Rojas, 213 AD2d 56, 66-68 [1995];People v Schelling, 92 AD2d 694, 694-695 [1983]) but, again, only served todemonstrate that he failed to adequately comprehend the tactical process necessary to set thestage for his defense or consider the unduly prejudicial consequences of his actions.
The foregoing highly prejudicial errors of trial counsel were exacerbated by his badgering ofthe complaining witnesses and flouting of the judge's rulings, and the "pitched battles" betweendefense counsel and the trial judge, some of which were in the presence of the jury. While thetrial court's response was, in many respects, understandable and excusable in light of defensecounsel's behavior (see People vMartin, 33 AD3d 1024, 1024-1025 [2006]; People v Jenkins, 25 AD3d 444, 445 [2006]; People v Straniero, 17 AD3d 161,162 [2005]), the "fairness of the process as a whole" was compromised by thecombination of defense counsel's conduct and the response of the trial court (People vBenevento, 91 NY2d at 714 [emphasis added]; see People v De Jesus, 42 NY2d 519[1977]).
We see "no constructive purpose in repeating each of defense counsel's disrespectfulcomments" or instances of inappropriate cross-examination; nor shall we recite the prejudicial[*4]colloquy between the court and defense counsel, as we are notconcerned with assessing relative levels of blame (People v Torres, 182 AD2d 461,461-462 [1992]). Rather, our principal consideration is whether the defendant received a fair trial(see People v Benevento, 91 NY2d at 714; People v De Jesus, 42 NY2d at 520;People v Torres, 182 AD2d 461 [1992]).
We do not find that any single example of deficient representation was sufficient to deprivethe defendant of the effective representation of counsel (cf. People v Turner, 5 NY3d at480-481; People v Caban, 5 NY3d at 152). Rather, we conclude that, given the totality ofher counsel's deficient representation, the defendant was denied meaningful representation(see People v Baldi, 54 NY2d at 147). Moreover, the manner in which the trial wasconducted overshadowed the allegations involved such that the jury was likely to be distractedfrom its principal function, the determination of the guilt or nonguilt of the defendant,particularly where, as here, that determination hinged on sharp issues of credibility (seePeople v De Jesus, 42 NY2d 519 [1977]; People v Torres, 182 AD2d at 462; seealso Eze v Senkowski, 321 F3d 110, 135-136 [2003]; Rivas v Brattesani, 94 F3d802, 808 [1996]).
We need not comment or pass on the quality or strength of the People's case where, as here,the conduct of the trial, when viewed as a whole, evinces such undue prejudice to the defendantthat she was deprived of her constitutional entitlement to a fair trial (see People v Mees,47 NY2d 997, 998 [1979]; People vRetamozzo, 25 AD3d 73 [2005]; see also People v Alicea, 37 NY2d 601,603-604 [1975]; People v Steinhardt, 9 NY2d 267, 271-272 [1961]; People v Chatman, 14 AD3d 620,620-621 [2005]; People v Grant, 185 AD2d 896, 897 [1992]).
Accordingly, the defendant's judgment of conviction must be reversed and the matterremitted to the County Court, Nassau County, for a new trial before a different judge.
In light of our determination, we need not reach the defendant's remaining contentions.Rivera, J.P., Skelos, Lifson and Balkin, JJ., concur.