| People v Taussi-Casucci |
| 2008 NY Slip Op 09438 [57 AD3d 209] |
| December 2, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v MariaTaussi-Casucci, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Deborah L. Morse of counsel), forrespondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered September 12,2006, convicting defendant, after a jury trial, of grand larceny in the second degree and 44 countsof forgery in the second degree, and sentencing her to a term of 3 to 9 years concurrent with 44concurrent terms of 2 to 6 years, unanimously affirmed.
Defendant makes a two-pronged claim that she was deprived of her right to counsel. First,she claims that, as a matter of law, she was without the services of a licensed attorney at trialbecause her lead counsel, Carlos Perez-Olivo, never reported his disbarment in anotherjurisdiction, thereby avoiding reciprocal disbarment. Second, she claims that, as a matter of fact,this attorney rendered ineffective assistance, as did a second attorney who represented her atsentencing.
Shortly after defendant's trial, this Court disbarred Perez-Olivo for reasons not related to thiscase (Matter of Perez-Olivo, 33AD3d 141 [2006]). The effective date of this Court's order fell between defendant's trial andsentencing; at the time of the trial, Perez-Olivo was not under suspension in New York and waslicensed to practice law. However, in 2001, he was disbarred in Puerto Rico (In rePerez-Olivo, 155 PR Dec 887 [2001]), but he never complied with the notificationrequirement of 22 NYCRR 603.3 (d). As a result, no reciprocal disciplinary proceeding was everinstituted; the ultimate New York disbarment was on other grounds.
"Counsel, as the word is used in the Sixth Amendment can mean nothing less than a licensedattorney at law." (People v Felder, 47 NY2d 287, 293 [1979].) Defendant essentiallyargues that at the time of her trial, Perez-Olivo had already been "constructively" disbarred,because had he reported his Puerto Rican disbarment, his reciprocal disbarment in New Yorkwould allegedly have been inevitable.
As we observed in a case where we declined to find, retrospectively, a constructive absenceof counsel based on an attorney's posttrial suspension for mental disability, "we do not see asufficiently compelling or persuasive reason to create a new per se rule to cover the instantsituation." (People v Lopez, 298 AD2d 114, 116 [2002], lv denied 99 NY2d 616[2003].) Reciprocal discipline by this Court is never automatic; it occurs only after satisfaction ofthe procedural requirements set forth in 22 NYCRR 603.3, and upon an order of this Courtsetting [*2]forth the effective date of the disciplinary action. Theattorney is entitled to litigate issues set forth in 22 NYCRR 603.3 (c). We see no reason to grantdefendant a new trial based solely on assumptions, however plausible, as to what would haveoccurred under circumstances that never did occur.
Turning to defendant's claim that Perez-Olivo rendered ineffective assistance in fact, we findthat claim unreviewable on direct appeal because it involves matters outside the recordconcerning Perez-Olivo's trial strategy and preparation (see People v Rivera, 71 NY2d705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). On the existing record, to theextent it permits review, we find that defendant received effective assistance under the state andfederal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see alsoStrickland v Washington, 466 US 668 [1984]). In particular, Perez-Olivo could havereasonably concluded that a motion pursuant to CPL 60.45 (2) (a) to suppress defendant'sconfession to civilians would have been futile and unhelpful to her defense. In any event, thealleged errors and omissions did not deprive defendant of a fair trial or cause her any prejudice(see People v Caban, 5 NY3d143, 155-156 [2005]; People v Hobot, 84 NY2d 1021, 1024 [1995]; compare People v Turner, 5 NY3d476 [2005]). The evidence of defendant's guilt was overwhelming, and "[c]ounsel may notbe expected to create a defense when it does not exist" (People v DeFreitas, 213 AD2d96, 101 [1995], lv denied 86 NY2d 872 [1995]).
At sentencing, defendant was represented by an attorney other than Perez-Olivo, and therecord establishes that this attorney rendered effective assistance. We perceive no basis forreducing the sentence. Concur—Mazzarelli, J.P., Saxe, Catterson, Renwick and Freedman,JJ.