| People v Miller |
| 2009 NY Slip Op 04305 [63 AD3d 1186] |
| June 4, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Bernard F.Miller, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Thomas D. Jackson Jr. of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Broome County (Mathews, J.),rendered February 16, 2006, upon a verdict convicting defendant of the crime of burglary in thesecond degree.
Defendant was charged with burglary in the second degree based upon statements to policein which he admitted entering the victim's apartment to steal a video game console. At theconclusion of the Huntley and Sandoval hearings, County Court denieddefendant's motion to suppress his statements and ruled that the People could inquire into threeprior felony convictions if he chose to testify. Following a jury trial, defendant was found guiltyas charged and sentenced, as a persistent violent felony offender, to 16 years to life in prison.
While defendant raises several issues on appeal, we need address only his argument that hewas denied his fundamental right to a fair trial due to the ineffectiveness of defense counsel,which we find merits reversal of his judgment of conviction. "To prevail on [such] a claim. . . , defendants must demonstrate that they were deprived of a fair trial by lessthan meaningful representation; a simple disagreement with strategies, tactics or the scope ofpossible cross-examination, weighed long after the trial, does not suffice" (People vFlores, 84 NY2d 184, 187 [1994] [citation omitted]). However, even where each of counsel'serrors standing alone would not constitute ineffective assistance, their cumulative effect maydeprive the defendant of meaningful representation (see People v Chapman, 54 AD3d 507, 511 [2008]; People vIrvine, [*2]52 AD3d 866, 869 [2008], lv denied 11NY3d 737 [2008]; People v Miller,11 AD3d 729, 730 [2004]). The record here is replete with such errors.
Defendant challenged his counsel's representation and effectiveness early on by informingCounty Court that counsel had had little communication with him and allegedly disclosed aprivileged communication. Although the court deferred these complaints to a later proceeding,neither the court nor counsel reiterated or resolved defendant's concerns thereafter. During theHuntley hearing, counsel questioned the relevancy of defendant's written statementbased upon its misstatement of the date of the burglary, but did not argue for suppression basedupon lack of voluntariness. Nor did counsel otherwise develop the record regarding thecircumstances under which the oral and written statements were given. Counsel failed to inquireabout the conduct of police before the statements were made, did not ascertain when defendantwas in custody, did not explore when and how defendant was advised of his Mirandarights, and did not challenge the voluntariness of his waiver of those rights. There also was avideotape in which defendant read his statement aloud, but the People offered no independentproof of its voluntariness. When County Court suggested that there might be a ground forexcluding the videotape, counsel made no objection and failed to pursue the issues of whether ithad been coerced or was redundant and prejudicial. Moreover, counsel failed to request aWade hearing regarding the photo identification made by a witness.
At trial, defendant's counsel was plainly ill-prepared, giving incoherent opening and closingstatements which espoused a defense that had no basis in law. Counsel persisted in pursuing thatdefense even after the People had convincingly refuted it and County Court termed it "silly."This strategy was not only unreasonable and destined to fail, but also raised doubts as to thecompetency of counsel's other tactics. The negative impact of this strategy was compounded bymany other errors. Counsel conducted ineffective and incomplete cross-examination of somewitnesses, and inexplicably elicited evidence which reflected badly on defendant. Counsel'squestioning revealed that defendant's wife had attempted to bribe the victim, that defendantinitially came to the victim's apartment to smoke marihuana and that he was being investigatedby police regarding a prior incident. Notably, while counsel's objection to the mention of theprior incident was sustained, he failed to ask that the jury be instructed to disregard it. Counselaccused the victim of perjury based solely upon inaccurate dates in her statement, a tactic thatresulted in an admonition from County Court. Counsel also attempted to obtain the victim'spsychiatric records even though she testified only as to her ownership of the apartment and whatwas taken. Further, counsel failed to object when the People bolstered the accomplice'stestimony by referring to his confession during the testimony of a police officer. Finally, counselalso failed to request a jury instruction as to the voluntariness of defendant's statements to police.
Considering the totality of the circumstances, counsel's apparent lack of preparation and theabsence of a strategic or other legitimate explanation for his recurring errors and omissions, wecannot say that defendant's representation was meaningful or even competent (see People vZaborski, 59 NY2d 863, 865 [1983]; People v Chapman, 54 AD3d at 511;People v Miller, 11 AD3d at 730; People v Langlois, 265 AD2d 683, 685[1999]). While we recognize that defendant's admissions and the accomplice's testimony arestrong evidence of his guilt, his counsel's deficiencies cannot be overlooked because theharmless error doctrine is inapplicable "in cases involving substantiated claims of ineffectiveassistance" (People v Benevento, 91 NY2d 708, 714 [1998]; see People v Ennis, 11 NY3d 403,412 [2008], cert denied — US — , — S Ct — [2009]; People v Caban, 5 NY3d 143,155-156 [2005]).[*3]
Inasmuch as a new trial is warranted, we need notconsider defendant's remaining contentions.
Peters, J.P., Spain, Kane and McCarthy, JJ., concur. Ordered that the judgment is reversed,on the law, and matter remitted to the County Court of Broome County for a new trial.