| People v Bodden |
| 2011 NY Slip Op 01668 [82 AD3d 781] |
| March 1, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Richard Bodden, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Rona I.Kruger of counsel), for respondent.
Appeals by the defendant (1) from a judgment of the Supreme Court, Queens County (Kron,J.), rendered April 3, 2008, convicting him of criminal possession of a weapon in the seconddegree (two counts), criminal possession of a weapon in the third degree, reckless endangermentin the first degree, and harassment in the second degree, upon a jury verdict, and imposingsentence, and (2), by permission, from an order of the same court dated November 20, 2009,which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate the judgment ofconviction rendered April 3, 2008.
Ordered that the judgment is reversed, on the law, and the matter is remitted to the SupremeCourt, Queens County, for a new trial; and it is further,
Ordered that the appeal from the order is dismissed as academic in light of our determinationon the appeal from the judgment.
According to the People's witnesses, on February 12, 2007, the defendant slapped Sade Bellin the face outside of a car dealership in Queens. Bell and a group of friends later confronted thedefendant at his home, and the defendant went into his house and brought out a gun. Bell and herfriends got into a car and were speeding away when the defendant allegedly fired several shots atthe car.
The defendant was convicted, after a jury trial, of criminal possession of a weapon in thesecond degree (two counts), criminal possession of a weapon in the third degree, recklessendangerment in the first degree, and harassment in the second degree. Before imposingsentence, the trial court noted on the record that it was troubled by defense counsel's performanceduring the trial, and set forth in detail the basis for its belief that the defendant had a viableappellate claim of ineffective assistance of counsel.
Before the defendant's appeal from the judgment of conviction had been perfected in thisCourt, the defendant moved in the Supreme Court pursuant to CPL 440.10 to vacate thejudgment on the ground of ineffective assistance of counsel. The Supreme Court denied themotion pursuant to CPL 440.10 (2) (b) on the ground that the record on the defendant's directappeal from the judgment was [*2]sufficient to adequately reviewthe issues he raised on the motion. This Court granted the defendant leave to appeal from theorder denying the CPL 440.10 motion, and subsequently consolidated the appeals from thejudgment and the order. We reverse the judgment on the direct appeal, and dismiss the appealfrom the order as academic in light of this determination.
A criminal defendant is guaranteed the effective assistance of counsel under both the federaland the state constitutions (see US Const Amend VI; NY Const, art I, § 6; People v Turner, 5 NY3d 476, 479[2005]). Under the federal standard for ineffective assistance of counsel, a defendant must showthat his or her attorney's performance fell below an objective standard of reasonableness, and that"there is a reasonable probability that, but for counsel's unprofessional errors, the result of theproceeding would have been different" (Strickland v Washington, 466 US 668, 694[1984]). Under the state standard, which has been called "somewhat more favorable todefendants" (People v Turner, 5 NY3d at 480), the constitutional requirements for theeffective assistance of counsel "are met when the defense attorney provides meaningfulrepresentation" (People v Stultz, 2NY3d 277, 279 [2004] [internal quotation marks omitted]; see People v Baldi, 54NY2d 137 [1981]). The state standard focuses on "the fairness of the process as a whole ratherthan its particular impact on the outcome of the case" (People v Benevento, 91 NY2d708, 714 [1998]; People vGeorgiou, 38 AD3d 155, 161 [2007] [internal quotation marks omitted]). "In reviewingclaims of ineffective assistance care must be taken to 'avoid both confusing true ineffectiveness[of counsel] with mere losing tactics and according undue significance to retrospective analysis' "(People v Satterfield, 66 NY2d 796, 798 [1985], quoting People v Baldi, 54NY2d 137, 146 [1981]).
In this case, the cumulative effect of the defendant's counsel's conduct throughout the trialviolated the defendant's constitutional right to meaningful representation. During jury selection,counsel made statements in front of prospective jury members which had the effect of distancinghimself from the defendant. Counsel failed to cross-examine an eyewitness to exploit weaknessesin his direct testimony, and while cross-examining another witness, he used an anachronistic andpotentially offensive term to describe the race of one of the persons allegedly present at the timethat the defendant was arrested. Counsel declined the court's invitation to inspect photographssought to be introduced by the People, while acknowledging that he had not seen them before.Counsel offered to stipulate that a witness was "an expert on whatever you want him to testifyto," even though the witness was a fact witness. When the People called another witness, counseloffered to stipulate to his entire testimony, even though counsel acknowledged that he had "noidea what the witness was going to testify to." Defense counsel's interruptions led the court toadmonish counsel, in front of the jury, on more than one occasion. During the defendant's case,counsel called the defendant's mother to the stand in an attempt to introduce a letter intoevidence. After the court ruled that the letter was inadmissible, counsel concluded hisexamination of the mother without asking her any questions about the shooting, even though sheallegedly was an eyewitness to it. As the trial court observed, this created an inference that hertestimony regarding the shooting would have been unfavorable to the defendant. Although itbecame clear during the People's case that a material witness would not be called to testify,counsel's untimely request for a missing witness charge, not made until after the defense hadrested, prejudiced the defendant (seePeople v Carr, 14 NY3d 808, 809 [2010]). During counsel's summation, although hemade some cursory observations about the People's evidence, he focused much of hispresentation on the role of a jury in a democracy. While rhetoric designed to inspire the jurymight be strategic in some cases, here there were serious weaknesses in the People's evidencethat counsel failed to call to the jury's attention. During the prosecutor's summation, counselfailed to object to, inter alia, comments which implied that the defendant's character increased thelikelihood that he committed the charged crimes (see People v Ciervo, 123 AD2d 393,396 [1986]).
Under these circumstances, the defendant was deprived of the effective assistance of counseland, therefore, is entitled to a new trial. Covello, J.P., Lott, Roman and Miller, JJ., concur.