| People v Gavalo |
| 2011 NY Slip Op 06492 [87 AD3d 1014] |
| September 13, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v VictorGavalo, Appellant. |
—[*1]
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JeanetteLifschitz, and Rona I. Kugler of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Cooperman, J.), rendered February 6, 2009, convicting him of murder in the second degree,attempted murder in the second degree, assault in the first degree, and criminal possession of aweapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
"A defendant in a criminal case has a constitutional right to the effective assistance ofcounsel" (People v Larkins, 10AD3d 694 [2004]; see US Const Sixth Amend; NY Const, art I, § 6)."However, what constitutes effective assistance is not and cannot be fixed with precision, butvaries according to the particular circumstances of each case" (People v Rivera, 71 NY2d705, 708 [1988]). Under the New York Constitution, "[s]o long as the evidence, the law, and thecircumstances of a particular case, viewed in totality and as of the time of the representation,reveal that the attorney provided meaningful representation, the constitutional requirement willhave been met" (People v Baldi, 54 NY2d 137, 147 [1981]; see People vBenevento, 91 NY2d 708, 712 [1998]). "While the inquiry focuses on the quality of therepresentation provided to the accused, the claim of ineffectiveness is ultimately concerned withthe fairness of the process as a whole rather than its particular impact on the outcome of the case"(People v Benevento, 91 NY2d at 714). Thus, "[i]solated errors in counsel'srepresentation generally will not rise to the level of ineffectiveness, unless the error is 'so seriousthat defendant did not receive a fair trial' " (People v Henry, 95 NY2d 563, 565-566[2000], quoting People v Flores, 84 NY2d 184, 188-189 [1994]).
We agree with the defendant that, under the particular circumstances of this case, he was notprovided meaningful representation. Defense counsel "embarked on an inexplicably prejudicialcourse" which deprived the defendant of a fair trial (People v Zaborski, 59 NY2d 863,865 [1983]). The defendant was accused of shooting two occupants of a parked car, and defensecounsel deliberately elicited testimony from a prosecution witness regarding an incident in whichthe defendant allegedly broke into the witness's apartment and shot at him.
Thus, defense counsel intentionally elicited unduly prejudicial testimony, which [*2]otherwise would have been inadmissible (see People vLindo, 167 AD2d 558, 559 [1990]). As a result, the jury was presented with an unrelated actof gun violence committed by the defendant, which had no relation to the charged crimes. Theevidence regarding the unrelated shooting improperly suggested to the jury that the defendant hada criminal propensity for gun violence. Such evidence was highly prejudicial in the context ofthis trial, which also involved an alleged shooting. To compound the error, defense counsel failedto request a limiting instruction with regard to the testimony (see People v Fleegle, 295AD2d 760, 762-763 [2002]).
These errors were "so serious, and resulted in such prejudice to the defendant, that he wasdenied a fair trial thereby" (People vAlford, 33 AD3d 1014, 1016 [2006]; see People v Turner, 5 NY3d 476, 480 [2005]). Consequently, weconclude that the defendant did not receive the effective assistance of counsel. Accordingly, thejudgment must be reversed and a new trial ordered.
In light of our determination, we need not reach the defendant's remaining contention.Covello, J.P., Angiolillo, Dickerson and Hall, JJ., concur.