| People v Nguyen |
| 2011 NY Slip Op 09216 [90 AD3d 1330] |
| December 22, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Thanh V.Nguyen, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joshua E. Shapiro of counsel), forrespondent.
Spain, J. Appeals from two judgments of the County Court of Broome County (Smith, J.),rendered June 4, 2010, convicting defendant following two nonjury trials of the crimes ofcriminal possession of a controlled substance in the third degree (two counts), criminal sale of acontrolled substance in the third degree (three counts), burglary in the first degree, assault in thesecond degree and petit larceny.
At defendant's nonjury trial, Thomas Walczak, an undercover investigator with the StatePolice assigned to the Community Narcotics Enforcement Team, testified that he calleddefendant's cell phone on March 25, 2009 and arranged to meet him at a fast food restaurant inthe Village of Endicott, Broome County, where defendant sold him 10 glassine envelopes ofheroin for $170. On the morning of March 31, 2009, defendant again sold heroin to Walczak,who paid defendant with $170 in prerecorded (and photocopied) buy money. Later that evening,around 7:00 p.m., defendant, for a third time, sold 10 envelopes of heroin to Walczak, who againpaid with $170 in prerecorded buy money. Defendant was arrested within minutes, after Walczakconfirmed that the Village of Johnson City police officers had the correct person in custody.Upon defendant's arrest, police recovered on or near defendant $180 in prerecorded buy money,$4,450 in cash, defendant's cell phone, a padlock tied to a tubesock, packets of heroin and a smallamount of cocaine. Defendant was convicted, as charged in an indictment, of two counts ofcriminal possession of a controlled substance in the third degree and three counts of criminal saleof a controlled substance in the third degree (hereinafter the drug trial).[*2]
Defendant was also separately indicted, and convictedafter a separate nonjury trial, of burglary in the first degree, assault in the second degree and petitlarceny (hereinafter the burglary trial). Those charges stem from defendant's conduct at around11:20 p.m. on March 31, 2009, while under police surveillance following his drug sale toWalczak earlier that morning. Defendant went to the home of Timothy Kinne to confront himabout a camera, the ownership of which was disputed. Kinne testified that he was home alone, inthe shower, when defendant entered through an unlocked door, Kinne exited the shower anddefendant shoved the bathroom door into Kinne's chest. An altercation ensued and Kinnerecounted that defendant again slammed the door into him, hit him with a padlock tied to atubesock, threatened him, demanded money and then left, taking Kinne's cell phone. Defendanttestified, admitting that he went to Kinne's home angry at him, entered without permission andconfronted Kinne, pushing the door into Kinne to scare but not hurt him; however, he claimedKinne attacked him and they fought, but he denied hitting Kinne with the padlock.
Upon all of his convictions, defendant was sentenced as a second felony offender (a secondviolent felony offender on the burglary conviction) to concurrent sentences, the maximumaggregate being 16 years with five years of postrelease supervision. Defendant now appeals,contending that he was deprived of the effective assistance of counsel, pointing to a litany ofalleged errors committed by his retained counsel at both nonjury trials.
Upon our review of the record of each nonjury trial, viewed in totality, we find that defendantwas afforded meaningful representation (see People v Henry, 95 NY2d 563, 565 [2000];People v Benevento, 91 NY2d 708, 712 [1998]). Any omissions or imperfections incounsel's representation were not so egregious as to deprive defendant of a fair trial (seePeople v Flores, 84 NY2d 184, 187 [1994]).
Initially, defendant's contention that counsel failed to advise him of his right to testify beforethe grand jury that indicted him on the drug charges lacks merit, as the record reflects thatcounsel had not yet been retained on the drug charges when the case was presented to the grandjury and the indictment was handed up on June 30, 2009. There are no facts in the record tosupport a claim that defendant was deprived of his right to appear (see CPL 190.50 [5]).Also, in view of the five-count drug indictment and the imminent burglary indictment (handed upthe next day), as well as defendant's extensive criminal history, counsel's decision on July 6,2009 not to contest County Court's two-day remand of defendant without bail, and his deferenceto the court at the next appearance on July 8 as to the appropriate bail, was not an unreasonablestrategy. Indeed, while the People requested continued remand without bail, citing defendant'smany prior felonies, his sentencing exposure and flight risk, the court set reasonable bail and noprejudice to defendant is demonstrated (see CPL 530.40).
To the extent that defendant claims that County Court inadequately responded to hisexpressed dissatisfaction with and desire to fire his retained counsel at a November 23, 2009pretrial (burglary) appearance, we note that the court clearly informed defendant of his right toretain substitute counsel, and the record does not indicate that defendant ever did so. Thus,defendant was not deprived of the right to representation of his own choosing (see People v Mack, 39 AD3d 882,884 [2007]). Counsel's refusal to join or support defendant's successive pro se speedy trialmotions, made repeatedly throughout the proceedings and trials, was likewise justified. As thecourt meticulously explained to defendant, the People satisfied the requirement that they declaretheir readiness to go to trial within six months of the commencement of the prosecution(see CPL 30.30), and no facts appeared in the record to support a constitutional [*3]speedy trial claim (see CPL 30.20). Counsel had noobligation to present or support patently meritless motions (see People v Caban, 5 NY3d 143, 152 [2005]).
Concerning counsel's decision to forgo certain suppression motions, defendant has not"demonstrate[d] the absence of strategic or other legitimate explanations" for counsel's choices(People v Rivera, 71 NY2d 705, 709 [1988]; see People v Caban, 5 NY3d at152). For example, at the burglary trial, which was held first, counsel withdrew defendant'smotion to suppress defendant's statement to police and the physical evidence seized upon hisarrest, and his request for Huntley and Mapp hearings, believing that they were inpart exculpatory, and defendant agreed on the record. Moreover, no colorable basis appears onthis record for counsel to pursue a challenge to the legality of defendant's arrest or the search ofhis person incident to his arrest (and seizure of evidence), or to contest the judicial search warrantissued to allow a search of the contents of defendant's cell phone seized at the time of his arrest;nor does there appear to be any likelihood of success on such motions. Indeed, County Courtindicated that had counsel not withdrawn the motions, it would have denied them withouthearings because there were insufficient facts to support them (see People v Phelan, 82 AD3d1279, 1282 [2011], lv denied 17 NY3d 799 [2011]).
Regarding defendant's contention that counsel should have moved to dismiss the indictmentbecause the People's opening statement at the burglary trial was inadequate in failing to allegethat defendant's entry into Kinne's home was unlawful (see Penal Law § 140.30;CPL 260.30 [3]), we are not persuaded that this constituted ineffective assistance. Given that thiswas a nonjury trial, the prosecutor was not required to deliver an opening statement (seeCPL 320.20 [3] [a]) and, even if the opening statement had been inadequate, theremedy—had counsel objected—would have been to afford the prosecutor "anopportunity to rectify any defect" (People v Ward, 42 AD3d 579, 581 [2007], lv denied 9NY3d 883 [2007]; see People v Kurtz, 51 NY2d 380, 386 [1980], cert denied 451US 911 [1981]). As the record demonstrates that County Court, sitting as factfinder, was wellaware of this element of burglary, no prejudice occurred. Likewise meritless is defendant's claimthat counsel misstated the grounds for a motion to dismiss at the close of the People's case(see CPL 290.10 [1]) and, in view of the legally sufficient evidence adduced to establishthe charged offenses, counsel's failure to make the motion with specificity so as to preserveclaims for appeal did not prejudice defendant (see People v Finger, 95 NY2d 894, 895[2000]).
Defendant also submits that counsel was ineffective for failing to request the lesser includedoffense to burglary in the first degree of criminal trespass in the second degree under Penal Law§ 140.15 (1), which he argues he could have been convicted of if the factfinder concludedthat he did not enter Kinne's dwelling "with intent to commit a crime therein," an element of thefirst degree burglary charge (Penal Law § 140.30 [3]). Counsel, however, made thereasonable tactical decision to request that County Court consider burglary in the second degree(see Penal Law § 140.25 [2]) as a lesser included offense, on the premise that thepadlock tied to a sock was not a dangerous instrument (see Penal Law § 10.00[13]); counsel also requested consideration of attempted assault in the second degree as a lesserincluded offense of assault in the second degree (see Penal Law § 120.05 [2];§ 110.00) in the event that the court found the physical injury to be insufficient to supportthe higher count (see Penal Law § 10.00 [9]). Counsel's strategic decision, albeitunsuccessful, to seek an acquittal on the top burglary count by arguing that defendant did notintend to commit a crime therein but, rather, intended to retrieve the camera to which he believedhimself entitled, as defendant testified, and to not leave open a conviction for criminal trespass,was reasonable and such hindsight disagreements will [*4]notestablish ineffective assistance (seePeople v Battease, 74 AD3d 1571, 1575 [2010], lv denied 15 NY3d 849 [2010).
Defendant also points to counsel's failure to pursue a Rosario violation, disclosedafter the verdict was rendered in the burglary trial, consisting of the People's inadvertent failureto turn over to the defense a brief handwritten note by the State Police investigator who tookdefendant into custody after his arrest. The notes were incorporated into the CPL 710.30 noticeprovided to defendant prior to trial. Given counsel's overall adequate performance, his failure totake maximum advantage of this di minimus Rosario violation at the postverdict stage ofthose proceedings did not constitute ineffective assistance of counsel (see People vFlores, 84 NY2d at 187-188).
As for the drug trial, defendant has not demonstrated that counsel lacked a legitimatestrategic reason for the decisions and omissions he now challenges. Counsel's viable trial strategyincluded contesting that defendant made the sales, but conceding the nature of the substancessold to Walczak and stipulating to the lab report results. Counsel's waiver of a Wadehearing was supported by case law establishing that summary denial of a hearing is appropriatefor confirmatory identifications, i.e., "identifications made by undercover police officers whoparticipate in planned buy-and-bust operations after a face-to-face purchase, to confirm thatbackup officers apprehended the right suspect" (People v Allah, 57 AD3d 1115, 1117 [2008], lv denied 12NY3d 780 [2009]; see People vBoyer, 6 NY3d 427, 432 [2006]). Counsel's closing statement was adequate, focusing onthe discrepancies in the proof, e.g., the lack of any independent eyewitnesses (other than thepurchasing undercover officer) to the transactions or fingerprint evidence, all in line with thedefense theory that defendant had been misidentified as the seller. The remarks made atsentencing urging County Court to impose the mandatory minimum sentence and not penalizedefendant for rejecting numerous generous plea offers (against counsel's advice), while reflectingcounsel's frustration with defendant's perceived poor choices and disruptive conduct during theproceedings, were nonetheless reasonably aimed at obtaining favorable sentencing treatment.
Overall and viewed in totality, we find that defendant received meaningful representation,engaging in ongoing fruitful plea negotiations, pursuing pretrial discovery, fully participating inboth trials, appropriately cross-examining witnesses and emphasizing any shortcomings in theproof, and pursuing a cogent defense theory in the face of overwhelming evidence of guilt.Defendant received fair trials and the verdicts were the product of the compelling evidenceagainst him and not in any respect the result of counsel's deficient performance.
Mercure, A.P.J., Peters, Rose and Kavanagh, JJ., concur. Ordered that the judgments areaffirmed.