| People v Yagudayev |
| 2012 NY Slip Op 00539 [91 AD3d 888] |
| Jnury 24, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ruben Yagudayev, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnetteTraill, and Danielle Hartman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Blumenfeld, J.), rendered May 14, 2009, convicting him of grand larceny in the fourth degreeand criminal possession of stolen property in the fourth degree, after a nonjury trial, andimposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
In this matter involving alleged shoplifting, the defendant entered a Home Depot store,collected a number of valuable tools offered for sale by the store, placed the tools in a shoppingcart, and pushed the cart toward the rear of the store. There, he parked the shopping cart,obtained a flatbed cart, selected a bathroom vanity, and removed the vanity from its box. He thenloaded the tools into the vanity box and resealed it, leaving the vanity out of the box. Accordingto the store's security personnel, the defendant placed the vanity box containing the tools on theflatbed cart, and pushed the flatbed cart outside the store without stopping at the registers.Throughout the course of these events, the defendant had been observed by the store's securitypersonnel, who apprehended him just outside the store's entrance. The defendant was chargedwith grand larceny in the fourth degree and criminal possession of stolen property in the fourthdegree.
At trial, the People presented evidence establishing the above events. Defense counsel thenelicited testimony from the defendant confirming the essential elements of the People's evidence,except that the defendant maintained that, instead of pushing the flatbed cart with the vanity boxcontaining the tools outside the store, he pushed the cart with the tool-laden vanity box to thefront of the store, gave another customer cash sufficient to pay for the vanity, and exited the storeempty-handed on the pretext that he needed to attend to a child in his vehicle. Defense counselelicited testimony from the defendant that the defendant intended for the other customer topresent the vanity box to a cashier, at which point the cashier would only ring up the sale of avanity, the customer would pay the $69.99 price for a vanity that was marked on the vanity box,and, unaware that the vanity box was filled with tools worth far more than the vanity, thecustomer would wheel the flatbed cart to the parking lot to deliver the vanity box to thedefendant. Thus, defense counsel elicited testimony from the defendant that, pursuant to thisscheme, the defendant intended to take [*2]tools from the storeworth far more than the $75 or $76 he allegedly tendered to the obliging customer to pay for avanity.
During the charge conference and in his summation, it became clear that defense counsel'sstrategy in presenting this testimony was to persuade the factfinder—here, a SupremeCourt Justice—that since the defendant never personally took the merchandise outside thestore, he was guilty only of the lesser-included offense of attempted grand larceny in thefourth degree. Although the Trial Justice agreed to consider the lesser-included offense, defensecounsel's strategy was legally unsustainable. The Trial Justice found the defendant guilty of bothgrand larceny in the fourth degree and criminal possession of stolen property in the fourth degree.The defendant appeals, contending that his trial counsel was ineffective. We agree.
New York applies a "flexible standard" to evaluating claims of ineffective assistance ofcounsel (People v Benevento, 91 NY2d 708, 712 [1998]; see People v Colville, 79 AD3d189, 197 [2010], lv granted 17 NY3d 743 [2011]). Thus, where "the evidence, thelaw, and the circumstances of a particular case, viewed in totality and as of the time of therepresentation, reveal that the attorney provided meaningful representation," counsel'sperformance will not be found ineffective (People v Baldi, 54 NY2d 137, 147 [1981]; see People v Caban, 5 NY3d 143,152 [2005]; People v Colville, 79 AD3d at 197). In contrast to the federal standard,which looks to the outcome of the case, under our standard, a court must consider "prejudice. . . , a component which focuses on the fairness of the process as a whole ratherthan any particular impact on the outcome of the case" (People v Colville, 79 AD3d at197; see People v Hobot, 84 NY2d 1021, 1022 [1995]).
In evaluating claims of ineffectiveness, a reviewing court must take care to "avoid bothconfusing true ineffectiveness with mere losing tactics and according undue significance toretrospective analysis" (People v Baldi, 54 NY2d at 146; see People v Colville,79 AD3d at 197). "As long as the defense reflects a reasonable and legitimate strategy under thecircumstances and evidence presented, even if unsuccessful, it will not fall to the level ofineffective assistance"; instead, a "claim of ineffective assistance of counsel will be sustainedonly when it is shown that counsel partook 'an inexplicably prejudicial course' " (People vBenevento, 91 NY2d at 712-713, quoting People v Zaborski, 59 NY2d 863, 865[1983]).
A defense counsel's strategy of seeking the conviction of his or her client on a lesser-includedoffense does not, in and of itself, constitute ineffective assistance of counsel (see People v Hines, 46 AD3d 912,913 [2007]). However, under the facts of this case, the strategy was legally indefensible.
In People v Olivo (52 NY2d 309 [1981]), the Court of Appeals considered threeshoplifting cases. In each, the defendant had taken steps toward an apparent planned theft, buthad not actually left the store before being apprehended (id. at 313-314). Afterconsidering the law and the facts, the Court held that "in view of the modern definition of thecrime of larceny, and its purpose of protecting individual property rights, a taking of property inthe self-service store context can be established by evidence that a customer exercised controlover merchandise wholly inconsistent with the store's continued rights" (id. at 321;see People v Jennings, 69 NY2d 103, 118 [1986]; see generally People v Medina, 18 NY3d 98 [2011]). To "treatmerchandise in a manner inconsistent with the owner's continued rights—and in a mannernot in accord with that of a prospective purchaser," an individual need not "actually walk[ ] outof the store" (People v Olivo, 52 NY2d at 318). Instead, "a customer who crosses the linebetween the limited right he or she has to deal with merchandise and the store owner's rights maybe subject to prosecution for larceny" (id. at 321; see People v LaRock, 21 AD3d 1367, 1368 [2005]; People vBasir, 141 AD2d 745, 745-746 [1988]; see also People v Banks, 294 AD2d 935[2002]; People v Yusufi, 247 AD2d 648, 649 [1998]).
Despite this clear precedent, defense counsel elicited the following testimony on [*3]direct examination:
"Q.
So basically what you're saying is you put all the stuff in the box and you were gonnatake it?
"A.
Yes.
"Q.
But you didn't?
"A.No, I didn't take it out [of] the store.
"Q.
I mean but for them catching you and stopping her before she got past the register youprobably would [have]?
"A.
Yeah."In light of the Court of Appeals' holding in Olivo, eliciting such testimony was " 'aninexplicably prejudicial' " strategy which amounted to eliciting an admission of guilt on the stand(People v Benevento, 91 NY2d at 713, quoting People v Zaborski, 59 NY2d at865). Likewise, given the fact that this strategy permeated counsel's entire theory of the case, itcannot be characterized as an "[i]solated error[ ]" (People v Henry, 95 NY2d 563, 565[2000]) and, even if it were, that error would be "sufficiently egregious and prejudicial as tocompromise a defendant's right to a fair trial," and would suffice to establish ineffectiveassistance (People v Caban, 5 NY3d at 152; see People v Hobot, 84 NY2d at1022; People v Colville, 79 AD3d at 197). Likewise, contrary to the People's contention,the fact that the Trial Justice agreed to consider the lesser-included offense of attempted grandlarceny in the fourth degree is immaterial, since New York's standard focuses on fundamentalfairness rather than on the outcome of the case (see People v Colville, 79 AD3d at197-198).
"[I]t is elementary that the right to effective representation includes the right to assistance byan attorney who has taken the time to review and prepare both the law and the facts relevant tothe defense" (People v Droz, 39 NY2d 457, 462 [1976]; see People v Bussey, 6 AD3d 621,623 [2004]; see also People v Fogle, 307 AD2d 299, 301 [2003]). Here, had defensecounsel properly researched his theory of the case, he would have ascertained that it was legallyunsound. Thus, while this Court will not "second-guess[ ]" an attorney's trial strategy, "thedefendant's right to representation does entitle him [or her] to have counsel conduct appropriateinvestigations, both factual and legal, to determine if matters of defense can be developed, and toallow himself [or herself] time for reflection and preparation for trial" (People v Bussey,6 AD3d at 623 [internal quotation marks omitted]). Since defense counsel failed to meet thisstandard, the defendant is entitled to a reversal of the judgment and a new trial. Dillon, J.P., Lott,Roman and Cohen, JJ., concur.