| People v Harden |
| 2012 NY Slip Op 06996 [99 AD3d 1031] |
| October 18, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Anthony C.Harden, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered June 7, 2010, upon a verdict convicting defendant of the crime of assault in the firstdegree (three counts).
Defendant was in a vehicle driven by his girlfriend, Veneilya Goodwin, in the City of Albanyon September 19, 2009 when the vehicle approached an intersection and came in close proximityto a couple crossing the street. Hostile words were exchanged and the couple then continuedwalking toward a group of their friends who were walking ahead of them when defendant andthen Goodwin exited the vehicle. An altercation ensued and quickly escalated, during which thecouple's friends came to their assistance and, ultimately, defendant stabbed three men, JonathanPuerta, Christopher Puerta and Richard Thomas, all of whom required surgery. Defendant wasindicted and convicted, after a jury trial, of three counts of assault in the first degree.
In their testimony at trial, the victims and numerous witnesses offered, among other things,varying accounts of the altercation, essentially establishing defendant as the initial aggressor whopulled the knife from his waist and stabbed each of the victims. After the People rested, thedefense called Goodwin and two eyewitnesses to testify in support of defendant's [*2]justification defense. The defense rested and, after the jury wasexcused, the People indicated that they had no rebuttal evidence; a further charging conferencewas conducted. During that conference, defendant unequivocally asserted, "I want to testify onmy behalf." Defense counsel stated that he had strongly advised against it but indicated, inresponse to County Court's inquiry, that if defendant wanted to testify, the court should reopenthe proof. Further questioning of defendant by the court established that counsel had adviseddefendant that it was not in his interests to testify and elicited defendant's affirmative responsethat he had originally "followed that instruction [not to testify]" and had "agreed with it." Thecourt then denied the request. Upon his conviction, County Court imposed consecutive sentencesas a second felony offender with an aggregate maximum of 65 years in prison, with five years ofpostrelease supervision on each count.
On appeal, while defendant raises numerous arguments, we address and find merit in hisdispositive claim that he was wrongfully denied his due process right to testify on his own behalf,which requires that his convictions be reversed and a new trial ordered. "One of the fundamentalprecepts of due process is that a defendant in a criminal proceeding has the right to testify, whichright is guaranteed under both the Federal and New York State Constitutions" (People vMason, 263 AD2d 73, 76 [2000] [citations omitted]; see People v Terry, 309 AD2d973, 974 [2003]). Unlike strategic or tactical decisions concerning trial, which are within theauthority of counsel, a defendant retains the authority to make certain fundamental decisions,including whether to testify on his or her own behalf, as County Court acknowledged (seeJones v Barnes, 463 US 745, 751 [1983]; People v Colon, 90 NY2d 824, 825-826[1997]; People v Petrovich, 87 NY2d 961, 963 [1996]; People v White, 73 NY2d468, 478 [1989], cert denied 493 US 859 [1989]).
Here, defendant's request to testify came right after the close of proof, during the chargingconference, but before summations. While the order of a criminal trial is fixed by statute(see CPL 260.30), it is well established that this "statutory framework . . . isnot a rigid one and the common-law power of the trial court to alter the order of proof in itsdiscretion and in furtherance of justice remains at least up to the time the case is submitted to thejury" (People v Olsen, 34 NY2d 349, 353 [1974] [internal quotation marks and citationomitted]; see People v Whipple, 97 NY2d 1, 6 [2001]; People v Terry, 309 AD2dat 974-975).
A trial court generally has "abundant discretion" in deciding a request to reopen the proof(People v Whipple, 97 NY2d at 8). However, given "[t]he magnitude and fundamentalnature of [defendants'] right to be heard in criminal proceedings pending against [them]"(People v Burke, 176 AD2d 1000, 1001 [1991]; see People v Terry, 309 AD2d at975), we are constrained to conclude that it was reversible error to deny defendant'spresummation[FN1]request to reopen the proof and permit him to testify in his defense[FN2](see People v Terry, 309 AD2d at 974-[*3]975; Peoplev Harami, 93 AD2d 867, 867-868 [1983]; see also People v Washington, 71 NY2d916, 918 [1988]; People v Burke, 176 AD2d at 1000-1001 [error to deny the defendant'spostsummation request to testify]; People v Hendricks, 114 AD2d 510, 513 [1985] [errorto deny the defendant's request to testify made after defense summation but prior to the People'ssummation]). While the prosecutor summarily objected to reopening proof, he made no claim ofprejudice and the court did not articulate a basis for the denial of defendant's request. Defendant'stestimony was certainly relevant to key disputed issues at trial. Contrary to the People's positionon appeal, neither the admission at trial of defendant's exculpatory statements to police, nor thedefense witnesses' favorable accounts of the incident, nor the potential adverse impact oftestifying at trial on defendant's credibility supported the denial of defendant's right to testify.Indeed, "[r]egardless of how unwise that decision may [or may not] have been, it was his tomake" (People v Henriquez, 3NY3d 210, 217 [2004]).
Moreover, after defendant invoked his right to testify, he never waived this fundamental right(see People v Gajadhar, 9 NY3d438, 448 [2007]; People v Henriquez, 3 NY3d at 216-217; see also People v Lopez, 6 NY3d248, 256-257 [2006]). County Court's brief inquiry of defendant focused only on whether hehad, during the trial, followed and agreed with his counsel's advice against testifying,rather than on defendant's then-current change of heart and unequivocal request to testify. Therecord does not support the conclusion that defendant at that time disavowed that request (seePeople v Terry, 309 AD2d at 975). "In view of the constitutional magnitude of the error andthe fact that it cannot be said that the error was harmless beyond a reasonable doubt, a new trial isrequired" (People v Harami, 93 AD2d at 868 [citations omitted]; see People vTerry, 309 AD2d at 975).
In light of this conclusion, we decline to address defendant's remaining contentions. We note,however, that defendant's claim regarding trial counsel's alleged failure to advise him of his rightto testify before the grand jury is unpreserved as it was not raised prior to trial; it also concernsmatters outside of the record on appeal and could not be (and was not) raised in his CPL 330.30(1) motion to set aside the verdict, and is thus not properly before this Court.
Mercure, J.P., Malone Jr., Kavanagh and Egan Jr., JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Albany County for a new trial.
Footnote 1: By contrast, the denial ofrequests made by defendants to testify after the completion of summations have been upheld (see People v Johnson, 48 AD3d348, 349 [2008], lv denied 10 NY3d 865 [2008]; People v Franco, 271AD2d 383, 383 [2000], lv denied 95 NY2d 865 [2000]; People v Braxton, 254AD2d 365, 366 [1998], lv denied 93 NY2d 850 [1999]).
Footnote 2: Similar presummation requestsby the People to reopen proof have also been upheld (see People v Whipple, 97 NY2d at6-8; People v Demetsenare, 243 AD2d 777, 779 [1997], lv denied 91 NY2d 833[1997]).