| People v McArthur |
| 2012 NY Slip Op 08336 [101 AD3d 752] |
| December 5, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JamesMcArthur, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Guy Arcidiacono of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Braslow, J.),rendered June 23, 2009, convicting him of murder in the second degree and criminal possessionof a weapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interestof justice, and the matter is remitted to the County Court, Suffolk County, for a new trial.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, upon our independent review pursuant toCPL 470.15 (5), we are satisfied that the verdict of guilt was not against the weight of theevidence (see People v Romero, 7NY3d 633 [2006]).
The defendant's contention that he was deprived of the right to a fair trial because theprosecutor commented in summation about his post-arrest silence is unpreserved for appellatereview (see CPL 470.05 [2]; People v Kinard, 96 AD3d 976, 977 [2012]). Nonetheless, upon theexercise of our interest of justice jurisdiction, we conclude that the contested summation remarkswere improper (see People vTucker, 87 AD3d 1077, 1078 [2011]). A defendant has "the constitutional right toremain silent at the time of his [or her] arrest (NY Const, art I, § 6; US Const 5th Amend)and his [or her] exercise of that right at or after his [or her] arrest cannot be used by the People aspart of their direct case" (People v Basora, 75 NY2d 992, 993 [1990]; see People vConyers, 49 NY2d 174, 177 [1980]). " '[A]n individual's pretrial failure to speak whenconfronted by law enforcement officials is of extremely limited probative worth' while 'the risk ofprejudice is substantial' " (People v Tucker, 87 AD3d at 1078, quoting People vConyers, 52 NY2d at 458-459).
Here, the prosecutor stated in summation, among other things, that at the time of thedefendant's arrest, he looked "[d]isappointed," which is "not how an innocent person is going toreact being told he's being charged with murder," commented on the defendant's failure at thattime to question the charges, stated that the defendant looked "distracted" during a car ride to thepolice station, which is "the reaction of a guilty man who knows he's been caught," and statedthat when [*2]questioned in the police station, the defendant"smile[d]." Contrary to the People's contention, "the defendant's mere denial of his involvementin the shooting upon arrest was not tantamount to a waiver of his right to remain silent so as torender the Conyers proscription inapplicable" (People v Santiago, 119 AD2d 775,776 [1986]). "Indeed, as the Court of Appeals has acknowledged, 'the State is denied the right todraw adverse inferences from the fact that a defendant has maintained an effective silence,even if something less than total' " (People v Tucker, 87 AD3d at 1079, quotingPeople v Savage, 50 NY2d 673, 680 [1980], cert denied 449 US 1016 [1980]).Further, by making certain ambiguous remarks when questioned at the police station, thedefendant did not "proceed[ ] to narrate the essential facts of his involvement in the crime"(People v Savage, 50 NY2d at 676). Thus, it was inappropriate for the prosecutor tocomment on the defendant's silence and demeanor as evidence of a consciousness of guilt(see People v Tucker, 87 AD3d at 1077; People v Basora, 75 NY2d 992 [1990]).Since the evidence in this single eyewitness identification case was not overwhelming (see People v Berry, 49 AD3d 888,889 [2008]), the errors were not harmless (cf. People v Morgan, 66 NY2d 255, 259[1985], cert denied 476 US 1120 [1986]; People v Balls, 118 AD2d 887, 889[1986]).
Additionally, we agree with the defendant that, under the particular circumstances of thiscase, he was deprived of the effective assistance of counsel. The right to effective assistance ofcounsel is guaranteed by the Federal and State Constitutions (see US Const Amend VI;NY Const, art I, § 6; People vTurner, 5 NY3d 476, 479 [2005]). "Under the federal standard for ineffective assistanceof counsel, a defendant must show that his or her attorney's performance fell below an objectivestandard of reasonableness, and that 'there is a reasonable probability that, but for counsel'sunprofessional errors, the result of the proceeding would have been different' " (People v Bodden, 82 AD3d 781,783 [2011], quoting Strickland v Washington, 466 US 668, 694 [1984]). Under the statestandard, "the constitutional requirements for the effective assistance of counsel 'are met whenthe defense attorney provides meaningful representation' " (People v Bodden, 82 AD3d at783, quoting People v Stultz, 2NY3d 277, 279 [2004]). " 'In reviewing claims of ineffective assistance[,] care must be takento "avoid both confusing true ineffectiveness [of counsel] with mere losing tactics and accordingundue significance to retrospective analysis" ' " (People v Clermont, 95 AD3d 1349, 1350-1351 [2012], quotingPeople v Satterfield, 66 NY2d 796, 798 [1985]).
Here, the defendant was accused of fatally shooting an individual at around 3:00 a.m. on July15, 2007. At trial, defense counsel elicited testimony from several prosecution witnessesregarding another shooting that occurred on July 15, 2007, shortly before 1:30 a.m., just twoblocks away from the subject shooting, and that two individuals other than the defendant had tolda prosecution witness that they committed the earlier shooting. Defense counsel deliberatelyelicited this testimony even after having been advised by the trial court that doing so would openthe door to the prosecutor eliciting testimony on redirect examination that the defendant hadpleaded guilty to assault in the third degree in connection with the earlier shooting. Thus, defensecounsel knowingly caused the jury to be presented with highly prejudicial testimony concerningan unrelated act of gun violence to which the defendant had pleaded guilty, which improperlysuggested to the jury that the defendant had a propensity for gun violence and had shot someoneelse within two hours of the subject shooting (see People v Gavalo, 87 AD3d 1014, 1015 [2011]). Further,defense counsel compounded the prejudice of this testimony by failing to request a limitinginstruction (see id.). Defense counsel also was deficient in failing to raise objections totestimony elicited at trial concerning the defendant's post-arrest silence or to the prosecutor'simproper summation remarks based upon that testimony (cf. People v Brown, 266 AD2d838, 839 [1999]). The cumulative effect of defense counsel's errors deprived the defendant of theeffective assistance of counsel (seePeople v Danraj, 75 AD3d 651, 652 [2010]; People v Brown, 300 AD2d 314,315 [2002]). Accordingly, the judgment must be reversed and a new trial ordered for this reasonas well. In light of our determination, the defendant's contention that his sentence was excessivehas been rendered academic.
The defendant's remaining contention is unpreserved for appellate review and, in any event,without merit. Skelos, J.P., Balkin, Dickerson and Hinds-Radix, JJ., concur.