| People v Bush |
| 2013 NY Slip Op 04848 [107 AD3d 1302] |
| June 27, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vTammy J. Bush, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (John M. Tuppen of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Chemung County(Hayden, J.), rendered February 3, 2012, convicting defendant following a nonjury trialof the crime of criminal possession of a forged instrument in the second degree (twocounts).
Defendant was indicted on two counts of criminal possession of a forged instrumentin the second degree following her attempt to cash a fake payroll check at a store in theTown of Big Flats, Chemung County. A plea bargain was negotiated, but County Courtrejected defendant's plea allocution. Defendant then waived her right to a jury trial and,after a bench trial, she was found guilty of both counts charged in the indictment. Shewas sentenced to concurrent terms of incarceration of one year on each count. Defendantnow appeals.
We consider first defendant's argument that she did not receive the effectiveassistance of counsel. "So long as the evidence, the law, and the circumstances of aparticular case, viewed in totality and as of the time of the representation, reveal that theattorney provided meaningful representation, the constitutional requirement will havebeen met" (People v Baldi, 54 NY2d 137, 147 [1981] [citations omitted];accord People v Rivera, 71 NY2d 705, 708 [1988]). "While a single error bydefense counsel at trial generally does not constitute ineffective assistance, courts mustexamine defense counsel's entire representation of defendant" (People v Oathout, 21 NY3d127, 131-132 [2013] [citations omitted]; see People v Kuforiji, 88 AD3d 1165, 1166-1167[*2][2011]; cf. People v Turner, 5 NY3d 476, 480-481 [2005]). In suchregard, we frequently consider whether counsel made appropriate motions, set forth acogent defense theory, interjected viable objections, conducted meaningfulcross-examination, gave an effective summation and otherwise presented a zealousdefense (see e.g. People vWells, 101 AD3d 1250, 1255 [2012], lv denied 20 NY3d 1066 [2013];People v Wiltshire, 96AD3d 1227, 1230 [2012]; People v Muller, 57 AD3d 1113, 1115 [2008], lvdenied 12 NY3d 761 [2009]; People v Lowin, 36 AD3d 1153, 1156 [2007], lvdenied 9 NY3d 847 [2007]).
Here, defense counsel did not give an opening statement. The People produced fivewitnesses and, during their testimony, there were no objections despite someobjectionable questions. The People's exhibits were received without objection,including one after proof was closed. Cross-examination, when conducted, was cursoryand elicited little information that would be useful or pertinent to a defense strategy. Nowitnesses were called on behalf of defendant. Defense counsel's summation, which wasonly four sentences, started with the unhelpful comment that "the reason we are heretoday is because [defendant] was unable to successfully enter a plea of guilty by way ofproviding an adequate colloquy," and added little else other than the conclusory requestfor "the [c]ourt to consider this matter simply in regard to whether there is reasonabledoubt."
With no opening statement, no witnesses called and a feckless summation, counsel'sstrategy of defense is not apparent. In addition, pretrial efforts to suppress or limitevidence—such as defendant's statement to police and evidence about unchargedconduct—were not pursued. Defense counsel undoubtedly was presented with adifficult case to defend and some of the errors, alone, would not necessarily result inineffective assistance; however, "the cumulative effect of counsel's actions depriveddefendant of meaningful representation" (People v Arnold, 85 AD3d 1330, 1334 [2011]; see People v Carnevale, 101AD3d 1375, 1382 [2012]; People v Miller, 63 AD3d 1186, 1188 [2009]).
Defendant's contention that her sentence was harsh and excessive is academic.
Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is reversed, onthe law, and matter remitted to the County Court of Chemung County for a new trial.