| People v Henderson |
| 2014 NY Slip Op 04790 [118 AD3d 1020] |
| June 25, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Wayne Henderson, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, EllenC. Abbot, and Emil Bricker of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Griffin, J.), rendered January 26, 2012, convicting him of attempted murder in thesecond degree and assault in the first degree (two counts), upon a jury verdict, andimposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The defendant was convicted, after a jury trial, of attempted murder in the seconddegree and assault in the first degree (two counts), based upon allegations that, onJanuary 9, 2010, the defendant, then age 15, and his codefendant attacked thecomplainant with a knife, in apparent retaliation for the complainant's act of "snitch[ing]"to his own mother that the defendant and the codefendant used marijuana. The defendantraised, among others, a defense of diminished capacity.
During the voir dire, defense counsel raised a Batson challenge (seeBatson v Kentucky, 476 US 79, 94-98 [1986]) after the prosecutor used twoperemptory challenges against female black prospective jurors. The prosecutor noted thattwo other female black prospective jurors had been seated as jurors. The trial courtacknowledged that "[i]t is a weak challenge," but asked the prosecutor for explanationsfor the challenges. The prosecutor stated that the first black prospective juror "offered noopinions," and the second black prospective juror has a "visible reaction [of] nodding toall of [defense counsel's] questions." The trial court concluded that the explanations werenot pretextual, and denied the challenge.
A determination as to whether a race-neutral reason is pretextual is a pure issue offact vesting the trial court with broad discretion to determine credibility (see People v Hecker, 15 NY3d625, 656 [2010]), especially where the reason is based upon the body language anddemeanor of the juror, which is not apparent from a cold record (see People v Morgan, 24 AD3d950, 952 [2005]). The trial justice, who was in the best position to do so, determinedthat the prosecutor's reasons were not pretextual.
In People v Hecker (15NY3d 625, 660 [2010]), the Court of Appeals ruled that the strength or paucity ofthe challenging party's initial showing is "a factor that should be considered indetermining whether the record as a whole supports a finding of pretext." In this case, thecourt [*2]acknowledged that the alleged prima facieshowing was weak, since black jurors were selected, including two black women.Accordingly, the defendant's Batson challenge was properly rejected by the trialcourt.
Pursuant to CPL 270.15 (1) (c), the scope of counsel's examination of prospectivejurors "shall be within the discretion of the court." However, any restrictions imposed onvoir dire must "afford defense counsel a fair opportunity to question prospective jurorsabout relevant matters" (People v Jean, 75 NY2d 744, 745 [1989]). Here, the trialcourt afforded defense counsel a fair opportunity to question prospective jurors aboutrelevant matters, including their general attitudes toward individuals with mentalillness.
However, we conclude that the judgment of conviction must be reversed on theground that the defendant was deprived of the effective assistance of counsel. "Indetermining whether a defendant has been deprived of effective assistance, a court mustexamine whether 'the evidence, the law, and the circumstances of a particular case,viewed in totality and as of the time of the representation, reveal that the attorneyprovided meaningful representation' " (People v Oliveras, 21 NY3d 339, 346 [2013], quotingPeople v Baldi, 54 NY2d 137, 147 [1981]). Although the defendant bears the burdenof demonstrating the absence of strategic or other legitimate explanations for counsel'sperformance, defense counsel's strategic decisions must be consistent with that of a" 'reasonably competent attorney' " (People v Benevento, 91NY2d 708, 712 [1998], quoting People v Satterfield, 66 NY2d 796, 799 [1985])."A defendant's right to effective assistance of counsel includes defense counsel'sreasonable investigation and preparation of defense witnesses" (People v Jenkins, 84 AD3d1403, 1408 [2011]). In this case, defense counsel failed to meet that standard.
At the trial, the defense raised, inter alia, the defense of diminished capacity. Insupport of that defense, the defense called as a witness a licensed physician who was anexpert in child and adolescent psychiatry and forensic psychiatry. The expert noted that,in 2008, the Family Court, Kings County, placed the defendant in Tryon ResidentialCenter, a residential center for psychiatric treatment of adolescents and children.However, he was not placed on psychotropic medication until he was arrested for theinstant offense. The expert diagnosed the defendant as suffering from schizophreniformdisorder, which was exacerbated by his use of marijuana. The expert further stated thatthe defendant's conduct during the course of the crime was "bizarre" and consistent withactions taken by someone suffering from schizophreniform disorder. As evidence of thedefendant's lack of intent, the expert cited the random nature of the complainant's stabwounds.
However, on cross-examination, the expert acknowledged that he never reviewed thephotographs of the complainant, or the complainant's medical records. The expertacknowledged that he relied upon the defense counsel's statement that the stab wounds"were all over the place." The expert further acknowledged that he was never informedthat a motivation for the defendant's conduct may have been the complainant's"snitching." He further acknowledged that this information could have changed hisopinion, and was something he would have wanted to explore further. In summation,defense counsel drew the jury's attention to the expert's lack of preparation, when sheargued that she never showed the expert the photographs of the complainant's injuriesbecause the expert was not hired "as a medical doctor—even though he was asurgeon," and the expert was not there to diagnose the complainant's injuries.
The People argue that defense counsel limited disclosure of information to her ownexpert as a trial strategy, because if the expert knew all the facts, he "could not havetestified in a manner helpful to the defense." However, the defendant had a psychiatrichistory, and there was evidence in the record that he favorably responded to psychotropicmedication. The expert's explanation of the significance of these facts would haveformed an adequate defense. Further, assuming that the expert, if fully informed, wouldnot have an opinion favorable to the defense, defense counsel could have chosen not tocall him as a witness, and instead relied on the record of the defendant's psychiatrichistory and the defendant's own testimony that he "blacked out" during thecrime.
[*3] The so-called strategic decision towithhold information from the expert allowed the prosecutor to demonstrate to the jurythat the expert was ill-informed. Further, defense counsel's explanation duringsummation for her failure to disclose the nature of the complainant's injuries to the expertwas not logical and indicated that the failure to disclose was intentional, and possiblymisleading. Assuming that the failure to disclose was a strategic decision, it was notconsistent with the actions of a reasonably competent attorney.
In view of the foregoing, defense counsel did not provide the defendant withmeaningful representation. Accordingly, we reverse the judgment of conviction andorder a new trial.
In light of our determination, we need not consider the defendant's remainingcontention. Eng, P.J., Austin, Hinds-Radix and LaSalle, JJ., concur.