| People v Hall |
| 2014 NY Slip Op 05802 [120 AD3d 588] |
| August 13, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Earl Hall, Appellant. |
Seymour W. James, Jr., New York, N.Y. (Paul Wiener of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Nicoletta J. Caferri, and Jennifer Hagan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Aloise, J.), rendered February 2, 2009, convicting him of robbery in the first degree,criminal possession of a controlled substance in the third degree, criminal possession of acontrolled substance in the fifth degree, and resisting arrest, upon a jury verdict, andimposing sentence.
Ordered that the judgment is reversed, on the law, and the matter is remitted to theSupreme Court, Queens County, for further proceedings consistent herewith.
The defendant's contention that the evidence was legally insufficient to support hisconviction of resisting arrest is unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11NY3d 484, 492 [2008]). In any event, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we findthat it was legally sufficient to establish the defendant's guilt of that crime beyond areasonable doubt.
However, we agree with the defendant that, under the particular circumstances of thiscase, he was deprived of the effective assistance of counsel. A criminal defendant isguaranteed the right to effective assistance of counsel by the United States and NewYork Constitutions (see US Const Amend VI; NY Const, art I, § 6;People v Turner, 5 NY3d476, 479 [2005]; People vBodden, 82 AD3d 781, 783 [2011]). "Under the federal standard for ineffectiveassistance of counsel, a defendant must show that his or her attorney's performance fellbelow an objective standard of reasonableness, and that 'there is a reasonable probabilitythat, but for counsel's unprofessional errors, the result of the proceeding would have beendifferent' " (People v Bodden, 82 AD3d at 783, quoting Strickland vWashington, 466 US 668, 694 [1984]; see People v McArthur, 101 AD3d 752, 753 [2012]).Under the state standard, which has been called " 'somewhat more favorable todefendants' " (People v Bodden, 82 AD3d at 783, quoting People vTurner, 5 NY3d at 480), the defendant must show that the defense attorney failed toprovide "meaningful representation" (People v Stultz, 2 NY3d 277, 279 [2004]; see People vBaldi, 54 NY2d 137, 147 [1981]).
In this case, based solely on the complainant's identification, the defendant and hiscodefendant were charged with robbery in the first degree and robbery in the seconddegree in connection with a robbery that occurred on November 6, 2005. The sameindictment also separately [*2]charged the defendant withfour drug offenses and resisting arrest, stemming from his arrest at his mother's home onJanuary 16, 2006, despite the fact that the drug and resisting arrest charges had noconnection to the November 6, 2005, robbery. Defense counsel failed to make anon-the-record pretrial motion to sever the robbery charges from the other charges and didnot raise the issue at trial, and the defendant was tried on all counts in the indictment. Itwas only at sentencing, after the defendant was convicted of robbery in the first degree,two drug counts, and resisting arrest, that defense counsel argued on the record that thedefendant should not have been charged in the same indictment with both the robberyand drug counts. Contrary to the People's contention, the charges stemming from therobbery were not joinable, pursuant to CPL 200.20 (2) (b), to the charges stemming fromthe defendant's arrest, as the proof relating to the robbery was not material and admissibleas evidence upon the trial of the charges stemming from the defendant's arrest (cf. People v Salnave, 41 AD3d872, 873 [2007]). As a result of defense counsel's error, the same jury that heardevidence regarding the robbery also heard voluminous evidence concerning thedefendant's arrest and the large quantity of drugs found in his mother's home.Consequently, the jury could have inferred that the robbery at issue was committed for adrug-related purpose, and it is probable that the improper joinder tainted the jury'sevaluation of the separate, unrelated incidents (see People v Chestnut, 19 NY3d 606, 613 [2012]). Underthe circumstances presented here, the defendant was deprived of the effective assistanceof counsel, based on defense counsel's failure to make a proper pretrial motion to severthe charges of robbery from the drug charges.
Accordingly, the judgment must be reversed and the matter remitted to the SupremeCourt, Queens County, for a new trial.
The defendant's remaining contentions are without merit. Eng, P.J., Leventhal, Lottand Roman, JJ., concur.