| People v Graham |
| 2015 NY Slip Op 04862 [129 AD3d 860] |
| June 10, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Daryl Graham, Appellant. |
Andrea G. Hirsch, New York, N.Y., for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and AmyAppelbaum of counsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court, KingsCounty (Sullivan, J.), dated October 17, 2013, which, after a hearing, denied his motionpursuant to CPL 440.10 to vacate a judgment of the same court (Feldman, J.) renderedMay 29, 1996, convicting him of murder in the second degree, upon a jury verdict, andimposing sentence, or alternatively, pursuant to CPL 440.20 to set aside the sentenceimposed.
Ordered that the order is reversed, on the law, that branch of the defendant's motionwhich was pursuant to CPL 440.10 to vacate the judgment is granted, the judgment isvacated, and the matter is remitted to the Supreme Court, Kings County, for a newtrial.
The defendant was convicted, after a jury trial, of murder in the second degree(depraved indifference murder). At trial, the evidence established that, on July 20, 1995,while riding as a passenger in a vehicle with his former girlfriend, Roxanne Thomas, andher friend, Nadine Ennis, the defendant stabbed Thomas 19 times as she drove and aftershe escaped from the car, causing her death. Ennis, as well as two passersby, testified asto their observations of the stabbing. The defendant testified on his own behalf and wasthe only defense witness.
The defendant moved to vacate the judgment of conviction pursuant to CPL 440.10,or alternatively, to set aside the sentence imposed pursuant to CPL 440.20 on the groundthat he was deprived of the effective assistance of counsel under the state and federalconstitutions. He contended that his trial counsel was ineffective because he failed toobtain the defendant's psychiatric records or have the defendant evaluated by apsychiatrist to present a defense of extreme emotional disturbance (hereinafter EED) orthat he was not responsible by reason of mental disease or defect, and failed to presentthe defendant's psychiatric records for mitigation purposes at sentencing. It wasundisputed that, well before trial, the defendant's counsel was aware from a competencyreport of the defendant's history of reported psychiatric symptoms and treatment,including several hospitalizations, and was granted authorization by the trial court for theappointment of an independent psychiatrist to evaluate the defendant to determinewhether he had a viable psychiatric defense, yet counsel failed to either obtain thedefendant's psychiatric records or have him formally evaluated by a psychiatrist withrespect to any possible psychiatric defense.
[*2] In opposition to the motion, the People did not dispute that trial counsel erred infailing to take the aforementioned measures. However, the People asserted that trialcounsel's errors did not deprive the defendant of effective assistance under either thestate or federal standard since there was no reasonable chance that, even if counsel hadtaken the appropriate investigatory steps, an insanity or EED defense would havesucceeded or the outcome of the trial otherwise would have been affected, or that thecourt would have imposed a lesser sentence had it been presented with the psychiatricrecords. Following a hearing, the Supreme Court agreed with the People and denied themotion. We conclude that the judgment of conviction should have been vacated on theground that the defendant was deprived of the effective assistance of counsel.
A criminal defendant is guaranteed the effective assistance of counsel under both thefederal and the state constitutions (see US Const Amend VI; NY Const, art I,§ 6). Generally, to prevail on a claim of ineffective assistance of counselunder the United States Constitution, a defendant must show, first, "that counsel'srepresentation fell below an objective standard of reasonableness" (Strickland vWashington, 466 US 668, 688 [1984]), and, second, "that there is a reasonableprobability that, but for counsel's unprofessional errors, the result of the proceedingwould have been different" (id. at 694).
Under the New York Constitution, a defendant must show that he was not afforded"meaningful representation" (People v Baldi, 54 NY2d 137, 147 [1981]), whichalso entails a two-pronged test, "with the first prong identical to its federal counterpart"(People v Georgiou, 38AD3d 155, 160-161 [2007]), and the second being a "prejudice component [which]focuses on the 'fairness of the process as a whole rather than its particular impact on theoutcome of the case' " (People v Caban, 5 NY3d 143, 156 [2005], quotingPeople v Benevento, 91 NY2d 708, 714 [1998]) and, thus, is "somewhat morefavorable to defendants" (People v Turner, 5 NY3d 476, 480 [2005]; see People vCaban, 5 NY3d at 156). A reviewing court must examine whether "the evidence, thelaw, and the circumstances of [the] particular case, viewed in totality and as of the timeof the representation, reveal that the attorney provided meaningful representation"(People v Baldi, 54 NY2d at 147).
Under both state and federal law, a defendant's right to the effective assistance ofcounsel includes assistance by an attorney who has conducted a reasonable investigationinto the relevant facts and law to determine whether matters of defense can be developed(see Strickland v Washington, 466 US at 691; People v Oliveras, 21 NY3d 339, 346 [2013]; People vDroz, 39 NY2d 457, 462 [1976]; People v Bennett, 29 NY2d 462, 466[1972]; People vHenderson, 118 AD3d 1020, 1022 [2014]).
Generally, in order to make out a claim of ineffective assistance under the New YorkConstitution, a defendant is required to make some showing of prejudice, albeit notnecessarily the "but for" prejudice required under federal law (see People v Ennis, 11 NY3d403, 412 [2008]; People vStultz, 2 NY3d 277, 283-284 [2004]; People v Benevento, 91 NY2d at713-714). However, prejudice is not an "indispensable element in assessing meaningfulrepresentation" (People v Ennis, 11 NY3d at 412; see People v Stultz, 2NY3d at 284). The Court of Appeals has indicated that counsel's failure to pursue theminimal investigation appropriate with respect to an issue central to the defense itself"seriously compromise[s] [the] defendant's right to a fair trial," regardless of whether theinformation would have altered the uninformed strategy counsel employed, or otherwisehelped the defense (People v Oliveras, 21 NY3d at 348).
Here, the People's case hinged almost entirely on their ability to prove the defendant'sstate of mind, and trial counsel undisputedly failed to take the minimal steps of obtainingthe defendant's psychiatric records and having him evaluated by an expert, which werenecessary to make an informed decision as to whether or not to present a psychiatricdefense. Under the circumstances of this case, the People's argument that, even with thebenefit of the evidence trial counsel should have obtained, there is no reasonable chancethat a mental disease or defect or EED defense would have been successful, or that theoutcome of the trial would otherwise have been different, misconstrues the central issuein this case. The issue is not whether trial counsel's choice to have certain documentsexcluded from the record constitutes a legitimate trial strategy, but whether the failure tosecure and review crucial documents, that would have undeniably provided valuableinformation to assist counsel in developing a strategy during the pretrial investigationphase [*3]of a criminal case, constitutes meaningfulrepresentation as a matter of law (see People v Oliveras, 21 NY3d at 348). Trialcounsel's "total failure" in this regard deprived the defendant of meaningfulrepresentation (id.).
Accordingly, the defendant was entitled to vacatur of the judgment of conviction anda new trial. In light of our determination, we need not reach the parties' remainingcontentions. Balkin, J.P., Hall, Roman and Cohen, JJ., concur. [Prior Case History:41 Misc 3d 1230.]