| People v McCray |
| 2016 NY Slip Op 04240 [140 AD3d 794] |
| June 1, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Joel McCray, Appellant. |
Lynn W. L. Fahey, New York, NY (Samuel Brown of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Jeanette Lifschitz, and Antara D. Kanth of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Holder, J.), rendered August 8, 2013, convicting him of robbery in the second degree(two counts), criminal possession of stolen property in the fourth degree, and criminalpossession of stolen property in the fifth degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The defendant was charged, inter alia, with acting in concert with another individualto forcibly steal property from the complainant. The People alleged that the defendantand an accomplice followed the complainant to her doorstep from a subway station andthereafter forcibly took her purse from her. After a jury trial, the defendant was convictedof two counts of robbery in the second degree, among other offenses.
At trial, the People presented the testimony of, among other witnesses, thecomplainant, who identified the defendant as one of the two people who stole her purse.On direct examination, the complainant testified that the defendant and another personwere following her as she exited the subway station on her way home from work. Shetestified that when she arrived at the entryway to her apartment, she remained outside tosmoke a cigarette, and the defendant, with the other person behind him, approached her.She testified that in response to her inquiry as to what they were doing, the defendantstated that they were looking for a friend's house but were lost. She testified that sheprovided names of surrounding streets, and the defendant turned and walked past her.She further testified that she turned to go into her apartment and then felt a hand grab theright side of her face and pull her backwards to the ground, and that the person who hadbeen with the defendant pulled her purse from her, causing the strap to break, while shewas on the ground. According to the complainant, the defendant and the other personthen ran off together, and she ran after them until she lost them around the corner.
Another witness, an off-duty police officer who had been walking his dog in the areaat that time, testified that he called the police after seeing the defendant and the otherperson running from the complainant. A police officer who was on duty at the timetestified that he and his [*2]supervisor had received aradio call reporting a robbery in progress and subsequently picked up the off-duty policeofficer near the crime scene. The police officer further testified that he and his supervisorultimately detained the defendant, as well as the other person, on a subway platform. Thepolice officer testified that upon searching the defendant and the other person, they founditems that had been in the complainant's purse in the possession of the other person. Thedefendant did not possess any of the items taken from the complainant. A police sergeanttestified that she recovered the complainant's wallet in a park next to the subwaystation.
On direct examination, the complainant, other than testifying that the defendant, withanother person, followed her from the subway station to her apartment door before heapproached her about being lost, did not testify to any affirmative act taken by thedefendant in furtherance of the crimes charged. However, during cross-examination,defense counsel elicited testimony from the complainant that the defendant was theperson who grabbed her face and pulled her to the ground during the robbery.Specifically, defense counsel asked the complainant to confirm that she did not knowwhich individual grabbed her from behind, and the complainant responded that she wassure that it was the defendant who put his hand on her face. No such testimony had beenelicited on direct examination.
After this exchange, defense counsel indicated that he wanted to impeach thecomplainant with her grand jury testimony, asserting that the complainant had testifiedbefore the grand jury that she did not know who grabbed her face and pulled her down.During a subsequent sidebar conference outside the hearing of the jury, counsel and thetrial court reviewed a transcript of the relevant grand jury testimony and determined thatno such testimony had been given by the complainant. Thereafter, defense counsel didnot question the complainant about her grand jury testimony.
During a charge conference, the trial court denied a request by defense counsel for acharge to the jury that "just being present at the scene is not enough, you must dosomething to aid another or be a participant." The court stated that such a charge was notconsistent with the facts elicited at trial in that the complainant "clearly said [thedefendant] was the one who grabbed her around the face from the back and pulled her tothe ground and commenced the robbery."
" 'A defendant in a criminal case has a constitutional right to the effectiveassistance of counsel' " (People v Miller, 87 AD3d 1075, 1075 [2011], quoting People v Larkins, 10 AD3d694, 694 [2004]; see US Const Sixth Amend; NY Const, art I,§ 6). " 'However, what constitutes effective assistance is not andcannot be fixed with precision, but varies according to the particular circumstances ofeach case' " (People v Miller, 87 AD3d at 1075, quoting People vRivera, 71 NY2d 705, 708 [1988]). To establish whether a defendant was deprivedof the effective assistance of counsel under the New York State Constitution, a courtmust determine whether " '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' " (People v Miller, 87AD3d at 1075, quoting People v Baldi, 54 NY2d 137, 147 [1981]; see Peoplev Benevento, 91 NY2d 708, 712 [1998]). The New York standard focuses on "thefairness of the process as a whole" (People v Benevento, 91 NY2d at 714)."[T]he right to effective representation includes the right to assistance by an attorney whohas taken the time to review and prepare both the law and the facts relevant to thedefense" (People v Droz, 39 NY2d 457, 462 [1976]; see People v Oliveras, 21NY3d 339, 346-347 [2013]). To prevail on a claim of ineffective assistance ofcounsel, the defendant must demonstrate "the absence of strategic or other legitimateexplanations" for counsel's allegedly ineffective representation (People v Rivera,71 NY2d at 709; see People v Miller, 87 AD3d at 1076).
Under the circumstances of this case, the defendant was deprived of the effectiveassistance of counsel. The crux of the defense was that there was no evidence to showthat the defendant participated in the criminal acts at issue. However, defense counselelicited testimony from the complainant, not provided on direct examination, that thedefendant was the person who grabbed her face and pulled her to the ground during therobbery. The inclusion of this testimony into the jury's calculus tied the defendant to therobbery in a way that the complainant's direct testimony had not—it was evidencethat the defendant actively participated in the robbery. The [*3]elicitation of this testimony by defense counsel eliminatedthe biggest weakness in the People's case, that is, establishing that the defendant "actedwith the mental culpability required for commission of the crime" (People vCompitiello, 118 AD2d 720, 720 [1986]) by intentionally aiding the person whoengaged in the robbery (see Penal Law § 20.00), rather than beingsomeone who, although present, was a nonparticipant (see e.g. People vKaramanites, 104 AD2d 899, 900 [1984]). The testimony wholly undermined thedefense that the defendant was not a participant in the crime and that no evidence tied thedefendant to the acts of the person with whom he had been walking.
Defense counsel's assertion during the sidebar conference that the complainant hadtestified before the grand jury that she was not sure who had grabbed her face and pulledher to the ground did not reveal a legitimate trial strategy for eliciting that damagingtestimony but, rather, demonstrated that defense counsel was ill-prepared for trial, as thereview of the grand jury transcript immediately thereafter by counsel and the trial courtrevealed no such testimony. Under these circumstances, there was no legitimate trialstrategy for counsel's actions (see People v Miller, 87 AD3d at 1077).
While defense counsel's elicitation of damaging testimony and inadequate review ofthe complainant's grand jury testimony are sufficient to show the ineffectiveness of thedefendant's counsel (see e.g. People v Oliveras, 21 NY3d at 341), there is otherevidence of the ineffectiveness of the representation received by the defendant. Defensecounsel failed to object to multiple improper summation statements made by theprosecutor. For example, among other improper comments, the prosecutor told the jurythat the defendant was "cocky" and "brazen," and that he "did not deserve" the benefit ofthe doubt given to him by the complainant on the night at issue; that the deliberations"should not take [the jury] very long"; that defense counsel "harped" on certain facts; thatthe jury could believe the complainant and not the defendant "who sits [during trial] withhis buttoned up shirt hunched over"; and that the jury could rely on the complainant'stestimony "[b]ecause no amount of lawyering or manipulating of her words and thedetails of that event were going to change the way she told it to [the jury]." Theprosecutor also reiterated, without objection, certain improper testimony of thecomplainant that the trial court had erroneously, over defense counsel's objection,permitted the jury to hear regarding "how what [the defendant] did changed [thecomplainant's] life." The prosecutor reminded the jury that the complainant "can't evenput her trash out alone anymore," and because of what the defendant did, the complainant"had to move." These patently improper comments by the prosecutor vouched for thecredibility of the complainant and the strength of the People's case, appealed to the jury'ssympathy, disparaged the defendant, and denigrated the defense (see e.g. People vMiller, 87 AD3d at 1077; People v Simmons, 110 AD2d 666 [1985]; see also People v Mohammed,81 AD3d 983, 984 [2011]; People v Liverpool, 35 AD3d 506, 506 [2006]). As noobjection was made to such statements, the jury was able to consider these impropercomments of the prosecutor (see People v Simmons, 110 AD2d 666 [1985]).
Thus, defense counsel's elicitation of damaging testimony that tied the defendant tothe crime, his ill-preparedness for trial as demonstrated by his inadequate review of thegrand jury testimony, and his failure to object to patently improper summation commentsdemonstrate the constitutional deficiency of the representation (see e.g. id.),constitute ineffective assistance of counsel (see People v Winston, 134 AD2d546, 547 [1987]; People v Karamanites, 104 AD2d at 900), and deprived thedefendant of meaningful representation during the trial (see People v Miller, 87AD3d at 1077; People v Lindo, 167 AD2d 558, 559 [1990]). Accordingly, thejudgment must be reversed and a new trial ordered.
In light of our determination, we need not reach the defendant's remainingcontentions. Leventhal, J.P., Miller, Maltese and Duffy, JJ., concur.