| People v Conway |
| 2017 NY Slip Op 02530 [148 AD3d 1739] |
| March 31, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Twan Conway, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of counsel), fordefendant-appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in theFourth Judicial Department, from an order of the Supreme Court, Erie County (Russell P.Buscaglia, A.J.), dated March 24, 2015. The order denied the motion of defendant to vacate thejudgment of conviction pursuant to CPL 440.10.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: On defendant's direct appeal from a judgment convicting him upon his plea ofguilty of attempted burglary in the second degree (Penal Law §§ 110.00,140.25 [2]), we held that, to the extent that defendant's contention in his pro se supplementalbrief that he was denied effective assistance of counsel survived his guilty plea and valid waiverof the right to appeal, his contention lacked merit (People v Conway, 43 AD3d 635, 636 [2007], lv denied 9NY3d 990 [2007]). After Supreme Court summarily denied defendant's subsequent motionpursuant to CPL 440.10 seeking to vacate the judgment, we granted defendant leave to appealand held on appeal that, as relevant here, defendant was entitled to a hearing pursuant to CPL440.30 (5) on his claim of ineffective assistance because defendant's submissions, whichinvolved matters outside the record on direct appeal, raised a factual issue whether trial counselunreasonably refused to investigate potential alibi witnesses and a third party's admission to thecrime, made to defendant's prior attorney (People v Conway, 118 AD3d 1290, 1291 [2014]). The court deniedthe motion to vacate following a hearing, we granted defendant leave to appeal from that order,and we now affirm.
The submissions and hearing testimony established that, following indictment andsuppression proceedings, defendant's criminal prosecution was adjourned so that the priorattorney, who was then representing defendant, could locate the third party who had purportedlycontacted him and confessed to committing the burglary. In his subsequent application for amaterial witness warrant, the prior attorney alleged that he had met with the third party at hisoffice and tape-recorded the confession, which purportedly had been made "with convincingdetail." The prior attorney further explained in the application that he attempted to have counselappointed for the third party but the third party did not timely report to court and, thereafter, theprior attorney was unable to locate the third party despite attempting to serve him with asubpoena at his last known address and employing the services of a private investigator. Thecourt issued the warrant.
After further proceedings and the replacement of attorneys, defendant was assigned trialcounsel and the matter proceeded to trial. It is undisputed that the material witness warrantremained active and the investigator continued to look for the third party, even during the trial,but the third party was never located. Trial counsel had the prior attorney added to thewitness list, but did not otherwise seek to introduce the third party's confession in evidence. Trialcounsel explained at the hearing that she did not seek to introduce the confession due toevidentiary issues with authentication and admissibility, and that she had no good faith basis toseek a pretrial ruling because there were no rules of evidence under which the confession couldbe admitted. Trial counsel also testified that she had multiple conversations with defendant aboutthe admissibility of the tape. In his testimony at the hearing, defendant confirmed that trialcounsel spoke with him about the admissibility of the tape, and he claimed that trial counsel hadstated that she was not going to use that evidence because it was hearsay.
After the People called two witnesses at trial, the court granted trial counsel's request toreopen the suppression hearing, thereby allowing defendant to raise an issue regarding theadequacy of the People's CPL 710.30 notice, but the court ultimately denied defendant's motion.After an off-the-record discussion that followed the adverse ruling, defendant indicated his desireto plead guilty, the People agreed to renew a previous offer, and defendant pleaded guilty inaccordance with the offer.
Defendant contends that the court erred in denying his motion to vacate the judgmentbecause the record establishes that he was denied effective assistance based on trial counsel'sfailure to seek admission of the tape recording purportedly containing the confession of the thirdparty, or to present testimony of the prior attorney about that confession, and based on trialcounsel's failure to seek a pretrial ruling on the admissibility of such evidence.Defendant also contends that he was denied effective assistance of counsel based on trialcounsel's failure to pursue an alibi defense. We reject those contentions.
Where, as here, a defendant contends that he or she was denied the right to effectiveassistance of counsel guaranteed by both the Federal and New York State Constitutions, weevaluate the claim using the state standard, which affords greater protection than its federalcounterpart (see People v Stultz, 2NY3d 277, 282 [2004], rearg denied 3 NY3d 702 [2004]; Conway, 118AD3d at 1291; People v Ross, 118AD3d 1413, 1415-1416 [2014], lv denied 24 NY3d 964 [2014]). Under the statestandard, "[s]o long as the evidence, the law, and the circumstances of a particular case, viewedin totality and as of the time of the representation, reveal that the attorney provided meaningfulrepresentation, the constitutional requirement will have been met" (People v Baldi, 54NY2d 137, 147 [1981]; see People v Benevento, 91 NY2d 708, 712 [1998]). A"defendant must demonstrate the absence of strategic or other legitimate explanations forcounsel's alleged failure" (People vPavone, 26 NY3d 629, 646 [2015]; see People v Barboni, 21 NY3d 393, 406 [2013]; People v Caban, 5 NY3d 143, 152[2005]). "However, a reviewing court must be careful not to 'second-guess' counsel, or assesscounsel's performance 'with the clarity of hindsight,' effectively substituting its own judgment ofthe best approach to a given case" (Pavone, 26 NY3d at 647, quoting Benevento,91 NY2d at 712; see People vParson, 27 NY3d 1107, 1108 [2016]). "The test is 'reasonable competence, not perfectrepresentation' " (Pavone, 26 NY3d at 647). "In the context of a guilty plea, adefendant has been afforded meaningful representation when he or she receives an advantageousplea and nothing in the record casts doubt on the apparent effectiveness of counsel" (People vFord, 86 NY2d 397, 404 [1995]; seePeople v Hoyer, 119 AD3d 1457, 1458 [2014]).
Here, we conclude that the court did not err in determining that trial counsel's analysisregarding the admissibility of the tape recording was correct and defendant offered no plausiblelegal theory to support its admissibility. The court therefore properly concluded that the fact thattrial counsel did not argue for admission of the confession did not constitute ineffectiveassistance because there was little or no chance of success with respect to such an argument.Contrary to defendant's contention, neither the tape recording of the confession nor the priorattorney's testimony about that confession was admissible under the declaration against penalinterest exception to the hearsay rule.
"The declaration against penal interest exception to the hearsay rule 'recognizes the generalreliability of such statements . . . because normally people do not make statementsdamaging to themselves unless they are true' " (People v Shabazz, 22 NY3d 896, 898 [2013], quoting People vBrensic, 70 NY2d 9, 14, remittitur amended 70 NY2d 722 [1987]). "The exceptionhas four components: (1) the declarant must be unavailable to testify by reason of death, absencefrom the jurisdiction or refusal to testify on constitutional grounds; (2) the declarant must beaware at the time the statement is made that it is contrary to penal interest; (3) the declarant musthave competent knowledge of the underlying facts; and (4) there must be sufficient proofindependent of the utterance to assure its reliability" (id.; see Brensic, 70 NY2d at15; People v Settles, 46 NY2d 154, 167 [1978]). "The fourth factor is the 'most important'aspect of the exception" (Shabazz, 22 NY3d at 898), and "[t]he crucial inquiry focuses onthe intrinsic trustworthiness of the statement as confirmed by competent evidence independent ofthe declaration itself" (Settles, 46 NY2d at 169). Where, as here, the declarationexculpates the defendant, "[s]upportive evidence is sufficient if it establishes a reasonablepossibility that the [declaration] might be true" (id. at 169-170; see Shabazz, 22NY3d at 898; People v McFarland,108 AD3d 1121, 1122 [2013], lv denied 24 NY3d 1220 [2015]). This is a morelenient admissibility standard than that applied to a declaration against the defendant offered bythe prosecution because "[d]epriving a defendant of the opportunity to offer into evidence [attrial] another person's admission to the crime with which he or she has been charged, eventhough that admission may . . . be offered [only] as a hearsay statement, may deny adefendant his or her fundamental right to present a defense" (McFarland, 108 AD3d at1122 [internal quotation marks omitted]; see Chambers v Mississippi, 410 US 284, 302[1973]; People v McArthur, 113AD3d 1088, 1089-1090 [2014]).
Even assuming, arguendo, the existence of the first three components of the exception, weconclude that there was insufficient proof independent of the third party's confession to assure itsreliability. Trial counsel testified that the prior attorney informed her that the tape recordingcontained the statement of someone who had come into his office and confessed to the burglary.Trial counsel explained that, although the prior attorney was given the name of the third party, "itwasn't even really clear who that person was." In support of her conclusion that the confessionwas inadmissible, trial counsel testified that all she had was a voice on a tape recording and,based on her discussions with the prior attorney, "there was some question as to whether [thethird party] was even voluntarily in [the prior attorney's] office" when he made the confession.Defendant testified that the third party was a friend of one of his sisters, and that the third partyand defendant's sister smoked crack cocaine together. As previously indicated, the prior attorneymade arrangements for the third party to be appointed counsel, but the third party disappearedshortly thereafter and, despite diligent efforts, including maintaining the investigator's search,trial counsel was unable to locate him even up through defendant's trial.
Contrary to defendant's contention, under the circumstances here, the third party'sdisappearance is not necessarily indicative of consciousness of guilt, thereby demonstrating thetruthfulness of his alleged confession. Rather, particularly in light of the evidence adduced at thehearing, the third party's actions could quite reasonably be consistent with a false or coercedstatement given in an attempt to secure an acquittal for defendant (see generallyChambers, 410 US at 301 n 21). We conclude that the surroundingcircumstances—i.e., a potentially involuntary confession to defendant's prior attorney froma third party who was associated with defendant through his drug use with defendant's sister anddisappeared shortly after the alleged confession—do not attest to the trustworthiness orreliability of the declaration (see Peoplev Jones, 129 AD3d 477, 477-478 [2015], lv denied 26 NY3d 931 [2015]; seegenerally McArthur, 113 AD3d at 1090; People v Maynard, 108 AD3d 781, 781 [2013], lv denied 22NY3d 1042 [2013]). The court therefore properly concluded that trial counsel had accuratelydeemed the evidence to be inadmissible and that her failure to argue for its admission was notineffective because there was " 'little or no chance of success' " (Caban, 5NY3d at 152; see People vPatterson, 115 AD3d 1174, 1176 [2014], lv denied 23 NY3d 1066 [2014]).
Defendant nonetheless contends that trial counsel's explanations for her decision to forgo useof the potentially exculpatory evidence were not credible. We reject that contention. Even ifsome of the underlying rationale provided by trial counsel in support of her strategic decisionswas unconvincing, nothing in her testimony undermined her legitimate explanation that she hadno good faith basis for seeking admission of the confession (see generally People vCurry, 294 AD2d 608, 612 [2002], lv denied 98 NY2d 674 [2002]). To the extentthat defendant characterizes trial counsel's testimony as incredible as a matter of law, weconclude that his contention is without merit inasmuch as it cannot be said that trial counsel'stestimony was " 'manifestly untrue, physically impossible, contrary to experience, orself-contradictory' " (People vSmith, 73 AD3d 1469, 1470 [2010], lv denied 15 NY3d 778 [2010]). The court'sdetermination to credit trial counsel's testimony is supported by the record and entitled to greatweight (see People v Smith, 16AD3d 1081, 1082 [2005], lv denied 4 NY3d 891 [2005]), and we perceive no basisfor reversal on this record (see People vCampbell, 106 AD3d 1507, 1508 [2013], lv denied 21 NY3d 1002 [2013]).
Finally, contrary to defendant's further contention, the record establishes that trial counselmade a strategic decision not to pursue a weak and potentially harmful alibi defense that theprosecution was prepared to rebut with contradictory statements made by defendant to the police(see People v VanDeusen, 129AD3d 1325, 1327 [2015], lv denied 26 NY3d 972 [2015]; People v Atkins, 107 AD3d 1465,1465 [2013], lv denied 21 NY3d 1040 [2013]; People v Washington, 184 AD2d451, 452 [1992], lv denied 80 NY2d 911 [1992]; see also Baldi, 54 NY2d at147-148). That decision " 'cannot be characterized as ineffective assistance ofcounsel' " (Atkins, 107 AD3d at 1465). Present—Whalen, P.J., Smith,Peradotto, DeJoseph and Curran, JJ.