| People v Young |
| 2018 NY Slip Op 08774 [167 AD3d 1448] |
| December 21, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Bernadine Young, Also Known as Bernadine Adams,Appellant. |
William G. Pixley, Pittsford, for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Joseph R. Plukas 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, Monroe County (Robert B.Wiggins, A.J.), dated April 10, 2013. The order denied the motion of defendant to vacate ajudgment of conviction pursuant to CPL 440.10.
It is hereby ordered that the order so appealed from is affirmed.
Memorandum: Defendant was convicted by a jury of criminal possession of a weapon in thesecond degree (Penal Law § 265.03 [3]). The conviction arises out of an incidentthat began when defendant gave her coworker a ride home. Shortly after the coworker leftdefendant's van, police observed the van, discovered that its registration was suspended, andexecuted a traffic stop. An inventory search revealed an illegal handgun on the floor between thedriver and front passenger seats.
Following her conviction, defendant moved pursuant to CPL 440.10 to vacate the judgment,alleging that defense counsel rendered ineffective assistance by failing to investigate and callvarious witnesses at trial. After a hearing, Supreme Court denied the motion. A Justice of thisCourt granted defendant leave to appeal from that order, and we now affirm.
"To prevail on [her] claim that [s]he was denied effective assistance of counsel, defendantmust demonstrate that [her] attorney failed to provide meaningful representation" (People v Caban, 5 NY3d 143, 152[2005]; see People v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54NY2d 137, 147 [1981]). "In applying this standard, counsel's efforts should not besecond-guessed with the clarity of hindsight to determine how the defense might have been moreeffective" (Benevento, 91 NY2d at 712). Indeed, "a reviewing court must avoid confusing'true ineffectiveness with mere losing tactics and according undue significance to retrospectiveanalysis' " (id., quoting Baldi, 54 NY2d at 146). Instead, " 'it isincumbent on defendant to demonstrate the absence of strategic or other legitimate explanations'for counsel's alleged shortcomings" (Benevento, 91 NY2d at 712, quoting People vRivera, 71 NY2d 705, 709 [1988]). "A defendant's right to effective assistance of counselincludes defense counsel's reasonable investigation and preparation of defense witnesses" (People v Jenkins, 84 AD3d 1403,1408 [2d Dept 2011], lv denied 19 NY3d 1026 [2012]). Although "the failure toinvestigate or call exculpatory witnesses may amount to ineffective assistance of counsel" (People v Nau, 21 AD3d 568, 569[2d Dept 2005]; see People vDombrowski, 87 AD3d 1267, 1268 [4th Dept 2011]), the governing standard is" 'reasonable competence,' not perfect representation" (People v Modica, 64NY2d 828, 829 [1985]).
Here, the two allegedly exculpatory witnesses would have testified that the coworkerpossessed the gun shortly before entering defendant's van. One of the witnesses admitted duringher hearing testimony that defendant had called her on the night of the arrest, yet defendantapparently did not relay the fact of the call, or the fact of the existence of this witness, to herattorney.
Moreover, defense counsel utilized a reasonable, albeit unsuccessful, strategy at trial. As thecourt noted in its decision, defense counsel's belief that the true owner of the gun, i.e., thecoworker, would testify at least to his presence in the van was a reasonable one, and we concludethat counsel's plan to call the coworker as a witness and allow him to invoke the FifthAmendment as to his ownership or possession of the gun was a reasonable strategic decision(see Benevento, 91 NY2d at 712). Moreover, the witnesses' testimony would not havebeen exculpatory because it is not necessarily inconsistent with defendant's knowing andunlawful possession of the gun in the vehicle at the time that the police executed the traffic stop(see People v Tabb, 12 AD3d951, 953 [3d Dept 2004], lv denied 4 NY3d 768 [2005]).
Thus, "the record establishes that defense counsel sufficiently investigated the facts andsearched for potential witnesses, and that there are legitimate explanations for defense counsel'sfailure to locate the [two] allegedly exculpatory witnesses identified in defendant's motion" (People v Kurkowski, 117 AD3d1442, 1443-1444 [4th Dept 2014]), i.e., defendant's failure to inform her attorney of theexistence of the witnesses and defense counsel's reasonable defense strategy of calling thecoworker as a witness.
All concur except Whalen, P.J., and Troutman, J., who dissent and vote to reverse inaccordance with the following memorandum.
Whalen, P.J., and Troutman, J. (dissenting). We respectfully dissent. Defendant was entitled"to have counsel 'conduct appropriate investigations, both factual and legal, to determine ifmatters of defense can be developed, and to allow himself time for reflection and preparation fortrial' " (People v Bennett, 29 NY2d 462, 466 [1972]; see Coles v Peyton,389 F2d 224, 226 [4th Cir 1968], cert denied 393 US 849 [1968]). The majoritydisregards this requirement on the ground that defendant "apparently did not" identifyexculpatory witnesses to her counsel. However, defense counsel himself conceded that his"fail[ure] to conduct an investigation" constituted ineffective assistance. He stated that, becauseof his misplaced reliance on the potential testimony of the alleged gun owner, he failed toidentify two easily-found and cooperative witnesses, who were other coworkers of defendant,and who were able to place the alleged gun owner in defendant's van, identify the gun found asbelonging to him, and testify that he had previously complained to them about the gun falling outof his pocket. After receiving the testimony of the exculpatory witnesses at the CPL article 440hearing, Supreme Court concluded that, had it been presented with that testimony, the jury wouldlikely have returned a verdict that was more favorable to defendant.
The record does not provide any further information with respect to what defendant told hercounsel regarding the exculpatory witnesses or why defense counsel failed to investigate thenightclub where defendant worked. The trial transcript reflects that defense counsel directed hisinvestigator to photograph the exterior of the nightclub, but there was no explanation in the trialtranscript why those photos would be relevant to the issues before the jury. Defense counsel'sdirectives to photograph the nightclub, together with his own statements, strongly suggest thatdefense counsel understood that the nightclub was relevant to the case and should have beeninvestigated fully. Because defense counsel "fail[ed] to pursue the minimal investigation requiredunder the circumstances" (People vOliveras, 21 NY3d 339, 348 [2013]), defendant's right to a fair trial was prejudiced (see People v Stultz, 2 NY3d 277,283-284 [2004], rearg denied 3 NY3d 702 [2004]; People v Benevento, 91 NY2d708, 713-714 [1998]), and she was denied meaningful representation (see generally People vBaldi, 54 NY2d 137, 147 [1981]).
Moreover, "an attorney should not be deemed effective simply because he or she followed astrategy. Rather, there must be some examination of the reasonableness of the strategy" (People v Stefanovich, 136 AD3d1375, 1377 [4th Dept 2016], lv denied 27 NY3d 1139 [2016]). Defense counsel herebelieved that the alleged gun owner, a previously convicted felon, would testify against his owninterest on defendant's behalf to "do the right thing." During the trial, defense counsel requestedthat an attorney be assigned to represent the alleged gun owner, knowing, as an experienceddefense counsel reasonably should, that the attorney would advise against providingself-incriminating testimony. Ultimately, the trial court precluded the alleged gun owner fromtestifying because, on the advice of counsel, he asserted his right not to answer questions withrespect to his presence in defendant's vehicle or his possession of the gun. Although the majorityapparently finds this "strategy" to be "reasonable," it does not require "second-guess[ing] with theclarity of hindsight" to see that it is unreasonable to expect a self-interested felon to incriminatehimself against the advice of counsel based purely on his own good nature (Benevento,91 NY2d at 712).
The record, viewed as a whole, establishes that defense counsel failed to provide meaningfulrepresentation by neglecting his duty to investigate and by relying on an unreasonable strategy,and that this failure compromised defendant's right to a fair trial (see Oliveras, 21 NY3dat 348). We therefore conclude that the order should be reversed, the motion granted, thejudgment of conviction vacated, and the matter remitted to Supreme Court for furtherproceedings on the indictment. Present—Whalen, P.J., Centra, Lindley, NeMoyer andTroutman, JJ.