| People v Borcyk |
| 2020 NY Slip Op 03359 [184 AD3d 1183] |
| June 12, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Gregory Borcyk, Appellant. |
Edelstein & Grossman, New York City (Jonathan I. Edelstein of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien 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 Monroe County Court (Vincent M. Dinolfo, J.),entered January 22, 2019. The order denied the motion of defendant to vacate a judgment ofconviction pursuant to CPL 440.10.
It is hereby ordered that the order so appealed from is reversed on the law, the motion isgranted, the judgment of conviction is vacated, and a new trial is granted.
Memorandum: Defendant was previously convicted after a jury trial of murder in the seconddegree (Penal Law § 125.25 [1]). He appealed, and this Court affirmed (People v Borcyk, 60 AD3d 1489[4th Dept 2009], lv denied 12 NY3d 923 [2009]). Defendant thereafter moved to vacatethe judgment of conviction. County Court denied the motion without a hearing. This Courtreversed that order and remitted the matter for a hearing on the motion insofar as it sought tovacate the judgment of conviction on the grounds of ineffective assistance of counsel and actualinnocence (People v Borcyk, 161AD3d 1529, 1530 [4th Dept 2018]). Defendant now appeals by permission of this Courtfrom an order denying his motion after a hearing.
Initially, we reject defendant's contention that he established his claim of actual innocence byclear and convincing evidence (seePeople v Hamilton, 115 AD3d 12, 26-27 [2d Dept 2014]; see generally CPL440.10 [1] [h]; People v Conway,118 AD3d 1290, 1290 [4th Dept 2014]).
We agree with defendant, however, that the court erred in denying the motion with respect todefendant's claim that he received ineffective assistance of counsel, and we therefore reverse theorder, grant the motion to vacate the judgment of conviction on the ground of ineffectiveassistance of counsel, and grant defendant a new trial.
"What constitutes effective assistance is not and cannot be fixed with yardstick precision, butvaries according to the unique circumstances of each representation" (People v Baldi, 54NY2d 137, 146 [1981]; see People v Benevento, 91 NY2d 708, 712 [1998]). "The core ofthe inquiry is whether defendant received 'meaningful representation' "(Benevento, 91 NY2d at 712). "[T]o prevail on a claim of ineffective assistance, [a]defendant[ ] must demonstrate that [he or she was] deprived of a fair trial by less than meaningfulrepresentation; a simple disagreement with strategies, tactics or the scope of possiblecross-examination, weighed long after the trial, does not suffice" (id. at 713 [internalquotation marks omitted]). Thus, "it is incumbent on [a] defendant to demonstrate the absence ofstrategic or other legitimate explanations for defense counsel's allegedly deficient conduct" (People v Atkins, 107 AD3d 1465,1465 [4th Dept 2013], lv denied 21 NY3d 1040 [2013] [internal quotation marksomitted]; see People v Bank, 124AD3d 1376, 1377 [4th Dept 2015], affd 28 NY3d 131 [2016]; People v Young, 167 AD3d 1448,1449 [4th Dept 2018], lv denied 33 NY3d 1036 [2019]). It is well settled that "[t]hefailure to investigate or call exculpatory witnesses may amount to ineffective assistance ofcounsel" (People v Mosley, 56AD3d 1140, 1140-1141 [4th Dept 2008]; see People v Pottinger, 156 AD3d 1379, 1380 [4th Dept2017]).
In support of his motion, defendant contended that defense counsel was ineffective becausehe failed to secure the presence of a witness who had potentially exculpatory information. Inparticular, defendant contended that defense counsel spoke, prior to trial, with a witness whorepresented that she would testify, among other things, that her former boyfriend had admitted toher that he killed the victim. According to defendant, although the witness's testimony wouldhave supported the defense presented at trial and although defense counsel stated his intent to callthe witness, when the witness did not appear at trial, defense counsel inexplicably failed topursue available means for securing her attendance.
Under the circumstances of this case, we conclude that defendant met his burden ofestablishing that defense counsel's failure to secure the presence of the witness constitutedineffective assistance of counsel inasmuch as the record before us reflects "the absence ofstrategic or other legitimate explanations for defense counsel's allegedly deficient conduct"(Atkins, 107 AD3d at 1465 [internal quotation marks omitted]; see generally CPL440.30 [6]). Importantly, this is not a case where we must speculate about defense counsel's trialstrategy. Throughout defendant's trial, defense counsel pursued a theory that one or moremembers of a group of three men, which included the witness's former boyfriend, killed thevictim and moved her body to the wooded area in which it was ultimately discovered. Indeed,evidence at trial included the statement of a man who saw the three men, who appeared to beengaged in a drug sale, enter the victim's home. He later saw two of the men emerge with an itemthat appeared to be the victim's body, which they placed into the trunk of the car that they droveaway. Additionally, the sperm of the witness's former boyfriend was recovered from a shirt insideof the victim's home, and it was stipulated at trial that, at the time of the murder, the witness'sformer boyfriend was dating the victim.
Consistent with the theory defendant presented at trial, the witness testified at the CPL article440 hearing that, although she did not know the victim, her former boyfriend told her prior todefendant's trial that he was a suspect in the victim's murder but did not believe that he would becharged. The witness explained that some time later, but also prior to defendant's trial, thatboyfriend broke into her home and attempted to strangle her and that, during this incident, herecorded himself on a tape recorder, stating his name, date of birth, and social security number,and saying, "yeah, I killed that bitch," although the witness did not know what happened to thetape recorder. She further testified that the boyfriend stated that he killed the victim and left herbody in a wooded area.
Moreover, at the time of the trial, defense counsel explicitly informed the court, on therecord, that his strategy was to call the witness and present her exculpatory testimony. In thisregard, defense counsel stated, "[t]here's one other issue that may or may not come up. . . [that has] to do with [the witness]. [The witness] had a conversation with herthen-boyfriend . . . who had been the boyfriend of [the victim] where [the boyfriend]made a tape recording of his voice, identifying his name, his date of birth and his social securitynumber, and indicated there that he killed [the victim]. His words were 'I killed the bitch. I killedthe bitch. I killed the bitch.' And that is the substance of a police report that I received from [theprosecutor]." When the court asked how defense counsel intended to introduce this testimony, heresponded, "[w]ell, I intend to call [the witness], should she appear in court. She wassubpoenaed. She appeared on Thursday pursuant to the subpoena as well and told me thisinformation for the first time. I don't know whether she's going to be here when we need to callher, which is why I thought maybe we'd wait and see if she showed up and not take the Court'stime to do extra research on this issue. But since you've asked me to bring up any possible issues,I would put her on the witness stand and make an offer of proof to the Court and attempt to proveher reliability of the information that she's giving under the Settles case relating to a statementagainst [the boyfriend's] penal interest." When the court then asked whether "[the witness's]testimony would relate to this particular homicide," defense counsel responded, "Oh yes. Yes."Nevertheless, and consistent with defense counsel's representation that he would pursue thetestimony only if the witness appeared as directed, defense counsel took no further action tosecure the witness's presence when she did not appear (see Borcyk, 161 AD3d at 1531).We agree with defendant that the failure to secure the witness's attendance was deficient conductand that the record discloses no tactical reason for defense counsel's actions (see generally People v Dombrowski, 94AD3d 1416, 1417 [4th Dept 2012], lv denied 19 NY3d 959 [2012]).
In so holding, we reject the determination of the court, following the CPL article 440 hearing,that defense counsel may have legitimately decided against calling the witness because hedeemed her incredible. To the contrary, the record affirmatively establishes that, even aftermeeting with and speaking to the witness, defense counsel stated that he intended to call her as awitness. We note that defense counsel could not be located to testify at the CPL article 440hearing, although the record reflects that he previously informed the parties that he could nolonger recall defendant's trial.
The dissent's focus on the court's determination that the witness was not credible ismisplaced. The hearing on defendant's CPL article 440 motion took place years after both theevents described by the witness and the alleged instance of ineffective assistance of counsel.Whether the witness appeared credible at the hearing years after the trial does not answer thequestion whether defense counsel, at the time of the trial, possessed a strategic reason not to callher. To the contrary and unique to this case, the record reflects that defense counsel, at the timeof the trial, spoke with the witness, believed that the witness possessed relevant testimony,considered her testimony helpful to the defense, and stated that his trial strategy was to call her asa witness. Simply put, the court's assessment of the witness's credibility after a lengthy passage oftime does not alter the fact that defense counsel, at the time of the trial and the alleged ineffectiveassistance, believed the witness to be credible enough to present to the jury.
Further, the record belies the conclusion of the court and the dissent that defense counselmay have had a strategic reason for failing to call the witness. Defense counsel explicitlyinformed the court that his strategy was to call the witness if she was "here when we need to callher." Thus, this Court need not speculate why defense counsel failed to call the witness becausedefense counsel placed his reasoning on the record: he failed to call the witness because she didnot appear—a failure that this Court has recognized could support a claim of ineffectiveassistance (see Borcyk, 161 AD3d at 1531). Nothing in the record indicates that defensecounsel amended that plan, that he failed to call the witness for any reason other than hernonappearance, or that he altered his belief that her testimony would be helpful to thedefense.
The mere absence of a legitimate strategy in failing to secure the witness's presence at trialdoes not end the inquiry. A single error may qualify as ineffective assistance only if it is"sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial" (People v Baker, 14 NY3d 266, 270[2010] [internal quotation marks omitted]). Under the circumstances of this case, however, weconclude that the error was sufficiently egregious to constitute ineffective assistance ofcounsel.
At defendant's trial, the prosecution relied primarily on evidence that material containingdefendant's DNA was recovered from underneath the victim's fingernails and that his sperm wasfound inside her vagina, although the victim's body showed no sign of rape. At his CPL article440 hearing, however, defendant explained that, although he did not recognize the victim, he hadexchanged sex for drugs with various prostitutes around the time of the victim's death, and it wasundisputed at defendant's trial that the victim was a prostitute and drug user. In opposition to thePeople's evidence, the defense largely relied on the statement of the man who had seen thewitness's former boyfriend near the victim's home and later near what appeared to be her body;evidence that the former boyfriend's sperm was found in the victim's home; and evidence thatblood from an unidentified person was found on the threshold. Critically, the witness's testimonywould have corroborated the defense's theory by providing evidence that a direct admission wasmade by the very person the defense suggested had committed the murder and was in proximityto the victim's body after her death.
Notably, this is not a case where defense counsel simply chose to pursue a different trialstrategy that did not implicate the witness's testimony (see e.g. Baldi, 54 NY2d at 146).Instead, throughout the trial, defense counsel argued and presented proof that the witness'sformer boyfriend or his associates killed the victim. Indeed, this was defendant's sole theory ofthe victim's death. It was thus vital for defendant to corroborate the evidence placing thewitness's former boyfriend at the scene of the murder, and this corroboration was precisely whatthe witness's testimony offered.
All concur except Curran and Winslow, JJ., who dissent and vote to affirm in the followingmemorandum.
Curran and Winslow, JJ. (dissenting). We respectfully dissent because we disagree with themajority's conclusion that defendant carried his burden of establishing, by a preponderance of theevidence, "the absence of strategic or other legitimate explanations for defense counsel'sallegedly deficient conduct" (People vAtkins, 107 AD3d 1465, 1465 [4th Dept 2013], lv denied 21 NY3d 1040 [2013][internal quotation marks omitted]; see CPL 440.30 [6]; People v Bank, 124 AD3d 1376,1377 [4th Dept 2015], affd 28 NY3d 131 [2016]; People v Young, 167 AD3d 1448, 1449 [4th Dept 2018], lvdenied 33 NY3d 1036 [2019]), i.e., defense counsel's failure to secure the presence of awitness who had potentially exculpatory information. Although a close call, on the record beforeus, we conclude that defendant did not meet his burden, and we would therefore affirm the orderdenying defendant's motion to vacate the judgment.
It is well settled that, to be entitled to vacatur of a judgment under CPL 440.10 (1) (h) basedon a claim of ineffective assistance of counsel, a defendant is required " 'to demonstratethe absence of strategic or other legitimate explanations' for counsel's alleged shortcomings"(People v Benevento, 91 NY2d 708, 712 [1998], quoting People v Rivera, 71NY2d 705, 709 [1988]; see People vBaker, 14 NY3d 266, 270-271 [2010]). Absent evidence that no reasonable strategyanimated defense counsel's allegedly deficient conduct, it is presumed that defense counsel actedcompetently (see People v Wells, 187 AD2d 745, 745-746 [2d Dept 1992], lvdenied 81 NY2d 894 [1993]; see generally People v Flores, 84 NY2d 184, 187[1994]). Simple disagreement with strategies or tactics "does not suffice" to satisfy a defendant'sburden of establishing ineffective assistance of counsel (Flores, 84 NY2d at 187) becauseas long as the evidence, the law, and the circumstances of a case, "viewed in totality and as of thetime of the representation, reveal that the attorney provided meaningful representation, theconstitutional requirement will have been met" (People v Baldi, 54 NY2d 137, 147[1981]; see People v McDaniel, 13NY3d 751, 752 [2009]).
Although what constitutes effective assistance of counsel varies according to the uniquecircumstances of each case, the consistent core of our inquiry is whether the defendant receivedmeaningful representation (see Baldi, 54 NY2d at 146-147). "The phrase 'meaningfulrepresentation' does not mean 'perfect representation' " (People v Ford, 86 NY2d397, 404 [1995], quoting People v Modica, 64 NY2d 828, 829 [1985]), and defensecounsel's representation need not be completely error-free. Thus, courts are "properly skeptical"when "disappointed [defendants] try their former lawyers on charges of incompetentrepresentation" (Benevento, 91 NY2d at 712 [internal quotation marks omitted]; seePeople v Brown, 7 NY2d 359, 361 [1960], cert denied 365 US 821 [1961], reargdenied 12 NY2d 1022 [1963]; see also People v Satterfield, 66 NY2d 796, 798-800[1985]).
Here, we conclude that defendant failed to demonstrate that defense counsel's decision not toprocure trial testimony from the witness was not strategic. In our view, County Court properlyconcluded that the witness's testimony implicating her former boyfriend in the victim's death wasnot credible. The witness provided the purportedly exculpatory information to the police and anassistant district attorney (ADA) as a justification for her alleged stabbing of her formerboyfriend, and the court properly determined that the witness's statement that the formerboyfriend verbally admitted to her that he killed the victim was entirely self-serving because itwas offered only in an attempt to ameliorate the charges pending against her. The witness did notcome forward with the information until after she was charged in thestabbing—almost 18 months after the victim was killed—and, although she claimedthat she told the police and the ADA that her former boyfriend recorded some of his statementsabout the victim's death, there was no mention of any such recordings in the reports of theofficers who spoke to her. The witness's credibility was further diminished by her inability toexplain why she used an alias when she gave her statement to the police and the ADA. Given theissues surrounding the witness's credibility, defense counsel could have reasonably concludedthat presenting the witness's testimony would have strained the jury's credulity.
Moreover, defense counsel could have made the strategic decision not to call the witness inlight of the other available evidence that supported the theory that someone other than defendantkilled the victim. To that end, we note that at trial, defense counsel and the prosecutor stipulatedto the admission in evidence of the statement of a man who told police that, at approximately11:00 p.m. on the night before the victim's body was discovered, he saw three men enter thevictim's home, one of whom was the witness's former boyfriend, and later saw two of those mencarrying the victim's body out of her home and placing it in the trunk of a vehicle. Defensecounsel also procured from the prosecutor a stipulation that a shirt was taken from the victim'shome, and the forensic biologist's testimony at trial established that a semen stain found on theshirt matched the DNA profile of the witness's former boyfriend. The two stipulations thatdefense counsel obtained allowed him to argue that the credible evidence identified the witness'sformer boyfriend as the killer without exposing the witness herself to cross-examination. Thispermitted defense counsel to blunt the effect of the DNA evidence, which was the strongestevidence against defendant, and to argue to the jury that the DNA evidence proved only thatdefendant had sex with the victim, not that he was also her killer.
In our view, the majority places undue emphasis on defense counsel's statement at trial thathe "intended to call" the witness. Viewed in context, defense counsel's statement actuallyindicated his doubts about the witness's reliability—particularly with respect to whethershe would honor the subpoena—and, separately, whether the relevant portion of hertestimony was even admissible. It follows that, in a close case based primarily on DNA evidenceand where there was other evidence to support defendant's theory of the case, defense counselcould have reasonably strategized that it was inadvisable to delay the trial to procure and executea material witness order with respect to such a witness, despite his prior statement that heintended to call her.
In reaching this conclusion, we are mindful that the court's credibility determinations inevaluating witness testimony at a hearing on a CPL 440.10 motion are entitled to great weightbased on the court's superior opportunity to see the witnesses, hear the testimony, and observedemeanor (see People v Parsons,169 AD3d 1425, 1426 [4th Dept 2019], lv denied 33 NY3d 980 [2019]). Themajority rejects the court's credibility determinations regarding the witness's testimony, despitethe great weight that they should be accorded. The court characterized parts of the witness'stestimony as "neither persuasive or convincing" and "problematic." Additionally, the court couldnot "find a rationale that vindicates the veracity of critical components of her testimony" and was"unable to conclude her account is of convincing quality." Based on those observations, the courtdetermined that "[t]he only logical conclusion is that [defense counsel] determined her testimonywas not of significant value to the defense." In light of those clearly elucidated credibilitydeterminations, we are unable to agree with the majority that the court did not appropriatelyweigh the evidence in denying defendant's motion. Present—Carni, J.P., Lindley, Curran,Winslow and Bannister, JJ.