Opinion
No. 2033–2003.
2010-09-8
The PEOPLE of the State of New York, Plaintiff, v. Anthony WINDLEY, a/k/a/ Tony Windley, Defendant.
Brian Baker, Esq., Counsel for the Defendant. Jeremy Shockett, Assistant District Attorney, Office of the Bronx District Attorney.
Brian Baker, Esq., Counsel for the Defendant. Jeremy Shockett, Assistant District Attorney, Office of the Bronx District Attorney.
OPINION OF THE COURT
RICHARD LEE PRICE, J.
On February 9, 2006, defendant was convicted, upon a jury verdict, of conspiracy in the fourth degree (PL 105.10) and criminal possession of a controlled substance in the third degree (PL 220.16). Defendant was sentenced to two terms of life imprisonment with a mandatory minimum period of twenty years and fifteen years, respectively, each to run concurrent with the other. Defendant now moves pro se to vacate his conviction pursuant to CPL 440.10(1)(f) and (h) based on ineffective assistance of counsel. Defendant argues that his trial counsel was ineffective in that he: (a) failed to object to prejudicial evidence; (b) opened the door to prejudicial testimony that this court previously held inadmissible; (c) failed to properly investigate and prepare his case prior to and during trial; (d) deprived him of the right to testify on his own behalf; and (e) failed to pursue plea opportunities and advise him of plea negotiations.
Background and Procedural History
On April 10, 2003, defendant was arrested at his Bronx residence pursuant to a warrant based upon a sealed indictment charging, among other things, conspiracy in the second degree, criminal possession of a controlled substance in the first degree, criminal possession of a weapon in the second degree. These charges stemmed from an investigation by the Bronx County District Attorney's Office and the New York City Police Department into narcotics sales in and around the Patterson apartments in the South Bronx. The People concluded that the defendant, Tony Windley, was the leader of approximately fifteen drug dealers who supplied cocaine to buyers in the Patterson apartments and possessed guns to protect their operation.
A significant portion of the People's evidence was based on electronic surveillance in the form of wiretaps as well as the seizure of narcotics and firearms from the alleged conspirators.
On December 13, 2007, the Appellate Division, First Department, affirmed his conviction, rejecting his claims that the court erred by providing the jury with a copy of the text of the statute during their deliberations, that his sentence was excessive and that the court's adjudication of him as a persistent felony offender was unconstitutional.
On January 28, 2008, New York Court of Appeals Judge Victoria Graffeo denied defendant's application for leave.
People v. Windley, 46 A.D.3d 326, 847 N.Y.S.2d 533 (1st Dept 2007).
The United States Supreme Court denied defendant's petition for a writ of certiorari on April 28, 2008.
People v. Windley, 9 N.Y.3d 1040, 852 N.Y.S.2d 26, 881 N.E.2d 1213 (2008).
United States v. Windley, 553 U.S. 1024, 128 S.Ct. 2094, 170 L.Ed.2d 826 (2008).
By motion submitted on April 13, 2009, defendant moved to vacate his conviction on the basis that trial counsel, Robert Walters, was ineffective, claiming he neither objected to nor created a record opposing the introduction of an unsigned police department voucher, opened the door to prejudicial testimony that had previously been held inadmissible by overemphasizing holes in the prosecution's case, failed to present documents that would have been useful in rebutting the testimony of the prosecution's witnesses,
and failed to properly advise him of the maximum sentencing exposure if found guilty.
Defendant contends that documents demonstrating that defendant owned an entertainment company could have been used to rebut Detective Pinkney's testimony that “CDs meant drugs and DVD's meant guns.”
Regarding these claims, this court observed they were neither supported as a matter of law nor corroborated by the trial record. Thus, counsel provided meaningful representation under an objective standard of reasonableness. In any event, such claims, even if substantiated, would not have been likely to affect the verdict. Accordingly, by interim decision dated June 25, 2009, this court summarily denied this branch of defendant's motion.
Defendant's other contentions, however, that Mr. Walters deprived him of his right to testify and failed to pursue plea opportunities or communicate the status of plea negotiations, assert specific allegation of facts unable to be conclusively refuted by documentary evidence (People v. Session, 34 N.Y.2d 254 [1974] ). Consequently, this court ordered that a hearing be conducted on these issues, which commenced before this court on September 23, 2009, and concluded on February 11, 2010.
The Defense called four witnesses: Veronica Windley, the defendant's mother, the defendant, and Robert Walters, defendant's trial counsel. Notwithstanding that Assistant District Attorney Jeremy Shockett conducted the 440 hearing on behalf of the District Attorney, the defense called him as well. The People called one witness: Assistant District Attorney Joshua Gradinger. This court credits the testimony of these witnesses to the extent indicated, and largely discredits the defendant's testimony.
This hearing continued on October 7, 2009, December 22, 2009, and January 5, 2010.
Ineffective Assistance of Counsel Standard
Success of an ineffective assistance of counsel claim under Article I, § 6, of the New York State Constitution depends on whether counsel's performance “viewed in totality and at the time of representation, reveal[s] that the attorney provided meaningful representation ...” People v. Baldi, 54 N.Y.2d 137, 147 [1981];see also People v. Henry, 95 N.Y.2d 563, 565 [2000] ). Generally, trial counsel is presumed to have provided competent representation unless defendant demonstrates the absence of a “strategic or other legitimate explanation” for the allegedly deficient conduct ( see People v. Benevento, 91 N.Y.2d 708, 712 [1998];People v. Rivera, 71 N.Y.2d 705, 709 [1988] ). An attorney's performance “will not be considered ineffective, even if unsuccessful, as long as it reflects an objectively reasonable and legitimate trial strategy under the circumstances and evidence presented” (People v. Berroa, 99 N.Y.2d 134, 138 [2002] ). “It is not for this court to “second-guess whether a course chosen by counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation” (People v. Satterfield, 66 N.Y.2d 796, 799–800 [1985] ). Thus, “the claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole” (Benevento at 714, 674 N.Y.S.2d 629, 697 N.E.2d 584).
In addition to demonstrating that counsel's performance fell below an objective standard of reasonableness, a claim for ineffective assistance of counsel under the Sixth Amendment of the United States Constitution requires the defendant to also establish that he was prejudiced by such deficient performance (Strickland v. Washington, 466 U.S. 668, 687 [1984] ). Prejudice is established when “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different” ( Strickland at 694). A reasonable probability exists where the ineffective performance rendered the proceeding fundamentally unfair or produced an unreliable result (Lockhart v. Fretwell, 506 U.S. 364, 370–372 [1993] ).
In New York then, the only “question is whether the attorney's conduct constituted egregious and prejudicial error such that defendant did not receive a fair trial” (Benevento at 713, 674 N.Y.S.2d 629, 697 N.E.2d 584). Indeed, a defendant need not prove that the outcome of the case would have been different but for such errors, rather only that he was deprived of a fair trial overall (People v. Caban, 5 N.Y.3d 143, 155–56 [2005] ).
Notwithstanding the absence of a specific prejudice requirement, New York's “meaningful representation” in totality standard is not contrary to the Strickland standard (Rosario v. Ercole, 601 F.3d 118 [2d Cir2010]; Eze v. Senkowski, 321 F.3d 110 [2d Cir2003] ); Lindstadt v. Keane, 239 F.3d 191 [2d Cir2001] ). This is particularly true since any analysis of an ineffective assistance of counsel under the New York standard inherently considers whether trial counsel engaged in “an inexplicably prejudicial course” (People v. Zaborski, 59 N.Y.2d 863, 865 [1983];see also Benevento at 713, 674 N.Y.S.2d 629, 697 N.E.2d 584). The New York Court of Appeals has observed that the State constitutional standard is indeed satisfied when “prejudice' is examined more generally in the context of whether defendant received meaningful representation” (Benevento at 713, 674 N.Y.S.2d 629, 697 N.E.2d 584).
Accordingly, because New York's concept of prejudice focuses on the quality of representation provided and not simply the “but for” causation chain, the distinction between Baldi and Strickland is that New York “refuse[s] to apply the harmless error doctrine in cases involving substantiated claims of ineffective assistance” ( id. at 714). As a practical matter then, New York has “adopt[ed] a rule somewhat more favorable to defendants' (People v. Ozuna, 7 N.Y.3d 913, 915 [2006], quoting People v. Turner, 5 N.Y.3d 476, 480 [2005] ) because its prejudice component focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case' ” (Ozuna at 915 quoting Caban at 156, 800 N.Y.S.2d 70, 833 N.E.2d 213).
Commenting on this ostensible dichotomy, the Second Circuit noted:
[I]t is hard to envision a scenario where an error that meets the prejudice prong of Strickland would not also affect the fundamental fairness of the proceeding. The very opinion from which the troublesome phrase was drawn— Benevento—affirmatively stated that even a “harmless error” could undermine the fairness of the process in such a way that violates the state's constitutional guarantee of effective assistance. [citation omitted] What case, then, could present the converse, an error so egregious that it most likely influenced the outcome of the trial, but did not cripple the fundamental fairness of the proceedings? We can think of none. Fundamental fairness analysis by its nature must always encompass prejudice ( Rosario at 125).
Consequently, though not required, this court believes it appropriate and wise to consider defendant's claim in accordance with both Baldi–Benevento and Strickland (>I/I< at 125). In so doing, “[t]he performance and prejudice prongs of Strickland may be addressed in either order, and if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed' ” ( Green v. Portuondo, 2003 U.S. Dist LEXIS 24342, 2003 WL 23199872 [2003], quoting Strickland at 668). i. Defendant's Right to Testify
The constitutional basis of a defendant's right to testify is well established under the due process clause of the Fourteenth Amendment (Faretta v. California, 422 U.S. 806 [1975];Ferguson v. Georgia, 365 U.S. 510 [1961] ), the compulsory process clause of the Sixth Amendment (United States v. Valenzuela–Bernal, 458 U.S. 858 [1982];Washington v. Texas, 388 U.S. 14 [1967] ), and the Fifth Amendment (Rock v. Arkansas, 483 U.S. 44 [1987];Harris v. New York, 401 U.S. 222 [1971] ). The Supreme Court in Harris observed:
Every criminal defendant is privileged to testify in his own defense, or to refuse to do ... [The Fifth Amendment's privilege against self-incrimination] is fulfilled only when an accused is guaranteed the right to remain silent unless he chooses to speak in the unfettered exercise of his own will.' ... The choice of whether to testify in one's own defense ... is an exercise of the constitutional privilege ( Harris at 230 [citations omitted] ) .
See Timothy P. O'Neill, Vindicating the Defendant's Constitutional Right to Testify at a Criminal Trial: The Need for an On–The–Record Waiver. 51 U. Pitt. L.R. 809 (1990).
Clearly then, the right to testify is fundamental (see Jones v. Barnes, 463 U.S. 745 [1983] ) and the decision of whether to exercise it is the defendant's to make (Brown v. Artuz, 124 F.3d 73 [2d Cir1997]; People v. Mason, 263 A.D.2d 73, 706 N.Y.S.2d 1 [1st Dept 2000]; People v. White, 73 N.Y.2d 468, 541 N.Y.S.2d 749, 539 N.E.2d 577,cert. denied493 U.S. 859 [1989] ). While it is true that accepting assistance of counsel effectively delegates to counsel strategic decision-making authority, the defendant nevertheless retains authority over such fundamental decisions as “whether to plead guilty, waive a jury trial, testify on his or her own behalf or take an appeal” (Mason at 76, 706 N.Y.S.2d 1, quoting White at 478, 541 N.Y.S.2d 749, 539 N.E.2d 577). Counsel certainly can, and should, advise clients of the benefits and pitfalls of a decision to testify, but the ultimate decision belongs to the defendant ( see Brown at 79 [holding that the burden of ensuring that the defendant is informed of the nature and existence of the right to testify rests upon defense counsel, and that this burden is a component of the effective assistance of counsel] ). Since this constitutional right is personal to the defendant, the defendant must be allowed to testify if he or she so desires, regardless of the strategic considerations of his lawyer ( id ).
The defendant here did not testify. At issue is whether he waived his constitutional right to do so, or whether counsel deprived him of it. Defendant, in his supporting affidavit, claims he intended to testify, and argues that there was no strategic or legitimate explanation for depriving him of such opportunity. Defendant further claims he expected to do so because Mr. Walters hinted to the court that the defendant would be testifying. Finally, defendant characterizes Mr. Walters's decision not to have the defendant testify as “inexplicable” in light of the favorable Sandoval ruling since it forbid the People from delving into the underlying facts of his prior felony convictions.
The People argue that according to the trial record, it is clear the defendant elected not to testify. The basis of their assertion is Mr. Walters' statement, “the defense, with respect to Mr. Windley, won't entail more than two witnesses, three witnesses, and that includes the defendant, if we decide to go that way ” (T: 1317, emphasis supplied), coupled with the absence of any expression of surprise or protestation by defendant when Mr. Walters did not call him as a witness. Moreover, the People argue defendant suffered no prejudice, noting his failure to propose how his testimony could have assisted in changing the verdict. Finally, the People claim that by not calling the defendant as a witness, Mr. Walters employed a trial strategy designed to insulate him from being subjected to cross-examination of the wiretap recordings as well as his substantial criminal record.
Such attempts to dismiss defendant's allegations as baseless, however, are themselves conjecture and innuendo. Contrary to the People's view, the trial record is devoid of any indication that the defendant waived his right to testify or was persuaded by counsel not to do so for strategic reasons. In general, counsel is reasonably viewed as part and parcel of the defendant and his case. Thus, Mr. Walters' metaphorical use of the pronoun “we,” along with the lack of any demonstrative protestation over not being called as a witness, hardly establish that the defendant waived his right to testify. Whether Walters engaged a trial strategy that excluded the defendant's testimony belies the issue presented here, which is, did the defendant waive his right to testify or did counsel deprive him of the opportunity to make that decision.
As noted, a defendant's right to testify is indeed fundamental ( Jones at 745). Regarding waiver of a fundamental rights, the Supreme Court has long observed there exists a presumption against it:
It has been pointed out that “courts indulge every reasonable presumption against waiver” of fundamental rights (citations omitted) and that “we do not presume acquiescence in the loss of fundamental rights” (citation omitted). A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused (Johnson v. Zerbst, 304 U.S. 458, 464 [1938] ).
It follows then, that the mere absence of an objection by a defendant “is of little, if any, probative value” in determining whether the decision not to testify was that of the defendant (United States v. Teague, 908 F.2d 752, 759 [11th Cir1990]; contra United States v. Edwards, 897 F.2d 445 [9th Cir1990 ] [defendant's silence at trial effectively waived his right to testify notwithstanding his claim that counsel failed to advise him of such right]; United States v. Martinez, 883 F.2d 750 [9th Cir1989] [defendant's silence at trial may establish waiver of right to testify]. In Underwood v. Clark, 939 F.2d 473 [7th Cir1991], the Seventh Circuit, while recognizing defendant's silence may be treated as a waiver, declined to require that the judge conduct an inquiry of whether the defendant wishes to testify but held “the defendant must produce something more than a bare, unsubstantiated, thoroughly self-serving, and none too plausible statement that his lawyer (in violation of professional standards) forbade him to take the stand” ( Underwood at 476).
Implicitly concurring with the Eleventh Circuit, the Second Circuit criticized the Government for failing to provide any mandatory authority in support of its “acquiescence” argument (United States v. Vargas, 920 F.2d 167 [2d Cir1990]; see also United States v. Castillo, 14 F.3d 802 [2d Cir1994] ). Expressing “substantial doubt” over the legitimacy of such a position, the court stated, “[w]e regard as highly questionable the proposition that a defendant's failure to object at trial to counsel's refusal to allow him to take the stand constitutes a waiver of the defendant's constitutional right to testify on his own behalf” ( Vargas at 170).
The steady trend away from Martinez and Edwards continued with the District Court decision in DeLuca v. Lord, (858 F.Supp. 1330 [SDNY 1994] ), where the court rejected outright the concept that the right to testify may be waived by counsel or by conduct stating, “[t]his model seems to ignore the requirement that waiver of a fundamental right must be both knowing and voluntary” ( id. at 1356). Moreover, the court strongly rejected the Government's argument that the right to testify may be subordinated by counsel's tactical choices:
The right to testify is a basic right, and there is an obligation on the part of both the Court and trial counsel to inform the accused of his right to testify, if he so desires. Further it is the duty of both to assure that the exercise of this basic right by the accused is a free and meaningful decision. The right to testify is personal to the accused. He must make the ultimate decision on whether or not to take the stand. In this regard it is unlike other decisions, which are often called “trial decisions,” where it is counsel who decides whether to cross-examine a particular document. Here it is the accused who must decide and it is the duty of counsel to present to him the relevant information on which he may make an intelligent decision( id. at 1359, quoting Poe v. United States, 233 F.Supp. 173 [DDC 1964] [emphasis supplied by the DeLuca court] ).
There can be no doubt then, that notwithstanding the strategic or tactical imprudence of testifying, a defendant has the unconditional right to face his accusers, tell his story, and attempt to persuade the jury to exonerate him. The inherent difficulty here is the absence of a clear indication that the defendant knowingly and voluntarily waived his right to testify.
Interestingly, only two states require a court to apprise the defendant of his right to testify and conduct an on the record colloquy into his voluntarily waiver of it, neither of which is New York.
Indeed, New York requires no colloquy or other formal proceeding to ascertain whether the decision not to testify is that of the defendant. To be sure, waiver allocations are by no means without contention or beyond challenge. Such a proceeding, however, would have likely provided a significant measure of clarity appropriate for, and commensurate with, that which is afforded to the waiver of other fundamental rights (e.g., pleading guilty and waiving a jury). Absent such a waiver, and without the benefit of any specific indication that the defendant knowingly and voluntarily waived his right to testify, this court is constrained to circumstantially whether he intentionally relinquished or abandoned that right. This court believes he did.
See O'Neill at 810.
It should be noted that defendant neither claims nor suggests counsel coerced him into not testifying, and nothing presented during the hearing indicated otherwise. At most, the credible testimony presented at the hearing supports, albeit inferentially, that defendant deliberately relinquished his right to testify. Disturbingly problematic, however, the hearing testimony is not necessarily incommensurate with a finding that trial counsel, Robert Walters, eclipsed defendant's right to testify, let alone displayed any interest in preserving it beyond the extent to which it served his strategic defense and tactical decisions, as reflected in his hearing testimony on direct examination:
Mr. Baker:Well, now, you obviously had a strategy with regard to this matter, correct?
Mr. Walters:Correct.
Mr. Baker:As all attorneys do. And there came a point where you discussed with Mr. Windley whether he was going to testify or not, correct?
Mr. Walters:I'm not sure of that. I think people that know me, I have—My philosophical bend, as a result of long discussions and pondering over that issue ... [is] that you never put a defendant on the stand. Period. It shifts the burden and the burden is not your client's to claim; it's the Government's burden to prove.
Mr. Baker:Understood. So basically that would be your strategy in terms of not putting Mr. Windley on the stand, correct?
Mr. Walters:In every case ...
Mr. Baker:Did you ever have discussions with Mr. Windley with regard to his testimony during the trial?
Mr. Walters:I don't have a specific recall. And whether it came up in the three years that we were together, whether I expressed to him my philosophical bent, which is clients don't testify, I'm not sure ...
Mr. Baker:And there were other issues with regard to this case, if Mr. Windley would have testified, that would have come out in front of the jury, correct?
Mr. Walters:I don't recall the specifics of the Sandoval ruling, but Mr. Windley does have, in his background, various criminal contacts that no doubt would have been brought out to a jury who, in assessing his credibility, would no doubt have weighed that against him.
Mr. Baker:There were some recordings with regard to Mr. Windley in this case, correct?
Mr. Walters:That's correct.
Mr. Baker:Would that have come out?
Mr. Walters:Oh, of course it would have been used as impeachment ...
Mr. Baker:And he did, in fact, express a desire at some point to testify; is that correct?
Mr. Walters:I'm not sure whether he expressed it and I shut it down, or we just didn't express it explicitly, but I laid out my strategy that manifested itself in our trial (H: 92–94).
Whether a defendant may shift the burden by testifying, or precipitate some other consequence is not the issue; indeed it may. But as this court clearly noted, such a decision is not counsel's to make; it is the defendant's. Notwithstanding whether defendants in general routinely elect not to testify, nothing relieves counsel from respecting his client's right to do so. Walters' categorical view, assuming he truly believes it, not only demonstrates a cavalier disregard for a defendant's Fifth, Sixth and Fourteenth Amendment rights, but reflects his perpetual and systematic abridgment of them.
Walters' testimony aside, defendant claims it was his desire to testify, intended on doing so, and communicated that desire to his mother. Supporting this claim, he relies on the testimony of his mother, who indicated that she was expecting Walters to call him to the witness stand (H: 7). Defendant's mother, however, acknowledged on cross-examination that she had no personal knowledge of any conversation between defendant and Walters relative to him testifying (H: 8). Regarding such communication, defendant testified on direct examination:
Mr. Baker:Okay. And I assume you discussed trial strategy with Mr. Walters?
Defendant:There weren't really, wasn't too much of a discussion on that end. I know my main thing was that I had, that I wanted to testify because from what I had seen, there wasn't too much evidence against me in the case, so if I testified, I can give my side of the story and tell why I was in contact and having conversations with the individuals that they had me on the wiretaps with.
Mr. Baker:Now, so you not testifying, is it fair to say, was a decision that was made by Mr. Walters unilaterally, only him?
Defendant:Only him (H: 29–30) ...
On cross examination, however, defendant indicated he “spoke to Mr. Walters about my potential testimony on numerous occasions ... It was clear I was going to testify. He never explained to me that was my right and ultimately my decision to decide whether I was going to testify (H: 50–52).
Assuming the veracity of his testimony, which this court doubts, the defendant never explicitly expressed a desire to testify to counsel or the court. Rather, it appears defendant simply expected that he would testify, an expectation based merely upon an impression, the source of which he conspicuously fails to identify. What this clearly demonstrates, however, is that he was well aware that he had the right to do so, as further evidenced by ADA Shockett's cross examination:
ADA Shockett:You're aware when you plead guilty the judge gets to ask you questions, in other words, allocute you; correct?
Defendant:I'm aware now that you're telling me.
ADA Shockett:Well, you pled guilty before; is that correct?
Defendant:Yes.
ADA Shockett:In federal court and twice in state court?
Defendant:Yes.
ADA Shockett:In those cases, judges asked you questions about the crimes you allegedly committed, correct? ...
Defendant:In those cases I was so dizzy at the fact that I was going to go upstate that I don't remember what happened in that courtroom. All I know is the time that I did ...
ADA Shockett:Who was your attorney back then?
Defendant:Anthony Rico, R–I–C–O
ADA Shockett:And Mr. Rico is a very fine attorney; correct?
Defendant:Yes ...
ADA Shockett:All right. Did you have a lot of meetings with him?
Defendant:Yes.
ADA Shockett:And did he tell you that if you pled guilty you were giving up the right to testify; correct?
Defendant:I don't remember that.
ADA Shockett:On your other cases, were you informed by those attorneys that if you pled guilty you were giving up the right to testify?
Defendant:I don't recall that ...
ADA Shockett: ... I'm going to direct your attention to page 7, line 15, were you asked this question during the allocution and did you give this answer:
“ Question: And you also understand that you would have the right on your own part to testify or stand silent and not testify unless you elected to testify?
Answer: Yes.”
Do you remember that question and answer?
Defendant:No (H: 41–45; emphasis as indicated in record).
* * *
ADA Shockett:Are you saying Mr. Rico didn't tell you what was going to happen ... before Judge Patterson in federal court?
Defendant:I'm telling you I can't recall that. I don't know ... I didn't know the judge was going to ask me questions.
ADA Shockett:the judge is going to ask you, Are you guilty or not guilty, right ? Even if he didn't ask you the facts, you knew that was going to happen?
Defendant:Right
ADA Shockett:You were going to tell the whatever judge it was, Yes, I was guilty.
Defendant:I was guilty to prevent me from getting life in prison, say I was guilty, get eight years and get it out of the way
ADA Shockett:You were willing to lie to the judge so you would not get life in prison?
Defendant:I was willing to lie to the judge so I would stay home and raise my kids (H: 48–50; emphasis as indicated in record).
Clearly, notwithstanding defendant's repeated attempts to feign ignorance of his right to testify, ADA Shockett demonstrated through cross examination that he knew it was his right, or at the very least that he certainly should have known. Accordingly, defendant's claim to the contrary is simply incredible.
Also evident is that defendant expressed no discernable objection and made no attempt to communicate his concern to the court when Walters rested without calling him. As noted above, the absence of an objection over not being called to the stand, or other demonstrative expression of displeasure, is neither required by law nor determinative of having been deprived of the right to testify. Indeed, there may well exist plausible explanations for not doing so. Defendant's explanation for such omissions, however, are entirely unpersuasive as illustrated by his hearing testimony:
Defendant:All I know is that he [Walters] ended my defense and that was it. And I didn't know that I could say to the judge, Your honor, I want to testify ... I didn't know I could say anything to the judge (H: 50–51; emphasis as indicated in the record).
* * *
ADA Shockett: ... Mr. Walters rests after Ms. Cichanowicz, the Assistant District Attorney, is finished with her examination, correct? He rested?
Defendant:Yes ...
ADA Shockett:Okay. And it's your testimony that when the jury was excused for the day, they left the courtroom, you did not feel you were able to tell Justice Price, “Judge, I wanted to testify,” correct?
Defendant:That is correct ... because then I didn't want to get put out of the courtroom for disorderly conduct ... My lawyer never told me that it was my decision alone to make ...
ADA Shockett: ... Did you tell Mr. Walters, “Mr. Walters, I really want to testify?”
Defendant:I said to him, yo, when we went in the back, I said what happened, I said I thought I was supposed to get on the stand.
ADA Shockett:And what did he say?
Defendant:Honestly I don't remember exactly what he said.
ADA Shockett:Okay. So the next day comes when you go to court, before the jury comes in, when everyone is sitting around, do you say, “Justice Price, I want to testify?”...
Defendant:I didn't say that ... [b]ecause I did not want to violate the courtroom. I wanted to respect the courtroom ...
ADA Shockett:Okay. And when you get convicted, at that point you don't say, “Judge, but I wanted to testify, this is a travesty of justice,” correct, or words to that effect? ...
Defendant:No, because I didn't know I could.
ADA Shockett:Okay. So, on the date of sentence you were given an opportunity to speak, correct?
Defendant:Correct.
ADA Shockett:Did you tell the judge, “Judge, but I wanted to testify?” ...
Defendant:My mother ran out of the courtroom screaming and crying. I just lost my brother during the trial, I cried because she was crying running out of the courtroom. No, I did not say that. Like I said, again, I was dizzy ... But I did not know that I could say to the judge I wanted to testify ...
ADA Shockett:When was the first time you told any judge or anybody that you wanted to testify?
Defendant:When I wrote him inside of this motion.
ADA Shockett:Okay. About three years after you were convicted (H: 68–72) ...
Thus, defendant would have this court believe that the reason why he failed to express displeasure over Walters' not calling him to the stand is: a) he was unaware that he was permitted to; b) he believed that doing so would have displayed irreverence to the court; c) he was “dizzy” with grief over his brother's death; or d) all of the above. Considering defendant's familiarity with court proceedings, from his three prior felony convictions (one federal, two state), it is highly improbable he would have reasonably believed it was prohibited to voice his concerns at an appropriate time. This court finds it quite inconsistent that his dizziness would have prevented him from expressing such displeasure when he appeared able to calmly and rationally conclude that speaking out would have been disrespectful. What strikes this court as particularly odd is his testimony that he also claimed to be unaware communicating such displeasure was even an option.
While it is not difficult to accept that defendant's “dizziness,” exacerbated by the sense of feeling blindsided by Walters resting without calling him to testify, prevented him from immediately communicating such displeasure. It is a far more difficult task, however, to reconcile defendant's prolonged silence on the matter, a silence which extended throughout the remainder of his trial and continued beyond his direct appeal (see People v. Windley, 46 A.D.3d 326, 847 N.Y.S.2d 533 [1st Dept 2007] ). Indeed, this court believes it is because such silence and inaction is entirely consistent with having voluntarily relinquished his right to testify, which is supported by Walters' testimony:
ADA Shockett:Did he ever say to you, words to the effect of, Mr. Walters, I realize that's what you want to do, but I'd like to testify and tell my side of the story? Did he ever say that to you?
Mr. Walters:I don't recollect that language ... I thought he was happy with how I saw things and was content, based upon my representation and my reputation, that I would do the best I can and I would be very truthful with him and that he would put this in my hands (H: 104–105).
* * *
ADA Shockett:Would it be fair to say you met with him [defendant] ... at least 20 times in court throughout the pendency of your representation?
Mr. Walters:That would be fair to say.
ADA Shockett:Did you also go to Riker's island and meet with him?
Mr. Walters:Yes ...
ADA Shockett:Did you talk about, in any of those conversations, Mr. Windley's proposed testimony, trial testimony?
Mr. Walters:No ... And I'll tell you why, if you want me to tell you why.
ADA Shockett:Sure.
Mr. Walters:Number one, he's all over the tapes, or he was recorded on the tapes and he had baggage, and so in terms of him testifying, that's something that would have been given short shrift.
ADA Shockett:When you said, “would have been given short shrift,” do you recall him ever bringing up, “Mr. Walters, do you think I should testify at this trial” or words to that effect? And you guys having a conversation about it and you basically explaining what you just explained to me just now?
Mr. Walters:I recall that—telling him that my clients don't testify for the reasons I gave earlier ...
ADA Shockett:And when you told him that, how did he respond?
Mr. Walters:I don't recall the exact language other than, you know, like an okay or something like that ... I laid out the trial strategy, which I thought was a viable one (H: 102–103).
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Mr. Walters:I thought we discussed how the trial was going everyday.
ADA Shockett:All right. Did he agree with you?
Mr. Walters:I thought he did (H: 108–110).
Further substantiating defendant's acquiescence to the defense strategy is the following colloquy between ADA Shockett and the defendant:
ADA Shockett:Okay. Isn't it true that if you got up on the stand, the jury was going to learn that you were a three-time convicted felon? ...
Defendant:Just that I had three felonies, yes ...
ADA Shockett:Isn't it true Mr. Walters told you that if you testified it wouldn't look good for the jury nullification argument if they learned you had three prior felonies?
Defendant:No, he didn't say that. What he said was—He said red came across as too intelligent on the stand.
ADA Shockett:Who is Red?
Defendant:That was one of his prior clients. He said he didn't want to put me on the stand because he didn't want me to come across as too intelligent.
ADA Shockett:Too intelligent, three-time convicted felon?
Defendant:Just because you have felonies doesn't mean you're stupid or you're not intelligent (H: 66–68).
In support of his claim, defendant relies on both Brown (124 F.3d at 73) and DeLuca (858 F.Supp. at 1330). Such reliance, however, is misplaced because his voluntary relinquishment, or abandonment, of the right to testify obviates it. In Brown, the defendant positively asserted his right to testify and counsel affirmatively circumvented his exercise of it ( Brown at 73). That is not the case here. In DeLuca, while counsel was found to have deprived defendant of the right to testify, such deprivation was not the basis upon which the court determined that counsel was ineffective)>I/I< at 1330(. Neither >I/I< nor >I/I< involved the issue of whether defendant abandoned his right to testify)>I/I< at 73; >I/I< at 1330(. >Pfont color=”FF0000”<]*13[>/font Moreover, and perhaps most significant, is that while defendant claims he wanted to “tell my side of the story ... to make it clear to the jury that the things that he [Det. Pinkney] was saying were criminal were just clear conversations in the course of me doing business (H:29),” he fails to specify how his proposed testimony, had he done so, would have been likely to produce a different result. In fact, other than a non-specific conclusory explanation on Detective Pinkney's trial testimony, it is entirely unclear that defendant would have mustered any meaningful explanation of the evidence presented:
Mr. Baker:And your business does involve CDS and DVDs?
Defendant:Yes. I owned Big Nights Entertainment. It was a management, production and promotion company.
Mr. Baker:And Officer Pinkney, did he have some kind of connotation to these terms, CDS and DVDs?
Defendant:Supposedly he, from what I remember of the trial, I'm not 100 percent clear, but I know he made Platinum, which is, platinum CDs means you sell a million CDs in the record industry. He made that into meaning whenever somebody says platinum on the phone, it meant a gun. He said whenever somebody said a CD, it had something to do with cocaine and DVD meant gun too, as well.
Mr. Baker:Did you ever have get a chance to explain to the jury the real meaning of these terms that Officer Pinkney was inferring were all, I'll say, nefarious, if that's fair to say?
Defendant:Not at all. If I would have had a chance to speak to the jury, I would have explained to them that I owned an entertainment company, that would have been first. My entertainment company deals with CDs and DVDs, that would have been second ... So if I didn't have an opportunity to get on the stand to explain to the jury ... that my reason for having these dialogs with these individuals on the phone was during the course of me doing my business, then when you have an officer get on the stand and say that these are code words, me using them so much, it wouldn't be too hard for an individual to believe without knowing that I actually owned an entertainment company and dealt with CDs and DVDs on a regular basis (H: 29–32).
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Mr. Baker:And it's your belief that it would have changed the outcome of the case if you did testify; correct?
Defendant: ... it would have definitely changed the outcome of the case (H: 32) ...
Claiming that such an explanation would have been likely produced a different result, however, the defendant's proposed testimony does nothing more than “spin” inculpatory evidence, such as his “story” that “40” and “10” in a recorded telephone conversation
with Brandi York referred to CDs and DVDS, not guns and cocaine. Merely because the numbers 40 and 10 were juxtaposed with were the words “CD” and DVD,” thus enabling him to explain that it reflected his ownership of Big Knights Entertainment, Inc (see Hearing Exhibit 3), in no way compels the jury to believe he was a distributer of CDs and DVDs. Consequently, it is not likely that such testimony would have effectively refuted the People's theory that they were merely employed as code words for quantities of cocaine.
This recorded telephone conversation was introduced in evidence during the defendant's trial and at the 440 hearing (H: 53).
While testifying would have undoubtedly taken aim at the core of People's case, defendant also neglects to explain how doing so would have validated that the entities described in the telephone conversations were in fact quantities of music rather than quantities of narcotics. Nor was he able to formulate an explanation for York being in possession of 40 grams of cocaine and 10 grams of crack cocaine upon her arrest, which occurred soon after that recorded conversation. In fact, it does not appear he gave any thought to the matter:
ADA Shockett: ... On March 7, 2003, your friend Brandi York got arrested, right?
Defendant:Right.
ADA Shockett:And she got arrested with 40 grams of crack cocaine and ten packs of crack cocaine, right?
Defendant:Yeah. That's what the paperwork said.
ADA Shockett: ... There are a lot pf phone calls before her arrest, during her arrest and then her calling you from the precinct, right?
Defendant:And in none of those conversations did we speak about me giving her any drugs or anything to that effect.
ADA Shockett:Also conversations speak about CDs, DVDs, platinum, anything like that, correct?
Defendant:Not correct.
ADA Shockett: ... Isn't it true that on March 7, 2003, you called Brandi York and asked for 40 and 10? Do you recall that conversation?
Defendant:I can't totally recall it (H: 51–53).
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(Whereupon, CD [recorded conversation] was played in open court.)
* * *
ADA Shockett:Do you remember that call, the one I just played for you?
Defendant:Now that you played it I remember it.
ADA Shockett:So it refreshes your recollection.
Defendant:Right.
ADA Shockett:If you had testified, how would you explain this call?
Defendant:That's not something I've been thinking about [ ].
ADA Shockett:Back then you were going to explain your side of the story?
Defendant:Right.
ADA Shockett:Isn't it true that Mr. Walters said to you, If you testified, the DA is going to play these calls for you and you're not going to have an explanation for him? ...
Defendant:No.
ADA Shockett:Then how were you going to explain this call?
Defendant:How? You sitting here, you asking me to explain to you what I was going to say to that call. Call was almost four years ago.
ADA Shockett:That's correct?
Defendant:That's not my state of mind at this point. At that time, maybe I did—I definitely would have been able to tell you if I got on the stand. I would explain to you a variety of different things. At this point in time, that's not what my mind is at (H: 56–57).
Considering defendant's inability to even meaningfully address such specific and incriminatory evidence, this court cannot accept that had defendant testified at trial, there is a reasonable probability that the result would have been different. ii. Pursuit and Communication of Plea Offers
Defendant's remaining claim, that Walters failed to pursue plea opportunities and advise him of plea negotiations, is entirely without merit. To prevail on such a claim, a defendant must demonstrate “that a plea offer was made, that defense counsel failed to inform him of that offer, and that he would have been willing to accept the offer” (People v. Fernandez, 5 N.Y.3d 813 [2005];People v. Goldberg, 33 A.D.3d 1018, 823 N.Y.S.2d 492 [2d Dept 2006] ). The burden of establishing this rests with the defendant ( see People v. Fernandez, supra at 814, 803 N.Y.S.2d 22, 836 N.E.2d 1144;People v. Howard, 12 A.D.2d 1127 [4th Dept 2004]; People v. Rosenthal, 304 A.D.2d 418, 757 N.Y.S.2d 558 [1st Dept 2003] ) and must be established by “objective evidence” ( see People v. Fernandez, supra; 5 N.Y.3d at 814, 803 N.Y.S.2d 22, 836 N.E.2d 1144). Defendant failed to do so.
Defendant alleges, “[a]t the deliberation stage ... the prosecution asked Mr. Walters to negotiate a plea deal ... Counsel never discussed with the defendant whether he wanted to engage in negotiation.”
He further alleges that Walters' failed to communicate his desire to engage in plea negotiations to the assigned assistant, Assistant District Attorney (“ADA”) Shockett, and failed to convey the People's offer of seven years imprisonment.
See Defendant's affidavit in support of motion, pp. 6–7, n. 14).
In refuting defendant's claim, the People argue that no formal plea offer was ever made, and that the alleged seven-year “offer” was “obviously not a plea offer by any interpretation” but only a discussion of a potential plea.
At the CPL 440 hearing, ADA Gradinger, who was also assigned to this case, testified that the People never contemplated offering less than fifteen years imprisonment (H: 135–136).
See People's affirmation in opposition to defendant's motion, p. 6.
Clearly defendant's claim is belied by the record, both at trial and the 440 hearing, which reflect that defendant was in fact directly involved in plea negotiations. Conceding that he wanted a plea that “didn't come with life on the back” (H: 25), it is highly incredible that counsel neither briefed him on plea matters nor included him in any plea negotiations. This is especially true in light of the following:
Mr. Baker:Now, as the case went on, approximately how many discussions did you have with Mr. Walters about the plea?
Defendant:Me and Mr. Walters had, every time I met with him we had discussions about the plea. Mr. Walters used to come see me every weekend on Riker's Island.
Mr. Baker:And during those meetings you'd have discussions about, not only the plea, but possible trial?
Defendant:We was—basically we spoke about the case in and of itself, but more so about the plea because I told him I really didn't want to go to trial, because with 61 counts it was a high probability that if I get hit with one count, I can get a lot of time, more than I would get on a plea agreement.
Mr. Baker:Were you afraid to get some type of a life sentence?
Defendant:Yes.
Mr. Baker:Now, as the plea negotiations continued, do you ever remember a certain number that was offered or was on the table, either by the District Attorney's office or by the Court?
Defendant:I don't remember no specific numbers. All I know is that Mr. Walters said he was working out something out with Mr. Shockett ... At one point ... Mr. Shockett, he made an appointment for me to be brought out ... to the District attorney's office[.] ... Now, what I was told was that this was a reverse proffer session, so that I could see what they had against me and then I would be more willing, more inclined, to take an offer (H: 25–27).
* * *
Mr. Baker:Tell me, did Mr. Walters ever come back to you and tell you exactly what that offer was?
Defendant:We never spoke. We never spoke after that [reverse proffer session]. After that he never came back to me about an offer. He never told me what the People were talking. He said he left a message for Mr. Shockett, I remember that clearly, but then nothing was communicated back to him (H: 28–29).
* * *
Mr. Baker:Tell me, Mr. Windley, had a reasonable offer, when I say reasonable, not including life, been conveyed to you by Mr. Walters, would you have availed yourself of that offer?
Defendant:Yes, I would have been very inclined towards taking that offer.
Mr. Baker:But you're sure there was no offer conveyed to you by Mr. Walters?
Defendant:I'm positive there was no offer conveyed (H: 29).
On cross examination, however, defendant conceded that no offer was made, and certainly never anything that would have comported with his perception of “favorable:”
ADA Shockett:Mr. Baker asked you several times whether you would have taken a favorable plea. What number did you have in mind that would have been favorable?
Defendant:Maybe eight years, ten years, but definitely nothing with life (H: 34).
* * *
ADA Shockett:Seven years was never offered to you or your attorney; correct?
Defendant:You keep saying “correct.” You know what you said inside of the courtroom ... [Y]ou, my trial attorney and judge spoke about it in the courtroom. You know what was said.
ADA Shockett:I'll try one more time: Were you offered seven years; yes or no?
Defendant:Nobody ever conveyed seven years to me ...
ADA Shockett:Are you saying never during the pendency of this case were you ever given an offer at any point in time?
Defendant:I'm telling you at the beginning of the case, when the case first started, I was offered some kind of deal but it had life on the back end and I rejected it (H: 36–37).
Walters, for his part, stated that there were never any significant plea negotiations because it was his belief that the People were still “talking double digit numbers” (T: 188). Elaborating on this at the hearing, Walters testified that there “was the usual People offer of an excessive amount of years ... something like 12 to life, and I thought it pretty much remained that.” Walters further stated that “there were not a lot of plea discussions because the People had their number and they were fixed on that number. And since that number was, in my opinion, rather draconian, it wasn't a question of going back and forth with the assistant to wheedle [it] down” (H: 89–91).
On cross examination, Walters confirmed that there were very few discussions concerning a plea and that most of the discussions focused on the case and recorded conversations. In fact, Walters stated, “I'm darn sure that in our first couple of meetings he didn't say, you know, I need to get this plea ... I knew what the plea was and the plea stayed the same for a very long time.” Moreover, even regarding eight years, which was never offered, Walters specifically recalled that”was just not something we were interested in” (H: 99–101). Corroborating Walters' understanding, ADA Shockett testified “I know there was no plea negotiations between Mr. Walters and myself and the judge” (H: 158).
Assuming, arguendo, that this court were inclined to believe defendant, which it is not, the dearth of negotiations and absence of an offer appears to have been the defendant's doing, not Walters or the District Attorney. The defendant constructively foreclosed any meaningful negotiations by imposing strictures on the plea parameters such as nothing with “life on the back.” Assistant District Attorney Shockett testified that during the reverse proffer session, which was specifically held for the purpose of plea negotiations, the defendant abruptly terminated the session by making throat-cutting gesture. Such a gesture, according to ADA Shockett, was of the type used to signify termination (H: 156).
Accordingly, on the issue of whether Walters properly pursued plea opportunities and conveyed any discussions regarding plea negotiations to the defendant, this court concludes he did, certainly to the extent possible given defendant's ostensible intractability.
For the foregoing reasons, defendant's motion to vacate his conviction pursuant to CPL 440.10(1)(f) and (h) based upon ineffective assistance of counsel is denied.
This constitutes the decision and order of this court.