Opinion
2989-2010
03-30-2018
The PEOPLE of the State of New York v. Jamel ASH, Defendant.
Attorneys for Defendant Jamel Ash: Daniel P. Schumeister, Esq., Kramer Levin Naftalis & Frankel LLP and David Crow, Esq., Seymour W. James, Jr., The Legal Aid Society The People are represented in this matter by Eric Gonzalez, District Attorney, Kings County, Brooklyn, New York (Sholom J. Twersky, of counsel).
Attorneys for Defendant Jamel Ash: Daniel P. Schumeister, Esq., Kramer Levin Naftalis & Frankel LLP and David Crow, Esq., Seymour W. James, Jr., The Legal Aid Society
The People are represented in this matter by Eric Gonzalez, District Attorney, Kings County, Brooklyn, New York (Sholom J. Twersky, of counsel).
Danny K. Chun, J.
The defendant moves to vacate the judgment of conviction against him claiming that he received ineffective assistance of counsel and the proof was insufficient as a matter of law. The people oppose the defendant's motion.
It is alleged that on April 4, 2010, the defendant approached the deceased, displayed a gun and took the deceased's wallet, MP3 player, cellular phone and a set of keys. Afterwards, the deceased ran approximately a block and up two sets of stairs to an elevated subway station. The deceased who had hypertrophic cardiomyopathy collapsed at the station and died after going into cardiac arrest.
For these acts, the defendant was charged under Kings County Indictment Number 2989/2010, with Murder in the Second Degree (PL § 125.25[3] ), Robbery in the First Degree (PL § 160.15[4] ) and Robbery in the Third Degree (PL § 160.05).
On May 21, 2012, this court, after a bench trial, found the defendant guilty of Murder in the Second Degree and Robbery in the First Degree. On August 8, 2012, the defendant was adjudicated a violent predicate felon, and this court sentenced him to fifteen years to life of imprisonment for the felony murder and to a concurrent prison term of fifteen years for the first-degree robbery followed by five years of post-release supervision.
In this motion, the defendant moves to vacate the judgment of his conviction of Murder in the Second Degree, or in the alternative, an order for a new trial on that count arguing that (1) he did not receive effective assistance of counsel and (2) the proof on this count was insufficient as a matter of law. The defendant's motion included an affirmation from the defendant's trial counsel, Samuel Gregory, Esq. stating that (1) at the time of the defendant's trial, he was not aware that in homicide cases, the People are required to prove that a victim's death was reasonably foreseeable to the defendant; (2) his failure to raise this issue at trial was not a choice made for strategic reasons; and (3) had he been aware of the legal requirement of reasonable foreseeability, he undoubtedly would have argued at trial that the victim's death was not reasonably foreseeable to the defendant. The defendant argues that Mr. Gregory's failure to raise the argument that the decedent's death was not a reasonably foreseeable result of the defendant's conduct constituted ineffective assistance of counsel. Furthermore, the defendant argues that there is a reasonable probability that, but for the counsel's unprofessional error, the result of the proceeding would have been different.
In opposition, the People argue that while they agree that there was no strategic rationale for trial counsel's failure to raise the issue of reasonable foreseeability based on trial counsel's affidavit, the defendant still failed to demonstrate there was a reasonable probability that this court would have acquitted the defendant of the felony murder. As such, the People argue that the defendant's motion to set aside his verdict should be dismissed.
A defendant in a criminal proceeding is constitutionally entitled to effective assistance of counsel. Strickland v. Washington , 466 US 668 (1984) ; People v. Linares , 2 NY3d 507, 510 (2004) ; see U.S. Const., 6th Amend.; NY Const., art. 1 § 6. Under the two-prong test of the federal standard, a court must decide (1) whether the counsel's performance fell below an objective standard of reasonableness and (2) whether the defendant suffered actual prejudice as a result. Hill v. Lockhart , 474 U.S. 52, 58-59 (1985) ; Strickland v. Washington , 466 U.S. at 687 (1984). In New York, "[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met." People v. Baldi , 54 NY2d 137, 147 (1981). "A contention of ineffective assistance of trial counsel requires proof of less than meaningful representation, rather than simple disagreement with strategies and tactics." People v. Rivera , 71 NY2d 705, 708-709 (1988) ; See People v. Benn , 68 NY2d 941 (1986).
In contrast to the federal standard, which looks to the outcome of the case, in New York, a court must consider "prejudice [,] a component which focuses on the fairness of the process as a whole rather than any particular impact on the outcome of the case." People v. Yagudayev , 91 AD3d 888, 890 (2d Dep't 2012) quoting People v. Colville , 79 AD2d 189, 197 (2d Dep't 2010). The defendant bears the burden of overcoming the strong presumption that the defense counsel rendered ineffective assistance by demonstrating the absence of strategic or other legitimate explanations for counsel's alleged errors. People v. Colville , 79 AD3d at 197. Moreover, the defendant must show that, "but for counsel's allegedly deficient performance, the outcome of the criminal proceeding would have been different." People v. Cuesta , 177 AD2d 639, 641 (2d Dept 1991).
Here, the trial counsel stated in an affidavit that he was not aware that in a homicide trial the People are required to prove that a victim's death was reasonably foreseeable to the defendant. As such, Mr. Gregory stated that his failure to raise the reasonable foreseeability issue was not a choice made for strategic reasons. Therefore, this court finds that the trial counsel's performance in this regard fell below an objective standard of reasonableness.
Nonetheless, this court finds that there was no prejudice to the defendant because there is no reasonable probability that the outcome of the case would have been different had the counsel raised this issue. In every homicide trial, by statute, the People must prove beyond a reasonable doubt that the defendant "cause[d] the death of a person." (PL § 125.00). This means the defendant's conduct must have actually contributed to the victim's death ( People v. Stewart , 40 NY2d 692, 697 [1976] ) by "set[ting] in motion" the events that result in the killing ( People v. Matos , 83 NY2d 509, 511 [1994], citing People v. Kibbe , 35 NY2d 407 [1974] ). "A defendant's acts need not be the sole cause of death; where the necessary causative link is established, other causes, such as a victim's preexisting condition, will not relieve the defendant of responsibility for homicide." Matter of Anthony M. , 63 NY2d 270, 280 (1994). However, more than an "obscure or merely probable connection" between the conduct and result is required. Stewart , 40 NY2d at 697, quoting People v. Brengard , 265 N.Y.100, 108 (1934). An act "qualifies as a sufficiently direct cause when the ultimate harm should have been reasonably foreseen." Matos , 83 NY2d at 511.
Here, in deciding the defendant's verdict, this court was aware of and did apply both the actual causation and the reasonable foreseeability requirements in accordance with precedent and the Criminal Jury Instructions. It is well recognized that unlike a lay jury, a judge "by reasons of learning, experience and judicial discipline, is uniquely capable of distinguishing the issues and making an objective determination" based upon appropriate legal criteria. People v. Grier , 273 AD2d 403, 406 (2d Dept 2000) (quoting People v. Moreno , 70 NY2d 403, 405-406 ); see People v. Sedita , 128 AD3d 1328, 1329 (2015) ; People v. Lucas , 291 AD2d 890, 891(2002). As this case was decided by this court, and not a lay jury, any prejudice there might have been due to trial counsel's error was minimized. More specifically, this court stated on the record that in applying the law, it considered People v. Stewart , 40 NY2d 692 (1976) and People v. Kibbe , 35 NY2d 407 (1974). In Kibbe , the Court of Appeals held that "to be a sufficiently direct cause of death so as to warrant the imposition of a criminal penalty therefor, it's not necessary that the ultimate harm be intended by the actor. It will suffice if it can be said beyond a reasonable doubt that the ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused ." Kibb , 35 NY2d at 412 [emphasis added]. As this court did apply the reasonable foreseeability standard, there is no reasonable probability that the outcome of the case would have been different had defense counsel raised this issue. In addition, but for this error that trial counsel admits, the record reveals that the defendant did, in fact, receive effective assistance of counsel. Trial counsel cross-examined witnesses, raised objections and made cogent arguments in his summation. Therefore, the defendant's motion to vacate his judgment of murder in the second degree because he received ineffective assistance of counsel is denied.
Furthermore, this court finds that the evidence was legally sufficient to find the defendant's guilt beyond a reasonable doubt. To establish felony murder in this case, the People were required to prove beyond a reasonable doubt that in the course of committing a robbery, the defendant caused the death of the deceased, which further required proof, inter alia, that the fatal result was reasonably foreseeable. People v. Gobardhan , 150 AD3d 882, 882 (2d Dept 2017) (see People v. Davis , 28 NY3d 294,300 [2016], quoting People v. Hernandez , 82 NY2d 309, 314 [1993]. In this case, the medical expert called by the defense testified that in terms of what led specifically to the deceased's cardiac arrest in light of his hypertrophic cardiomyopathy, between the trauma of the robbery and the deceased's physical exertion immediately thereafter, the exercise was "the drive in this case." However, he further testified that "[t]here is a relationship between doing exercise and the robbery, because he is running away. So you can't totally divorce the two." It was also brought out during the trial that the deceased told the fireman that treated him at the subway station that "he had just been robbed at gun point," "that the person who had robbed him had a black handgun and that they took property from him." Deceased also told the fireman that he ran away afterwards. Therefore, this court finds that the death of deceased was reasonably related to the acts of the defendant. Furthermore, this court finds that the deceased's heart failure induced by the extreme stress and trauma of being robbed at gun point and running away from the robbery, was a directly foreseeable consequence of the defendant's conduct. See People v. Gobardhan , 150 AD3d 882 (2d Dept 2017) ; People v. Davis , 145 AD3d 1421
The defendant cites People v. Krotoszynski (43 AD3d 450 [2d Dept 2007] ) and People v. Hiraldo (177 Misc 2d 33 [Sup. Ct. Kings Cty. 1998] ) pointing out that in both of the cases, despite the fact that the defendant was violent, unlike this case where there was no evidence of violence, the courts found that the deceased's' deaths were not reasonably foreseeable. However, these cases are distinguishable from this case. First, in Krotoszynski , where the defendant was charged with criminally negligent homicide, the court found that the People even failed to establish that the defendant's act was an actual contributory cause of the decedent's death thereby giving rise to criminal liability. Krostoszynski , 43 AD3d at 452. In that case, the medical expert testified that the skull fractures of the decedent were inconsistent with being punched to the head or falling to the ground from a prone, sitting or standing position, which was the evidence in the case. Id . at 451. As the court found that the defendant's acts were not the direct cause of the death, the court further found that the People failed to establish that the death was reasonably foreseeable. Id . at 452. Second, in Hiraldo , the defendant was charged with reckless manslaughter and criminally negligent homicide, and the court dismissed these counts because without knowing the victim's condition, the defendant could not have failed to perceive a substantial and unjustifiable risk of death, which is an element of those charges. Hiraldo , 177 Misc 2d at 35-36. While the court stated that the death was not reasonably foreseeable, the court did not further analyze this issue as it had already found that the counts should be dismissed. Id . at 38. In any event, this court is not bound by the Hiraldo decision as it is not an appellate decision.
Therefore, this court finds that the People proved that the defendant is guilty of felony murder beyond a reasonable doubt.
Wherefore, the defendant's motion to vacate his judgment is denied. The foregoing constitutes the decision and order of the court.