Opinion
1505/96.
Decided August 1, 2005.
The defendant, pro se, moves to vacate the judgment on the ground that his trial counsel was ineffective by not accepting an alleged offer by the court to charge justification. The defendant also moves for a copy of his probation report.
In deciding this motion, the court has considered the motion papers and exhibits, the affirmation in opposition and exhibits, the trial record, the Probation Department's affirmation and the court file.
Background
On February 4, 1996, as a result of a fight between the defendant and another (victim or deceased), the victim was shot and killed. The facts and circumstances were contested at trial.
The People's three witnesses placed a gun in the defendant's hands immediately prior to the shooting and no weapon in the victim's possession. The medical examiner and the chemist opined that the fatal shot must have come from at least 12 inches away from the victim. The victim was killed by a single bullet.
The defendant and his mother claimed that the victim was the possessor of the weapon. The defendant testified that during the fight he twisted the victim's arm and the gun went off killing the victim. The defendant denied ever touching or possessing the gun.
The defense also presented evidence by non-interested witnesses who heard a shot a few minutes before the fatal shot. At the time of this first shot the defendant was in the presence of these independent witnesses and did not possess a weapon. This supported the defendant's testimony that prior to the fatal fight, the deceased had been shooting at him and that the victim had a gun.
Prior to summations, the court asked defense counsel whether he is requesting a justification charge. The record reflects that before replying there was a "pause." After the pause, defense counsel said that "after consulting" with his client the defense was not requesting a justification charge.
During summations, defense counsel argued that resolution of the case centered on whether the jury believed the People's interested witnesses or the defendant's version as supported by uninterested witnesses. Defense counsel explicitly stated that the case was not about justification.
The jury convicted the defendant of the lesser included charge of manslaughter in the first degree. The court sentenced the defendant to concurrent imprisonment terms.
The defendant now alleges that his counsel was ineffective in not accepting the court's offer to charge justification and in not investigating the justification issue.
The court interprets the moving papers differently than does the prosecution. The claims of lack of communications focus around the failure to communicate about the justification defense.
The People allege a host of procedural bars to this motion. The court does not agree with the prosecution. While the defendant may have litigated an ineffective assistance of counsel claim, none of the claims were grounded on this argument. To the degree that the defendant mentioned this ground during his federal writ of habeas corpus proceeding, that court stated that it was not authorized to entertain the claim. Thus, there has been no adjudication of this issue.
See People v. Sayles, ___ AD3d ___, 794 NYS2d 160, 161 (2005).
Adequacy of Counsel
"The Court of Appeals has time and time again advised that ineffective assistance of counsel is generally not demonstrable on the main record." A motion to vacate the judgment is the appropriate vehicle to raise ineffective assistance, rather than a motion to set aside the verdict or by direct appeal. This is true because, even when the facts are on the record, the attorney's motivations are usually not reflected on the record. Further, where there are both record and non record claims, a CPL 440 motion is the appropriate method by which to raise both claims.
People v. Harris, 109 AD2d 351, 360 (1985).
People v. Bagarozy, 182 AD2d 565, 566 (1992).
Massaro v. United States, 538 US 500, 504-505 (2003); People v. Garcia, 187 AD2d 868 (1992); People v. Jiggetts, 178 AD2d 332 (1991); People v. Williams, 178 AD2d 163, 165 (1991).
Massaro, 538 US at 505; People v. McNair, 294 AD2d 952, 952-953 (2002); People v. Zeh, 289 AD2d 692, 695 (2002); People v. Brown, 232 AD2d 193 (1996); see also People v. Love, 57 NY2d 998, 999-1000 (1982); People v. Castricone, 224 AD2d 1019, 1020 (1996).
Massaro, 538 US 500; People v. Hoyte, 273 AD2d 48 (2000).
Both the United States Constitution and the New York State Constitution grant a defendant in a criminal proceeding the right to the assistance of counsel. This includes the right to "effective" assistance of counsel.
Gideon v. Wainwright, 372 US 335 (1963).
People v. Linares, 2 NY3d 507, 510 (2004).
Strickland v. Washington, 466 US 668 (1984); Linares, 2 NY3d at 510.
Counsel renders effective assistance when "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." What constitutes effective assistance, moreover, is not susceptible to precise measurement. "To prevail on a claim of ineffective assistance, defendants must demonstrate that they were deprived of a fair trial by less than meaningful representation; a simple disagreement with strategies, tactics or the scope of possible cross-examination, weighed long after the trial, does not suffice." This standard is designed to provide the defendant with a fair trial not a perfect one.
People v. Baldi, 54 NY2d 137, 147 (1981).
id. at 146-147.
People v. Flores, 84 NY2d 184, 187 (1994); People v. Benn, 68 NY2d 941, 942 (1986).
Yarborough v. Gentry, 540 US 1, 8 (2003); Flores, 84 NY2d at 187.
Isolated errors in defense counsel's representation ordinarily do not constitute ineffective assistance of counsel. A single error, if it affects the fairness of the trial, may rise to the level of ineffective assistance of counsel.
Yarborough, 124 S Ct at 6, 157 L Ed 2d at 9; People v. Henry, 95 NY2d 563 (2000).
id.; Flores, 84 NY2d at 188-189.
A court should take care "to avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis." If transcripts and submissions reveal a trial strategy that might well have been pursued by a reasonably competent attorney, then assistance is effective, even if trial counsel disavows the tactic. Courts will not second guess whether defense counsel's trial strategy "was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation."
Baldi, 54 NY2d at 146.
People v. Satterfield, 66 NY2d 796, 799 (1985).
Satterfield, 66 NY2d at 799-800; Yarborough, 540 US 1.
The choice of trial tactics is viewed objectively. Trial strategies that might well have been pursued by a reasonably competent attorney and are objectively reasonable are within the constitutional parameters.
Strickland, 466 US at 688; People v. Angelakos, 70 NY2d 670, 673-670 (1987); Satterfield, 66 NY2d at 799; People v. Butler, 273 AD2d 613, 615 (2000); People v. Castellano, 203 AD2d 116, 117 (1994).
Satterfield, 66 NY2d at 799; People v. Nichols, 289 AD2d 605, 606 (2001).
A defendant must "demonstrate the absence of strategic or other legitimate explanations for counsel's failure . . . Absent such a showing, it will be presumed that counsel acted in a competent manner and exercised professional judgment."
People v. Rivera, 71 NY2d 705, 709 (1988).
Generally, when an attorney focuses on some issues to the exclusion of others, there is a presumption that the choice was tactical and reasonable. The decision as to which course to adopt is a trial strategy within the parameters of defense counsel's decision making authority. This is especially true on the issue of inconsistent defenses. While inconsistent defenses are permitted in New York and may constitute effective assistance of counsel, it is reasonable for a defense counsel to refuse to submit to a trier of fact inconsistent defenses. Presenting inconsistent defenses is a "hazardous tactic" which risks confusing the jury and can taint a defendant's credibility. Further, juries generally reject inconsistent defenses. In fact, at times, presenting inconsistent defenses constitutes ineffective assistance of counsel. This is especially true where counsel forgoes a weak defense for a stronger defense.
Yarborough, 124 S Ct at 11.
People v. Stultz, 2 NY3d 277, 284 (2004).
People v. Butts, 72 NY2d 746, 748 (1988); People v. Steele, 26 NY2d 526, 529 (1970).
People v. Brito 304 AD2d 320, 320-321 (2003).
People v. Gary, 299 AD2d 960, 961(2002); People v. Myers, 283 AD2d 258, 259(2001); People v. Rhodes, 281 AD2d 225, 226 (2001); People v. Karian, 247 AD2d 634, 634 (1998); People v. Hendrix, 199 AD2d 643, 644 (1993); People v. Harris, 109 AD2d 351, 362 (1985); see also People v. Baptiste, 306 AD2d 562, 569-570 (2003).
People DeGina, 72 NY2d 768, 777 (1988).
Harris, 109 AD2d at 362.
People v. Lee, 129 AD2d 587, 588 (1987).
People v. Hale, 300 AD2d 55, 56 (2002); Rhodes, 281 AD2d, at 226.
In order to show that defendant's Federal constitutional right to effective assistance of counsel was violated, the defendant must establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Reasonable probability means a probability that undermines the fact finder's confidence in the outcome of the trial.
Strickland, 466 US at 694, see also Benevento, 91 NY2d at 713.
id.
Under New York law, prejudice is examined in terms of errors that deprive the defendant of a fair trial. Prejudice is a significant factor, but not an "indispensable element in assessing meaningful representation."
Benevento, 91 NY2d at 713.
People v. Stultz, 2 NY3d 277, 284 (2004).
The federal and state standards are different. The federal standard focuses on "the outcome of the proceeding." The state standard focuses on the "fairness of the process as a whole."
Benevento, 91 NY2d at 713-714.
id. at 714; see also Henry v. Poole, ___ F3d ___, NYLJ June 1, 2005 at 18 col 1, 30 col 2, 2005 WL 1220468, 2005 US App LEXIS 9447 (2005); People v. Caban ___ NY3d ___, NYLJ June 15, 2005, at 18, 19 col 2-3, 2005 WL 1397044, 2005 NY LEXIS 1254.
id. at 714; see also Henry, ___ F3d ___, NYLJ June 1, 2005 at 30 col 2.
Where the claim is that counsel failed to investigate or discover exculpatory evidence, the movant, in order to show prejudice or lack of a fair trial, must establish both the content of the evidence that would have been discovered and that the new evidence, if it had been presented to the trial jury, would have likely changed the outcome. In addition, the moving papers must contain an affidavit from the witness or witnesses, as would have been discovered by proper investigation, setting forth the substance of the witness' or witnesses' testimony.
Hill v. Lockhart, 474 US 52, 59 (1985); People v. McDonald, 1 NY3d 109, 114 (2003); People v. Escalante, 16 AD3d 984, 985 (2005).
People v. Ford, 46 NY2d 1021, 1023 (1979); People v. Session, 34 NY2d 254, 256 (1974); People v. St. John, 163 AD2d 687, 688 (1990).
Further, the fact that a defendant has been found guilty of only a lesser included offense attests to the effectiveness of counsel.
People v. St Paul, 3 AD3d 604, 606 (2004).
In this case, defense counsel's rejection of the justification defense was a reasonable trial strategy. Defense counsel was aware of the issue and consulted with the defendant. The justification defense would have required that the defendant admit to shooting the victim. That counsel did not wish to distract the jury with a justification defense and have the jury focus on the central issue of whether the defendant shot the victim is reasonable.
The defendant has failed to show that the strategy was unreasonable.
Further, the defendant has failed to show that he was entitled to such a charge or that the outcome of the trial would have been different if such a charge had been given. While this court asked counsel whether he requested a justification charge, this does not mean that the charge was appropriate under the circumstances or that the court would have given such charge. It has long been this court's policy to ask a defense counsel if they desired a particular charge. The request is made so that a complete record is developed of all potential charges in order to avoid appellate speculation on whether counsel considered the charge and whether a court should sua sponte issue a particular jury instruction. It is not unusual for this court to ask counsel if he or she desires that a instruction be given to the jury and then if counsel requests the charge to deny the motion. The denial is usually grounded on the fact that there is no evidentiary support for the instruction. This enables an appellate court to make an intelligent judgment. There is, thus, no evidence that the court would have charged justification.
In order to be entitled to a justification instruction, there must be evidence that the defendant subjectively believed that the victim was about to use deadly physical force and objective evidence that the defendant's belief was reasonable. In this case, the defendant denied any belief that the victim was about to use deadly physical force (testifying that he did not believe that the victim was trying to kill him). The defendant's testimony negates any subjective belief that the victim was about to use deadly physical force. Further, in this case, if the jury believed the prosecution's witnesses, as they obviously did, there was no evidence of justification. If the jury believed the defendant's version, the shooting was an accident and not justified. Under these circumstances, this court would have denied any request for a justification charge, not withstanding its question to defense counsel.
People v. Goetz, 68 NY2d 96, 106 (1986).
Also, as to the defendant's claim of lack of investigation of the justification defense, the defendant has failed to supply any affidavit from a person who would have been discovered had there been an investigation of the justification defense. Indeed all known eyewitnesses to the shooting testified at trial and none of them established sufficient facts to charge justification.
It is clear from the trial record, in particular the witnesses defense counsel called and the cross-examination of all witnesses, that defense counsel conducted an extensive investigation into the case.
This court also agrees with the Federal District Court's assessment that the defendant is not a credible individual. The allegations as to the amount of consultations between the defendant and counsel and the allegation that counsel did not properly prepare the defendant to testify are belied by the record of the trial.
It is noted that throughout the trial the defendant actively participated and was consulted prior to the final decision not to request the justification charge. The defendant does not set forth the content of that conversation, although he was privy to the conversation.
The defendant was convicted of a lesser included offense attesting to counsel's effectiveness.
The court finds that the defendant has failed to establish the ineffectiveness of counsel under either the federal or state standards (as noted above).
To the degree that the court has not discussed each and every contention made by the defendant, those contentions are not worthy of belief, belied by the record and lack a factual basis.
The motion to vacate the judgment is denied in its entirety.
Pre-sentence Report
The defendant moves for an order granting him a copy of his pre-sentence report.
A defendant has no constitutional right to obtain a copy of the pre-sentence report. Prior to 1975, there was no statutory right to obtain a copy of the probation report. However, a court did have the discretion to reveal the contents of a pre-sentence report to a defendant at sentencing.
People v. Peace, 18 NY2d 230 (1966).
id.
id. at 237; People v. Perry, 36 NY2d 114, 119 (1975); People v. Michael O., 22 NY2d 831 (1968).
After 1975, the Criminal Procedure Law was amended to add § 390.50 (2). CPL 390.50 (2) provides that the sentencing court shall make the pre-sentence report available to defendant for review or copying one day prior to sentencing. The purpose of this statute is to afford a defendant the opportunity at sentencing to contest any information in the probation report. Challenges to the accuracy of the contents of the pre-sentence report must be raised before sentencing. The court lacks jurisdiction to entertain a motion to correct a pre-sentence report after a defendant has been sentenced.
People v. Rogers, 54 AD2d 616, 617 (1976); People v. Ferrara, 91 Misc2d 450, 452 (1977).
Matter of Cox v. New york State Div. Of Parole, 11 AD3d 766, 768 (2004); Matter of Antonucci v. Nelson, 298 AD2d 388, 389 (2002); Matter of Salerno v. Murphy, 292 AD2d 837, 837-838 (2002); Matter of Hughes v. New York City Dept. Of Probation, 281 AD2d 229, 229 (2001); Matter of Sciaraffo v. New York City Dpt. of Probation, 248 AD2d 477, 477 (1998).
See cases cited in footnote 5. The federal courts have a similar rule ( United States v. O'Connor, 1995 US App LEXIS 24378; United states v. Angiulo, 57 F3d 38, 41 [1995]; United States Giamo, 880 F2d 1561, 1563 [1989]; United States v. Engs, 884 F2d 894, 895 [1989].
A defendant also has a legal right to a copy of the pre-sentence report for purposes of appeal; and for use before the parole board. The motion for a copy of the probation report is granted.
CPL 390.50[2]; Matter of Legal Aid Bur. v. Armer, 74 AD2d 737 (1980); Rogers, 54 AD2d at 617.
CPL 390.50[3]; People v. Wright, 206 AD2d 337, 338 (1994).
This constitutes the decision and order of the court.
The defendant is hereby advised of his right to apply to the Appellate Division, Second Department, 45 Monroe Place, Brooklyn, New York 11201 for a certificate granting leave to appeal from this determination. This application must be made within 30 days of service of this decision. Upon proof of financial inability to retain counsel and to pay the costs and expenses of the appeal, the defendant may apply to the Appellate Division for the assignment of counsel and for leave to prosecute the appeal as a poor person and to dispense with printing. Application for poor person relief will be entertained only if and when permission to appeal or a certificate granting leave to appeal is granted.