Opinion
555 KA 15–00941
05-04-2018
The PEOPLE of the State of New York, Respondent, v. Robert MCFADDEN, also known as John Doe, Defendant–Appellant.
JEFFREY WICKS, PLLC, ROCHESTER (CHARLES STEINMAN OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
JEFFREY WICKS, PLLC, ROCHESTER (CHARLES STEINMAN OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, AND NEMOYER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of manslaughter in the second degree ( Penal Law § 125.15[1] ), defendant contends that he was deprived of effective assistance of counsel because his trial attorney failed to request criminally negligent homicide (§ 125.10) as a lesser included offense of intentional murder and failed to ask County Court to instruct the jury on the justification defense. We reject that contention. Although there was a reasonable view of the evidence that defendant negligently shot the victim, whom defendant claimed grabbed the barrel of defendant's loaded handgun and tried to steal it, "it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations" for defense counsel's allegedly deficient conduct ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ), and defendant failed to meet that burden (see People v. Hicks, 110 A.D.3d 1488, 1489, 972 N.Y.S.2d 800 [4th Dept. 2013], lv denied 22 N.Y.3d 1156, 984 N.Y.S.2d 640, 7 N.E.3d 1128 [2014] ).
Indeed, it would have been a reasonable strategy for defense counsel to decide not to request criminally negligent homicide as a lesser included offense because, without that charge, the chances of defendant being acquitted outright were increased (see generally People v. Lane, 60 N.Y.2d 748, 750, 469 N.Y.S.2d 663, 457 N.E.2d 769 [1983] ). That is to say, if the jury believed defendant's claim that the gun went off accidently when the victim tried to steal it from him, the jury would have acquitted defendant because it did not have the option of finding him guilty of criminally negligent homicide. If criminally negligent homicide had been charged, and the jury believed defendant's accidental shooting claim, he would have been convicted of criminally negligent homicide, a class E felony, and sentenced to prison as a second felony offender.
Defendant acknowledges, as he must, that it is reasonable for a defense attorney to adopt an " ‘all-or-nothing’ " strategy at trial ( id. ; see People v. Clarke, 55 A.D.3d 370, 370, 865 N.Y.S.2d 211 [1st Dept. 2008], lv denied 11 N.Y.3d 923, 874 N.Y.S.2d 9, 902 N.E.2d 443 [2009] ; People v. Guarino, 298 A.D.2d 937, 938, 748 N.Y.S.2d 99 [4th Dept. 2002], lv denied 98 N.Y.2d 768, 752 N.Y.S.2d 8, 781 N.E.2d 920 [2002] ), and that defense counsel would therefore not have been ineffective if he failed to request any lesser included offenses. Defendant nevertheless contends that, because defense counsel requested manslaughter in the first and second degrees as lesser included offenses, there was no legitimate reason not to request criminally negligent homicide as a lesser as well. Defendant cites no authority for the proposition that anything other than a complete "all-or-nothing" strategy with respect to lesser included offenses is unreasonable, and we fail to see the logic in it.
In any event, even assuming, arguendo, that defense counsel should have requested criminally negligent homicide as a lesser included offense, we note that it is well settled that the failure to request a particular lesser included offense "is not the type of ‘clear cut and completely dispositive’ error that rises to the level of ineffective assistance of counsel" ( People v. Harris, 97 A.D.3d 1111, 1112, 948 N.Y.S.2d 512 [4th Dept. 2012], lv denied 19 N.Y.3d 1026, 953 N.Y.S.2d 559, 978 N.E.2d 111 [2012], quoting People v. Turner, 5 N.Y.3d 476, 481, 806 N.Y.S.2d 154, 840 N.E.2d 123 [2005] ).
Defendant's contention that defense counsel was ineffective in failing to ask the court to instruct the jury on justification is similarly without merit. Defendant admitted to the police that he shot and killed the victim but claimed that he did so accidently when the victim unexpectedly grabbed the barrel of the gun. Because a person cannot accidently act in self-defense, defense counsel would have had to present inconsistent defenses to the jury had he requested the justification charge and the court granted that request. "The ‘hazardous’ nature of pursuing inconsistent defenses is well established, ‘for it not only risks confusing the jury as to the nature of the defense but also may well taint a defendant's credibility in the eyes of the jury’ " ( People v. Nauheimer, 142 A.D.3d 760, 761, 36 N.Y.S.3d 543 [4th Dept. 2016], lv. denied 28 N.Y.3d 1074, 47 N.Y.S.3d 232, 69 N.E.3d 1028 [2016], quoting People v. DeGina, 72 N.Y.2d 768, 777, 537 N.Y.S.2d 8, 533 N.E.2d 1037 [1988] ). Here, "[c]ounsel's failure to request a [justification charge] may have been based on a reasonable strategic determination that such a charge would be counterproductive and difficult to reconcile with the accidental [shooting] claim" ( People v. Poston, 95 A.D.3d 729, 730–731, 945 N.Y.S.2d 79 [1st Dept. 2012], lv. denied 19 N.Y.3d 1104, 955 N.Y.S.2d 560, 979 N.E.2d 821 [2012] ; see Nauheimer, 142 A.D.3d at 761, 36 N.Y.S.3d 543).
Based on our review of the record, we conclude that defense counsel afforded meaningful representation to defendant, obtaining an acquittal on the two murder counts (both intentional and felony murder, despite defendant's admission that he took the victim's cell phone after shooting him), and an acquittal on manslaughter in the first degree. We note that several prosecution witnesses testified that they saw the shooting, and none of them observed the victim grabbing the gun, as defendant claimed to the police. Also, it would seem unlikely that the victim would try to steal a gun while it was being held by defendant with his finger on the trigger, as claimed by defendant. Yet, despite that evidence, defense counsel persuaded the jury that defendant did not intentionally shoot the victim. We also note that defendant, who was sentenced to 7½ to 15 years in prison, appeared pleased with the result at sentencing, stating that he would gladly have accepted a sentence of 20 years in prison on a plea if such an offer had been made to him. Under the circumstances, we cannot agree with defendant that he was deprived of effective assistance of counsel.