Opinion
58892C/05.
Decided February 5, 2010.
Assistant District Attorney Lawrence D. Piegrossi, Esq., Bronx County District Attorneys Office, Bronx, NY, for the People.
Eliot L. Kaplan, Esq., White Plains, NY, for the defendant.
The above-captioned indictment charged the defendant with, inter alia, felony Murder in the Second Degree, Manslaughter in the Second Degree, Robbery in the First Degree and Robbery in the Second Degree. On September 8, 2009, in a trial before this Court, a jury found the defendant not guilty of the first three charges, but guilty of Robbery in the Second Degree. Following the verdict, the defendant requested that new counsel be assigned and the case adjourned so that his new attorney could file a motion to set aside the guilty verdict pursuant to CPL § 330.30. Underlying the defendant's request was his claim that, without his consent, his attorney had improperly conceded in his summation that the jury should convict the defendant of Robbery in the Second Degree.
The indictment also charged the defendant with depraved indifference Murder in the Second Degree and Assault in the Second Degree, but the People asked that these charges not be submitted to the jury.
The Court granted the defendant's application for the appointment of a new attorney, and on October 29, 2009, that attorney filed this motion. In the response filed on December 15, 2009, the People opposed the motion, but consented to a hearing to determine whether the defendant had, or had not, agreed to trial counsel's concession. The hearing was conducted on December 18, 2009, and January 5, 2010, at which the defendant and his trial counsel, Samuel Braverman, Esq., testified. At the parties' request, the Court heard oral argument on the motion on January 22, 2010. For the reasons set forth below, the defendant's motion is now denied.
Ordinarily, a motion to set aside a verdict pursuant to CPL § 330.30(1) is decided without a hearing, since it must be based "upon. . . .[a] ground appearing in the record which, if raised upon appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court." People v. Hines, 97 NY2d 56, 61 (2001). In this case, the factual dispute clearly appears in the record, and the testimony adduced at the hearing principally echoed the accounts and statements both the defendant and Mr. Braverman made after Mr. Braverman's summation. While the People's summation, the Court's charge and the jury's deliberations could have been delayed while this issue was further addressed, it made more sense to postpone further consideration of the matter until after the verdict and with a new attorney representing the defendant. In any case, conducting a hearing in the context of a CPL § 330.30 motion like this one is not unprecedented. See, e.g., People v. Bussey , 6 AD3d 621 (2d Dept. 2004); compare People v. Knox, 134 AD2d 704, 705 (3d Dept. 1987).
THE TRIAL
The charges in the indictment were based on allegations that a passenger in a livery cab demanded property from the driver at knife-point; when the driver resisted surrendering the property, the passenger cut the driver with the knife; the driver lost control of the cab, and the cab struck and killed a pedestrian; the passenger and the driver emerged from the cab; the passenger pursued the fleeing driver; passersby brought the driver down to the ground and struck and kicked him (apparently because they thought he was running from the scene of the fatal accident); the passenger joined the passersby, kicked the driver and took from him money and a wallet containing a key to another car used by the driver.
At the trial, the People introduced seemingly compelling evidence: 1) the defendant's fingerprints were found on the exterior of the cab; 2) the driver testified that the person who assaulted him inside the cab was the person who assaulted him outside the taxi; 3) the husband of the deceased testified that the person who came out of the cab assaulted the driver; 4) a bystander testified that the defendant was the person who assaulted the cab driver outside the taxi and fled from the scene; 5) the defendant confessed to a detective that he had engaged in all the conduct with which he was charged, and that he had ripped the wires to a camera inside the cab before running from the scene; 6) at the time of his arrest the defendant had the driver's key in his possession; 7) after the robbery, the cab was found to be drenched in blood; 8) the defendant told the detective where he had hidden the jacket he wore during the incident; 9) the police recovered the jacket, found blood on it; and 10) DNA testing established that it was the driver's blood.
However, defense counsel established at trial that: 1) the cab driver and the deceased's husband were unable to identify the defendant as the passenger in the cab, and that the driver had worked with a sketch artist to generate a drawing of the person in the cab, but that the sketch did not resemble the defendant; 2) neither the deceased's husband nor the bystander identified the defendant as the passenger in the cab; 3) neither the defendant's fingerprints nor his DNA were found in the cab; 4) although the police were able to obtain photographs from the cab's camera of passengers in the cab prior to the time of the robbery, there was no photograph of the defendant in the camera, and no photograph was taken at the time of the robbery; 5) no weapon was recovered; and 6) a detective, and not the defendant, wrote out what the detective said was the defendant's statement.
Previewing the defendant's case in his opening statement, the defendant's trial attorney argued to the jury that: "if [the defendant] is out kicking this cabdriver for no reason, that doesn't make him a nice person, but that doesn't make him guilty of robbing the cabdriver and causing the murder," and that ["i]f he is not that person because he takes property from the cabdriver after the robbery in the cab in the crash, while these people are beating him up, that does not make him the [robber] who is in the car and therefore responsible for the murder, then you must find him not guilty."
After the evidence had been presented to the jury, trial counsel reminded the jury in his summation that "Mr. Vasquez' entire theory of the case has been from the beginning he is present at the scene. As I said to you in my opening, just because he's kicking the guy doesn't make him guilty of murder." Trial counsel continued, "[i]f Mr. Vasquez is not in the car at the time [the cab driver] crashes the car, he cannot be the cause of that crash. He cannot . . . be guilty of murder in the second degree. Similarly, he can't be guilty of manslaughter in the second degree." Mr. Braverman then pointed out that in order for the defendant to be guilty of Robbery in the First Degree, the defendant would have had to have had possession of a knife, and that it was "the guy in the cab [who had] the knife." He then argued that "the scientific evidence" established that the defendant could not have been in the cab, and thus could not have been guilty of having committed the crime of Robbery in the First Degree.
However, conceding that "Mr. Vasquez we know took property because Mr. Vasquez has this one key . . .," Mr. Braverman told the jury:
You can't give him a pass. That would not be appropriate. That would not be following the law. So if he's guilty of robbery in the second degree because by causing physical injury he takes property from another person by force, that property being this [the key], then you have to follow the law. You can't decide not to follow the law. I don't ever want you to not follow the law whether it hurts me or helps me. I don't want you to cheat the system in any way. . . . You got to do what you're supposed to do everyday. You can't decide today is the day you decide you're not going to do what you're supposed to do.
Defense counsel continued, "This key is proof of something. It's not proof of what the People want it to be proof of, but it is proof that Mr. Vasquez did the wrong thing when he took this property from somebody. It did not belong to him. That's an offense. That's punishment and that should be what it is."
After delivering his summation, and outside the presence of the jury, Mr. Braverman stated on the record that the defendant had previously agreed to the strategy employed in his closing argument, that is, conceding the defendant's guilt of Robbery in the Second Degree. However, when the Court then asked the defendant whether that was true, the defendant said that it was not, and that he had wanted trial counsel to contest his guilt of that crime as well.
Thereafter, the prosecutor gave his summation, the Court gave its final instructions on the law, and the jury began its deliberations. Thereafter, the jury returned its verdict, finding the defendant not guilty of Murder in the Second Degree, Manslaughter in the Second Degree and Robbery in the First Degree, and guilty only of Robbery in the Second Degree.
THE HEARING
In the defendant's motion to set aside the verdict, he contended that he had not agreed that trial counsel should invite the jury to find him guilty of Robbery in the Second Degree, and that, without that consent, trial counsel's summation constituted ineffective assistance of counsel and deprived him of a fair trial. Based on the testimony adduced at the hearing, I find that the defendant was aware of trial counsel's strategy and had consented to its employment in his summation. More specifically, I find the following facts.
Trial counsel began representing the defendant on November 17, 2005. On that occasion, they met for one to one and a half hours and discussed what the defendant told his counsel was his involvement in the incident. On subsequent occasions, they discussed that same subject as well as the People's evidence. Based on these discussions, trial counsel devised a defense theory, which he necessarily modified as the defendant altered what he said he had done and as trial counsel learned more about the prosecution's evidence. Each time, trial counsel discussed with the defendant how the defense theory had changed.
In an April 24, 2008, meeting with the defendant, trial counsel discussed the approach he was going to take during voir dire, as well as the arguments he would make to the jury on his opening and summation. At that point, based on the People's evidence and facts the defendant had provided to trial counsel, the defense theory — with which the defendant agreed — was that the defendant came to the scene after the accident, assaulted the driver and searched for money or property to steal from him. This theory explained the presence of the driver's blood on the defendant's jacket, the defendant's fingerprint on the cab, and the defendant's possession of the driver's key. Defense counsel would argue that the defendant's statement to the police was coerced, and that the detectives who took the statement, aware of the details of the incident, took advantage of the defendant, a special education student, and composed the statement themselves.
If the jury accepted defense counsel's theory, the defendant would be acquitted of Murder in the Second Degree and Robbery in the First Degree (as well as of Manslaughter in the Second Degree), both substantially more serious than Robbery in the Second Degree. Although trial counsel considered alternative theories that might lead to an acquittal of that crime as well, he did not believe any of them would be successful. Thereafter, trial counsel had numerous other conversations with the defendant about this theory. During these conversations they again discussed the argument trial counsel intended to make to the jury, with which the defendant "unequivocally" agreed.
The defendant's testimony to the contrary is not believable for a number of reasons. First, that testimony was directly contradicted by that of trial counsel, who was an entirely credible witness. Second, if the defendant had not agreed in advance with the arguments defense counsel made in his summation, it would have been extraordinarily foolish for trial counsel, an experienced, intelligent and capable lawyer, to have announced on the record — immediately after the summation and in the defendant's presence — that the defendant had so agreed, inviting the Court to then ask the defendant whether, in fact, he had. Third, Mr. Braverman's demeanor when the defendant responded — surprise, if not outright shock — made it evident that he firmly believed that the defendant had so consented.
Defendant's current counsel does not accuse Mr. Braverman of intentionally testifying falsely. However, given the frequency of their conversations, and the evident level of detail they apparently included, it is simply impossible to believe that Mr. Braverman somehow mistakenly believed that the defendant had agreed to Mr. Braverman's approach, when in fact he had not.
Fourth, the defendant testified in the hearing that he was aware of the strength of the prosecution's evidence, as well as its weaknesses, and that even before the trial began, he knew he would not be able to overcome the evidence that he had been at the crime scene. Indeed, the defendant admitted that he wanted his attorney to concede before the jury that he was guilty of a crime, but claimed that he wanted that crime to be Assault in the Second Degree, a class D violent felony, rather than Robbery in the Second Degree, a class C violent felony.
While Mr. Braverman did not deny that the defendant had originally taken that position, he credibly testified that their conversations did not stop there. Mr. Braverman explained to the defendant that the decision whether Assault in the Second Degree would be submitted to the jury was out of his control, and that the Court did not intend to submit it. Furthermore, Mr. Braverman explained (as he had many times before), that asking the jury to acquit the defendant of all the charges — including Robbery in the Second Degree — would be "preposterous in light of the scientific evidence, that being the DNA of . . . the cab driver on his clothes and the property he had of the cab driver," and that "if we argued to the jury he was guilty of no crime whatsoever, I thought there was a realistic chance the jury would reject it entirely and convict him of felony murder." The defendant (no doubt reluctantly) agreed.
Assault in the Second Degree was charged in the indictment, and that count alleged that the defendant had intentionally caused the cab driver physical injury with a dangerous instrument. The People asked that this count not be submitted to the jury, and the Court agreed not to submit it, decisions within the prerogative of the People and the discretion of the Court. CPL § 330.40(6)(a). As trial counsel recognized, the defendant could not insist that the count be submitted anyway, because it was not a lesser included charge of any of those counts that were submitted. Id. The counts charging the defendant with felony Murder in the Second Degree and Manslaughter in the Second Degree concerned the death of the pedestrian, and not the injury to the cab driver. And, while the cab driver was the victim of the two robbery counts submitted to the jury, the count charging the defendant with Robbery in the First Degree alleged that the defendant had "used or threatened the immediate use of a dangerous instrument" during the robbery, but not with causing the driver physical injury, and the count charging the defendant with Robbery in the Second Degree alleged that he "caused physical injury" to the cab driver, but did not allege that he did so with the intent to cause such injury or to cause serious physical injury.
The defendant also insisted in his testimony that he had previously been offered and had refused the opportunity to plead guilty to Robbery in the Second Degree in full satisfaction of all the charges in the indictment, but no such offer was ever made.
THE NECESSITY OF DEFENDANT'S CONSENT
Because this Court finds that the defendant did consent to the strategy trial counsel employed in his summation, his motion to set aside the verdict must accordingly be denied. The motion must also be denied, however, because the defendant's consent was not, in any case, requisite to trial counsel's concession.
New York has long recognized that assistance is not ineffective because trial counsel conceded a defendant's guilt of a lesser crime because of the strength of the evidence adduced against the defendant at trial. In People v. Ellis, 81 NY2d 854 (1993), for example, in defending against robbery charges, trial counsel employed a theory, implicitly in cross-examination and explicitly in summation, that defendant committed a larceny, but was not guilty of robbery because he did not use force "immediately" after the theft. The Court of Appeals rejected the claim that counsel's representation was ineffective, finding the theory a "reasonable trial strategy." All four departments of the Appellate Division have ruled similarly.
In People v. Frascone, 271 AD2d 333 (1st Dept. 2000), in the face of overwhelming evidence of guilt, trial counsel suggested to the jury that the defendant, who was charged with Robbery in the Second Degree, should be convicted instead of the lesser included offense of Robbery in the Third Degree. The First Department held that this suggestion also did not constitute ineffective assistance of counsel, since, "had this strategy been successful, defendant would have been eligible for a considerably lower sentence." See also People v. Barnes, 249 AD2d 227, 228 (1st Dept. 1998) (rejecting ineffective assistance of counsel claim where trial counsel employed successful strategy of conceding defendant possessed drugs for personal use in order to defeat more serious charge of possession with intent to sell).
In People v. Morris, 100 AD2d 630 (2d Dept. 1984), the defendant was charged with Sodomy in the First Degree, Robbery in the Third Degree, Unlawful Imprisonment in the First Degree and Criminal Possession of Stolen Property. Based upon the defendant's own testimony that he knew the car in which he was arrested was stolen, defense counsel conceded the defendant's guilt of Criminal Possession of Stolen Property. In Morris, as here, "it was counsel's hope that by admitting guilt on that charge, the jury would be more apt to view [trial counsel] as being candid, . . . and thereby obtain an acquittal on the more serious charges. . . ." The Second Department rejected the claim that this strategy constituted ineffective assistance of counsel, reasoning that "the courts should not second guess trial tactics employed by defense attorneys." Id. at 631 (citations omitted). See also People v. Plaza, 133 AD2d 857, 858 (1987) ("defense tactics, whereby counsel admits guilt on a lesser charge in the hope that the jury would then be more receptive to the claim that the defendant was innocent of the far more serious offense and acquit him thereof, is a perfectly acceptable strategy which should not be second guess[ed]' by the courts") (quoting People v. Morris, supra). See also People v. Hines , 46 AD3d 912 (2d Dept. 2007); People v. Allen, 285 AD2d 470 (2d Dept. 2001).
In People v. Goss, 229 AD2d 791 (3d Dept. 1996), the defendant was charged with two counts of Burglary in the Second Degree and one count of Criminal Possession of Stolen Property in the Fourth Degree. Based on evidence that the defendant had been found in possession of the proceeds of one of the burglaries, his trial attorney admitted to the jury that defendant was guilty of the lesser crime charged. "[G]iven the overwhelming evidence that defendant possessed and sold a ring which was stolen in the burglary," the Third Department held that this, too, was "a perfectly acceptable strategy." 229 AD2d at 793.
Finally, in People v. Washington , 19 AD3d 1180, 1181 (4th Dept. 2005), defense counsel conceded in summation that the defendant was guilty of the lesser included charge of Robbery in the Second Degree, the same concession trial counsel made here. Echoing the words used by both the Second and Third Departments, the Fourth Department held that the concession was "a perfectly acceptable strategy," and did not deprive the defendant of effective assistance of counsel.
In none of these cases did the Court consider whether the defendant had explicitly consented to trial counsel's strategy, but other case law makes clear that such consent is not required. Indeed, while the defendant has the ultimate authority to decide whether or not to plead guilty, Jones v. Barnes, 463 U.S. 745, 751 (1983), the Supreme Court has made clear that at a trial in which the defendant has had the opportunity to confront the witnesses against him, counsel has challenged the admission of evidence, and the prosecutor has had the burden of proof, a defense attorney may concede a defendant's guilt without the defendant's express consent.
But see People v. Morris, 100 AD2d 630, 631 (1984) (noting that "it [was] also significant that defendant never suggested that he was dissatisfied with the quality of the representation he was receiving."
In Florida v. Nixon, 543 U.S. 175, 178 (2004), a capital murder case, the defendant's attorney made "a strategic decision to concede, at the guilt phase of the trial, the defendant's commission of murder, and to concentrate the defense on establishing, at the penalty phase, cause for sparing the defendant's life." Reviewing the defendant's murder conviction and death sentence, the Florida Supreme Court held that, "[a] concession of that order . . . made without the defendant's express consent" constituted ineffective assistance of counsel, "however gruesome the crime and despite the strength of the evidence of guilt." Id. Noting that "[d]efense counsel undoubtedly has a duty to discuss potential strategies with the defendant," the Supreme Court nonetheless reversed the Florida court's decision, holding that, "when a defendant, informed by counsel, neither consents nor objects to the course counsel describes as the most promising means to avert a sentence of death, counsel is not automatically barred from pursuing that course." Id. Only for certain decisions: "whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal," must an attorney "both consult with the defendant and obtain consent to the recommended course of action." 543 U.S. at 187. See also Gonzalez v. United States, 553 U.S. 242 (2008)(Scalia, J. concurring) (holding in Nixon "was simply that counsel's concession of guilt to the jury did not amount to a guilty plea, and did not constitute ineffective assistance of counsel").
New York's courts agree. In People v. Barnes, 249 AD2d at 228, the First Department specifically rejected the argument defendant makes here — that conceding guilt of a lesser charge in an attempt to avoid conviction of a greater one, "is tantamount to a partial plea of guilt, thus requiring defendant's express consent.'" In People v. Garrick , 11 AD3d 395 , 396 (1st Dept. 2004), the Court followed Barnes in a similar case, noting that "[t]here is a distinction which can and must be drawn between . . . a tactical retreat and . . . a complete surrender," and holding that, "[n]otwithstanding this tactical concession, counsel subjected the prosecution's case to "meaningful adversarial testing.'" (Citations omitted.)
While it is clear that defense counsel may carry out such a strategy without the defendant's explicit agreement, the question remains whether counsel may do so in the face of the defendant's explicit disagreement. In People v. Ford, 205 AD2d 310, 311 (1st Dept. 1994), the First Department summarily answered that question, holding that "[d]efendant was not denied effective assistance of counsel by his counsel's appropriate strategic concessions in summation . . ., notwithstanding defendant's disagreement with counsel's strategy." Thus, even had the defendant explicitly objected to the strategy trial counsel employed in his summation, using it over the defendant's objection would not have constituted ineffective assistance of counsel.
In this case, the defendant was continuously consulted by counsel on the defense strategy, and, despite his hearing testimony to the contrary, the defendant explicitly consented to the employment of that strategy. In a case in which the mountain of evidence tending to establish the defendant's guilt of felony Murder in the Second Degree and Robbery in the First Degree appeared insurmountable, defense counsel succeeded in obtaining for the defendant acquittals on each of those counts, as well as on the charge of Manslaughter in the Second Degree. Under the circumstances of the case, including the defendant's possession of the cab driver's key, the driver's blood on the defendant's jacket, the eyewitness identification of him as the person who assaulted the cab driver, and the defendant's confession, trial counsel's decision to concede in his summation that the defendant was guilty of Robbery in the Second Degree, the only crime of which he was convicted, was "a perfectly reasonable strategy," did not constitute ineffective assistance of counsel, and did not deprive the defendant of a fair trial. Thus, his motion to set aside the verdict is denied.
This constitutes the order and decision of the Court.