Nullification Argument Not Ineffective Assistance In Slam-Dunk Doggie Diaper Theft Case

The New York Court of Appeals affirmed an order rejecting an ineffective assistance of counsel claim grounded in the defense counsel’s nullification plea

On two separate occasions, defendant unlawfully entered a multi-residential apartment building and stole the contents of packages from the mailbox area in the lobby. The items stolen were dog training pads and two pairs of pants. On both occasions, defendant’s identity as the thief of the property was captured with clarity on the building’s surveillance video. Defendant admitted to the police that he was the thief captured twice on the surveillance video and stated to his mother, on a recorded telephone call from Rikers Island, that he had been arrested for the “package thing.” By indictment, defendant was charged with two counts each of burglary in the second degree, burglary in the third degree, petit larceny, and trespass. Defendant pled not guilty and proceeded to trial.

At the outset of the trial, defense counsel declared in his opening statement that there was “no great mystery” to the case and that this was a “rock-solid” case because the crimes were captured on video. However, counsel argued that the burglary charges do not fit the facts because the evidence would show that defendant took only mail packages of pairs of pants and “doggy pee pads.” Counsel also stated that defendant did not break any locks, did not enter into anyone’s apartment, and did not possess any burglar’s tools during the incident. He told the jury that he had been “fighting for” defendant for over a year and implored the jurors to “join that fight when [they] listen to the evidence,” a comment for which a People’s objection was sustained.

The video and statements made for a compelling case so

In summation, defense counsel again commented on the sheer strength of the evidence against his client, repeatedly stating that there was no “great mystery” to the case and that he was not asking the jury to find defendant “not guilty” of the burglary charges but only to be fair. Counsel challenged the evidence of the unlawful entry into the building. He reiterated that the facts did not fit the crime because no locks were broken, no individual apartments were damaged, and defendant was armed with a sandwich (defendant can be seen eating a sandwich during the second crime) rather than any burglar’s tools. Invoking Jean Valjean of Les Misérables and his theft of bread, counsel argued that stealing “doggy diapers and a pair of pants” is not “the crime of the century” and thus could not be considered burglary. Counsel pressed for leniency for defendant along the following lines:

“This case, I submit to you, ladies and gentlemen, is overcharged. We’re talking about packages laid out in the open, not going to anyone’s apartment, packages laid out in the open on a ledge . . . The man took doggy diapers and pants.”

Counsel concluded by describing the case as an “overexaggerate[d] reality” based on the government deciding to “trump up” charges.

The court

We cannot say that, on this record when viewed in totality, defendant was provided with less than meaningful representation. Here, defense counsel was eminently familiar with the facts of the case and the evidence elicited, including the details of the surveillance video and the photographic exhibits. Given the truly overwhelming evidence against his client on all the charges, and constrained by the limited legitimate defense strategies available, counsel raised what he reasonably perceived could be factual issues in the case, such as the method of defendant’s entry into the building. Counsel’s performance included cogent opening and closing arguments, a motion to dismiss after the People’s case-in-chief, and thorough cross-examinations of the People’s witnesses. Moreover, the trial court did not curb counsel’s jury nullification summation arguments. As a result, the whole record of counsel’s performance demonstrates that defendant has failed to sustain his burden that he was deprived of meaningful representation.

(Mike Frisch)