Defense Counsel “Textbook Example Of How To Present Devastating Propensity Evidence” Against His Client
A failure to sustain a claim of ineffective assistance of counsel in a first degree burglary conviction drew a dissent by Judge Rivera of the New York Court of Appeals, joined by Chief Judge Wilson
Counsel’s errors commenced pretrial, when he failed to demonstrate a basic understanding of defendant’s case and a full appreciation of the weight of the evidence against defendant. Counsel conceded that his omnibus motion contained boilerplate references unrelated to defendant’s case. In response to the court’s inquiry about why the motion referenced nonexistent warrants, counsel explained that he “include[s] that in all [his] motions.” But counsel is required to properly investigate and present legal and factual issues specific to their client, not someone else or some generic client (see People v Oliveras, 21 NY3d 339, 346 [2013] [“Essential to any representation, and to the attorney’s consideration of the best course of action on behalf of the client, is the attorney’s investigation of the law, the facts, and the issues that are relevant to the case”], citing Strickland, 466 US at 690-691; Droz, 39 NY2d at 462). An attorney who fails to argue the relevant details of the prosecution and defense—and, worse, presses completely non-germane points instead—fails to provide meaningful representation.
In addition, a week before trial counsel, admitted to the court that he had not yet shown defendant the police body-camera video. That evidence was central to the prosecution’s case and, accordingly, would have been essential to properly advising defendant on whether it was in his best interest to go to trial and, if not, developing a viable plea negotiation strategy.
At trial, counsel did precisely what the court barred the prosecution from doing: eliciting testimony about defendant’s prior criminal history. Counsel engaged in open-ended questioning that led to testimony that would have been inadmissible under People v Molineux (168 NY 264 [1901]) and People v Sandoval (34 NY2d 371 [1974]). For example, the nurse responded to one of counsel’s questions by telling the jury that defendant “started coming around after his release from jail,” a comment that defense counsel did not move to strike. Additionally, when counsel asked the victim’s sister—again in open-ended fashion—how often defendant visited his child, the sister testified that defendant had to talk to her to arrange his visits because the nurses were scared of him. Counsel’s response led to the repetition of that statement and the additional comment that the nurses “had episodes prior to this one.”
Defense counsel’s cross-examination of defendant’s spouse, the victim, was a textbook example of how to present devastating propensity evidence against a defendant— unfortunately, the defendant was counsel’s own client. As the dissent below aptly remarked, “[i]n this prosecution for, inter alia, burglary in the first degree [one] cannot foresee evidence being more prejudicial than testimony elicited by his own counsel that defendant previously committed the same criminal act against the same victim” (224 AD3d at 1362 [Ogden and Nowak, JJ., dissenting]).
In addition to counsel’s affirmative conduct there is also counsel’s failure to object to the ambiguous jury instruction on the top count of first-degree burglary. Specifically, the court did not explain to the jury that the prosecution had the burden of proving that defendant injured his spouse. We now cannot be certain whether the jury improperly found defendant guilty of this crime based on an injury to the responding officer—which the indictment did not charge—or properly found him guilty based on an injury to defendant’s spouse—which the indictment did charge. Counsel’s inaction on this alone established deficient performance (see e.g. People v McClendon, 228 AD3d 1276, 1277 [4th Dept 2024] [reversal on ineffective-assistance grounds where “(d)efense counsel did not seek a tailored instruction limited to the theory in the indictment”]).
Even if the evidence of guilt was overwhelming, it cannot be said that these errors, considered in conjunction with one-another, did not undermine “the ‘integrity of the judicial process’ ” or deprive defendant of a fair trial.
(Mike Frisch)