Opinion
October 9, 1984
Appeal from the Supreme Court, Kings County (Bernstein, J.).
Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered.
On the record before us, we are compelled to conclude that defense counsel's performance was so woefully inadequate that defendant was deprived of the "meaningful representation" of counsel to which he is constitutionally entitled ( People v Baldi, 54 N.Y.2d 137, 147; see People v Zaborski, 59 N.Y.2d 863, 865). Defense counsel failed to guard against normally inadmissible evidence; brought out highly prejudicial and otherwise suppressible evidence on cross-examination of the People's witnesses; failed to conduct any pretrial discovery; and failed to fashion any plausible theory of defense (see People v Moore, 102 A.D.2d 898). Accordingly, we reverse the judgment and order a new trial.
The charges against the defendant stem from a knifepoint robbery. Defendant, who had never before been convicted of a crime, was represented by retained counsel and assisted by an interpreter.
Of course, defendants who retain their own lawyers are not entitled to less protection against ineffective assistance of counsel than defendants for whom an attorney is appointed ( Cuyler v Sullivan, 446 U.S. 335, 344; People v Aiken, 45 N.Y.2d 394, 400-401).
The victim's identification was far from certain and it was only after extensive deliberation that the jury convicted defendant of robbery in the first degree. Counsel's performance may have tipped the balance.
Extremely prejudicial was defense counsel's revelation to the jury that his client had been arrested for armed robbery 10 days prior to the crime for which he was being tried. It is obvious that the People could not have brought out this damning evidence on its own initiative (see, e.g., People v Vails, 43 N.Y.2d 364, 368; People v Blanchard, 83 A.D.2d 905, app dsmd 56 N.Y.2d 648). Inasmuch as defendant did not take the stand and had never before been convicted of a crime, there is simply no tactical justification which can be discerned for this "inexplicably prejudicial course" ( People v Zaborski, supra, p. 865). It is stark evidence of ineffectiveness ( People v Jones, 30 A.D.2d 1038, aff'd 25 N.Y.2d 637).
Counsel also repeatedly elicited testimony from two police officers which would have constituted clear violations of the rule of People v Trowbridge ( 305 N.Y. 471) and People v Napoletano ( 58 A.D.2d 83) and failed to object to such bolstering testimony elicited by the People. He also effectively eliminated one of the greatest weaknesses in the People's case — the complainant's poor memory at trial of what the robbers looked like at the time of the defendant's arrest and whether the defendant matched the description given by him — by eliciting from the complainant, on cross-examination, that, at the time of the defendant's arrest, he clearly recalled what his assailants were wearing and that he saw the defendant's face before identifying him and from one of the police officers, on cross-examination, that, although the officer could not recall the description the victim had given, the officer was certain that the defendant fit the description of one of the men.
These blunders could only have been brought about by a lack of preparation, as there certainly is no tactical reason behind them. Such conduct has repeatedly been deemed evidence of ineffective assistance of counsel (e.g., People v Pritchett, 48 N.Y.2d 933; People v Brown, 45 N.Y.2d 852, 853; People v Vezza, 89 A.D.2d 882; People v Sarmiento, 40 A.D.2d 562).
Furthermore, defense counsel failed to request or obtain the victim's pretrial statements, a police officer's memo book, and reports and statements given to the District Attorney — all clearly discoverable (CPL 240.45, 240.20 Crim. Proc.; see, e.g., People v Consolazio, 40 N.Y.2d 446, cert. den. 433 U.S. 914; People v Malinsky, 15 N.Y.2d 86, 90-91; People v Rosario, 9 N.Y.2d 286, cert. den. 368 U.S. 866). When counsel did request the material from a witness in the presence of the jury, he simply examined it and asked no questions, thus conveying the impression that the written material supported the People's case against his client (cf. People v Torres, 51 A.D.2d 225, 229).
Finally, in summation, defense counsel advanced two theories: (1) that the victim had misidentified defendant, who is Hispanic, because he had originally described his assailants as "two black men" and (2) that the victim had invented the robbery and falsely accused the defendant because he had had a marital dispute. But there was simply no evidence to support either of these two theories. Moreover, even if there were evidence that the victim had had a fight with his wife, it is hard to conceive how this would cause the victim to deliberately fabricate a robbery.
In addition, counsel essentially marshaled the evidence in the People's favor and commented that the police officers had risked their lives "to apprehend this [defendant] who was arrested ten days ago for robbery". No mention was made of the fact that initial identification of the defendant was made from behind, that, contrary to the victim's testimony that it was still light outside at the time of the robbery, the sun had set hours before, and that the coat defendant was wearing at the time of his arrest, allegedly the same coat that the assailant had worn, was never introduced in evidence. Only the briefest mention was made of the fact that the witnesses had poor memories. In short, the summation was, in effect, "an argument for the conviction of the defendant" ( People v Duke, 58 A.D.2d 31, 33; see People v LaBree, 34 N.Y.2d 257).
As a result of counsel's actions, defendant did not receive a fair trial. On this record, "we cannot say that the representation defendant received in this case was adequate or effective in any meaningful sense of the words" ( People v Droz, 39 N.Y.2d 457, 463; see, also, People v Zaborski, 59 N.Y.2d 863, supra; People v Moore, 102 A.D.2d 898, supra; People v Butler, 94 A.D.2d 726). Counsel's representation fell below the objective standard of reasonableness and defendant was prejudiced thereby (see Strickland v Washington, 466 US ___, 104 S Ct 2052; People v Montgomery, 101 A.D.2d 893; People v Morris, 100 A.D.2d 630; People v Lundy, 104 A.D.2d 384; People v Wagner, 104 A.D.2d 457).
We are also troubled by the supplemental charge in which the court urged the jurors to reconcile their views in order to avoid the necessity for a new trial, but failed to mention that the verdict must also reflect the individual judgment of each juror and not a mere acquiescence in the majority will (see People v Jackson, 76 A.D.2d 869; People v Ali, 65 A.D.2d 513, aff'd 47 N.Y.2d 920; People v Demery, 60 A.D.2d 606; People v Henry, 56 A.D.2d 610). In addition, at the same time, the court also erroneously stated, concerning the definition of reasonable doubt, that "if your doubt does not have common sense or logic to support it, then your doubt would not be reasonable". The implication, when read in context, is that any doubt as to defendant's guilt would not be reasonable (see People v Holiday, 70 A.D.2d 645; People v Ostin, 62 A.D.2d 1004).
Although no objection was taken — again, a serious dereliction on counsel's part — the evidence against the defendant was based on a single witness whose credibility was not without doubt, and, therefore, reversal is also warranted on this basis in the interest of justice. Titone, J.P., O'Connor, Weinstein and Rubin, JJ., concur.