Opinion
No. 1080–1998.
09-11-2014
The PEOPLE of the State of New York, Plaintiff, v. Michael WILSON, Defendant.
Defendant, Pro Se. Diane Shearer, Assistant District Attorney Office of the Bronx District Attorney.
Defendant, Pro Se.
Diane Shearer, Assistant District Attorney Office of the Bronx District Attorney.
Opinion
RICHARD LEE PRICE, J.
By motion submitted March 14, 2014, defendant moved to set aside his sentence and vacate his conviction pursuant to Criminal Procedure Law §§ 440.20 and 440.10(1)(h), asserting that his sentence was illegally imposed and contending that he received ineffective assistance of counsel in violation the Sixth Amendment of the United States Constitution and article I, § 6 of the New York State Constitution. By decision dated June 24, 2014, this court denied defendant's motion. This expands that decision.
I. Background and Procedural History
On January 22, 1999, judgment was entered against the defendant in Supreme Court, Bronx County (Straus, J.), upon his conviction after a jury trial of assault in the first degree (PL 120.10[1], [2] ) (two counts), sentencing him to two concurrent determinate terms of twenty-one years imprisonment as a second felony offender. The basis of that conviction was that on January 28, 1998, the defendant, intentionally caused serious physical injury to Jacqueline Dacres at her Bronx residence.
On January 23, 2001, the Appellate Division, First Department unanimously affirmed the judgment of conviction (People v. Wilson, 279 A.D.2d 381 [1st Dept 2001] ). On June 29, 2001, the Honorable Howard A. Levine, Associate Judge of the Court of Appeals, denied defendant's application for leave to appeal (People v. Wilson, 96 N.Y.2d 869 [2001] ).
In papers dated March 26, 2002, defendant filed an application for a writ of habeas corpus in the Southern District of New York. By decision dated April 11, 2003, the Honorable Gerard E. Lynch denied that petition.
On July 26, 2010, defendant filed an application for a writ of error coram nobis in the Appellate Division, First Department, alleging appellate counsel was ineffective in failing to argue that (1) the medical expert offered improper testimony; and (2) trial counsel provided ineffective assistance. On February 1, 2011, the Appellate Division, First Department, denied defendant's application for a writ of error coram nobis. Leave to appeal this order to the Court of Appeals was denied on May 12, 2011.
In pro se motion papers dated September 26, 2013, defendant moved to vacate his conviction pursuant to CPL 440.10(1)(h), claiming: (1) it was reversible error for a doctor, who was not a licensed physician, to offer her opinion on a photograph and the possible weapon used; and (2) ineffective assistance of counsel. Defendant also moves to set aside his sentence pursuant to CPL 440.20 on the basis that an out-of-state conviction did not render him a prior felony offender in New York. After review of the motion papers, papers on file with the court, and prior court proceedings, defendant's motion is denied.
II. Defendant Must Raise Record Based Claims on Direct Appeal
CPL 440.10[2][c] provides:
[T]he court must deny a motion to vacate a judgment when: ... Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him.
Where sufficient facts appear in the record to permit adequate appellate review, the defendant must raise the issue on direct appeal or that issue is procedurally barred from collateral review (CPL 440.10[2][c] ; People v. Hall, 256 A.D.2d 139 [1st Dept 1998] ). Courts have previously noted that the purpose of CPL 440.10[2][c] is to prevent post-judgment motions from being utilized as substitutes for direct appeal (People v. Cooks, 67 N.Y.2d 100, 103 [1986] ).
Defendant claims it was reversible error when the trial court permitted a non-licensed physician to offer her opinion of both a photograph, and the possible weapon used against the complainant. The People correctly note, however, that defendant's claim is entirely record-based. As such, they argue it should have been asserted on his direct appeal. Given his failure to do so, the absence of any justifiable explanation for such failure, and the void of any non-record based factual allegations this court is constrained to bar review of this claim.
Even if not procedurally barred, defendant's claim is nevertheless without merit. Generally, evidence is deemed to be relevant”if it has any tendency in reason to prove the existence of any material fact” and all relevant evidence “is admissible unless its admission violates some exclusionary rule” (People v. Scarola, N.Y.2d 769, 777 [1988] ). With specific regard to expert testimony, trial courts have sole discretion in determining its admissibility and parameters (see People v. Cronin, 60 N.Y.2d 430, 433 [1983] ).
It is true that the physician was not licensed to practice medicine. It is also true that she testified at length to her expertise and qualifying credentials. As such, the trial court properly exercised its discretion in permitting her to testify as an expert (see Cronin, 60 N.Y.2d at 433 ). Defendant's argument then, that the expert's testimony was somehow improper merely because she did not yet possess a license is unavailing. For the same reason, this court rejects defendant's position that the trial court should have limited the physician's testimony to a simple review of the medical records.
Finally, assuming the trial court erred in permitting such testimony, which it did not, such error was harmless. An error may be deemed harmless only after an inquiry has been made as to the potential of the error to prejudice the defendant “by creating a significant probability that the jury would have acquitted the defendant had it not been for the error” (People v. Crimmins, 36 N.Y.2d 230 [1975] ). Here, defendant suffered no prejudice. The physician's opinion related to photographs that had been received in evidence. Regarding her opinion as to the possible weapon used, if it was indeed an error, was “harmless in light of the overwhelming nature of evidence against [him]” (Crimmins, 36 N.Y.2d at 230 ).
III. Ineffective Assistance of Counsel
Under the Sixth Amendment of the United States Constitution, a claim of ineffective assistance of counsel is evaluated under the two-part test set forth in (Strickland v. Washington, 466 U.S. 668 [1984] ). To prevail, a defendant must (1) show that his counsel's performance fell below an “objective standard of reasonableness” judged by “prevailing professional norms” (the performance prong), and (2) “affirmatively prove prejudice” by demonstrating that, but for counsel's unprofessional errors, the result of the proceeding would have been different (the prejudice prong) (Strickland, 466 U.S. at 687–88, 693 ).
To establish counsel's performance was deficient, a defendant must show that “in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance” (Pavel v. Hollins, 261 F3d 210, 216 [2d Cir2001] ). This standard is “rigorous” (Lindstadt v. Keane, 239 F3d 191, 199 [2d Cir2001] ), and “highly demanding” (Kimmel v. Morrison, 477 U.S. 365, 382 [1986] ). To demonstrate prejudice, a defendant must show there is a “reasonable probability” that the ineffective performance rendered the proceeding fundamentally unfair or produced an unreliable result (Missouri v. Frye, 132 S.Ct. 1399 [2012] ; Lafler v. Cooper, 132 S.Ct. 1376 [2012] ; Premo v.. Moore, 131 S.Ct. 733 [2011] ; Padilla v. Kentucky, 559 U.S. 356 [2010] ; Roe v. Flores–Ortega, 528 U.S. 470 [2000] ; Lockhart v. Fretwell, 506 U.S. 364 [1993] ; Hill v. Lockhart, 474 U.S. 52 [1985] ; Strickland at 694–695).
Success of an ineffective assistance of counsel claim under Article I, § 6 of the New York State Constitution rests on whether “the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation' “ (People v.. Henry, 95 N.Y.2d 563, 565 [2000], quoting People v. Baldi, 54 N.Y.2d 137, 146–47 [1981] ; see also People v. Lane, 60 N.Y.2d 748, 750 [1983] ). Generally, trial counsel is presumed to have provided competent representation unless defendant demonstrates the absence of a “strategic or other legitimate explanations” for the allegedly deficient conduct (People v. Benevento, 91 N.Y.2d 708, 712 [1998] ; People v. Rivera, 71 N.Y.2d 705, 709 [1988] ). An attorney's performance “will not be considered ineffective, even if unsuccessful, as long as it reflects an objectively reasonable and legitimate trial strategy under the circumstances and evidence presented” (People v. Berroa, 99 N.Y.2d 134, 138 [2002] ). “It is not for this court to “second-guess whether a course chosen by defendant's counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation” (People v. Satterfield, 66 N.Y.2d 796, 799–800 [1985] ). Thus, a defendant need only establish that he did not receive meaningful representation (Baldi, 54 N.Y.2d at 147 ; see People v. Caban, 5 NY3d 143, 155–56 [2005] ). To be clear, meaningful representation does not mean preferred or perfect representation (Benevento, 91 N.Y.2d at 712 ; People v. Modica, 64 N.Y.2d 828 [1985] ; Baldi at 146). As such, “the claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case” (Benevento at 714).
Consistent with this notion, it is irrelevant whether the attorney's advice had a particular impact on the outcome of the case (Caban, 5 NY3d at 156 ). Rather, New York is “ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case” (Benevento, 91 N.Y.2d at 714 ). In New York then, the only “question is whether the attorney's conduct constituted egregious and prejudicial' error such that defendant did not receive a fair trial” (Benevento at 713). Thus, a defendant need not prove that the outcome of the case would have been different but for such errors, rather only that he was deprived of a fair trial overall (Caban at 155–56). Indeed, if there is an apparent contradiction, it is this: “[f]undamental fairness analysis by its nature must always encompass prejudice” such that under the New York standard the “prejudice” prong in Strickland is effectively redundant (Rosario v. Ercole, 601 F3d 118, 124 [2d Cir2010] ). Regardless, the former, by its nature, encompasses the latter (see Rosario, 601 F3d at 118 ). Ultimately,
“[t]he intellectually disciplined dispositional path of this case must not veer from this Court's long-standing, well-settled ineffective assistance of counsel analysis and authorities ... when reviewing a claim of ineffective assistance of counsel, care should be taken to avoid both confusing true ineffectiveness [of counsel] with mere losing tactics and according undue significance to retrospective analysis' “ (Flores, 84 N.Y.2d at 186, quoting Baldi, 54 N.Y.2d at 146 ).
Notwithstanding the absence of a specific prejudice requirement, New York's “meaningful representation” in totality standard is not contrary to the Strickland standard (Rosario at 124; Eze v.. Senkowski, 321 F3d 110, 124 [2d Cir2003] ); Lindstadt, 239 F3d at 198 ). This is particularly true since any analysis of an ineffective assistance of counsel under the New York standard inherently considers whether trial counsel engaged in “an inexplicably prejudicial course” (People v. Zaborski, 59 N.Y.2d 863, 865 [1983] ; Benevento at 713). The New York Court of Appeals observed that the State constitutional standard is indeed satisfied when “prejudice' is examined more generally in the context of whether defendant received meaningful representation” (Benevento at 713).
Accordingly, because New York's concept of prejudice focuses on the quality of representation provided and not simply the “but for” causation chain, the distinction between Baldi and Strickland is that New York “refuse[s] to apply the harmless error doctrine in cases involving substantiated claims of ineffective assistance” (Benevento at 714). As a practical matter then, New York has “ § adopt[ed] a rule somewhat more favorable to defendants,' (People v. Ozuna, 7 NY3d 913, 915 [2006], quoting People v. Turner, 5 NY3d 476, 480 [2005] ), because its prejudice component focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case' “ (Id. at 915 quoting Caban at 156).
Commenting on this ostensible dichotomy, the Second Circuit noted:
[I]t is hard to envision a scenario where an error that meets the prejudice prong of Strickland would not also affect the fundamental fairness of the proceeding. The very opinion from which the troublesome phrase was drawn—Benevento —affirmatively stated that even a harmless error' could undermine the fairness of the process in such a way that violates the state's constitutional guarantee of effective assistance [citation omitted]. What case, then, could present the converse, an error so egregious that it most likely influenced the outcome of the trial, but did not cripple the fundamental fairness of the proceedings? We can think of none. Fundamental fairness analysis by its nature must always encompass prejudice (Rosario at 125).
Finally, since the performance and prejudice elements set forth in Strickland may be addressed in either order, “a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies ... [I]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed” (Strickland, 466 U.S. at 697 ). As such, this court will address the prejudice aspect of defendant's claim before considering counsel's performance.
Prejudice
1. Federal Standard
To succeed on an ineffective assistance of counsel motion under the federal standard, the defendant must “affirmatively prove prejudice” by establishing a “reasonable probability” that, but for such allegedly deficient conduct, the result of the proceeding would have been different (Strickland, 466 U.S. at 693 ; Lafler, 132 S.Ct. at 1384–85 ).
Here, defendant faults trial counsel, Christopher Spellman, for deciding to forego an opening statement, failing to object to the physician's testimony concerning the photographs depicting the victim's face, failing to object to her opinion of the weapon used, making three “prejudicial” arguments during his closing argument.
First, while a defense attorney has the right to present an opening statement, there is no obligation to do so. Rather, counsel may choose to open if s/he believes it is the better strategy (see CPL § 260.30[4] ). Faulting counsel, then, for not making an opening statement simply means that in hindsight he disagrees with counsel's strategic tactic. But disagreement is a far cry from prejudice, and defendant conspicuously makes no allegation, suggestion or inference that he suffered any prejudice from counsel's decision.
With regard to counsel's decision to not object to the physician's reference to certain photographs as well as her opinion of the weapon used, defendant abjectly fails to demonstrate how, if at all, it deprived him of a fair trial. At the time the physician offered testimony about those photographs, they had been properly received in evidence thus presenting no infirmity with eliciting testimony about them. And, defendant again fails to explain how he was prejudiced by the perceived failure to object. Given the absence of prejudice in conjunction with the overwhelming evidence against him, his claim that counsel' failure to object is baseless (see People v. Jiang, 62 AD3d 515, 516 [1st Dept 2009] ). Additionally, defendant's assertion that Mr. Spellman was ineffective because of three “prejudicial” statements he made during summation is also without merit. According to defendant, he erred by referencing the complainant's prior testimony, during which she stated that defendant was previously in jail. In so doing, however, Mr. Spellman noted the “gratuitousness” nature of such statement thus strategically downplaying it in an attempt to neutralize it. Such a tactic benefitted, not prejudiced, the defendant. Defendant further maintains that Mr. Spellman blundered when he stated to jurors that “maybe” they could not return a guilty verdict if they disbelieved Ms. Dacres' testimony. To the extent such language generated confusion or ambivalence, the trial court's instruction clarified that they “must acquit if they found a reasonable doubt as to [defendant's] guilt” (emphasis supplied). And finally, as to defendant's opinion that Mr. Spellman prejudiced him by referencing the graphic nature of the photographs, it appears he did so consciously, not inadvertently. Doing so, therefore, indicates it was a strategic decision ostensibly to explain away the prosecution's evidence rather than ignore it.
Clearly, then, defendant abjectly fails to establish a “reasonable probability” that the result of his trial would have been different, were it not for the perceived ills he attributes to Mr. Spellman. Additionally, it is not lost on this court that defendant's evidentiary and summation claims, when asserted in his application for a writ of error coram nobis, the Appellate Division, First Department, rejected them. As such, they are not only entirely without merit, they are also properly denied under CPL § 440.10[3][b].
2. New York Standard
As indicated, New York, unlike Strickland, relies on the “meaningful representation” standard (Henry, 95 N.Y.2d at 565 ). Under this standard, a defendant must establish that given the totality of the circumstances counsel's conduct was so egregious it deprived him of a fair trial (Benevento, 91 N.Y.2d at708, 713; People v. Hobot, 84 N.Y.2d 1021, 1022 [2005] ; People v. Flores, 84 N.Y.2d 184, 187 [1994] ). A defendant need not, however, prove that the result would have been different but for counsel's allegedly deficient conduct (Caban, 5 NY3dat 155–56). Simply put, the defendant fails to establish that given the totality of the circumstances counsel's conduct was so egregious it deprived him of a fair trial. While the defendant would have this court believe that he was deprived of a fair trial, such a result defies logic and renders defendant's argument entirely without merit.
Performance
Having failed to demonstrate prejudice, this court need not determine whether counsel's performance fell below an “objective standard of reasonableness” (Strickland, 466 U.S. at 697–98 ; see Benevento at 708). Nevertheless, this court believes it appropriate and wise to do so. In considering defendant's claim under both the Baldi–Benevento and Strickland performance standards, it is crucial to distinguish between “true ineffectiveness with mere losing tactics” and “according undue significance to retrospective analysis” (Baldi, 54 N.Y.2d at 147 ). To prevail on a claim of ineffective assistance, a defendant must demonstrate that he was “deprived of a fair trial by less than meaningful representation; a simple disagreement with strategies, tactics or the scope of possible cross-examination, weighed long after the trial, does not suffice” (Flores, 84 N.Y.2d at 187 ). As thoroughly discussed, losing tactics must not be conflated with ineffectiveness. Rather, the representation need only be meaningful. But here, Mr. Spellman's tactics and performance were strategically employed to the best of his ability as a seasoned and experienced advocate.
IV. Prior Felony Offender Status
Defendant also moves to set aside his sentence pursuant to CPL § 440.20[1], which provides “at any time after the entry of judgment, the court in which the judgment was entered may, upon motion of the defendant, set aside the sentence upon the ground that it was unauthorized, illegally imposed, or otherwise invalid as a matter of law.” Defendant contends that his sentence should be set aside pursuant to CPL § 440.20 because an out-of-state conviction may not be used to render him a predicate felon in New York. Interestingly, the defendant does not dispute that he was convicted of violating Article 27, Section 286[a] [1] of the Annotated Code of Maryland, and sentenced to a term of two years imprisonment.
Penal Law § 70.06[b], in pertinent part, provides “[f]or the purpose of determining whether a prior conviction is a predicate felony conviction the following criteria shall apply: (i)[t]he conviction must have been in this state a felony, or in any other jurisdiction of an offense for which a sentence to a term of imprisonment in excess of one year or a sentence of death was authorized and is authorized in this state irrespective of whether such sentence was imposed.” As the trial court noted, a “prior out-of-state conviction is a predicate felony conviction in New York when the statute underlying the foreign conviction and a comparable New York statute are equivalent as to their elements and each authorizes a sentence in excess of one year” (see PL 70.06[1][b][i]; People v. Muniz, 74 N.Y.2d 464, 467–68 [1989] ; People v. Gonzalez, 61 N.Y.2d 586, 589 [1984] ).
Article 27, Section 286[a][1] of the Annotated Code of Maryland provides that “it is unlawful for any person to manufacture, distribute, dispense or to possess a controlled dangerous substance in a sufficient quantity to reasonably indicate under all circumstances an intent to manufacture, distribute or dispense, a controlled dangerous substance.” Under New York Penal Law § 220.16[1], a class B felony, a “person is guilty of criminal possession of a controlled substance in the third degree when he knowingly and unlawfully possesses a narcotic drug with the intent to sell it.” Thus, the trial court, upon review of the Maryland statute and Penal Law § 220.16[1], properly determined that the elements of the Maryland statute were sufficiently comparable to Penal Law § 220.16[1].
Accordingly, defendant's Maryland conviction appropriately constituted a predicate felony pursuant to Penal Law § 70.06. Defendant was therefore properly adjudicated a second felony offender.
V. Conclusion
For the reasons stated above, this court finds that defendant's first claim is procedurally barred, and that he received effective assistance of counsel at all stages of the proceedings as guaranteed in the Sixth Amendment of the United States Constitution and article I, § 6 of the New York State Constitution (Strickland, 466 U.S. at 668 ; Benevento, 91 N.Y.2d at 708 ; Baldi, 54 N.Y.2d at 137 ). Defendant's motion to vacate his judgment of conviction pursuant to Criminal Procedure Law § 440.10[1][h] is therefore summarily denied in all respects.
This court further finds that defendant was properly adjudicated a prior felony offender. Defendant's motion to set aside his sentence pursuant to Criminal
Procedure Law § 440.20[1] is therefore also summarily denied.
This constitutes the decision and order of the court.
The clerk of the court is directed to forward a copy of this decision to the petitioner at his place of incarceration.