indictments applying a continuous crime theory would remain appropriate in cases involving victims too young to parse the various acts within the time spans with more specificity.'" (Resp. Br. at 31 (citing Keindl, 68 N.Y.2d at 421).) While the court in Keindl noted the ages of the children, particularly in distinguishing Morris on the issue of lack of specificity under CPL § 200.50, the holding with respect to sodomy and sexual abuse being single acts and not continuing crimes did not depend on the ages of the victims. And although the court observed that there did not appear to have been any necessity in the circumstances of the Keindl case "for the profusion of duplicitous counts" in the indictment, it did not suggest that it would be acceptable to violate CPL § 200.30 with a duplicitous indictment if the victims were younger. See Keindl, 68 N.Y.2d at 420-21, 509 N.Y.S.2d at 794-95.
The Respondent argues further that the uncertainty of Keindl was dispelled in the later case of People v. Beauchamp, 74 N.Y.2d 639, 641, 541 N.Y.S.2d 977, 539 N.E.2d 1105 (1989), another case involving the conviction of a teacher from a day care center, where the New York Court of Appeals corrected the Appellate Division, First Department, in a child sexual abuse case involving a three-year-old. The Respondent suggests that the fact that the Appellate Division evidently misapplied Keindl demonstrates that Keindl's precise holding was as yet unclear. This argument contains two flaws.
First, it is improper to consider later developments in the law when considering whether counsel's actions were within the bounds of objectively reasonable legal representation. At the time of Grady's appeal, the Beauchamp case was as yet undecided by either the Court of Appeals or the Appellate Division. Therefore, whatever value those decisions may have is irrelevant to the issue of what was reasonable in late 1986. See Fretwell, 506 U.S. at 371 ("to determine whether counsel performed below the level expected from a reasonably competent attorney, it is necessary to 'judge . . . counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.'" (quoting Strickland, 466 U.S. at 690)); Jameson, 22 F.3d at 429 (evaluating counsel's performance as of time of appeal notwithstanding later cases); Mayo, 13 F.3d at 533-34 (in assessing performance, reviewing court may not use hindsight to second-guess counsel's strategy choices).
Second, in any event, the Respondent's view of the Beauchamp opinions is incorrect. In the Appellate Division decision the court held that all but three counts of the indictment were duplicitous under CPL § 200.30 and Keindl, See Beauchamp, 143 A.D.2d 13, 532 N.Y.S.2d 111 (1st Dep't 1988). Three counts survived challenge, however, because each count charged a single instance of rape, sodomy, and sexual abuse, respectively, and the trial testimony confirmed that only one act allegedly occurred. Id., 143 A.D. at 16, 532 N.Y.S.2d at 114. It was on this last point that the Court of Appeals disagreed, holding unanimously that the nonduplicitous trial testimony could not cure the defect in the People's bill of particulars which specifically alleged that the defendant had engaged in a continuous course of conduct over a period of several months. Id., 74 N.Y.2d at 640-41, 541 N.Y.S.2d at 978. Accordingly, the Beauchamp decisions reveal that a duplicity defect rooted in an indictment and bill of particulars cannot be cured by trial testimony establishing that each count encompassed a single act. The Appellate Division did not find that the ages of the children would cure an otherwise duplicitous indictment. And, at the end of the appellate process, all of the counts in the Beauchamp indictment had been dismissed on the grounds of duplicity even though they related to children of very young age.
Coming as it did two years after Grady's appeal was filed, Beauchamp does nothing to justify or rationalize Appellate Counsel's failure to raise with the Appellate Division, or the Court of Appeals, a decision by the highest court of the state relating directly to his clients case. Although a lawyer need not be prescient with respect to new developments or dramatic shifts in the law, see Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir.), cert. denied, 510 U.S. 852, 126 L. Ed. 2d 116, 114 S. Ct. 154 (1993); United States ex rel. Roche v. Scully, 739 F.2d 739, 742-44 (2d Cir. 1984), it is a lawyer's duty to argue for the application of current law if that law supports his clients interests. And there can be no doubt that in Grady's case attacking the indictment and bill of particulars as duplicitous was an approach that was firmly grounded in the statute and case law, supported by the factual circumstances of the prosecution, and significantly more likely to prevail than the arguments on which Grady's appeal was in fact based. Failure to have raised the issue was objectively unreasonable and fell well beyond the wide range of professionally competent legal assistance.
Accordingly, the deficient performance prong under Strickland is satisfied.
The second prong of the Strickland test is straightforward, particularly because this test may be met by considering events subsequent to the filing of the appeal. See Fretwell, 506 U.S. at 372 (prejudice component of Strickland does not implicate concerns which make hindsight inappropriate for determining deficient performance); Mayo, 13 F.3d at 534 ("The outcome determination, unlike the performance determination, may be made with the benefit of hindsight."). As explained above, the duplicity issue was meritorious and omitted by Appellate Counsel in favor of six less persuasive arguments, none of which succeeded. On the other hand, had the duplicity argument been raised successfully, Grady's conviction would have been reversed entirely and the indictment dismissed. The prospect of such a favorable outcome was appreciable at that time given the state of the law then. At this time, the likelihood of success on appeal is undeniable given the number of intervening cases involving sex offenses in which the duplicity argument prevailed. See, e.g., Beauchamp, 74 N.Y.2d 639, 541 N.Y.S.2d 977, 539 N.E.2d 1105; People v. Jelinek, 638 N.Y.S.2d 731 (2d Dep't 1996); People v. Vogt, 172 A.D.2d 864, 569 N.Y.S.2d 461 (2d Dep't 1991); People v. Corrado, 161 A.D.2d 658, 556 N.Y.S.2d 95 (2d Dep't 1990); People v. Algarin, 166 A.D.2d 287, 560 N.Y.S.2d 771 (1st Dep't 1990); People v. Romero, 147 A.D.2d 358, 537 N.Y.S.2d 523 (1st Dep't 1989); People v. Tolle, 144 A.D.2d 963, 534 N.Y.S.2d 271 (4th Dep't 1988), appeal denied, 73 N.Y.2d 927, 539 N.Y.S.2d 311 (1989); People v. Lesser, 203 N.Y. L.J. 75, at 27 (Sup. Ct. N.Y. Co. Apr. 19, 1990); People v. Rios, 142 Misc. 2d 357, 537 N.Y.S.2d 775 (N.Y. City Crim. Ct. Bronx Co. 1989). And this likelihood was sufficiently high even prior to Keindl given the state of the case law from the Appellate Division. See Mayo, 13 F.3d at 534 ("We have ruled that the fact that the omitted claim involved a right that had not yet explicitly been recognized by the state's highest court does not preclude such a finding [of prejudice]." (citing Claudio, 982 F.2d at 803)).
Given the success of the duplicity argument in these similar cases, it is plain that there is a reasonable probability that had Grady's counsel asserted such a claim on his direct appeal, the 'result of the proceeding would have been different." Bunkley, 68 F.3d at 1521 (quoting Strickland, 466 U.S. at 694). Accordingly, the prejudice prong of the Strickland test is easily satisfied in this case.
Both parts of the Strickland test are satisfied on this petition. Appellate Counsel's failure to raise the claim of duplicity of the indictment on Grady's direct appeal and his failure to take advantage of the Keindl decision either before the Appellate Division or the Court of Appeals was deficient performance below an objectively reasonably standard of legal performance. And Grady was prejudiced by that failure.
There remains the question of appropriate relief. In a case based on ineffective assistance of appellate counsel, the petitioner is entitled to a new appeal rather than a new trial. The Court has broad discretion to fashion appropriate habeas relief, see 28 U.S.C. § 2243 ("The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require."), and that discretion includes conditionally granting the writ to permit the petitioner to pursue another appeal. See Hilton v. Braunskill, 481 U.S. 770, 775, 95 L. Ed. 2d 724, 107 S. Ct. 2113 (1987) ("In construing § 2243 and its predecessors, this Court has repeatedly stated that federal courts may delay the release of a successful habeas petitioner in order to provide the State an opportunity to correct the constitutional violation found by the court."); Mayo, 13 F.3d at 537 (affirming grant of writ conditioned on petitioner being afforded opportunity to present his appeal as if timely and properly presented, or alternatively afforded a new trial) Claudio, 982 F.2d at 806 (remanding with instructions to grant writ unless petit loner permitted to present omitted ground for appeal to Court of Appeals); Harris v. Kuhlman, 601 F. Supp. 987, 994 (E.D.N.Y. 1985) (ordering successful petitioner released unless his new appeal was decided within sixty days and staying the decision pending appeal to the Court of Appeals).
Accordingly, this petition for a writ of habeas corpus pursuant to- 28 U.S.C. § 2254 is conditionally granted. The writ will be granted if Grady is not permitted to appeal his conviction and present his claim based on duplicity under CPL § 200.30 to the Appellate Division within sixty (60) days from the date of this Opinion and Order.
Because these conditions permit the Respondent sufficient time to consider an appeal of this decision, including any application for a stay to the Court of Appeals, there is no need to stay this conditional grant pending appeal.
For the reasons set forth above, the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is granted unless the petitioner is permitted to appeal his conviction and present his claim based on duplicity under CPL § 200.30 to the Appellate Division within sixty (60) days of the date of this Opinion and Order.
Dated: New York, New York
June 24, 1996
John G. Koeltl
United States District Judge