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People v. Conway

Supreme Court of New York, Fourth Department

March 31, 2017





         Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), dated March 24, 2015. The order denied the motion of defendant to vacate the judgment of conviction pursuant to CPL 440.10.

         It is hereby ORDERED that the order so appealed from is unanimously affirmed.

         Memorandum: On defendant's direct appeal from a judgment convicting him upon his plea of guilty of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]), we held that, to the extent that defendant's contention in his pro se supplemental brief that he was denied effective assistance of counsel survived his guilty plea and valid waiver of the right to appeal, his contention lacked merit (People v Conway, 43 A.D.3d 635, 636, lv denied 9 N.Y.3d 990). After Supreme Court summarily denied defendant's subsequent motion pursuant to CPL 440.10 seeking to vacate the judgment, we granted defendant leave to appeal and held on appeal that, as relevant here, defendant was entitled to a hearing pursuant to CPL 440.30 (5) on his claim of ineffective assistance because defendant's submissions, which involved matters outside the record on direct appeal, raised a factual issue whether trial counsel unreasonably refused to investigate potential alibi witnesses and a third party's admission to the crime, made to defendant's prior attorney (People v Conway, 118 A.D.3d 1290, 1291). The court denied the motion to vacate following a hearing, we granted defendant leave to appeal from that order, and we now affirm.

         The submissions and hearing testimony established that, following indictment and suppression proceedings, defendant's criminal prosecution was adjourned so that the prior attorney, who was then representing defendant, could locate the third party who had purportedly contacted him and confessed to committing the burglary. In his subsequent application for a material witness warrant, the prior attorney alleged that he had met with the third party at his office and tape-recorded the confession, which purportedly had been made "with convincing detail." The prior attorney further explained in the application that he attempted to have counsel appointed for the third party but the third party did not timely report to court and, thereafter, the prior attorney was unable to locate the third party despite attempting to serve him with a subpoena at his last known address and employing the services of a private investigator. The court issued the warrant.

         After further proceedings and the replacement of attorneys, defendant was assigned trial counsel and the matter proceeded to trial. It is undisputed that the material witness warrant remained active and the investigator continued to look for the third party, even during the trial, but the third party was never located. Trial counsel had the prior attorney added to the witness list, but did not otherwise seek to introduce the third party's confession in evidence. Trial counsel explained at the hearing that she did not seek to introduce the confession due to evidentiary issues with authentication and admissibility, and that she had no good faith basis to seek a pretrial ruling because there were no rules of evidence under which the confession could be admitted. Trial counsel also testified that she had multiple conversations with defendant about the admissibility of the tape. In his testimony at the hearing, defendant confirmed that trial counsel spoke with him about the admissibility of the tape, and he claimed that trial counsel had stated that she was not going to use that evidence because it was hearsay.

         After the People called two witnesses at trial, the court granted trial counsel's request to reopen the suppression hearing, thereby allowing defendant to raise an issue regarding the adequacy of the People's CPL 710.30 notice, but the court ultimately denied defendant's motion. After an off-the-record discussion that followed the adverse ruling, defendant indicated his desire to plead guilty, the People agreed to renew a previous offer, and defendant pleaded guilty in accordance with the offer.

         Defendant contends that the court erred in denying his motion to vacate the judgment because the record establishes that he was denied effective assistance based on trial counsel's failure to seek admission of the tape recording purportedly containing the confession of the third party, or to present testimony of the prior attorney about that confession, and based on trial counsel's failure to seek a pretrial ruling on the admissibility of such evidence. Defendant also contends that he was denied effective assistance of counsel based on trial counsel's failure to pursue an alibi defense. We reject those contentions.

         Where, as here, a defendant contends that he or she was denied the right to effective assistance of counsel guaranteed by both the Federal and New York State Constitutions, we evaluate the claim using the state standard, which affords greater protection than its federal counterpart (see People v Stultz, 2 N.Y.3d 277, 282, rearg denied 3 N.Y.3d 702; Conway, 118 A.D.3d at 1291; People v Ross, 118 A.D.3d 1413, 1415-1416, lv denied 24 N.Y.3d 964). Under the state standard, "[s]o long as 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, the constitutional requirement will have been met" (People v Baldi, 54 N.Y.2d 137, 147; see People v Benevento, 91 N.Y.2d 708, 712). A "defendant must demonstrate the absence of strategic or other legitimate explanations for counsel's alleged failure" (People v Pavone, 26 N.Y.3d 629, 646; see People v Barboni, 21 N.Y.3d 393, 406; People v Caban, 5 N.Y.3d 143, 152). "However, a reviewing court must be careful not to second-guess' counsel, or assess counsel's performance with the clarity of hindsight, ' effectively substituting its own judgment of the best approach to a given case" (Pavone, 26 N.Y.3d at 647, quoting Benevento, 91 N.Y.2d at 712; see People v Parson, 27 N.Y.3d 1107, 1108). "The test is reasonable competence, not perfect representation' " (Pavone, 26 N.Y.3d at 647). "In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" (People v Ford, 86 N.Y.2d 397, 404; see People v Hoyer, 119 A.D.3d 1457, 1458).

         Here, we conclude that the court did not err in determining that trial counsel's analysis regarding the admissibility of the tape recording was correct and defendant offered no plausible legal theory to support its admissibility. The court therefore properly concluded that the fact that trial counsel did not argue for admission of the confession did not constitute ineffective assistance because there was little or no chance of success with respect to such an argument. Contrary to defendant's contention, neither the tape recording of the confession nor the prior attorney's testimony about that confession was admissible under the declaration against penal interest exception to the hearsay rule.

         "The declaration against penal interest exception to the hearsay rule recognizes the general reliability of such statements... because normally people do not make statements damaging to themselves unless they are true' " (People v Shabazz, 22 N.Y.3d 896, 898, quoting People v Brensic, 70 N.Y.2d 9, 14, remittitur amended 70 N.Y.2d 722). "The exception has four components: (1) the declarant must be unavailable to testify by reason of death, absence from the jurisdiction or refusal to testify on constitutional grounds; (2) the declarant must be aware at the time the statement is made that it is contrary to penal interest; (3) the declarant must have competent knowledge of the underlying facts; and (4) there must be sufficient proof independent of the utterance to assure its reliability" (id.; see Brensic, 70 N.Y.2d at 15; People v Settles, 46 N.Y.2d 154, 167). "The fourth factor is the most important' aspect of the exception" (Shabazz, 22 N.Y.3d at 898), and "[t]he crucial inquiry focuses on the intrinsic trustworthiness of the statement as confirmed by competent evidence independent of the declaration itself" (Settles, 46 N.Y.2d at 169). Where, as here, the declaration exculpates the defendant, "[s]upportive evidence is sufficient if it establishes a reasonable possibility that the [declaration] might be true" (id. at 169-170; see Shabazz, 22 N.Y.3d at 898; People v McFarland, 108 A.D.3d 1121, 1122, lv denied 24 N.Y.3d 1220). This is a more lenient admissibility standard than that applied to a declaration against the defendant offered by the prosecution because "[d]epriving a defendant of the opportunity to offer into evidence [at trial] another person's admission to the crime with which he or she has been charged, even though that admission may... be offered [only] as a hearsay statement, may deny a defendant his or her fundamental right to present a defense" (McFarland, 108 A.D.3d at 1122 [internal quotation marks omitted] ; see Chambers v Mississippi, 410 U.S. 284, 302; People v McArthur, 113 A.D.3d 1088, 1089-1090).

         Even assuming, arguendo, the existence of the first three components of the exception, we conclude that there was insufficient proof independent of the third party's confession to assure its reliability. Trial counsel testified that the prior attorney informed her that the tape recording contained the statement of someone who had come into his office and confessed to the burglary. Trial counsel explained that, although the prior attorney was given the name of the third party, "it wasn't even really clear who that person was." In support of her conclusion that the confession was inadmissible, trial counsel testified that all she had was a voice on a tape recording and, based on her discussions with the prior attorney, "there was some question as to whether [the third party] was even voluntarily in [the prior attorney's] office" when he made the confession. Defendant testified that the third party was a friend of one of his sisters, and that the third party and defendant's sister smoked crack cocaine together. As previously indicated, the prior attorney made ...

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