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People v. Taylor

Supreme Court of New York, Third Department

November 2, 2017

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
DANIEL P. TAYLOR, Appellant.

          Calendar Date: September 7, 2017

          Andrea G. Hirsch, New York City, for appellant.

          Stuart M. Cohen, Special Prosecutor, Rensselaer, for respondent.

          Before: Peters, P.J., Egan Jr., Devine, Mulvey and Pritzker, JJ.

          PETERS, P.J.

         Appeal, by permission, from an order of the County Court of Saratoga County (Sypniewski, J.), entered July 14, 2016, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crimes of assault in the second degree and criminal possession of a weapon in the fourth degree, without a hearing.

         In 2013, defendant was convicted of assault in the second degree and criminal possession of a weapon in the fourth degree as a result of an altercation outside of a concert venue in the Town of Clifton Park, Saratoga County, during which Joseph Fritz (hereinafter the victim) suffered a 16-inch-wide laceration across his abdomen. The People's case rested primarily on the testimony of a cabdriver who claimed to have witnessed the incident from his parked minivan, as the victim remembered very little about the event. During his trial testimony, the cabdriver explained that he observed the victim and defendant's girlfriend having a heated conversation in a nearby parking lot, after which defendant pushed the victim to the ground, crouched over him for a period of time and then ran away. Defendant, who testified on his own behalf, provided a contrary version of the events that transpired. He stated that, while outside of the concert venue, the victim began calling him names, shoved him and asked if he wanted to fight. When he walked away, the victim jumped on his back and knocked him to the ground. Fearful that he would be unable to defend himself and permanently injured because he suffered from a shoulder that regularly dislocated, rendering his arm unusable, defendant explained that he pushed the victim off his back with his left arm, opened his pocket knife with his right hand and spun around to show the victim the knife in an effort to discourage the attack. At the same moment, defendant claimed, the victim lunged at him. Defendant testified that he did not stab or thrust the knife, but only meant to scare the victim away.

         Upon appeal, this Court affirmed defendant's conviction (118 A.D.3d 1044 [2014], lv denied 23 N.Y.3d 1043');">23 N.Y.3d 1043 [2014]). In October 2015, defendant moved pursuant to CPL 440.10 to vacate his judgment of conviction on the ground that he was denied the effective assistance of counsel. His motion set forth four failings by his trial attorneys as the basis for his ineffective assistance claim - namely, that counsel failed to (1) use impeachment evidence against the cabdriver, (2) request that a certain lesser included offense be submitted to the jury, (3) object to County Court's allegedly coercive Allen charge and (4) sufficiently articulate and support a request for an instruction on the defense of justification under Penal Law § 35.05. County Court summarily denied the motion without a hearing, finding that all of the allegations of ineffective assistance raised by defendant were procedurally barred by CPL 440.10 because they could have been, but were not, raised on his direct appeal from the judgment. Defendant now appeals.

         CPL 440.10 (2) (c) provides that a motion to vacate a judgment must be denied where, "[a]lthough 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 raise such ground or issue upon an appeal actually perfected" (CPL 440.10 [2] [c]). As we have articulated, "the purpose of a CPL article 440 motion is to inform a court of facts not reflected in the record and unknown at the time of the judgment and cannot be used as a vehicle for an additional appeal" (People v Bruno, 97 A.D.3d 986, 986-987 [2012] [internal quotation marks, brackets, ellipses and citations omitted], lv denied 20 N.Y.3d 931 [2012]; see People v Cooks, 67 N.Y.2d 100, 103-104 [1986]). That said, a claim of ineffective assistance of counsel is not generally demonstrable on the trial record and "in the typical case it would be better, and in some cases essential, that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by collateral or post-conviction proceeding brought under CPL 440.10" (People v Brown, 45 N.Y.2d 852, 853-854 [1978]; accord People v Henderson, 28 N.Y.3d 63, 66 [2016]).

         Contrary to County Court's conclusion, we do not find that all of the alleged failures on the part of trial counsel involve matters adequately reflected in the record that could have been raised upon direct appeal. Defendant's argument that trial counsel was ineffective for failing to impeach the cabdriver "is dependent upon [a] statement[] to the police that [is] outside the record" and, therefore, was properly raised in the context of the instant CPL 440.10 motion (People v Thomas, 105 A.D.3d 1068, 1071 [2013], lv denied 21 N.Y.3d 1010');">21 N.Y.3d 1010 [2013]; see People v Rosado, 13 A.D.3d 902, 903 [2004], lv denied 4 N.Y.3d 835');">4 N.Y.3d 835 [2005]). Defendant also faults trial counsel for failing to request that the crime of assault in the third degree (see Penal Law § 120.00 [3]) be submitted to the jury as a lesser included offense of assault in the second degree (see Penal Law § 120.05 [2]). While it is apparent from the face of the record that counsel did not request submission of assault in the third degree as a lesser included offense, it is axiomatic that "the decision to request or consent to the submission of a lesser included offense is often based on strategic considerations, taking into account a myriad of factors, including the strength of the People's case" (People v McGee, 20 N.Y.3d 513, 519 [2013]; see People v Baker, 14 N.Y.3d 266, 272-273 [2010]; People v Lane, 60 N.Y.2d 748, 750 [1983]; People v Calderon, 66 A.D.3d 314, 320 [2009], lv denied 13 N.Y.3d 858');">13 N.Y.3d 858 [2009]). Because defendant's complaint about counsel in this regard is predicated on counsel's strategy, or lack thereof, which is not discernable from the face of the record, we likewise find that this claim of ineffectiveness may properly be advanced by way of a CPL 440.10 motion (see People v Peque, 22 N.Y.3d 168, 202 [2013], cert denied 135 S.Ct. 90');">135 S.Ct. 90 [2014]; People v Calderon, 66 A.D.3d at 322 n 4).

         The two other allegations of ineffectiveness raised on the motion - that counsel failed to object to County Court's Allen charge and failed to sufficiently articulate and support a request for an instruction on the defense of justification under Penal Law § 35.05 - are, as defendant concedes, based on matters that appear on the face of the record. Yet, relying on People v Maxwell (89 A.D.3d 1108 [2d Dept 2011]), defendant claims that these record-based allegations of ineffectiveness may appropriately be considered together with his nonrecord-based allegations in the context of this CPL 440.10 motion, thereby permitting review of his claim of ineffective assistance in its entirety. For the reasons that follow, we agree.

         As noted, CPL 440.10 directs that a motion to vacate a judgment of conviction must be denied when the trial record contains sufficient facts that would have allowed for "adequate review of the ground or issue raised..., [but] no such appellate review or determination occurred owing to the defendant's... unjustifiable failure to raise such ground or issue upon an appeal actually perfected" (CPL 440.10 [2] [c] [emphasis added]). With regard to a claim of ineffective assistance of counsel, we agree with the Second Department's reasoning in People v Maxwell (supra) that each alleged shortcoming or failure by defense counsel should not be viewed as a separate "ground or issue raised upon the motion" (CPL 440.10 [2] [b]). Rather, a "defendant's claim of ineffective assistance of counsel constitutes a single ground or issue upon which relief is requested" (People v Maxwell, 89 A.D.3d at 1109; see People v Freeman, 93 A.D.3d 805, 806 [2012], lv denied 19 N.Y.3d 960');">19 N.Y.3d 960 [2012]).

         Under this state's firmly established jurisprudence, "[t]he core... inquiry in reviewing ineffective assistance of counsel claims is whether counsel's performance ' viewed in totality ' amounts to 'meaningful representation'" (People v Cummings, 16 N.Y.3d 784, 785 [2011], cert denied 132 S.Ct. 203');">132 S.Ct. 203 [2011], quoting People v Turner, 5 N.Y.3d 476, 480 [2005] [emphasis added]). Indeed, "the claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole" (People v Benevento, 91 N.Y.2d 708, 714 [1998]; accord People v Oathout, 21 N.Y.3d 127, 132 [2013]). Thus, in assessing a claim of ineffective assistance, "[t]he task of a reviewing court is to 'consider the seriousness of the [alleged] errors in their totality '" (People v Wright, 25 N.Y.3d 769, 779 [2015], quoting People v Oathout, 21 N.Y.3d at 132 [emphasis added and brackets omitted]; see People v Arnold, 85 A.D.3d 1330, 1334 [2011]).

         Here, defendant's claim of ineffective assistance of counsel is grounded upon matters appearing both on the record and outside the record, and therefore constitutes, as the Court of Appeals has termed it, a "mixed claim[]" of ineffective assistance (People v Evans, 16 N.Y.3d 571, 575 n 2 [2011], cert denied565 U.S. 912');">565 U.S. 912');">565 U.S. 912');">565 U.S. 912 [2011]; see generally Massaro v United States, 538 U.S. 500 [2003]). Because such claim constitutes a single, unified claim that must be assessed in totality and is dependent, in part, on matters outside the record, it cannot be said that "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" (CPL 440.10 [2] [c]). Such a reading of the statute ensures a criminal defendant's right to have his or her allegations of ineffective assistance evaluated "in totality" (People v Baldi, 54 N.Y.2d 137, 147 [1981]; accord People v Benevento, 91 N.Y.2d at 712), and is thus necessary to "give a defendant a fair opportunity to vindicate his [or her] rights" (People v Cuadrado, 9 N.Y.3d 362, 365 [2007]). We therefore hold that "such a mixed claim, presented in a CPL 440.10 motion, is not procedurally barred, and the CPL 440.10 proceeding is the appropriate forum for reviewing the claim of ineffectiveness in its entirety" (People v Maxwell, 89 A.D.3d at 1109; see People v Moore, 141 A.D.3d 604, 605 [2016]; People v Mentor, 116 A.D.3d 793, 793 [2014]; People v Lou, 95 A.D.3d 1035, 1036 [2012], lv denied19 N.Y.3d 1027');">19 N.Y.3d 1027 [2012]; People v Isaacs, 94 A.D.3d 1017, 1018-1019 [2012], lv denied19 N.Y.2d 997');">19 N.Y.2d 997 [2012]; see generally People v Brown, 45 ...


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