People v. Aiken

• Decision Date: 11 July 1978
• Citation: 408 N.Y.S.2d 444,45 N.Y.2d 394,380 N.E.2d 272
• Parties: , 380 N.E.2d 272 The PEOPLE of the State of New York, Respondent, v. Warren AIKEN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 444

408 N.Y.S.2d 444

45 N.Y.2d 394, 380 N.E.2d 272

The PEOPLE of the State of New York, Respondent, v. Warren AIKEN, Appellant.

Court of Appeals of New York.

July 11, 1978.

Joseph D. De Salvo, White Plains, for appellant

Carl A. Vergari, Dist. Atty. (Anthony J. Servino, White Plains, of counsel), for respondent.

OPINION OF THE COURT

JASEN, Judge.

This appeal raises the issue whether appellant, who voluntarily and willfully absented himself from trial, was denied the right to effective assistance of counsel.

In the late evening hours of July 24, 1970, two detectives of the New Rochelle Police Department, on patrol in an unmarked car, received a call directing them to proceed to a private residence in New Rochelle. Upon arriving at the subject premises and approaching the house, one of the detectives observed a figure drop to the ground and attempt to roll under shrubbery adjacent to the house. Shining a flashlight on the figure, the detective ordered that he roll out onto the grass, a directive with which appellant, clad in gloves, complied. Contemporaneous with the appellant's apprehension, the arresting detective's partner conducted a search of the remainder of the premises, during the course of which he engaged in an unsuccessful attempt to apprehend a second individual whom he had also observed drop from the second floor balcony. Subsequent investigation of the house revealed that a windowpane in a door on the second floor balcony had been broken and the door itself left ajar. The master bedroom lay in a state of disarray, with the contents of a dresser drawer having been dumped on the floor.

Appellant, together with another, William Thorne, was indicted and charged with burglary in the second degree. (Penal Law, § 140.25.) Although the case was set down for trial on December 13, 1971, appellant failed to appear, necessitating the issuance of a bench warrant for his arrest. Appellant did appear the following day, and, after adjournment, the trial began with the Voir dire Of the jurors on December 15. Inasmuch as only nine jurors were selected that day, the Voir dire was scheduled to continue on the 16th; however, appellant failed to appear. When on the 17th appellant again did not appear, the court found appellant's absence willful and voluntary and, therefore, ordered that the trial proceed in his absence, notwithstanding that only nine jurors had been sworn. Appellant's retained counsel moved for a mistrial on the ground that jeopardy had not yet attached. The court denied the motion and directed counsel to continue with appellant's defense in his absence.

At the conclusion of the trial, the jury returned a verdict convicting appellant of burglary in the second degree, but acquitted his codefendant Thorne, who was present throughout the trial and represented by separate counsel. The Appellate Division unanimously affirmed the conviction. On this appeal, appellant maintains that he was denied the right to effective assistance of counsel. Specifically, he points to counsel's waiver of an opening and closing statement; failure to cross-examine witnesses called by either the People or his codefendant; failure to call witnesses to testify on appellant's behalf; and, finally, failure to object to the introduction of any evidence by either the People or his codefendant.

Upon this record, we hold that appellant was not denied the right to effective assistance of counsel. At the outset, we note that although a defendant charged with a felony not punishable by death may, by his voluntary and willful absence from trial, waive his right to be present at every stage of his trial and to confront witnesses who testify against him (People v. Epps, 37 N.Y.2d 343, 349, 372 N.Y.S.2d 606, 611, 334 N.E.2d 566, 570; cert. den.423 U.S. 999, 96 S.Ct. 430, 46 L.Ed.2d 374; People v. Johnson, 37 N.Y.2d 778, 779, 375 N.Y.S.2d 97, 337 N.E.2d 605; People v. Byrnes, 33 N.Y.2d 343, 349, 352 N.Y.S.2d 913, 917, 308 N.E.2d 435, 437; People ex rel. Lupo v. Fay,13 N.Y.2d 253, 257, 246 N.Y.S.2d 399, 401, 196 N.E.2d 56, 58, cert. den.376 U.S. 958, 84 S.Ct. 979, 11 L.Ed.2d 976; People v. Winship, 309 N.Y. 311, 313, 130 N.E.2d 634, 635; People v. La Barbera, 274 N.Y. 339, 343, 8 N.E.2d 884, 885), he may not, by absence alone, waive his right to effective assistance of counsel. (See People v. Johnson, supra.) This right, guaranteed by both the Federal and State Constitutions (U.S.Const., 6th Amdt.; N.Y.Const. art. I, § 6; see People v. Medina, 44 N.Y.2d 199, 207, 404 N.Y.S.2d 588, 592, 375 N.E.2d 768, 772), is not, we have often said, susceptible to precise delineation. (See People v. Droz, 39 N.Y.2d 457, 462, 384 N.Y.S.2d 404, 407, 348 N.E.2d 880, 882; People v. La Bree, 34 N.Y.2d 257, 260, 357 N.Y.S.2d 412, 414, 313 N.E.2d 730, 731; People v. Bennett, 29 N.Y.2d 462, 466, 329 N.Y.S.2d 801, 803, 280 N.E.2d 637, 638.) Nonetheless, given the judicial need for the application of some standard with which to gauge the representation provided by defense counsel, we have attempted in the past to formulate a threshold standard, and, in so doing, have held that although counsel's representation of a defendant need not be errorless (People v. La Bree, 34 N.Y.2d, at pp. 260-261, 357 N.Y.S.2d, at p. 414, 313 N.E.2d, at p. 731 Supra ), it must not be such as to render the defendant's " 'trial a farce and a mockery of justice' ". (People v. Brown, 7 N.Y.2d 359, 361, 197 N.Y.S.2d 705, 707, 165 N.E.2d 557, 558, cert. den. 365 U.S. 821, 81 S.Ct. 703, 5 L.Ed.2d 698; People v. Bennett, 29 N.Y.2d, at p. 467, Supra, 329 N.Y.S.2d at 804, 280 N.E.2d at p. 639; People v. Tomaselli, 7 N.Y.2d 350, 354, 197 N.Y.S.2d 697, 700, 165 N.E.2d 551, 553.) In recent years, however, we have displayed a greater desire to avoid the confining strictures of a standard presumptively applicable to all cases. In People v. Droz (supra), for example, rather than measuring the quality of counsel's representation of the defendant in terms of the "mockery of justice" standard, we concluded only that upon the facts of that case counsel's omissions and errors precluded us from finding that his representation of the defendant "was adequate or effective in any meaningful sense of the words." (39 N.Y.2d, at p. 463, 384 N.Y.S.2d 404, 408, 348 N.E.2d 880, 883, Supra.)

We recognize that in our quest for the development of a flexible framework within which to ensure a defendant's right to receive effective legal representation, we are not alone. Particularly in the Federal courts there rages intense debate over the level of legal representation which can be said to constitute ineffective counsel. While a number of the Circuit Courts of Appeals continue to apply the traditional "mockery of justice" standard (see, e. g., Rickenbacker v. Warden, 2 Cir., 550 F.2d 62, 65, cert. den. 434 U.S. 826, 98 S.Ct. 103, 54 L.Ed.2d 85; United States v. Madrid Ramirez, 1 Cir., 535 F.2d 125, 129; Coney v. Wyrick, 8 Cir., 532 F.2d 94, 98-99), it would appear that the majority of circuits have adopted a more stringent standard of "reasonable competence" (see, e. g., United States v. Fessel, 5 Cir., 531 F.2d 1275, 1278; United States v. Elksnis, 9 Cir., 528 F.2d 236, 238; United States v. Toney, 6 Cir., 527 F.2d 716, 720, cert. den. 429 U.S. 838, 97 S.Ct. 107, 50 L.Ed.2d 104; United States v. De Coster, 159 U.S.App.D.C. 326, 487 F.2d 1197, 1202; United States ex rel. Spencer v. Warden, 7 Cir., 545 F.2d 21, 25 (minimum standard of professional representation); United States ex rel. Johnson v. Johnson, 3 Cir., 531 F.2d 169, 174, cert. den. 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (exercise of customary skill and knowledge)).

In the present case, however, application of either standard mandates the conclusion that appellant was not denied the right to effective assistance of counsel. Whether representation of counsel was effective cannot be determined in a vacuum. An act or omission on the part of counsel, which in one case might constitute error, need not constitute error in all cases. The right to counsel was not intended to afford a defendant, aided by the wisdom of hindsight, to second guess matters of trial strategy employed by counsel. Significantly, although a defendant may not, by absence alone, waive his right to effective legal representation, his absence must, of necessity, be taken into consideration on the issue of counsel's effectiveness. To be sure, a defendant's absence from trial may severely hamper even the most diligent counsel's ability to represent his client effectively.

Before analyzing appellant's specific contentions as to his counsel's alleged inefffectiveness, we emphasize that a defendant who absents himself from trial may not succeed on appeal by raising counsel's purported ineffectiveness where counsel affirmatively, as a matter of trial strategy, sought to obstruct the trial of his client. Having previously held that a defendant who voluntarily and willfully absents himself from trial waives his right to confrontation and to be present at his trial, we would erode, if not...