People v. Benevento

Citation697 N.E.2d 584,91 N.Y.2d 708,674 N.Y.S.2d 629
Parties, 697 N.E.2d 584, 1998 N.Y. Slip Op. 5925 The PEOPLE of the State of New York, Appellant, v. Nicholas BENEVENTO, Respondent.
Decision Date11 June 1998
CourtNew York Court of Appeals
OPINION OF THE COURT

SMITH, Judge.

Defendant successfully claimed at the Appellate Division that he was deprived of his constitutional right to the effective assistance of counsel. We conclude that, upon this record, defendant received meaningful representation. Accordingly, the order of the Appellate Division should be reversed.

Shortly after 2:00 A.M. on June 17, 1993, the complainant was walking down Bleecker Street in Manhattan when she noticed a man following closely behind her. After a brief verbal exchange with defendant, she crossed the street and turned away. At this point, defendant ran up behind her and knocked her to the ground. Defendant began slapping and punching the woman in the face while screaming obscenities at her. The woman also felt defendant's hands fondling her breasts and pelvic area. When some bystanders approached to assist the woman, defendant stole $15 from her pocket and ran off. Chased by the group, defendant discarded the stolen money but ultimately surrendered to one of his pursuers.

As he was escorted to the crime scene, defendant admitted to stealing the complainant's money. Defendant made a similar confession to the police officers upon his arrest and confessed a third time to an Assistant District Attorney during later questioning. Defendant tried to explain that, prior to the incident, he had been drinking "a lot of Jack Daniels," and, upon observing the complainant, he "said something stupid to her and then went crazy on her." Defendant was indicted and charged with robbery in the second degree.

From his opening statement to the jury, defense counsel indicated that his strategy was to convince the jury that defendant lacked the requisite intent to deprive the complainant of her property. While counsel conceded that defendant assaulted the complainant, counsel argued "that there [was] abundant doubt, not just reasonable doubt that [defendant] intended to deprive the complaining witness of any property whatsoever," an essential element to convict defendant of the sole crime charged in the indictment. In light of that strategy, counsel noted that defendant already had $200 on his person at the time of the alleged robbery. Counsel also adduced evidence that defendant was too intoxicated to form the requisite intent. Although counsel did not highlight the evidence of intoxication during his summation to the jury, he requested and received a jury instruction in that regard.

Defendant points to counsel's other efforts that he now claims were deficient. For example, counsel indicated during his opening statement that defendant would testify as to a lack of intent, but defendant ultimately did not take the stand. Counsel also requested, but was denied, a jury charge on assault as a "lesser included offense." * Finally, counsel delivered a summation and used hypotheticals that the Trial Judge ruled, on objection by the People, irrelevant to the case. Nevertheless, counsel's summation reiterated the primary strategy of the defense, that defendant lacked the requisite intent to deprive the complainant of her property.

The jury convicted defendant of second degree robbery. Defendant was sentenced to an indeterminate prison term of 1 1/2 to 4 1/2 years. A majority at the Appellate Division found that the trial record demonstrated that defendant had not received "meaningful assistance" because counsel's conduct indicated "no discernible defense strategy" (239 A.D.2d 132, 133, 657 N.Y.S.2d 606). One Justice dissented and concluded that "counsel [had] pursued the only viable defense based on the evidence": attempting to convince the jury that defendant was "not guilty of robbery based on the lack of evidence of intent to steal" (239 A.D.2d, at 134, 136, 657 N.Y.S.2d 606). We agree with the dissent and reverse the order of the Appellate Division.

I

An "essential ingredient in our system of criminal jurisprudence, rooted deeply in our concept of a fair trial within the adversarial context" (People v. Felder, 47 N.Y.2d 287, 295, 418 N.Y.S.2d 295, 391 N.E.2d 1274) is the right to the assistance of counsel guaranteed under both the Federal and State Constitutions (see, U.S. Const., 6th Amend; N.Y. Const., art. I, § 6). The constitutional mandate extends to the giving of "effective" aid (Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158) which generally means "the reasonably competent services of an attorney devoted to the client's best interests" (People v. Ortiz, 76 N.Y.2d 652, 655-656, 563 N.Y.S.2d 20, 564 N.E.2d 630; People v. Bennett, 29 N.Y.2d 462, 466, 329 N.Y.S.2d 801, 280 N.E.2d 637 [the right "means more than just having a person with a law degree nominally represent (defendant) upon a trial and ask questions"] ). The fundamental right to the " 'effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial' " in an adversarial system of justice (People v. Claudio, 83 N.Y.2d 76, 80, 607 N.Y.S.2d 912, 629 N.E.2d 384 [citation omitted] ).

The phrase "effective assistance" is not, however, amenable to precise demarcation applicable in all cases (see, People v. Baldi, 54 N.Y.2d 137, 146, 444 N.Y.S.2d 893, 429 N.E.2d 400 ["(w)hat constitutes effective assistance * * * varies according to the unique circumstances of each representation"]; People v. Rivera, 71 N.Y.2d 705, 708, 530 N.Y.S.2d 52, 525 N.E.2d 698). Thus, this Court has long applied a flexible standard to analyze claims based upon a deprivation of rights guaranteed under the New York State Constitution due to counsel's alleged ineffectiveness. As we have held, "[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, at 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). The core of the inquiry is whether defendant received "meaningful representation."

In applying this standard, counsel's efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective (see, People v. Satterfield, 66 N.Y.2d, at 799, 497 N.Y.S.2d 903, 488 N.E.2d 834). The Constitution guarantees the accused a fair trial, not necessarily a perfect one (see, People v. Flores, 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19; People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 ["The phrase 'meaningful representation' does not mean 'perfect representation' "]; People v. Aiken, 45 N.Y.2d 394, 398, 408 N.Y.S.2d 444, 380 N.E.2d 272 ["representation * * *need not be errorless"]; People v. Modica, 64 N.Y.2d 828, 486 N.Y.S.2d 931, 476 N.E.2d 330 ["the test being 'reasonable competence', not perfect representation"] ). That a defendant was convicted may have little to do with counsel's performance, and courts are properly skeptical when "disappointed prisoners try their former lawyers on charges of incompetent representation" (People v. Brown, 7 N.Y.2d 359, 361, 197 N.Y.S.2d 705, 165 N.E.2d 557).

Accordingly, a reviewing court must avoid confusing "true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis" (People v. Baldi, 54 N.Y.2d, at 146, 444 N.Y.S.2d 893, 429 N.E.2d 400). Rather, "it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations" for counsel's alleged shortcomings (People v. Rivera, 71 N.Y.2d, at 709, 530 N.Y.S.2d 52, 525 N.E.2d 698; compare, People v. Flores, 84 N.Y.2d 184, 615 N.Y.S.2d 662, 639 N.E.2d 19, supra with People v. Bennett, 29 N.Y.2d 462, 465, 329 N.Y.S.2d 801, 280 N.E.2d 637, supra; People v. Droz, 39 N.Y.2d 457, 463, 384 N.Y.S.2d 404, 348 N.E.2d 880; People v. Gonzalez, 47 N.Y.2d 606, 611, 419 N.Y.S.2d 913, 393 N.E.2d 987). Counsel's performance should be "objectively evaluated" (People v. Angelakos, 70 N.Y.2d 670, 673, 518 N.Y.S.2d 784, 512 N.E.2d 305) to determine whether it was consistent with strategic decisions of a "reasonably competent attorney" (People v. Satterfield, 66 N.Y.2d 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834, supra; People v. Angelakos, 70 N.Y.2d 670, 673, 518 N.Y.S.2d 784, 512 N.E.2d 305, supra). As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance (see, e.g., People v. Lane, 60 N.Y.2d 748, 750, 469 N.Y.S.2d 663, 457 N.E.2d 769). As we have stated,

"[t]o prevail on a claim of ineffective assistance, defendants must demonstrate that they were 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" (People v. Flores, 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19, supra).

The Federal standard for claims of ineffective assistance based upon a counsel's performance was set forth by the Supreme Court in Strickland v. Washington (466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674). The two-part Strickland test requires a showing that "counsel's performance was deficient and that the deficiency in performance prejudiced defendant" (People v. Ford, 86 N.Y.2d 397, 405, 633 N.Y.S.2d 270, 657 N.E.2d 265, supra). As to the "prejudice" aspect, "defendant must show that there is a reasonable probability that, but for counsel's...

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