People v. Benevento

• Decision Date: 06 May 1997
• Citation: 239 A.D.2d 132,657 N.Y.S.2d 606
• Parties: The PEOPLE of the State of New York, Respondent, v. Nicholas BENEVENTO, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 606

657 N.Y.S.2d 606

239 A.D.2d 132

The PEOPLE of the State of New York, Respondent, v. Nicholas BENEVENTO, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

May 6, 1997.

Michael S. Morgan, for Respondent.

Kimberlianne Podlas, for Defendant-Appellant.

Before MURPHY, P.J., and ROSENBERGER, RUBIN and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, New York County (Jay Gold, J.), rendered May 12, 1994, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him to a term of 1 1/2 to 4 1/2 years imprisonment, reversed, on the law, and the matter remanded to Supreme Court for a new trial.

Defendant contends that the record in this matter, which he has not expanded by means of a motion pursuant to CPL 440.10, establishes that he was deprived of his right to the effective assistance of counsel (U.S. Const. 6th Amend.; N.Y. Const., art. I, § 6). Violation of this right is normally asserted in the context of a CPL 440.10 motion because, in the usual case, "ineffectiveness of counsel is not demonstrable on the main record" (People v. Brown, 45 N.Y.2d 852, 853, 410 N.Y.S.2d 287, 382 N.E.2d 1149). The difficulty in assessing counsel's effectiveness solely upon the trial record is that it provides no explanation of counsel's tactics (People v. Diaz, 220 A.D.2d 260, 261, 632 N.Y.S.2d 82). For example, where the failure to request a particular hearing is in issue, the courts will necessarily presume that counsel exercised professional judgment unless the defendant can demonstrate that the asserted omission lacked a strategic or other legitimate explanation (People v. Rivera, 71 N.Y.2d 705, 530 N.Y.S.2d 52, 525 N.E.2d 698). However, where the record "demonstrates beyond cavil that defendant was lacking effective counsel", reversal is warranted (People v. Brown, supra, at 853, 410 N.Y.S.2d 287, 382 N.E.2d 1149).

The record in the case before us discloses no discernible defense strategy and clearly indicates that counsel failed either to conduct meaningful cross-examination or to deliver a coherent summation. In his opening statement, the jury was told that defendant would be giving testimony, and its substance was outlined for the jurors. Defendant, however, never took the witness stand. At the charge conference, counsel asked for a jury instruction on intoxication, but he made no use of this defense during trial and even objected when witnesses made reference to defendant's drunkenness. Counsel requested that the jury be instructed on the lesser included offense of assault in the third degree, but based his argument that this was not a case of robbery but a case of assault on the outmoded precedent of People v. Lett (39 N.Y.2d 966, 387 N.Y.S.2d 106, 354 N.E.2d 846; see, People v. Miguel, 53 N.Y.2d 920, 440 N.Y.S.2d 923, 423 N.E.2d 400). He was successful in obtaining a Sandoval ruling precluding examination into the details of a prior guilty plea in a rape prosecution that also involved robbery. Even this accomplishment, however, was severely compromised. Having elicited from the arresting officer, over the prosecutor's objection, that defendant thought the case "was being turned into a rape instead of a robbery", counsel persisted in asking why defendant had reached this conclusion, evoking the response, "He said that he had done this once before."

While " 'meaningful representation' does not mean 'perfect representation' " (People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265, quoting People v. Modica, 64 N.Y.2d 828, 829, 486 N.Y.S.2d 931, 476 N.E.2d 330), the record before us demonstrates that defense counsel's representation was less than meaningful under the circumstances (People v. Satterfield, 66 N.Y.2d 796, 798-799, 497 N.Y.S.2d 903, 488 N.E.2d 834). Despite the bizarre circumstances of the crime, defense counsel failed to pursue a coherent strategy to demonstrate that defendant lacked the capacity to formulate the intent to steal, which is "an indispensable ingredient of the crime of robbery (People v. Lopez, 58 A.D.2d 516, 395 N.Y.S.2d 455)[and] must independently be established beyond a reasonable doubt" (People v. Ramos, 83 A.D.2d 817, 442 N.Y.S.2d 61). However, it is understatement to observe that the record also contains overwhelming evidence of defendant's guilt, much of it provided by defendant himself, variously to passersby who assisted in his apprehension, to police officers who responded to the scene and to the Assistant District Attorney who first interviewed him. An eyewitness testified to seeing defendant strike the victim about the face as she lay on the ground trying to fend off his attack, and a police officer testified that it was defendant who led him to the money defendant removed from the person of the victim and discarded during the ensuing pursuit. Defendant subsequently recounted these facts to an Assistant District Attorney. A motion to suppress his statements was denied, and no issue has been raised on appeal concerning this ruling.

As the Court of Appeals remarked in People v. Brown, supra, at 853, 410 N.Y.S.2d 287, 382 N.E.2d 1149, "The result of reversal is unfortunate since the guilt of defendant was, and even with effective counsel most likely would have been, established by overwhelming evidence." Nevertheless, the standard espoused by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, requiring that the defendant demonstrate both that "counsel's performance was deficient and that the deficiency in performance prejudiced defendant" (People v. Ford, supra, at 405, 633 N.Y.S.2d 270, 657 N.E.2d 265), has not been adopted in this State (People v. Claudio, 83 N.Y.2d 76, 79, 607 N.Y.S.2d 912, 629 N.E.2d 384; see also, People v. Vilardi, 76 N.Y.2d 67, 74, n. 3, 556 N.Y.S.2d 518, 555 N.E.2d 915). The standard under the New York Constitution (art. 1, § 6) remains that stated in People v. Baldi (54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400): "So 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." As we conclude, on the record before us, that defendant's representation was not meaningful under the totality of the circumstances, the judgment of conviction must be reversed.

All concur except MAZZARELLI, J., who dissents in a memorandum as follows:

MAZZARELLI, Justice (dissenting).

The majority holds that the defendant was deprived of his constitutional right to the effective assistance of counsel because of what they characterize as an absence of any "discernible defense strategy," and additional errors committed by trial counsel. However, I believe that the majority has misread the record, and that counsel pursued the only viable defense based on the evidence. Thus, I conclude that defendant received meaningful representation in this practically indefensible case, and respectfully dissent.

In the early morning hours of June 17, 1993, the complainant was walking south on 8th Avenue in the West Village when she noticed a man, later identified as this defendant, following closely behind her. She became concerned and stopped, intending to let him pass, but defendant also stopped and asked her if she was afraid to have people walking behind her. The complainant said no, and then crossed the street and turned down Bleecker Street. When she reached the corner of Bank Street she heard footsteps running up behind her, and suddenly defendant knocked her to the ground and began slapping and punching her in the face, while screaming obscenities at her. The complainant further felt defendant's hands fondling her breasts and pelvic area.

A paramedic and another citizen, both in the immediate vicinity, heard the complainant's screams, and observed defendant on top of her striking her. Both men yelled to defendant to stop, and he did. Several passersby, including a truck driver who had observed the assault from his truck, began chasing defendant. The truck driver eventually left his truck and spoke to defendant, initially advising him to flee. Defendant did not flee, and the truck driver escorted him back to the scene of the assault. On the way, defendant told the truck driver "I got to stop doing this, I'm beating people up to get their money so I can get drunk, so I can drink."

At the scene, defendant admitted to the arresting officer that he "went crazy," and offered to lead him to the money he had taken from the complainant. Defendant led him to a location on nearby West 4th Street, where the officer recovered three $5 bills. Back at the scene, the complainant stated that $15 was missing from her pocket. The defendant, who had the odor of alcohol on his breath, glassy eyes, and $200 cash in his pocket, was placed under arrest.

In an interview conducted the next day by an Assistant District Attorney, defendant stated that prior to the incident he had been drinking "a lot of Jack Daniels," and then upon observing the complainant on 8th Avenue, he "said something stupid to her and then went crazy on her." At one point when the prosecutor stepped out of the interview room, defendant told the arresting officer that the prosecutor was trying to turn this incident "into a rape instead of a robbery" because he "had done th[at] once before."

Notwithstanding the overwhelming evidence against him, defendant contends he is entitled to a new trial because his counsel was ineffective. ¹ The standard for measuring ineffective assistance of counsel claims under the New York State Constitution is whether, after viewing all the relevant facts and circumstances at the time of the representation, the attorney provided meaningful representation (People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265; People v. Baldi, 54 N.Y.2d...