People v. Berroa

• Decision Date: 21 November 2002
• Citation: 782 N.E.2d 1148,99 N.Y.2d 134,753 N.Y.S.2d 12
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DARIO BERROA, Appellant.
• Court: New York Court of Appeals Court of Appeals

99 N.Y.2d 134

782 N.E.2d 1148

753 N.Y.S.2d 12

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DARIO BERROA, Appellant.

Court of Appeals of the State of New York.

Argued October 17, 2002.

Decided November 21, 2002.

Office of the Appellate Defender, New York City (Catharine F. Easterly, Richard M. Greenberg and Daniel A. Warshawsky of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Peter D. Coddington of counsel), for respondent.

Chief Judge KAYE and Judges SMITH, LEVINE, CIPARICK, ROSENBLATT and GRAFFEO concur.

OPINION OF THE COURT

WESLEY, J.

This case calls upon us to examine whether a defendant's right to effective assistance of counsel is compromised when defense counsel stipulates to facts directly contradicting defense witnesses' statements.

Defendant was indicted for murder in the second degree and related offenses stemming from a killing in Bronx County during the afternoon of June 22, 1994. At trial, two eyewitnesses testified to having observed defendant shoot the victim from point-blank range. One indicated that defendant had black hair and distinctive green eyes. The other surmised that the murder was motivated by a drug turf dispute. Decedent's brother also testified to defendant's motivation for the shooting and described defendant's unique green eyes and black hair.

Defense counsel pursued a misidentification defense. In her opening statement, she indicated that "there might be possible discrepancies in identification" and "what the [shooter] looked like." Because a misidentification defense also might imply an alibi for defendant, the prosecutor noted prior to the defense case that no alibi notice had been filed as required by CPL 250.20, and sought confirmation that no alibi defense would be offered. Defense counsel told the court that none of the witnesses or defendant knew their whereabouts at the time of the shooting, and that their testimony would be offered only to establish that defendant's hair was a distinctive yellow-orange color at the time of the shooting.

To establish his defense, defendant called Vivian Rivera, who testified that defendant's hair had been dyed yellow-orange since 1992 and that defendant, who lived in Massachusetts, had been at her home in the Bronx several days before the shooting with his girlfriend, Iris Santiago. Santiago then testified to defendant's yellow-orange hair color, and further indicated that around June 20—two days before the murder— she and defendant traveled to Philadelphia for the birthday party of his sister, Anna Torres.

At the close of Santiago's direct testimony, the court announced at a bench conference that there was a "problem" because Santiago's testimony suggested an alibi. The court and counsel discussed possible remedies, and the court reserved decision on what to do. Santiago on cross testified that she and defendant left Massachusetts around June 20th, spent about an hour in New York and then traveled to Philadelphia where they remained until after June 24, 1994—Torres' birthday. Faced with this unnoticed alibi testimony, the court asked counsel for suggestions on how to proceed. Defense counsel reiterated that none of the defense witnesses had previously been able to recall their whereabouts on June 22, 1994—the day of the shooting.

The next day the People requested that Santiago's testimony be allowed to stand, indicating that the prosecution would inquire when Santiago had first related where she was with defendant on the day of the shooting (see generally People v Dawson, 50 NY2d 311 [1980]

). The People also asked that if Torres testified, she be precluded from offering any testimony about an alibi. The court indicated that Torres could testify about defendant's hair color at the time of the shooting, but expressed concern that her testimony was "inextricably interwoven" with defendant's presence in Philadelphia. Realizing that any limitation of Torres' testimony also might limit cross-examination, the prosecution withdrew its preclusion request.

The court then inquired of defense counsel why Santiago and Torres may have failed to disclose their exculpatory information prior to trial. Counsel indicated that neither she nor any other attorney had encouraged their silence in this regard, and reiterated that the witnesses had previously been unable to pinpoint defendant's whereabouts on the day of the shooting. The court expressed concern that defense counsel might be called as a witness and noted that "it is not desirable that [defense counsel] be called * * * to impeach one of the defense witnesses." Defense counsel agreed and indicated that she might be willing to stipulate that the witnesses had not told her of the alibi information prior to trial.

When the trial resumed, Santiago testified on cross-examination that she had told defense counsel she was with defendant in Philadelphia on the day of the shooting. Torres, who testified next, similarly stated that defendant was with her in Philadelphia from June 20 through June 25 and that she had previously related that fact to defense counsel. Defendant testified that he had yellow-orange hair at the time of the shooting and that he was in Philadelphia from June 20 to June 25 to celebrate his sister's birthday—information that he recalled for the first time at trial after hearing the testimony of Santiago and Torres.

After the defense rested the court and counsel drafted the following stipulation:

"It is stipulated and agreed by [defense counsel] that prior to their appearing in New York to give testimony in this case, Miss Santiago and Miss Torres had spoken with her and that neither Miss Santiago or Miss Torres told [defense counsel] that the defendant Dario Berroa had been in Philadelphia specifically on June 22nd, 1994."

The court read the stipulation to the jury at the start of the People's rebuttal case. During summation defense counsel continued to argue to the jury that the only issue in the case was misidentification. In addressing the alibi testimony and informing the jury of its option to either "disregard" or "look at" the testimony, defense counsel also stated "you heard my stipulation."

Defendant was found guilty of murder in the second degree and sentenced to 25 years to life imprisonment. The Appellate Division affirmed defendant's conviction, rejecting his ineffective assistance of counsel claim. One Justice dissented and granted defendant leave to appeal to this Court.

As an initial matter, unlike the majority and the dissent at the Appellate Division, we do not view defense counsel's revelation of the witnesses' prior statements to be based on either an overzealous defense of her reputation or the fulfillment of her ethical duties. Before any potential conflict had arisen, and before any defense witnesses had testified, defense counsel initially disclosed the information to explain why no alibi notice had been filed. The attempt to remedy the dilemma that unfolded once the witnesses testified—not defense counsel's reason for the disclosure—is the appropriate focus of our analysis.

Defendant claims that he was deprived of his constitutional right to conflict-free counsel when his attorney agreed to stipulate that Santiago and Torres had not previously informed her that defendant was in Philadelphia on the day of the shooting. Defendant contends that the stipulation transformed his advocate into an adverse witness whose credibility was pitted against his other witnesses. Under the unusual facts of this case, we agree.

The right to effective assistance of counsel in criminal proceedings is guaranteed by the New York and Federal Constitutions (see US Const 6th Amend; NY Const, art I, § 6). Our state standard for effective assistance of counsel "has long been whether the defendant was afforded `meaningful representation'" (People v Henry, 95 NY2d 563, 565 [2000], quoting People v Benevento, 91 NY2d 708, 712 [1998]). In applying this standard we have emphasized the difference between ineffective representation and losing trial tactics (see Benevento, 91 NY2d at 712

). Indeed, counsel's performance will not be considered ineffective, even if unsuccessful, as long as it reflects an objectively reasonable and legitimate trial strategy under the circumstances and evidence presented (see id. at 712-713; People v Satterfield, 66 NY2d 796, 799 [1985]). "What constitutes effective assistance of counsel is not and cannot be fixed with yardstick precision, but varies according to the unique circumstances of each representation" (People v Baldi, 54 NY2d 137, 146 [1981]).

An ineffective assistance of counsel claim also may be premised on a conflict of interest. The right to effective counsel ensures not only meaningful representation but also the assistance of counsel that is "conflict-free and singlemindedly devoted to the client's best interests" (People v Longtin, 92 NY2d 640, 644 [1998], cert denied 526 US 1114 [1999]; see also People v Ortiz, 76 NY2d 652, 656 [1990]

). That right is impaired when, absent a defendant's informed consent, defense counsel represents interests which are actually or potentially in conflict with those of the defendant (see People v McDonald, 68 NY2d 1, 8 [1986]; see also Longtin, 92 NY2d at 644). Conflicting interests may arise in the simultaneous representation of clients with adverse interests (see Ortiz, 76 NY2d at 656; McDonald, 68 NY2d at 9; People v Mattison, 67 NY2d 462, 468 [1986],

cert denied 479 US 984 [1986]), or in successive representations because of an attorney's duty to maintain the former client's confidences even after representation has ceased (see Longtin, 92 NY2d at 644; Ortiz, 76 NY2d at 656; People v Alicea, 61 NY2d 23, 29 [1983]; People v Krausz, 84 NY2d 953 [1994]).

Defense counsel's stipulation in this case presents a circumstance somewhat different from the simultaneous or successive representations usually associated with conflict of interest analysis. The conflict...