People v. Dietz

• Citation: 437 N.Y.S.2d 185,79 A.D.2d 476
• Parties: PEOPLE of the State of New York, Respondent, v. John DIETZ, Appellant.
• Decision Date: 27 March 1981
• Court: New York Supreme Court — Appellate Division

Page 185

437 N.Y.S.2d 185

79 A.D.2d 476

PEOPLE of the State of New York, Respondent, v. John DIETZ, Appellant.

Supreme Court, Appellate Division, Fourth Department.

March 27, 1981.

Richard H. Speranza, Lockport (Paul Crapsi, Niagara Falls, of counsel), for appellant.

Russell D. Coogan, Lockport (Shavasp Hanesian, Niagara Falls, of counsel), for respondent.

Before HANCOCK, J. P., and CALLAHAN, DOERR, DENMAN and SCHNEPP, JJ.

SCHNEPP, Justice.

Defendant and Guyon Fisher were charged with the crimes of second degree arson and criminal mischief incident to the burning of the Eugene Boesken home located at 206-208 57th Street in Niagara Falls on September 16, 1978 and third degree arson and second degree criminal mischief incident to the burning of an unoccupied building located at 144 56th Street in Niagara Falls on May 20, 1976. Defendant appeals from judgments of conviction of all crimes charged entered upon a jury verdict claiming, inter alia, that there should be a reversal and a new trial because he was deprived of his constitutional right to the effective assistance of counsel.

The People's case was based upon the testimony of Guyon Fisher who admitted that he set both fires but who claimed that he did so under pressure from defendant and at his urging. Fisher testified that the fire at 144 56th Street was racially motivated: the owner had contracted to sell the house to a black family and defendant did not want blacks moving into the neighborhood. According to Fisher burglary charges were pending against him and defendant promised that his father would insure a sentence of probation for him if he set fire to the house. With regard to the Boesken fire, Fisher testified that defendant wanted it set on fire because of an argument earlier that day between Barry Boesken, Jr. and defendant, who threatened to have his father revoke Fisher's bail bond unless he set the blaze.

Defendant contends that the record is replete with errors committed by his retained trial counsel which, taken as a whole, amounts to ineffective assistance of counsel so as to have deprived him of a fair trial. Specifically, defendant claims that his counsel erred in eliciting testimony from prosecution witnesses Eugene Boesken, Lieutenant Leonard Smith, Guyon Fisher, and Mike Castille implicating him in several uncharged arsons. The People contend that this was a deliberate trial strategy employed by defense counsel to illustrate that defendant had been falsely accused of arson in the past, most notably by Fisher, and that there was an "arson ring" in the area.

Unsuccessful trial tactics do not amount to ineffective assistance of counsel in every case (People v. DeMauro, 48 N.Y.2d 892, 424 N.Y.S.2d 884, 400 N.E.2d 1336; People v. Aiken, 45 N.Y.2d 394, 399-400, 408 N.Y.S.2d 444, 380 N.E.2d 272; People v. Jackson, 74 A.D.2d 585, 586-587, 424 N.Y.S.2d 484). Nor is the right to counsel "intended to afford a defendant, aided by the wisdom of hindsight, (an opportunity) to second guess matters of trial strategy employed by counsel" (People v. Aiken, 45 N.Y.2d 394, supra, p. 399, 408 N.Y.S.2d 444, 380 N.E.2d 272). The pivotal issue is always whether counsel, appointed or retained, failed to provide effective representation so as to deprive the defendant of a fair trial (see People v. Pritchett, 48 N.Y.2d 933, 425 N.Y.S.2d 57, 401 N.E.2d 180; People v. Aiken, 45 N.Y.2d 394, supra, p. 401, 408 N.Y.S.2d 444, 380 N.E.2d 272). Furthermore, where defense counsel elicits incriminating evidence against his own client, which is not part of any discernible or reasonably plausible trial strategy, courts have not been hesitant to reverse convictions (see People v. Pritchett, 48 N.Y.2d 933, 425 N.Y.S.2d 57, 401 N.E.2d 180, supra; People v. Jones, 25 N.Y.2d 637, 306 N.Y.S.2d 17, 254 N.E.2d 232; People v. Baldi, 76 A.D.2d 259, 429 N.Y.S.2d 677).

The record establishes that defense counsel's cross-examination of prosecution witnesses implicated defendant in three specific uncharged arsons set at his insistence and request according to Fisher, elicited hearsay testimony that the defendant was responsible for "a dozen other fires" in the 56th Street area, and established that numerous arsons occurred in the 56th Street area. Defense counsel's development of these criminal accusations and crimes outside of the scope of the indictment are "so prejudicial to the defendant as to deprive him of his right to a fair trial in conformance with constitutional standards" (People v. Jones, 30 A.D.2d 1038, 1039, affd. 25 N.Y.2d 637, 306 N.Y.S.2d 17, 254 N.E.2d 232, supra), unless counsel's conduct is justified by a "reasonably plausible strategy decision" (People v. Pritchett, 48 N.Y.2d 933, supra, p. 935, 425 N.Y.S.2d 57, 401 N.E.2d 180). The mere fact, however, that counsel's conduct, in eliciting what on the surface appears to be incriminating testimony, may be characterized as a trial tactic does not immunize such conduct from scrutiny. The quality of counsel's representation is measured by a "flexible framework" (People v. Aiken, 45 N.Y.2d 394, 408 N.Y.S.2d 444, 380 N.E.2d 272, supra) not confined by the "mockery of justice test" (People v. Tomaselli, 7 N.Y.2d 350, 197 N.Y.S.2d 697, 165 N.E.2d 551) nor limited to the "reasonable competence criteria" (People v. Droz, 39 N.Y.2d 457, 462, 384 N.Y.S.2d 404, 348 N.E.2d 880; see, also, People v. Wise, 64 A.D.2d 272, 409 N.Y.S.2d 877; People v. Smith, 61 A.D.2d 91, 401 N.Y.S.2d 353).

Accordingly, we must examine the record to discern the existence of any consistent and plausible strategy employed by defense counsel, i. e., any explanation for the challenged aspect of representation, and whether the explanation demonstrates that counsel was a reasonably competent, conscientious and diligent advocate. Given Fisher's testimony which was amply corroborated by other witnesses, the issue of guilt was not a close one and the likelihood of a favorable jury verdict was remote. Under these circumstances defense counsel was certainly justified in developing a trial strategy which, if believed, provided some possibility of an acquittal. In his opening remarks defense counsel told the jury that he could not tell them what took place (at the fires) and that the defendant had "no side" (to the prosecution theory of the case) because he was not involved in the arsons although he would take the stand. Counsel also pointed out that the prosecution's opening statement failed to explain the circumstances surrounding Fisher's acts. "They wanted to talk about some big ring in this area, they wanted to include Mr. Dietz, who for years has been trying to better the area". Counsel stated that the defense would find...