People v. Evans

• Decision Date: 31 March 2011
• Parties: The PEOPLE of the State of New York, Respondent,v.Shareef EVANS, Appellant.
• Court: New York Court of Appeals Court of Appeals

16 N.Y.3d 571
949 N.E.2d 457
925 N.Y.S.2d 366
2011 N.Y. Slip Op. 02482

The PEOPLE of the State of New York, Respondent,
v.
Shareef EVANS, Appellant.

Court of Appeals of New York.

March 31, 2011.

[925 N.Y.S.2d 366]

Legal Aid Society, New York City, (William B. Carney and Steven Banks of counsel), for appellant.Richard A. Brown, District Attorney, Kew Gardens (Jennifer Hagan and John M. Castellano of counsel), for respondent.

[16 N.Y.3d 573] [949 N.E.2d 457] OPINION OF THE COURT PIGOTT, J.

The primary issue presented on this appeal is whether defendant's trial counsel was ineffective for failing to raise a statute of limitations defense. Based on the record before us, we conclude that he was not.

On October 3, 1993, defendant, 15 years old at the time, shot and killed a cab driver in Queens. Nearly eight years later, he was indicted on three counts of murder in the second degree (Penal Law § 125.25[1], [2], [3] ) and one count of manslaughter in the first degree (Penal Law § 125.20). The manslaughter count was subject to a five-year statute of limitations ( see CPL 30.10[2][b] ).

Following a bench trial, defendant was acquitted of murder but convicted of manslaughter.

Defendant then appealed his conviction and at about the same time, through assigned counsel, filed a motion pursuant to CPL 440.10 to vacate his conviction. In his motion he claimed, as relevant to this appeal, that his attorney was ineffective for failing to raise the statute of limitations defense with respect to the manslaughter count.¹ Trial counsel saw fit to provide two affirmations with respect to the motion, one for each side. In the [16 N.Y.3d 574] affirmation provided for defendant, he stated that he did not consider raising any defense at all and that “perhaps [he] was mistaken and ‘maybe [he] had missed

[949 N.E.2d 458 , 925 N.Y.S.2d 367]

something.’ ” In the affirmation he provided the People, he averred that “[h]ad [he] considered a statute of limitations defense ..., [he] would not have raised it, because [he] would have wanted the Court to consider the manslaughter charge as an alternative to potentially finding defendant guilty of the greater charge of murder.” Instead of deciding the motion on the merits, Supreme Court found that sufficient facts appeared on the record with respect to the issues raised to permit adequate review on direct appeal and denied the motion. Defendant sought leave to appeal the denial of his motion and to consolidate that appeal with his direct appeal, but a Justice of the Appellate Division denied that application.

Defendant then proceeded with his direct appeal. The Appellate Division unanimously affirmed the conviction finding, as relevant here, that defendant's claims of ineffective assistance of counsel involved matters outside the record, and that those matters may not be reviewed on appeal (69 A.D.3d 649, 891 N.Y.S.2d 290 [2d Dept.2010] ). To the extent that the claim could be reviewed, the court held that counsel's failure to raise the statute of limitations defense reflected a legitimate trial strategy of a reasonably competent attorney, noting, in addition, that counsel adequately cross-examined the People's witnesses, and provided a cogent summation.

A Judge of this Court granted defendant leave to appeal and we now affirm.

As an initial matter, defendant here found himself in a dilemma when the trial court denied his CPL 440.10 motion because, in its view, the issue was sufficiently preserved on his direct appeal, only to find that the appellate court disagreed. As a result, trial counsel's affirmations, concerning his failure to raise the statute of limitations defense, were never properly considered by any court. Although the attorney's affirmations are not dispositive of the ineffective assistance claim, they plainly are relevant. This problem could have easily been remedied had the Appellate Division granted leave on the CPL 440.10 motion and consolidated it with the direct appeal—a solution we hope our appellate courts will consider in the future [16 N.Y.3d 575] should this situation arise.² But because the Appellate Division denied defendant leave on his article 440 motion, we are limited to a review of the record before us. And, unless it is clear from the record that there could not have been any legitimate trial strategy for failing to raise the statute of limitations defense, we must deny defendant relief ( cf. People v. Turner, 5 N.Y.3d 476, 483–484, 806 N.Y.S.2d 154, 840 N.E.2d 123 [2005] ). Here, we agree with the Appellate Division that on the record before us, it cannot be said that counsel did not provide meaningful representation ( see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ).

We have previously ruled that the single error of failing to raise a statute of limitations defense may qualify as ineffective

[949 N.E.2d 459 , 925 N.Y.S.2d 368]

assistance. In People v. Turner, 5 N.Y.3d 476, 806 N.Y.S.2d 154, 840 N.E.2d 123 (2005), we held that appellate counsel was ineffective for failing to argue that trial counsel was ineffective for failing to raise the five-year statute of limitations with respect to a manslaughter count. There, counsel had objected to the submission of the manslaughter count, so it was clear from the record that counsel did not want the jury to consider it as an alternative to murder, yet trial counsel inexplicably failed to support the objection by raising a clear statute of limitations defense. But we have also recognized that in many cases a defendant who thinks his chances of acquittal are small may welcome giving the jury an opportunity to consider a lesser charge (id. at 483–484, 806 N.Y.S.2d 154, 840 N.E.2d 123, citing People v. Boettcher, 69 N.Y.2d 174, 182 n. 3, 513 N.Y.S.2d 83, 505 N.E.2d 594 [1987] ).

The issue here, then, is whether counsel's failure to raise the defense reflects a legitimate trial strategy of a reasonably competent attorney. In People v. Satterfield, 66 N.Y.2d 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834 (1985), we held that in ineffective assistance cases, counsel's subjective reasons for a decision are immaterial, so long as “[v]iewed objectively, the transcript and the submissions reveal the existence of a trial strategy that might well have been pursued by a reasonably competent attorney” (emphasis [16 N.Y.3d 576] added). Here, there is no dispute that the manslaughter count was barred by the statute of limitations and that such a defense, if raised by trial counsel, would have been successful. But at the time of trial, defendant was facing second-degree murder charges with an admission that he had fired the shot that caused the cab driver's death. Therefore, had the manslaughter count been dismissed prior to verdict, the trier of fact would have been left with murder as the only choice if defendant was to be found criminally responsible for the homicide. So allowing the trial court to consider the manslaughter count would be a legitimate strategy. And it is clear from the record that the defense counsel in this case wanted the court to do just that. During summation, he specifically requested that the court consider the manslaughter count on the theory that defendant stated that he took out the weapon to stop a robbery. Based on differing trial strategies, defense counsel then argued that...