People v. Lane

• Decision Date: 05 February 1982
• Parties: The PEOPLE of the State of New York, v. Bernice LANE, Defendant.
• Court: New York Supreme Court

Page 232

447 N.Y.S.2d 232

112 Misc.2d 514

The PEOPLE of the State of New York, v. Bernice LANE, Defendant.

Supreme Court, New York County.

Feb. 5, 1982.

David Steinberg, Poughkeepsie, for defendant.

Robert M. Morgenthau, Dist. Atty. of New York County by Jeffrey D. Livingston, Asst. Dist. Atty., for the people.

DECISION AND ORDER

ERNST H. ROSENBERGER, Justice.

An indictment, filed on April 29, 1976, charged the defendant and a co-defendant with criminal sale of a controlled substance in the first degree. During the first trial, in October, 1976, when the co-defendant's testimony implicated the defendant, the defendant moved to sever. The motion was granted, a mistrial declared as to this defendant, and a new trial ordered. The second trial, in March of 1977, was declared a mistrial when the jury was unable to reach a verdict.

A superseding indictment, filed on May 6, 1977, reiterated the controlled substance count and added a new count of conspiracy in the first degree. The assistant district attorney, in an affirmation filed in response to a motion addressed to that indictment, conceded "that the new indictment--which includes a conspiracy count--was sought in order to increase the scope of available trial evidence." The defendant's attorney instituted an Article 78 proceeding on June 9, 1977, seeking a Writ of Prohibition. Three claims were asserted: that the prosecution was vindictive; that CPL § 200.80 relating to superseding indictments was violated; and that the defendant had been denied due process of law. The application was denied without opinion and the petition dismissed. Matter of Lane v. Office of Special Narcotics Prosecutor, 58 App.Div.2d 743, 396 N.Y.S.2d 747 (1st Dept., 1977).

A third trial was held before this court in September, 1977. The defendant was convicted of both charges and sentenced. She is now serving a sentence of 15 years to life.

On appeal, the defendant, now represented by other counsel, raised for the first time a statutory double jeopardy claim, asserting that the later indictment was barred by CPL § 40.30(3). However, the People's argument based upon CPL § 470.05 and People v. Dodson, 48 N.Y.2d 36, 421 N.Y.S.2d 47, 396 N.E.2d 194 ¹ (issue not raised at trial is not preserved for appellate review), prevailed and the conviction was affirmed without opinion. People v. Lane, 81 App.Div.2d 756, 438 N.Y.S.2d 663 (1st Dept., 1981). Seeking further proceedings, the defendant again asserted CPL § 40.30(3) in an application to the Court of Appeals. The District Attorney again argued that the issue had not been preserved. Leave to appeal was denied. People v. Lane, 54 N.Y.2d 686, 443 N.Y.S.2d 1040, 426 N.E.2d 764.

She now moves, pursuant to CPL § 440.10, to vacate the judgment of conviction on the ground that she was deprived of the effective assistance of counsel. She avers that she was never advised of the statutory double jeopardy provisions of law and that she was unaware of them. Her prior attorney concedes in an affidavit that he did not advise the defendant of the law in that area and did not interpose a statutory double jeopardy defense to the superseding indictment.

Claims of ineffective assistance of counsel often are best addressed in a postconviction proceeding brought under CPL § 440.10. People v. Brown, 45 N.Y.2d 852, 854, 410 N.Y.S.2d 287, 382 N.E.2d 1149. The operative facts on this application are not in dispute. The defendant was never made aware of her rights under CPL § 40.30. Not knowing them, she cannot be held to have waived them. A waiver is an "intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461. A hearing is not required.

Criminal Procedure Law, section 40.30(3) provides:

"Despite the occurrence of proceedings specified in subdivision one if such proceedings are subsequently nullified by a court order which restores the action to its pre-pleading status or which directs a new trial of the same accusatory instrument, the nullified proceedings do not bar further prosecution of such offense under the same accusatory instrument." (Emphasis supplied.)

Subdivision (4) of that section provides that a court may authorize "... the people to obtain a new accusatory instrument charging the same offense or an offense based upon the same conduct" and states that the earlier "nullified proceedings do not bar further prosecution of such offense under any new accusatory instrument obtained pursuant to such court order or authorization." (Emphasis supplied.) In the instant case there was no court order authorizing the representation to the grand jury of the new indictment.

Under the Code of Criminal Procedure, a defendant, after a nullified proceeding, was deemed to be in precisely the same position as if there had been no trial. The People were free to retry him on the same indictment, or on a superseding indictment, even a superseding indictment containing different counts. People v. Ercole, 4 N.Y.2d 617, 620, 176 N.Y.S.2d 649, 152 N.E.2d 77; People v. Cocco, 3 N.Y.2d 716, 163 N.Y.S.2d 961. The language of the Criminal Procedure Law is different. It provides that retrial shall be upon the same accusatory instrument § 40.30(3) ] or the court may nullify the accusatory instrument and permit reprosecution upon a new one charging the same offense or an offense based upon the same conduct DeCanzio v. Kennedy, 67 App.Div.2d 111, 120, 415 N.Y.S.2d 513 (4th Dept., 1979). As noted above, there was no court permission for the new accusatory instrument. Thus, the new indictment was barred under CPL § 40.30. A motion, based on that statute, to dismiss the indictment, prior to trial, would have been granted.

The right to the effective assistance of counsel is guaranteed by both the Federal and State Constitutions (U.S.Const., 6th Amdt.; N.Y.Const., art. I, § 6). There is no single precise standard of what constitutes effective assistance. Each case must be determined by an examination of its circumstances. People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400; People v. Droz, 39 N.Y.2d 457, 384 N.Y.S.2d 404, 348 N.E.2d 880.

The traditional standard of effectiveness had been whether the attorney's shortcomings were such as to render the "trial a farce and a mockery of justice." (People v. Brown, 7 N.Y.2d 359, 361, 197 N.Y.S.2d 705, 165 N.E.2d 557, cert. denied 365 U.S. 821, 81 S.Ct. 703, 5 L.Ed.2d 698; People v. Bennett, 29 N.Y.2d 462, 467, 329 N.Y.S.2d 801, 280 N.E.2d 637; People v. Tomaselli, 7 N.Y.2d 350, 354, 197 N.Y.S.2d 697, 165 N.E.2d 551.) A stricter standard has since developed. People v. Droz, supra; People v. Aiken, 45 N.Y.2d 394, 408 N.Y.S.2d 444, 380 N.E.2d 272; People v. Baldi, supra; United States v. Fessel, 531 F.2d 1275 (5th Cir., 1976); United States v. Elksnis, 528 F.2d 236 (9th Cir., 1975); United States v. Toney, 527 F.2d 716 (6th Cir., 1975) cert. denied, 429 U.S. 838, 97 S.Ct. 107, 50 L.Ed.2d 104; United States v. DeCoster, 487 F.2d 1197 (5th Cir., 1973). The evolving standard appears to be one of "reasonable competence" or whether counsel "was adequate or effective in any meaningful sense of the words."

In People v. Baldi, supra, Chief Judge Cooke, writing for a unanimous court, said at 54 N.Y.2d at pages 146, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400:

"Our most critical concern in reviewing claims of ineffective counsel is to avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis. It is always easy with the advantage of hindsight to point out where trial counsel went awry in strategy. But trial tactics which terminate unsuccessfully do not automatically indicate ineffectiveness. 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 (see People v. Jackson, 52 N.Y.2d 1027 People v. Aiken, 45 N.Y.2d 394 cf. People v. Bell, 48 N.Y.2d 933 People v. Droz, 39 N.Y.2d 457 )."

The "meaningful representation" standard set forth by Chief Judge Cooke, supra, must be read in its full context. It refers to the vast majority of claims of ineffectiveness, those challenging unsuccessful trial tactics or trial strategies. Among the many cases dealing with such situations are the following: People v. Jackson, 52 N.Y.2d 1027, 438 N.Y.S.2d 299, 420 N.E.2d 97 (memorandum) affirming 74 App.Div.2d 585, (2d Dept., 1980) in which counsel was found not to be ineffective where trial tactics and strategy included risking use of a photo array and a decision not to use an alibi witness who was vulnerable to impeachment; People v. DeMauro, 48 N.Y.2d 892, 894, 424 N.Y.S.2d 884, 400 N.E.2d 1336, wherein counsel was found not to be ineffective where no motion to suppress was made and where there was an untimely motion for a mistrial based upon inadvertent disclosure of defendant's incarceration, since both were "matters of trial tactics and errors of judgment at most"; People v. Ford, 46 N.Y.2d 1021, 416 N.Y.S.2d 536, 389 N.E.2d 1058, in which counsel was found not to be ineffective where it was not demonstrated that alibi witnesses would have testified and that counsel's decision not to call them was clearly prejudicial; People v. Aiken, 45 N.Y.2d 394, 408 N.Y.S.2d 444, 380 N.E.2d 272, in which counsel was found not to be ineffective where, based upon defendant's absence from the trial, counsel made no opening or...