People v. Lane

• Decision Date: 12 April 1983
• Citation: 460 N.Y.S.2d 926,93 A.D.2d 92
• Parties: The PEOPLE of the State of New York, Appellant, v. Bernice LANE, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 926

460 N.Y.S.2d 926

93 A.D.2d 92

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

Supreme Court, Appellate Division First Department.

April 12, 1983.

Donald J. Siewert, New York City, of counsel (Jeffrey D. Livingston, Ithaca, with him on the brief; Robert M. Morgenthau, New York City, attorney), for appellant.

David Steinberg, Poughkeepsie, of counsel (Steiman & Steinberg, Poughkeepsie, attorney), for defendant-respondent.

Before MURPHY, P.J., and KUPFERMAN, SANDLER, ASCH and KASSAL, JJ.

KASSAL, Justice.

Defendant and a co-defendant, John Henry Simmons, were originally indicted on April 29, 1976, charged with criminal sale of a controlled substance in the first degree and related possession counts arising out of a sale of heroin to undercover narcotics officers on March 4, 1976.

At trial, when the co-defendant testified and implicated the appellant, a severance was directed and a new trial ordered as to appellant. A second trial, held in March 1977, resulted in the declaration of a mistrial when the jury was unable to reach a verdict. The trial court had excluded testimony of a subsequent meeting between the undercover officers, defendant and Simmons, held April 5, 1976, to discuss future purchases of both cocaine and heroin. Following the mistrial, the People resubmitted the case to the grand jury and, on May 6, 1977, a superseding indictment was filed, charging appellant with conspiracy in the first degree, in addition to the sale and the possession counts contained in the original indictment.

The People did not seek judicial authorization as to the superseding indictment prior to resubmission of the case to the grand jury. As overt acts in connection with the conspiracy count, the indictment charged the meeting held between the undercover officers and Simmons prior to the March 4, 1976 sale, the sale from defendant and this April 5th meeting to discuss future purchases. It is conceded that the superseder was filed to permit introduction into evidence of the subsequent meeting which had been excluded on the prior [second] trial.

Thereafter, on June 9, 1977, defendant brought an Article 78 proceeding in this Court for relief in the nature of prohibition, contending that the superseding indictment was unauthorized under CPL § 200.80. The People opposed the application arguing, essentially, that prohibition was unavailable as a remedy to attack a superseding indictment. We denied the application (Matter of Lane v. Office of Special Narcotics Prosecutor, 58 A.D.2d 743, 396 N.Y.S.2d 747).

Thereafter, counsel who had represented appellant in the Article 78 proceeding moved to dismiss the superseding indictment as violative of CPL § 200.80 and in conflict with defendant's due process rights. On September 16, 1977, the motion was denied and the case thereafter proceeded to a third trial, following which defendant was found guilty on both the sale and conspiracy counts. On the appeal from the judgment, appellant argued for the first time that the superseding indictment was barred by CPL § 40.30(3). By order entered April 14, 1981, we affirmed the judgment without opinion (People v. Lane, 81 A.D.2d 756, 438 N.Y.S.2d 663). Leave to appeal to the Court of Appeals was subsequently denied (54 N.Y.2d 686, 443 N.Y.S.2d 1040, 426 N.E.2d 764).

Thereafter, appellant, by new counsel, moved to vacate the judgment pursuant to CPL § 440.10, contending that she had been deprived of her right to effective assistance of counsel, based upon the failure of her former attorney to raise an objection under CPL § 40.30(3) and to apprise appellant of the statutory defense. This was conceded by the former attorney. The motion was granted in a thorough and extensive opinion (112 Misc.2d 514), which analyzed the statutory defense under CPL § 40.30(3) in relation to the superseding indictment. Partially in reliance upon DeCanzio v. Kennedy, 67 A.D.2d 111, 415 N.Y.S.2d 513, the court found the superseding indictment barred by CPL § 40.30(3), concluding that had there been a motion to dismiss the superseder on that ground, the application would have been granted. From this, it was concluded that the failure to make the motion and the failure to advise appellant of the potential availability of the statutory defense served to deprive defendant of her right to effective assistance of counsel. Accordingly, the conviction was vacated, the indictment dismissed and defendant released from confinement.

We do not concur in the trial court's assessment of the case in finding that appellant was deprived of effective assistance of counsel, the only issue raised on the motion and on this appeal. The right to effective assistance of counsel is guaranteed by both the Federal and State Constitutions [U.S. Const., 6th Amdt; N.Y. Const., Art. I, § 6]. Over the years, there has evolved two standards to assess the effectiveness of counsel in a criminal case. The traditional standard required an evaluation of the conduct of counsel to determine whether the trial was rendered "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. den. 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). More recently, a stricter standard has been developed in the federal courts under which the critical inquiry is whether the attorney exhibited "reasonable competence" (People v. Droz, 39 N.Y.2d 457, 384 N.Y.S.2d 404, 348 N.E.2d 880; United States v. Fessel, 531 F.2d 1275 (5 Cir.1976); United States v. Elksnis, 528 F.2d 236 (9 Cir.1975); United States v. Toney, 527 F.2d 716 (6 Cir.1975), cert. den. sub. nom. Pruitt v. United States, 429 U.S. 838, 97 S.Ct. 107, 50 L.Ed.2d 104; United States v. DeCoster, 487 F.2d 1197 [D.C.Cir.1973] ).

In People v. Aiken, 45 N.Y.2d 394, 408 N.Y.S.2d 444, 380 N.E.2d 272, defendant had absented himself from the trial and, thereafter, sought to raise on appeal that he had been deprived of effective assistance of counsel. The Court, without adopting one standard in preference to the other, observed with respect to the flexibility of the standard to be applied:

"An act or omission on the part of counsel, which in one case might constitute error, need not constitute error in all cases. The right to counsel was not intended to afford a defendant, aided by the wisdom of hindsight, to second guess matters of trial strategy employed by counsel. Significantly, although a defendant may not, by absence alone, waive his right to effective legal representation, his absence must, of necessity, be taken into consideration on the issue of counsel's effectiveness." (45 N.Y.2d at 399, 408 N.Y.S.2d 444, 380 N.E.2d 272)

Similarly, in People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400, the Court, opting in favor of the more flexible approach and holding that effective assistance of counsel was not to be determined "with yardstick precision, but varies according to the unique circumstances of each representation," observed:

"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." (emphasis added) (54 N.Y.2d at 146-147, 444 N.Y.S.2d 893, 429 N.E.2d 400)

Application of this standard precludes a finding of ineffective assistance where there was, at most, a mistaken judgment as to trial strategy or tactics and errors of judgment (see People v. De Mauro, 48 N.Y.2d 892, 424 N.Y.S.2d 884, 400 N.E.2d 1336, where (1) no motion to suppress was made, (2) there was an untimely motion for a mistrial, apparently as a result of counsel's impression at the time that the statements were useful to the defense as exculpatory accounts and where the delay in moving was designed to await further developments in the testimony of witnesses; People v. Ford, 46 N.Y.2d 1021, 416 N.Y.S.2d 536, 389 N.E.2d 1058, where defendant's attorney had withdrawn an alibi defense, the Court concluding that it had not been demonstrated that potential alibi witnesses would actually testify at trial that defendant was not in the vicinity of the robbery during its commission; People v. Jackson, 52 N.Y.2d 1027, 438 N.Y.S.2d 299, 420 N.E.2d 97, where defense counsel's election not to use an alibi witness, whose testimony could be impeached since the witness had previously implicated defendant, was held, at best, a mistaken judgment on trial strategy; and People v. Wise, 64 A.D.2d 272, 409 N.Y.S.2d 877, where defense counsel's abusive conduct before the jury was viewed as a trial tactic to force a mistrial).

These dispositions are in marked contrast to People v. Bell, 48 N.Y.2d 933, 425 N.Y.S.2d 57, 401 N.E.2d 180, where retained counsel (1) did not request any pre-trial hearings, (2) conducted no voir dire and made no opening statement, (3) cross-examined prosecution witnesses in such a way as to elicit incriminating hearsay evidence against his client, and (4) joined in co-defendant's motion at the end of the prosecution case to dismiss the charges as against the co-defendant, which motion was premised on the claim that only defendant was involved in the commission of the crime and, thereafter, in an inconsistent manner, sought to establish as a defense that defendant was acting as agent for the co-defendant. Rejecting the claim that the errors constituted a...