People v. Lasher

• Decision Date: 10 June 2010
• Citation: 902 N.Y.S.2d 262,74 A.D.3d 1474
• Parties: The PEOPLE of the State of New York, Respondent, v. Stacy LASHER, Appellant.
• Court: New York Supreme Court — Appellate Division

902 N.Y.S.2d 262

74 A.D.3d 1474

The PEOPLE of the State of New York, Respondent,

v.Stacy LASHER, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

June 10, 2010.

Kindlon Shanks & Associates, Albany (Terence L. Kindlon of counsel), for appellant.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.

Before: CARDONA, P.J., SPAIN, STEIN, McCARTHY and EGAN JR., JJ.

SPAIN, J.

Appeal from a judgment of the Supreme Court (Milano, J.), rendered May 30, 2008 in Schenectady County, upon a verdict convicting defendant of the crimes of burglary in the third degree and attempted petit larceny.

Defendant was arrested and charged with burglary in the third degree and attempted petit larceny after being found by police in a building under renovation located in the City of Schenectady, Schenectady County. Defendant claimed that he had come to the building to look for work, and had entered through the basement windowto use the bathroom. Defendant was subsequently indicted for these crimes; he did not file a notice of intent to testify before the grand jury proceeding ( see CPL 190.50[5] ) and did not so testify. At his initial appearance in County Court (Drago, J.) at which defendant was to be arraigned on the indictment, defendant claimed ¹ that counsel had disregarded his request to testify before the grand jury and requested the assignment of new counsel. Counsel replied on the record that his strategy had been to negotiate a favorableplea prior to an indictment and he had discussed with defendant his desire to testify at the grand jury, which counsel advised against, believing it "might do him more harm ... than good."

County Court appointed substitute counsel, who thereafter moved pursuant to CPL 190.50(5) to dismiss the indictment based upon defendant's affidavit asserting that counsel's failure to abide his request to file a notice of intent to testify deprived him of his right to testify. County Court denied the motion. A jury trial was held in Supreme Court, at which defendant pursued the defense theory that defendant lacked any intent to commit a crime inside the building. Defendant did not testify. Convicted as charged, defendant was sentenced as a second felony offender to a prison term of 3 1/2 to 7 years. Defendant appeals, solely arguing that counsel's failure to file a notice of intent to testify before the grand jury operated to deprive him of the effective assistance of counsel.

We affirm. Initially, as a factual matter, the record is not clear whether counsel and defendant reached an agreement regarding whether defendant would testify before the grand jury, i.e., whether defendant heeded counsel's advice against it or counsel overrode defendant's request to so testify. No evidentiary hearing was held on defendant's CPL 190.50(5) motion to dismiss the indictment ( cf. People v. Weis, 56 A.D.3d 900, 902, 867 N.Y.S.2d 250 [2008], lv. denied 12 N.Y.3d 763, 876 N.Y.S.2d 715, 904 N.E.2d 852 [2009]; People v. Dickens, 259 A.D.2d 450, 451, 688 N.Y.S.2d 509 [1999], lv. denied 93 N.Y.2d 1002, 695 N.Y.S.2d 748, 717 N.E.2d 1085 [1999] ), and County Court did not resolve this issue, as its holding denying dismissal was limited to the conclusion that the decision whether a defendant testifies before the grand jury is a strategic one made by defense counsel. Thus, these factual allegations are outside the record on appeal and could only be determined in a motion pursuant to CPL 440.10(1)(f) ( see e.g. People v. Scudds, 62 A.D.3d 1165, 1166, 879 N.Y.S.2d 257 [2009], lv. denied 12 N.Y.3d 929, 884 N.Y.S.2d 710, 912 N.E.2d 1091 [2009]; People v. Weis, 56 A.D.3d at 902, 867 N.Y.S.2d 250).

Even assuming the facts to be as defendant claims, however, "failure of defense counsel to facilitate defendant's testimony before the grand jury does not, per se, amount to denial of effective assistance of counsel" ( People v. Simmons, 10 N.Y.3d 946, 949, 862 N.Y.S.2d 852, 893 N.E.2d 130 [2008]; see People v. Wiggins, 89 N.Y.2d 872, 873, 653 N.Y.S.2d 91, 675 N.E.2d 845 [1996]; People v. Santiago, 72 A.D.3d 492, ----, 898 N.Y.S.2d 41, 42 [2010]; People v. Perez, 67 A.D.3d 1324, 1325, 888 N.Y.S.2d 689 [2009], lv. denied 13 N.Y.3d 941, 895 N.Y.S.2d 331, 922 N.E.2d 920 [2010]; People v. Scudds, 62 A.D.3d at 1166-1167, 879 N.Y.S.2d 257; People v. Weems, 61 A.D.3d 472, 879 N.Y.S.2d 68 [2009], lv. denied 13 N.Y.3d 750, 886 N.Y.S.2d 104, 914 N.E.2d 1022 [2009];People v. Weis, 56 A.D.3d at 902, 867 N.Y.S.2d 250). In contrast to a defendant's right to testify at trial, a defendant's right to testify before the grand jury is a limited statutory right ( see People v. Smith, 87 N.Y.2d 715, 719, 642 N.Y.S.2d 568, 665 N.E.2d 138 [1996];People v. Santiago, 898 N.Y.S.2d at 42). The fact that a defense counsel's strategic decision not to facilitate a defendant's desire to testify at the grand jury does not constitute per se error ( see People v. Simmons, supra; People v. Wiggins, supra ) strongly supports the conclusion that-unlike certain fundamental decisions as whether to testify at trial, which are reserved to the defendant ( see People v. White, 73 N.Y.2d 468, 478, 541 N.Y.S.2d 749, 539 N.E.2d 577 [1989], cert. denied 493 U.S. 859, 110 S.Ct. 170, 107 L.Ed.2d 127 [1989]; People v. Ferguson, 67 N.Y.2d 383, 390, 502 N.Y.S.2d 972, 494 N.E.2d 77 [1986]; see also Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 [1983]; People v. Rosen, 81 N.Y.2d 237, 244, 597 N.Y.S.2d 914, 613 N.E.2d 946 [1993]; People v. Parker, 290 A.D.2d 650, 651, 736 N.Y.S.2d 162 [2002], lv. denied 97 N.Y.2d 759, 742 N.Y.S.2d 620, 769 N.E.2d 366 [2002] )-with respect to "strategic and tactical decisions" like testifying before the grand jury, defendants represented by counsel "are deemed to repose decision-making authority in their lawyers" ( People v. Colon, 90 N.Y.2d 824, 826, 660 N.Y.S.2d 377, 682 N.E.2d 978 [1997] ).

Under the circumstances of this case, defendant has not shown "that he was prejudiced by the failure of his attorney to effectuate his [intentions or] appearance before the grand jury [and] ... there is no claim that had he testified in the grand jury, the outcome would have been different" ( People v. Simmons, 10 N.Y.3d at 949, 862 N.Y.S.2d 852, 893 N.E.2d 130; accord People v. Santiago, 898 N.Y.S.2d at 42; see People v. Weems, 61 A.D.3d at 472, 879 N.Y.S.2d 68). The record demonstrates that, prior to being relieved, counsel provided meaningful representation, repeatedly meeting...