People v. Leslie

Decision Date17 April 1992
Citation154 Misc.2d 325,586 N.Y.S.2d 197
PartiesThe PEOPLE of the State of New York v. Anthony LESLIE, Defendant.
CourtNew York Supreme Court

Robert Morgenthau, Dist. Atty. (John Dalton, of counsel), for the People.

Philip Weinstein, The Legal Aid Soc., New York City (Francis Gallagher, of counsel), for defendant.

HAROLD J. ROTHWAX, Justice:

The defendant has filed a motion pursuant to CPL 440.10 subd. 1[ h] to vacate the judgment of conviction for attempted murder in the first degree [PL 125.27 subd. 1[a][i]], rendered by a jury on June 2, 1988, on the ground that he was denied the constitutional right to the effective assistance of counsel at trial. [US Const, Amendments 6, 14; N.Y.Const. Art. I, sec. 6] The defendant was represented at trial by two people. One of these was an imposter, never educated in the law or admitted to practice in this or any other State. The other, an attorney admitted to practice before the bar of the District of Columbia, was admitted pro hac vice on motion of the imposter to represent the defendant on this indictment. Therefore, the defendant argues that he was deprived of the actual assistance of counsel in two ways: by a nonlawyer's appearance at trial as co-counsel for the defendant, and by the defect in the attorney's pro hac vice admission based as it was on the motion of the nonlawyer. The defendant contends either defect requires vacating the resulting guilty verdict as a matter of law.

THE FACTS

The defendant was charged with attempted murder in the first degree, assault in the second degree, and criminal possession of a weapon in the second and third degrees. The indictment arose from an encounter between the defendant and two members of the street crimes unit, at Broadway and West 159 Street in New York County on November 17, 1987 at about 11 pm. At arraignment on the indictment an attorney appointed by the appellate division represented the defendant. Subsequently, the defendant retained Mr Blaine White, an attorney admitted to the bar of the District of Columbia. Mr White's application to be admitted in this court pro hac vice was supported by the affidavit of Mr Terrence Green, purportedly an attorney admitted before this court. In fact Mr Green is not an attorney, although that was unknown to either the defendant or to Mr White at the time of trial. It is not disputed that Mr White prepared all of the defense papers filed in the case, with the exception of the order for a ballistics test which Mr Green prepared. Mr White and Mr Green both were present throughout the trial. Examination of the trial transcript shows that Mr White conducted the major portion of the defense including opening and closing statements, cross-examination of witnesses, objections to evidence, and consultation as to jury instructions without any participation by Mr Green. Mr Green's participation consisted of co-signing defense papers, cross-examining the People's ballistics expert, preparing and examining the defense ballistics expert, making a single objection to testimony about the extent of tint in the windows of defendant's jeep, physically delivering the defense requests to charge prepared by Mr White, and concurring with Mr White in a proposed limiting instruction on the use of evidence that money recovered from the defendant at the time of his arrest was vouchered and eventually returned to the defendant.

At trial the victim of the attempted murder, officer Negus, testified that the officers stopped a jeep driven by the defendant, apparently on suspicion that the two occupants were selling drugs from the jeep. Officer Negus became concerned for his safety while asking the defendant to produce his license and registration. The officer directed the defendant out of the jeep. As the defendant emerged from the jeep, he kept his back to the officer and sidestepped toward the rear of the jeep while reaching toward the front of his waist. After warning the defendant to remove his hands, officer Negus reached around the defendant and felt the handle of a gun on the left side of the defendant's waist. Before the officer could remove the gun, the defendant swung around and struck officer Negus in the head with his elbow, knocking the officer off balance. The defendant then produced a gun, pointing it in the direction of officer Drogin on the opposite side of the jeep. When Negus A ballistics expert called by the People testified that he found both the gun and ammunition operable. As to the indented cartridge, he testified that the indentation could have been caused by any hard object and was not "deep where a firing pin would cause a deep indent". He also testified about the danger of striking a loaded cartridge with any hard object. He described ways in which a gun could misfire, including insufficient pressure on the trigger which could cause a firing pin to indent the primer without setting it off. The defense called a ballistics expert who also testified, under examination by Mr Green, that the indentation could have been caused by any tool and was not identifiable as the mark of a firing pin. However, the defense expert testified that a misfire would necessarily have made a larger impression on the cartridge primer.

                warned Drogin, the defendant turned the gun on Negus, pointing it at the officer's head.   As Negus tackled the defendant, knocking him into the jeep, he heard a loud metallic click very close to his ear.   The defendant then threw the gun behind him toward a building.   Negus and the defendant struggled until the officer subdued the defendant at gunpoint.   Officer Negus recovered a loaded revolver from the building line.   He opened the cylinder and found that the cartridge under the firing pin had a dented primer.   Officer Drogin testified consistently with officer Negus, except that Drogin never heard the metallic click although he saw the gun.   Officer Negus' patrol supervisor testified that he responded to the officers' call for assistance and saw officer Negus recover the gun from the building line
                

The defense essentially was that the officers lied and that defendant did not pull a gun on the police. However, Mr White also argued in summation that both the prosecution and defense experts concurred that the indentation on the bullet primer could not be said with any certainty to have been caused by the firing pin of a gun. The People also conceded this point in their summation. Specifically, Mr White argued "I submit to you, ladies and gentlemen, as [both experts] said, this mark could have been made by anything, and I submit to you that it was not made by this hammer on this gun in the hands of Mr Leslie as he attempted to shoot officer Negus, because, ladies and gentlemen, that never happened ..." During its deliberations, the jury requested to rehear the testimony of officers Negus and Drogin. The counts were submitted to the jury in the alternative and the defendant was convicted of attempted murder. Mr White also represented the defendant at sentencing.

Mr Green's deception was discovered when the defendant, after sentence was imposed, filed a complaint about Mr Green with the First Judicial Department's disciplinary committee.

THE LAW

Denial of the effective assistance of counsel is always an error of constitutional dimension. [Strickland v. Washington, 466 U.S. 668, 691-692, 104 S.Ct. 2052, 2066-67, 80 L.Ed.2d 674 [1984]] The Court of Appeals, although declining to adopt the harmless error analysis of Strickland 1, has held that errors of counsel do not amount to ineffective assistance under the State constitution unless they deprive the defendant of meaningful representation. [People v. Baldi, 54 N.Y.2d 137, 151, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981]]. On the other hand, even the apparently competent representation of a criminal defendant by a nonlawyer is constitutionally ineffective as a matter of law. [People v. Felder, 47 N.Y.2d 287, 295-296, 418 N.Y.S.2d 295, 391 N.E.2d 1274 [1979]; Solina v. United States, 709 F.2d 160 [2d Cir.1983]] This distinction inheres in the role defense counsel plays in the adversarial adjudicative process. Where the defendant has received the assistance of counsel for the defense, there is "a strong presumption" that the assistance rendered was effective, and the defendant must overcome this presumption in challenging the verdict. [Strickland v. Washington, supra 466 U.S. at p. 689, 104 S.Ct. at p. 2065; United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 2046, 80 L.Ed.2d 657 [1984]; see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988]]. The converse presumption is compelled where the defendant has not been represented by "counsel able to invoke the procedural and substantive safeguards that distinguish our system of justice." [Cuyler v. Sullivan, 446 U.S. 335, 343, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333 [1980]; Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 [1963]; see United States v. Cronic, supra, 466 U.S. at p. 659, 104 S.Ct. at p. 2047]. Only a person educated, tested and duly admitted to practice as an attorney may be presumed to have provided such counsel. [ People v. Felder, 47 N.Y.2d 287, 295-296, 418 N.Y.S.2d 295, 391 N.E.2d 1274 [1979]; United States v. Novak, 903 F.2d 883 [2d Cir.1990]] A verdict obtained without such educated representation is presumptively unreliable as a matter of law. [ People v. Felder, supra; United States v. Cronic, supra, 466 U.S. at p. 659, 104 S.Ct. at p. 2047] Consequently, the burden of proof allocated to the defendant who claims a denial of the effective assistance of counsel depends upon the nature of the alleged denial. [see Strickland v. Washington, supra, 466 U.S. at pp. 692-693, 104 S.Ct. at pp. 2067; People v. Margan, 157 A.D.2d 64, 66, 554 N.Y.S.2d 676 [2d Dept.1990]]

A complete denial of the assistance of counsel at any critical stage of the criminal proceeding,...

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7 cases
  • Leslie v. Artuz
    • United States
    • U.S. District Court — Southern District of New York
    • October 21, 1999
    ...resolution of this motion. In a decision dated April 17, 1992, Judge Rothwax denied Leslie's motion. See People v. Leslie, 154 Misc.2d 325, 586 N.Y.S.2d 197 (N.Y.Sup.1992) ("Leslie I"). In that decision, Judge Rothwax held, inter alia, that Green's participation at trial did not have an adv......
  • People v. Jacobs
    • United States
    • New York Court of Appeals Court of Appeals
    • December 15, 2005
    ...during his opening statement and the presentation of his case. Representation by a Nonlawyer Relying on People v. Leslie, 154 Misc.2d 325, 586 N.Y.S.2d 197 [Sup.Ct.1992], affd. 232 A.D.2d 94, 662 N.Y.S.2d 761 [1st Dept 1997], lv. denied 91 N.Y.2d 875, 668 N.Y.S.2d 574, 691 N.E.2d 646 [1997]......
  • People v. Leslie
    • United States
    • New York Supreme Court — Appellate Division
    • September 25, 1997
    ...of counsel, and instead proceeded to examine the specific circumstances so as to determine whether any violation occurred (154 Misc.2d 325, 586 N.Y.S.2d 197). The court concluded, citing People v. Winkler, 71 N.Y.2d 592, 528 N.Y.S.2d 360, 523 N.E.2d 485, that defendant failed to meet his bu......
  • Leslie v. Artuz
    • United States
    • U.S. Court of Appeals — Second Circuit
    • August 1, 1999
    ...Green and White contemplated that White would be the defendant's principal representative." People v. Leslie, 154 Misc.2d 325, 334, 586 N.Y.S.2d 197, 204 (Sup. Ct. 1992) ("LeslieI"). The court found that White had performed that function. Noting that "[t]he defense essentially was that the ......
  • Request a trial to view additional results

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