People v. Maffei, No. 25

• Decision Date: 07 May 2020
• Docket Number: No. 25
• Citation: 35 N.Y.3d 264,127 N.Y.S.3d 403,150 N.E.3d 1169
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert MAFFEI, Appellant.
• Court: New York Court of Appeals Court of Appeals

35 N.Y.3d 264

150 N.E.3d 1169

127 N.Y.S.3d 403

The PEOPLE of the State of New York, Respondent,

v.Robert MAFFEI, Appellant.

No. 25

Court of Appeals of New York.

May 7, 2020

OPINION OF THE COURT

Chief Judge DiFIORE.

In this direct appeal, defendant claims he was denied the effective assistance of counsel based on a single purported error – counsel's failure to challenge a prospective juror. We agree with the Appellate Division that defendant, on this record, has not sustained his burden to establish that counsel was constitutionally ineffective. Therefore, the appropriate procedure for the litigation of defendant's challenge to his counsel's performance is a CPL 440.10 motion – the very mechanism designed by the Legislature to enable review of factual issues dehors the record. Accordingly, we affirm the order of the Appellate Division.

In May 2003, the victim, the rear passenger in a vehicle, was shot in the head and killed in a drive-by shooting. Defendant was indicted in 2006 and charged with depraved indifference murder, among other charges. Over two years later, defendant's trial commenced. In the first round of jury selection, the trial court questioned prospective juror number 10, who stated that his uncle and cousin were law enforcement officers in Puerto Rico and that, several years earlier, he was charged with marijuana possession and performed community service as a result. When asked by the court whether the latter experience would cause him to be unfair, he responded, "[n]o, not at all."

The prosecutor, at the outset of his voir dire in round one, asked the prospective jurors to raise their hand if they could not be fair and render a verdict after "listen[ing] to the evidence." He summarized the facts of the case and began asking prospective jurors whether anything in their background would cause them to question whether they could be impartial. After one juror responded that his sister had been the victim of a random shooting, the prosecutor asked if "[a]nyone ha[d] a similar situation ... with something in [their] past[.]" Prospective juror number 10 requested to speak, and the following exchange ensued:

"PROSPECTIVE JUROR: I think I read about this in the papers.

"[PROSECUTOR]: This case did receive publicity. Go ahead, sir.

"PROSPECTIVE JUROR: To be honest with you, I remember reading. Kind of made up my mind then.

"[PROSECUTOR]: Kind of made up your mind then?

PROSPECTIVE JUROR: Didn't like the circumstances. I remember reading about it, making a decision kind of in my own head at that time.

"[PROSECUTOR]: You understand it's up to me now to prove to you, beyond a reasonable doubt, who is the actual person that actually did it, right?

"PROSPECTIVE JUROR: Right.

"[PROSECUTOR]: You might have made up your mind. I believe that was a really bad act. I didn't like the way it happened.

"Do you understand I have to prove who did it?

"PROSPECTIVE JUROR: Yes."

The trial court explained that the jury would be instructed to avoid media coverage of the case, further commenting,

"As [prospective juror number 10] indicated, he said he made up his mind. That is a bad thing. Obviously, someone was arrested. There's nobody here who is in favor of someone being shot to death in most circumstances. What is important is that it's this defendant who is charged with that crime. The burden lives with [the prosecutor]. That he has to prove that this is the person who did that. Okay? You can remain fair and impartial?"

Prospective juror number 10 responded, "I hope so," prompting the trial court to remind him of the need to answer unequivocally, to which he twice responded, "I'm not sure."

The prosecutor explained that the depraved indifference murder charge implicates the same punishment as an intentional crime, despite requiring only proof of recklessness. In response to questioning about that charge, prospective juror number 10 stated, "I feel if it's a good case, I'll go by the law." The prosecutor then asked whether prospective juror number 10 felt he was treated fairly in connection with his prior marijuana arrest, and he answered that he was treated fairly "[a]t one point" but not at "[t]he time [he] was arrested," but denied he remained angry about the experience. When questioned about his relatives in law enforcement, he asserted he did not speak with them about their cases and that he would judge police "[a]s anyone else."

Defense counsel then conducted his portion of the voir dire, asking questions of prospective jurors, both individually and collectively as a group, including whether any of them would have difficulty presuming defendant innocent, were exposed in their personal lives to law enforcement, had particularized knowledge about handguns, or would require defendant to testify in order to acquit. He directly asked four unnamed prospective jurors whether they would be able to acquit if the People presented insufficient evidence, and all four answered affirmatively. He concluded by asking the panel to answer, by way of show of hands, whether he had their assurance that if "you, as an individual, do not believe that the District Attorney has proven this case to you beyond a reasonable doubt" they could "stick to the courage of [their] convictions" as the lone holdout voting for acquittal, and whether they were each "accountable to the job" of serving on the jury and by urging them to notify him if there was anything further they wanted to discuss.

At the close of round one, the trial court excused six prospective jurors for cause on consent of the parties based on their answers during voir dire, including two prospective jurors who did not raise their hands to group questions posed by defense counsel. Neither counsel made any individual challenges for cause. The prosecutor then exercised three peremptory challenges. Defense counsel, before exercising defendant's peremptory challenges, asked the court for a moment to confer with defendant off the record and then, after a pause in the proceeding, exercised three peremptory challenges. The clerk read the names of the four remaining prospective jurors – including prospective juror number 10 – and defense counsel responded that "[t]hose four will do." Prospective juror number 10 was seated as a juror. At the close of jury selection, defendant had several peremptory challenges remaining.

Defendant was convicted, upon a jury verdict, of second-degree murder. At sentencing, the trial court commented on the high quality of advocacy by the prosecutor and defense counsel. On direct appeal, defendant argued that his trial counsel's failure to challenge prospective juror number 10 constituted ineffective assistance of counsel. The Appellate Division affirmed ( 165 A.D.3d 1173, 86 N.Y.S.3d 201 [2d Dept. 2018] ). In rejecting the ineffective assistance of counsel claim, the court reasoned that it was based in part on matters dehors the record and that "a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety" ( id. at 1174, 86 N.Y.S.3d 201 ). A Judge of this Court granted defendant leave to appeal ( 32 N.Y.3d 1174, 97 N.Y.S.3d 588, 121 N.E.3d 216 [2019] ).

Defendant raises an ineffective assistance of counsel claim under the New York and federal constitutions based on a single alleged error: failure to challenge prospective juror number 10. Under both the New York and federal standards, defendant bears the burden of establishing that counsel's performance was constitutionally deficient ( People v. Campbell, 30 N.Y.3d 941, 942, 67 N.Y.S.3d 125, 89 N.E.3d 515 [2017], citing People v. Nicholson, 26 N.Y.3d 813, 831, 28 N.Y.S.3d 663, 48 N.E.3d 944 [2016] ). The constitutional guarantee of effective assistance of counsel is met where a defendant was afforded "meaningful representation" based on "the evidence, the law, and the circumstances of [the] particular case, viewed in totality and as of the time of the representation" ( People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998], quoting People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). To prevail on an ineffective assistance claim, a defendant must "demonstrate the absence of strategic or other legitimate explanations" – i.e., those that would be consistent with the decisions of a "reasonably competent attorney" – for the alleged deficiencies of counsel ( Benevento, 91 N.Y.2d at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [citations omitted] ). A single error can constitute ineffective assistance, "but only when [it] is sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial" ( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] [citations omitted]; see also Harrington v. Richter, 562 U.S. 86, 111, 131 S.Ct. 770, 178 L.Ed.2d 624 [2011] ).

"Generally, the ineffectiveness of counsel is not demonstrable on the main record" but rather requires consideration of factual issues not adequately reflected on that record ( People v. Brown, 45 N.Y.2d 852, 853, 410 N.Y.S.2d 287, 382 N.E.2d 1149 [1978] ; see also People v. Harrison, 27 N.Y.3d 281, 289, 32 N.Y.S.3d 560, 52 N.E.3d 223 [2016] ). By codifying the writ of error coram nobis in CPL article 440, the Legislature crafted a procedure for such scenarios. To that end, article 440 permits defendants to complete the record by putting forth sworn factual allegations in support of a motion to vacate the judgment of conviction and authorizes evidentiary hearings on those motions ( CPL 440.10, 440.30 ), thereby providing a vehicle specifically for the investigation of claims dependent on matters dehors the direct record (see CPL 440.10[2][c] [requiring denial of a motion to vacate if "sufficient facts appear on the (direct) record ... to have permitted ... adequate review" of the claim on direct appeal but defendant unjustifiably failed to perfect the appeal] ). Such investigations are vital to a defendant's claim when the record on direct appeal is inadequate...