People v. Smith

• Decision Date: 22 April 1996
• Citation: 169 Misc.2d 581,643 N.Y.S.2d 315
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Barry SMITH, Defendant.
• Court: New York Supreme Court

Page 315

643 N.Y.S.2d 315

169 Misc.2d 581

The PEOPLE of the State of New York, Plaintiff, v. Barry SMITH, Defendant.

Supreme Court, Kings County.

April 22, 1996.

Martin Marshak, Brooklyn, for defendant.

Charles J. Hynes, District Attorney of Kings County (Thomas Burka and Stephen Kong of counsel), for plaintiff.

JOSEPH KEVIN McKAY, Justice.

Defendant has moved pursuant to CPL 440.10(1)(h) ¹ to vacate the judgment of conviction against him for murder in the second degree and criminal possession of a weapon in the second degree rendered December 23, 1993, and for a new trial on the grounds that he was deprived of his constitutional right to a fair trial by virtue of ineffective assistance of trial counsel.

Defendant has already perfected his direct appeal in the Appellate Division, Second Department, which court, having denied a motion to stay the appeal pending the determination of this CPL article 440 motion (by decision and order dated July 19, 1995), affirmed the judgment of conviction by a decision and order of December 11, 1995, People v. Smith, 222 A.D.2d 535, 635 N.Y.S.2d 538 (2d Dept.1995). That decision found that the evidence was legally sufficient to establish defendant's guilt beyond a reasonable doubt and that the verdict of guilt was not against the weight of the evidence.

The defendant's direct appeal also included the issue of ineffective assistance of counsel which was rejected by the Appellate Division in the following language:

Based on the record before us, the defendant was afforded meaningful representation under the totality of the circumstances then existing (see, People v. Flores, 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19 * * *). Id., at 535, 635 N.Y.S.2d 538.

Prior to this affirmance, the trial court ordered an evidentiary hearing on this CPL article 440 motion, which was held in November 1995. Defendant was present for every evidentiary session of the hearing and testified in his own behalf. The defense also called defendant's mother and an investigator. The prosecution called defendant's trial counsel, Herbert M. Feinsod (hereinafter referred to as "counsel"), as their only witness. In addition, there was a report received into evidence by stipulation of Morris S. Zedeck, Ph.D., a pharmacologist, dated October 3, 1994, regarding the side effects that counsel was likely to have suffered on account of the various medications he was taking during the trial, which included the concession that Dr. Zedeck was not a physician and never examined counsel or any medical records and that he could not determine whether, in fact, he had experienced any of these side effects. ²

In accordance with the requirements of CPL 440.30(7), I now make findings of fact and conclusions of law. In doing so, I recognize that defendant must prove every fact essential to support his motion by a preponderance of the evidence. See, CPL 440.30(6). Moreover, not only am I bound by the recent decision of the Appellate Division, but also I must not consider matters in the original trial record which were or could have been raised on direct appeal. CPL 440.10(2)(a), (b) and (c); People v. Cooks, 113 A.D.2d 975, 976, 493 N.Y.S.2d 646 (3d Dept.1985), aff'd 67 N.Y.2d 100, 500 N.Y.S.2d 503, 491 N.E.2d 676 (1986); People v. Castaneda, 189 A.D.2d 890, 592 N.Y.S.2d 758 (2d Dept.1993), on remand 198 A.D.2d 292, 603 N.Y.S.2d 563, lv. denied 83 N.Y.2d 870, 613 N.Y.S.2d 130, 635 N.E.2d 299 (1994). This is more than an academic restriction in this case because defendant unsuccessfully raised the same issue of ineffective assistance of counsel on direct appeal, as previously noted. ³

Each of the hearing witnesses, with the exception of the investigator, whose testimony I take to be only marginally relevant in any event, carried some heavy credibility baggage on account of their interests in the outcome of this proceeding. Defendant's mother is bitterly disappointed over the imprisoned fate of her beloved son. The defendant himself has the biggest stake and in many (but not all) important respects I found his testimony as incredible as the jury at trial presumably did. Finally, trial counsel was placed in the extremely awkward position of explaining his less than exemplary performance at trial and at the same time of answering sexual harassment and conflict of interest charges based on his relationship with and conduct toward defendant's mother. ⁴

Counsel performed some of his professional duties toward defendant acceptably well and others deficiently. He entered the case at the behest of defendant's mother, who feared at that point as much for his safety on the street as for his prosecution for homicide. He properly arranged for a peaceful surrender of defendant to the police in his mother's home, instructed the police not to question his client, instructed the police not to put him in a lineup without first consulting him (which the police ignored and for which counsel failed to pursue any remedy in a timely fashion), ⁵ and he took his photograph to assure his proper treatment at the hands of the police. These were all early duties of counsel which were helpful to defendant.

However, even at this early stage counsel fell short professionally in important respects. He seemed to have no sensitivity to the potential conflict of interest ⁶ he faced from the outset by representing the codefendant Fitzroy McNeil ⁷ at the same time during this early arrest process. While this was to be remedied shortly by the appointment of counsel from the 18-B homicide panel for McNeil in Criminal Court, the problem concerns counsel's interview of both suspects at that time. A careful lawyer should have interviewed his client separately and limited his representation of McNeil to certain prophylactic instructions to the police, and certainly not engage in a joint interview of both, as counsel testified he did, or conduct any interview of McNeil without a clear, intelligent and voluntary waiver by McNeil and Smith of the potential conflict of interest. Not only was this apparently ignored by counsel, but he put himself in the position more than three years later of not being able to differentiate at the CPL article 440 hearing who told him what about the facts of the homicide, at least at this early state. ⁸

The next factual category outside the record I will characterize as factual preparation for trial. Based on counsel's inconsistent testimony and his complete inability to produce any notes or other supporting documentation, I find that he did not properly investigate the scene of the homicide, either himself or by means of an investigator. See, generally, People v. Bennett, 29 N.Y.2d 462, 466-467, 329 N.Y.S.2d 801, 280 N.E.2d 637 (1972); People v. Droz, 39 N.Y.2d 457, 384 N.Y.S.2d 404, 348 N.E.2d 880 (1976). If he ever went back to that housing project after the day of surrender, which I doubt, it was a useless venture, since he obviously learned nothing about the scene of the homicide which he was later able to use at trial or explain at the 440 hearing. This is one area where investigator Collins' testimony is relevant. He demonstrated that it would have been helpful in cross-examining the People's witnesses at trial to have independent investigative reports to compare with police reports, diagrams and ballistics evidence. For example, the presence of shells which might have come from two guns could have been pursued, as well as the lack of a direct path from the main entrance to the landing where the shooting occurred and damage to walls that arguably was consistent with a "shoot-out." ⁹

I find that counsel imprudently failed to hire an investigator to help him prepare for trial. Even if defendant and his mother had not asked him to do so, although I believe they did, it should have been done. It is no answer to say, as counsel testified, that he relied on McNeil's counsel to do so, because it is not other counsel's responsibility toward defendant Smith and because there was no follow-up by counsel to ensure that it was accomplished.

An investigator, while not necessarily essential, would surely have been also helpful in canvassing for witnesses and interviewing those whose names were given to counsel by defendant and his mother. I do accept counsel's testimony that he contacted a person at the Pierre Hotel where Smith had been working and the housing project manager where Smith lived, with essentially negative results. Moreover, I agree with the prosecution that the defense did not prove the existence of witnesses favorable to the defense whom counsel failed to produce for trial, except insofar as the defense could have been more diligent and potentially successful in making offers of proof to the trial court of the violent reputation and prior violent acts of and threats by the deceased. See, generally, People v. Miller, 39 N.Y.2d 543, 384 N.Y.S.2d 741, 349 N.E.2d 841 (1976) and People v. Ross, 197 A.D.2d 713, 602 N.Y.S.2d 919 (2d Dept.1993), lv. denied 82 N.Y.2d 902, 610 N.Y.S.2d 169, 632 N.E.2d 479 (1993). ¹⁰ Finally, I see no reason why counsel did not at least attempt to interview Kizer Gables, a witness mentioned by the key prosecution witness, Deshawn Livingston, ¹¹ as being present outside the building at or about the time of the shooting, who refused to speak with the District Attorney. ¹²

With respect to counsel's interviews of defendant, I believe the truth to lie somewhere in the middle of the exaggerated versions given by defendant and counsel. He spoke with defendant from time to time in connection with his various court appearances and on occasion briefly by telephone, but failed to listen fully, patiently and attentively to his client's concerns and failed to inform him in greater detail of the progress of the case, if any, and planned trial strategy. Above all, as will be discussed later in this opinion, counsel failed to advise Smith properly concerning his right to testify or not, and...