People v. Stultz

• Citation: 810 N.E.2d 883,2 N.Y.3d 277,778 N.Y.S.2d 431
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CLAYTON STULTZ, Appellant.
• Decision Date: 04 May 2004
• Court: New York Court of Appeals

2 N.Y.3d 277

810 N.E.2d 883

778 N.Y.S.2d 431

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CLAYTON STULTZ, Appellant.

Court of Appeals of the State of New York.

Argued April 1, 2004.

Decided May 4, 2004.

Norman A. Olch, New York City, for appellant.

Denis Dillon, District Attorney, Mineola (Edward Miller and Peter A. Weinstein of counsel), for respondent.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur.

OPINION OF THE COURT

ROSENBLATT, J.

Defendants in criminal cases have a constitutional right to effective assistance of counsel (US Const 6th Amend; NY Const, art I, § 6). In People v Baldi (54 NY2d 137 [1981]), we set the standard for claimed ineffective assistance of trial counsel, holding that the constitutional requirements are met when the defense attorney provides "meaningful representation." We are now called upon, for the first time, to set a standard for claimed ineffective assistance of appellate counsel. We conclude that the same standard — meaningful representation — should be applied and that in the case before us appellate counsel met the test. In so holding, we reject defendant's claim that appellate counsel was ineffective for having failed to assail trial counsel's performance. Accordingly, we affirm the Appellate Division's denial of defendant's motion for coram nobis relief.

I.

A Nassau County jury found defendant guilty of murder in the second degree and criminal possession of a weapon in the second degree, for which the court sentenced him to concurrent prison terms of 25 years to life and 7½ to 15 years.

At trial, the People introduced proof that defendant and an accomplice shot and killed Todd Biggins in a park in Uniondale. A park employee testified that just before the shooting she had seen the victim talking on a payphone alongside a park administration building. Shortly after the phone call, two men — defendant and an accomplice — walked past her, toward the victim. From a distance of five or six feet she watched defendant for about 25 seconds. She saw defendant and his companion pull out handguns and shoot the victim several times before fleeing by car. Several months later, she picked defendant out of a photo array and a lineup.¹ She stated that, when killing the victim, defendant had a smirk on his face that she would "never, ever forget."

The People also proved that, while searching the deceased's room, police found a paper containing the name "Noey" and a phone number that police linked to defendant.² Further, by using a digital code, police identified the telephone number of the park payphone and learned that on the date of the murder three calls were placed from that phone to defendant's beeper. Also, a police detective testified that several weeks after the shooting he saw a car parked in defendant's driveway. The vehicle resembled the getaway car and was registered to defendant's mother.

Shortly before trial, almost two years after the murder and about a year after defendant's arrest, Michelle Dolberry told the Nassau County police that she had witnessed the killing and knew the shooter to be Anthony Anderson, and not defendant. She gave the police a signed, sworn statement to that effect and in a sworn videotaped account repeated it to the prosecutors. The prosecution turned this material over to defense counsel to whom Dolberry reiterated that Anderson was the killer. Anderson's brother, she said, was with him at the time. Although Dolberry was in jail on an unrelated charge, both sides expected her to testify, and when authorities brought her into court, the trial judge assigned her a Legal Aid lawyer. She refused to testify, asserting her privilege against self-incrimination.

At that, defendant argued that Dolberry's testimony was critical because it supported his claim of mistaken identity. The defense asked the prosecution to grant Dolberry immunity, urging that without her testimony defendant would be denied due process and a fair trial. The prosecutor, however, declined and, despite defense counsel's protestations over the prospect of losing Dolberry as a witness, the trial court did not ask her why she felt in danger of self-incrimination. Ultimately, the court concluded that it could not compel her to testify. Defense counsel did not try to get Dolberry's statements admitted into evidence. After the guilty verdict and sentence, defendant appealed his conviction to the Appellate Division. That Court affirmed (284 AD2d 350 [2001]), and we denied leave (96 NY2d 942 [2001]). Defendant then applied to the Appellate Division for a writ of error coram nobis, arguing that appellate counsel was ineffective for not attacking trial counsel's failure to offer Dolberry's statement into evidence. The Appellate Division denied the application (304 AD2d 593 [2003]), and a Judge of this Court granted defendant leave to appeal. We now affirm.

In advancing his claim that appellate counsel was ineffective, defendant contends that this Court should apply the Baldi "meaningful representation" standard, and that appellate counsel did not meet it. We will consider these contentions in order.

The Standard for Evaluating Claims of Ineffective Assistance of Appellate Counsel

In People v Bachert (69 NY2d 593 [1987]), we noted that there was no comprehensive statutory mechanism to address collateral claims of ineffective assistance of appellate counsel and called on the Legislature to remedy the problem.³ We held, however, that a defendant who claims to be aggrieved by appellate counsel's failures could proceed by writ of error coram nobis before the appellate court in which the allegedly deficient representation took place. In the absence of a statutory scheme, this Court recognized that it had no power to entertain appeals from appellate orders granting or denying coram nobis relief (see People v Marsicoveteri, 79 NY2d 913 [1992]

)⁴ and could not establish a standard for claims of ineffective assistance of appellate counsel. The Legislature remedied the problem by amending CPL 450.90 (L 2002, ch 498), authorizing appeals (by permission) to this Court from appellate orders granting or denying coram nobis relief based on claims of ineffective assistance or wrongful deprivation of appellate counsel.

Now presented with the opportunity to review these claims, we must set the appropriate standard. We begin with the premise that defendants in criminal cases have a federal and state constitutional right to effective assistance of appellate counsel.⁵ Twenty-three years ago, in Baldi, we went through a similar exercise when addressing claims of ineffective assistance of trial counsel and concluded that a "meaningful representation" criterion comports with both the Sixth Amendment and our own state constitutional sensibilities. The road to Baldi extended over several decades. Because that analysis leads us to the same result in fashioning a rule for evaluating appellate effectiveness, it is important to recognize some of the turns along the way. Equally important is that we have retained Baldi in preference to the federal (Strickland v Washington, 466 US 668 [1984]) standard in evaluating claims of ineffective assistance of trial counsel.

Although appellate lawyers have increasingly challenged the effectiveness of trial counsel (as a basis for reversing convictions), the right to effective trial counsel is not new.⁶ In the earliest such cases — late 19th and early 20th century decisions — a few courts addressed claims relating to counsel's abject incompetency and, once in a great while (based generally on the court's supervisory powers), ordered new trials.⁷

In New York, we have long recognized the importance of adequate counsel in criminal cases (see e.g. People v Silverman, 3 NY2d 200 [1957]

; People v McLaughlin, 291 NY 480, 483 [1944]), but it was not until 1960 that we began to articulate something approaching a constitutional basis for claims of attorney ineffectiveness (see People v Tomaselli, 7 NY2d 350, 353-354 [1960]). In Tomaselli, we held that a defendant is entitled to reversal when counsel's representation rendered the trial "a farce and a mockery of justice" (id. at 354). We adhered to that standard⁸ and in assigned counsel cases reversed some convictions under it on constitutional grounds.⁹ In 1976 and 1979, this Court in two cases found counsel's representation ineffective and thus constitutionally unacceptable (see People v Droz, 39 NY2d 457 [1976]; People v Bell, 48 NY2d 933 [1979]), but did not use the "farce or mockery" test or even refer to the cases that established it.

Finally, in Baldi, we departed from the "farce or mockery" test and articulated a new standard of "meaningful representation." We recognized, in essence, that a criminal trial should be more efficient, and fairer, than one that rises just above the level of farce. But we have been careful to distinguish between true ineffectiveness and losing tactics or unsuccessful efforts in advancing appropriate defenses (see People v Henry, 95 NY2d 563, 565 [2000]; People v Berroa, 99 NY2d 134 [2002]).

In Strickland v Washington (466 US 668 [1984]), the Supreme Court established a standard for evaluating defendants' Sixth Amendment claims of ineffective assistance of trial counsel. To prevail, the defendant must prove that trial counsel did not render reasonably competent assistance and that there is a reasonable probability that, but for the counsel's inadequacy, the outcome of the trial would have been different. Strickland's prejudice prong is what chiefly separates it from Baldi.

From time to time, we have referred to the Strickland standard and measured counsel's performance under it,¹⁰ but have never applied it with such stringency as to require a defendant to show that, but for counsel's ineffectiveness, the outcome would probably have been different. Under our Baldi standard, we are not indifferent to whether the defendant was or was not prejudiced...