People v. Sullivan

• Decision Date: 08 January 1990
• Parties: The PEOPLE, etc., Respondent, v. Joseph SULLIVAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 358

550 N.Y.S.2d 358

153 A.D.2d 223

The PEOPLE, etc., Respondent, v. Joseph SULLIVAN, Appellant.

Supreme Court, Appellate Division,

Second Department.

Jan. 8, 1990.

John F. Middlemiss, Jr., Ronkonkoma (George Grun, of counsel), for appellant.

James M. Catterson, Jr., Dist. Atty., Riverhead (Patricia A. Murphy, of counsel), for respondent.

Before BRACKEN, J.P., and BROWN, LAWRENCE and KOOPER, JJ.

BRACKEN, Justice Presiding.

On December 8, 1981, the defendant and his accomplice and codefendant, Marco Tedesco, went to the apartment of Andrew Soldo in Selden, New York, in connection with a prearranged drug transaction. Upon entering the apartment, the defendant removed a handgun from his pocket and shot Mr. Soldo in the head. The defendant then proceeded to shoot Richard Bretz and Virginia Carson, two other occupants of the apartment. As the three victims lay wounded on the floor, the defendant fired several more shots into Mr. Bretz, and then instructed his codefendant to "Make sure they're dead". Tedesco attempted to comply with this directive by slashing the three victims on their faces and throats, and, with respect to Ms. Carson and Mr. Bretz, he succeeded in fulfilling the defendant's command. Miraculously, however, Mr. Soldo survived and lived to tell the details of this slaughter to a Suffolk County jury.

The evidence against the defendant and the codefendant in this case was overwhelming. Mr. Soldo was a prior acquaintance of the defendant, and was able to identify him at trial in an unhesitating manner that left no room for doubt. There was voluminous background testimony which established that the defendant and Mr. Tedesco had previously arranged to meet Mr. Soldo as well as Mr. Bretz at Soldo's apartment in order to consummate a sale of $2,300 worth of narcotics. The jury also heard the testimony of the pharmacist who identified the defendant as one of the two men who had assaulted him, and who had forcibly stolen drugs from him at gunpoint earlier on the day in question. Bullets later removed from Mr. Bretz's and Ms. Carson's bodies were ballistically linked to a Titan pistol, equipped with a silencer, which had been recovered from the defendant's automobile. ¹ There was a large volume of additional corroborative evidence which need not be described here.

The jury convicted both the defendant and the codefendant. The appeal taken by the codefendant resulted in an affirmance (People v. Tedesco, 143 A.D.2d 155, 531 N.Y.S.2d 609). In the present appeal, the defendant's primary argument is that he was denied his constitutional right to the effective assistance of counsel (U.S. Const. 6th, 14th Amends.; N.Y.Const. art. I, § 6). This argument is premised largely on the fact that the defendant's trial attorney, during his summation to the jury, did little more than disparage the victims of the defendant's crimes in terms which any decent person would find offensive. Ms. Carson was referred to as "Mary Poppins getting it right between the eyes". Mr. Soldo was referred to as the one "junkie" who survived, and was also characterized as a "frog-legged pimp". All three victims were repeatedly described as being "skells", "pimps" or "junkies". These epithets are merely illustrative of the overall tone of defense counsel's summation, the basic theme of which was to suggest to the jury that the defendant should be considered innocent, because the victims of the murders and attempted murder were themselves unsavory moral degenerates who, according to the implications to be drawn from the defense counsel's summation, deserved to die.

The attorneys for the defendant on his appeal to this court take a justifiably dim view of trial counsel's effort to evade his client's criminal responsibility by convincing the jury that the victims of the defendant's rampage received their just deserts. It is now argued that the tactic of disparaging the victim--a tactic which, we must acknowledge, is used to a greater or lesser extent in a number of cases--was ill-suited to the facts of this case, and was used by trial counsel to an unwarranted degree. It is argued that the defense counsel's verbal assault on the deceased victims and on the chief prosecution witness was so outrageous as to have had precisely the opposite effect from that which the defendant's trial counsel evidently intended, that is, the provocation of passion directed against the defendant rather than against his victims.

We reject this argument for two reasons. First, we find that however offensive it might have been, the theme of defense counsel's summation must, in the absence of any proof to the contrary, be presumed to have been devised as part of a trial strategy. Second, we conclude that even if the conduct of the defendant's attorney be considered as an example of actual misconduct, rather than merely as an example of an ill-conceived trial tactic, under the standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, the defendant is not entitled to a new trial because the alleged misconduct did not affect the outcome of the trial.

It is now a firmly established rule of New York law that a claim of ineffective assistance of counsel may not be premised solely upon trial counsel's unsuccessful employment of a trial strategy, even when the strategy in question may be "daring and innovative" (People v. Baldi, 54 N.Y.2d 137, 151, 444 N.Y.S.2d 893, 429 N.E.2d 400; see also, People v. Satterfield, 66 N.Y.2d 796, 798, 497 N.Y.S.2d 903, 488 N.E.2d 834). "The right to counsel was not intended to afford a defendant, aided by the wisdom of hindsight, to second guess matters of trial strategy employed by counsel" (People v. Aiken, 45 N.Y.2d 394, 399, 408 N.Y.S.2d 444, 380 N.E.2d 272; see, People v. Rivera, 71 N.Y.2d 705, 530 N.Y.S.2d 52, 525 N.E.2d 698; People v. Benn, 68 N.Y.2d 941, 510 N.Y.S.2d 81, 502 N.E.2d 996; see also, People v. Coleman, 142 A.D.2d 586, 587-588, 530 N.Y.S.2d 242; People v. Nevarez, 141 A.D.2d 861, 862, 530 N.Y.S.2d 203).

The weightier the evidence possessed by the prosecution, the more desperate the tactics employed by the defense counsel are likely to become, and appellate courts consistently refuse, when reviewing claims of ineffective assistance of counsel, to second-guess the employment of questionable or debatable trial strategies, even when such strategies include, for example, counsel's actually conceding his client's guilt of some of the charges (see, e.g., People v. Bone, 154 Ill.App.3d 412, 107 Ill.Dec. 142, 506 N.E.2d 1033; State v. Berry, 430 So.2d 1005 [La] [counsel conceded defendant's guilt of robbery in attempt to avoid conviction of murder]; People v. Wise, 134 Mich.App. 82, 351 N.W.2d 255 [counsel admitted client's complicity in burglary]; Commonwealth v. Stoute, 10 Mass.App. 932, 413 N.E.2d 739 [counsel admitted client's guilt of assault in effort to avoid conviction of a kidnapping]; see also, Annot., Defense Counsel--Argument, 6 ALR 4th 16, §§ 7-9, at 40-44). ² It is not surprising, in the present case, that the defendant's attorney, having properly assessed his client's chances of exoneration at the hands of a properly-guided and fair minded jury as being negligible at best, decided, as a tactical matter, to attempt to misguide and to prejudice the jurors, and to have them render a verdict based neither upon the evidence nor upon the law, but rather, upon their emotions, which the defendant's attorney did his best to inflame. Now that this tactic has failed, the defendant's appellate attorneys should not be permitted to argue that the defendant's trial attorney was "ineffective".

The case of People v. Wise, 64 A.D.2d 272, 409 N.Y.S.2d 877, illustrates the principle that the misconduct of a defendant's trial attorney, perpetrated as part of a deliberate stratagem, may not serve as the basis for a claim, on appeal, that the defendant was denied his right to the effective assistance of counsel. In People v. Wise (supra), the defendant's trial attorney in the presence of the jury announced to the Trial Judge that he refused to continue with the trial, and then walked out of the courtroom after having berated the Judge in an insulting and unprofessional way (People v. Wise, supra, at 274-275, 409 N.Y.S.2d 877). The Appellate Division stated that it would not " 'permit defendant's counsel to accomplish that which we will not permit a defendant to accomplish himself: that is, to render his trial a nullity' " (People v. Wise, supra, at 277, 409 N.Y.S.2d 877, quoting from People v. Aiken, 45 N.Y.2d 394, 399, 408 N.Y.S.2d 444, 380 N.E.2d 272, supra).

The statements made in the Wise case (supra), reflect a widely-held concern that, in desperate cases, a defense lawyer may feign incompetence, or otherwise deliberately attempt to interject reversible error into the record. Where the evidence is so overwhelming that it may truthfully be said that the defendant has no defense, there is always a risk that a defense attorney will simply attempt to "throw" the case (see generally, Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 cert. denied 469 U.S. 963, 105 S.Ct. 361, 83 L.Ed.2d 297 [appellate court may refer case to disciplinary board where inference appears that defense counsel feigned ineffectiveness in order to create appellate issue]; Lahmann v. State, 509 S.W.2d 791 [Mo] [rejecting claim of ineffective assistance of counsel where defendant and attorney adopted tactic for purpose of creating reversible error]; see also, Annot., Adequate Representation by Counsel, 2 ALR4th 27, § 3[c]. Our Court of Appeals has recognized, in a different context, the risk of giving "sophisticated defendants and unscrupulous attorneys a delayed-trigger weapon to be sprung at some later strategic phase of the proceeding if events developed very badly for a defendant" (People v. Winkler, 71 N.Y.2d 592, 598, 528 N.Y.S.2d 360, 523 N.E.2d 485). The conduct of the defense counsel in the present...