People v. Turner
| Decision Date | 23 August 2004 |
| Docket Number | 1999-05274. |
| Citation | 781 N.Y.S.2d 163,10 A.D.3d 458,2004 NY Slip Op 06438 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. HERMAN TURNER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Application by the appellant for a writ of error coram nobis to vacate a decision and order of this Court dated March 19, 2001 (People v Turner, 281 AD2d 568 [2001]), affirming a judgment of the Supreme Court, Kings County, rendered May 24, 1999, on the ground of ineffective assistance of appellate counsel. By decision and order on motion of this Court dated October 20, 2003, the appellant was granted leave to serve and file a brief on the issue of whether his trial counsel was ineffective for failing to assert the defense that the charge of manslaughter in the first degree was barred by the statute of limitations, and the coram nobis application was held in abeyance in the interim. The parties have now filed their respective briefs.
Ordered that the application is granted, and the decision and order of this Court dated March 19, 2001, is vacated; and it is further,
Ordered that the judgment is reversed, on the law, the indictment is dismissed, and the matter is remitted to the Supreme Court, Kings County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.
At the People's insistence and over the defense counsel's strenuous objections, the trial court charged the jury with the lesser-included offense of manslaughter in the first degree on the indictment for murder in the second degree. The defense counsel objected to the submission of this lesser-included offense on the ground that the evidence was legally insufficient to support a finding of manslaughter in the first degree and on the ground that the defendant maintained his innocence and did not wish to give the jury a chance to compromise its verdict by convicting on a lesser-included offense. The jury convicted the defendant of manslaughter in the first degree. On appeal, the defendant's conviction was affirmed (see People v Turner, supra). Now, upon his application for a writ of error coram nobis, the defendant contends that his appellate counsel was ineffective for failing to assert that his trial counsel was ineffective for failure to object to the submission of the lesser-included offense of manslaughter in the first degree on the ground that it was barred by the statute of limitations. We agree.
The statute of limitations applies to lesser-included offenses of timely-brought charges (see People v Di Pasquale, 161 App Div 196 [1914]). In People v Di Pasquale (supra), the defendant was indicted on a charge of murder in the second degree. However, he was convicted only of attempted murder in the second degree, a lesser-included offense that could not have been timely charged in the indictment. The Court vacated the conviction on the ground that prosecution for the crime of attempted murder in the second degree was time-barred.
The facts of the instant case are on all fours with People v Di Pasquale (supra). It is undisputed that the statute of limitations barred the charge of manslaughter in the first degree (see CPL 30.10 [2] [a]). However, the jury was charged and the defendant was convicted on this time-barred lesser-included offense (see People v Hughes, 220 AD2d 529 [1995]; cf. People v Mills, 1 NY3d 269 [2003]). Thus, the defense counsel's failure to object to the submission to the jury of the lesser-included offense constituted ineffective assistance of counsel. Moreover, no trial strategy justified the defense counsel's failure to raise the statute of limitations as a complete defense to the submission of the lesser-included offense. That defense counsel objected to the inclusion of this charge on other grounds eliminates the possibility that he was withholding the statute of limitations defense for tactical reasons. This, then, is clearly not a case where the defendant waived the submission of the lesser-included offense in order to gain the benefit of a possible reduced sentence (see People v Mills, supra).
The People contend that the defense counsel was not...
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