People v. Turner

• Decision Date: 17 November 2005
• Citation: 5 N.Y.3d 476,840 N.E.2d 123
• Parties: The PEOPLE of the State of New York, Appellant, v. Herman TURNER, Respondent.
• Court: New York Court of Appeals Court of Appeals

840 N.E.2d 123

5 N.Y.3d 476

The PEOPLE of the State of New York, Appellant, v. Herman TURNER, Respondent.

Court of Appeals of New York.

November 17, 2005.

Charles J. Hynes, District Attorney, Brooklyn (Sholom J. Twersky, Leonard Joblove and Victor Barall of counsel), for appellant.

Legal Aid Society Criminal Appeals Bureau, New York City (Katheryne M. Martone and Laura R. Johnson of counsel), for respondent.

OPINION OF THE COURT

R.S. SMITH, J.

Very rarely, a single lapse by otherwise competent counsel compels the conclusion that a defendant was deprived of his constitutional right to effective legal representation. This is such a rare case, in which both defendant's trial and appellate lawyers failed to perceive that a statute of limitations defense would have prevented their client's manslaughter conviction. We conclude that this error requires setting the conviction aside, and we therefore affirm the Appellate Division's grant of a writ of error coram nobis.

Facts and Procedural History

In 1982, Donald Holloman was killed by gunshots on a Brooklyn street corner. According to several witnesses, defendant fired the fatal shots, then fled. He was not seen again in the neighborhood for years, and was not arrested until 1998, almost 16 years after the crime.

Defendant was indicted for murder in the second degree, a crime for which there is no statute of limitations (CPL 30.10[2][a]). At his trial in 1999, the prosecutor asked the court to instruct the jury that it could convict defendant of manslaughter in the first degree, as a lesser included offense. Defendant's trial counsel opposed the prosecutor's request, saying that defendant "does not want to give a jury the chance to compromise," but did not mention any statute of limitations problem — though manslaughter, unlike murder, is subject to a five-year statute (CPL 30.10[2][b]).

The trial judge instructed the jury that, if it found defendant not guilty of murder, it should consider whether he was guilty of manslaughter. The jury acquitted him of murder but convicted him of manslaughter, and defendant appealed. His appellate counsel devoted her brief in the Appellate Division to a single issue: she claimed that a violation of People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 [1961], cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64 [1961] entitled defendant to a new trial. The argument was a substantial one and the brief presented it well, though unsuccessfully.

The appellate brief was filed in June 2000. Before it was filed, defendant wrote to his appellate lawyer, mentioning the possibility that his manslaughter conviction should have been barred by the statute of limitations. The lawyer replied that the statute of limitations was "not a strong issue for appeal," for two reasons. First, the lawyer said that the defense lacked merit, because defendant's indictment for murder was not time-barred and therefore "it was not improper for the jury to have considered the lesser included offense of manslaughter." Secondly, she said that, because trial counsel had not raised the statute of limitations below, the issue was not preserved for appellate review. She did not mention the possibility of arguing that trial counsel was ineffective for failing to preserve the issue.

The Appellate Division affirmed defendant's conviction (281 A.D.2d 568, 723 N.Y.S.2d 43 [2d Dept.2001]), and a Judge of this Court denied leave to appeal. Defendant applied to the Appellate Division for a writ of error coram nobis, asserting that his appellate counsel had been ineffective because, among other things, she failed to raise the statute of limitations issue. The Appellate Division denied relief (285 A.D.2d 659, 728 N.Y.S.2d 395 [2d Dept.2001]), and defendant filed a petition for federal habeas corpus.

The United States District Court for the Eastern District of New York denied defendant relief, but suggested that he might eventually prevail on the claim — not specifically raised in his first coram nobis application — that his appellate counsel should have argued that his trial counsel was ineffective. The District Court held that it could not consider this claim until it had been unsuccessfully presented to the state courts (Turner v. Sabourin, 217 F.R.D. 136, 146-147 [E.D.N.Y.2003]). Taking the hint, defendant returned to the Appellate Division, and filed a second petition for a writ of error coram nobis, which the Appellate Division granted. A Judge of this Court granted the People leave to appeal, and we now affirm.

Discussion

I

The Sixth Amendment to the United States Constitution provides that a defendant shall "enjoy the right ... to have the Assistance of Counsel for his defence." Similarly, article I, § 6 of the State Constitution provides that "[i]n any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil actions." It is well established that these constitutional rights are violated if a defendant's counsel fails to meet a minimum standard of effectiveness, and defendant suffers prejudice from that failure (Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981]). In Strickland the United States Supreme Court adopted a two-pronged test for ineffective assistance, holding that a defendant must show, first, "that counsel's representation fell below an objective standard of reasonableness" (466 U.S. at 688, 104 S.Ct. 2052, 80 L.Ed.2d 674) and, secondly, "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" (id. at 694, 104 S.Ct. 2052). Strickland holds that the minimum standard of performance required by the Sixth Amendment is a very tolerant one:

"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." (466 U.S. at 689, 104 S.Ct. 2052.)

Our ineffective assistance cases have departed from the second ("but for") prong of Strickland, adopting a rule somewhat more favorable to defendants (see People v. Caban, 5 N.Y.3d 143, 155-156, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005]; People v. Stultz, 2 N.Y.3d 277, 284, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004]; People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998]). Our cases, however, agree with Strickland on the first prong. We have said that "counsel's efforts should not be second-guessed with the clarity of hindsight" and that our Constitution "guarantees the accused a fair trial, not necessarily a perfect one" (People v. Benevento, 91 N.Y.2d at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584). We have also held that, in general, the issue is whether counsel's performance "viewed in totality" amounts to "meaningful representation" (People v. Baldi, 54 N.Y.2d at 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). But our decisions, and the United States Supreme Court's, have recognized that there may be cases in which a single failing in an otherwise competent performance is so "egregious and prejudicial" as to deprive a defendant of his constitutional right (People v. Caban, 5 N.Y.3d at 152, 800 N.Y.S.2d 70, 833 N.E.2d 213; Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 [1986]).

Such cases are rare — indeed, this may be the first one this Court has encountered. Two of our decisions have rejected ineffective assistance claims despite significant mistakes by defense counsel (People v. Hobot, 84 N.Y.2d 1021, 622 N.Y.S.2d 675, 646 N.E.2d 1102 [1995]; People v. Flores, 84 N.Y.2d 184, 615 N.Y.S.2d 662, 639 N.E.2d 19 [1994]). Those cases hold, and we reaffirm today, that such errors as overlooking a useful piece of evidence (Hobot), or failing to take maximum advantage of a Rosario violation (Flores), do not in themselves render counsel constitutionally ineffective where his or her overall performance is adequate. But neither Hobot nor Flores involved the failure to raise a defense as clear-cut and completely dispositive as a statute of limitations. Such a failure, in the absence of a reasonable explanation for it, is hard to reconcile with a defendant's constitutional right to the effective assistance of counsel.

II

The ultimate issue here is whether appellate counsel was ineffective for failing to argue that trial counsel was ineffective. That question depends on whether trial counsel was clearly ineffective, and that question in turn depends on how strong defendant's statute of limitations defense was. We conclude that it was a winning argument; that trial counsel could not reasonably have thought that the defense was not worth raising; that appellate counsel could not reasonably have thought that she should not argue trial counsel's ineffectiveness; and that therefore an "egregious and prejudicial" error, rising to the level of ineffective assistance, has occurred.

The argument that trial counsel could and should have made in opposing the submission of the manslaughter count to the jury was simple: Manslaughter is subject to a five-year statute of limitations that can be tolled under some circumstances, but for no more than five additional years (CPL 30.10[2] [b]; [4][a]); here, defendant was not prosecuted until 16 years after his crime; even with the maximum tolling, the prosecution came some six years too late. While the People did have a possible counterargument, it was a weak one — certainly not one that could justify a decision by defendant's trial counsel to abandon the statute of limitations defense.

The People could have made the argument that defendant's appellate counsel later advanced in her letter to defendant — ...