People v. Yagudayev

• Decision Date: 24 January 2012
• Citation: 2012 N.Y. Slip Op. 00539,937 N.Y.S.2d 279,91 A.D.3d 888
• Parties: The PEOPLE, etc., respondent, v. Ruben YAGUDAYEV, appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00539

91 A.D.3d 888

937 N.Y.S.2d 279

The PEOPLE, etc., respondent,

v.Ruben YAGUDAYEV, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Jan. 24, 2012.

Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnette Traill, and Danielle Hartman of counsel), for respondent.

MARK C. DILLON, J.P., PLUMMER E. LOTT, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

In this matter involving alleged shoplifting, the defendant entered a Home Depot store, collected a number of valuable tools offered for sale by the store, placed the tools in a shopping cart, and pushed the cart toward the rear of the store. There, he parked the shopping cart, obtained a flatbed cart, selected a bathroom vanity, and removed the vanity from its box. He then loaded the tools into the vanity box and resealed it, leaving the vanity out of the box. According to the store's security personnel, the defendant placed the vanity box containing the tools on the flatbed cart, and pushed the flatbed cart outside the store without stopping at the registers. Throughout the course of these events, the defendant had been observed by the store's security personnel, who apprehended him just outside the store's entrance. The defendant was charged with grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree.

At trial, the People presented evidence establishing the above events. Defense counsel then elicited testimony from the defendant confirming the essential elements of the People's evidence, except that the defendant maintained that, instead of pushing the flatbed cart with the vanity box containing the tools outside the store, he pushed the cart with the tool-laden vanity box to the front of the store, gave another customer cash sufficient to pay for the vanity, and exited the store empty-handed on the pretext that he needed to attend to a child in his vehicle. Defense counsel elicited testimony from the defendant that the defendant intended for the other customer to present the vanity box to a cashier, at which point the cashier would only ring up the sale of a vanity, the customer would pay the $69.99 price for a vanity that was marked on the vanity box, and, unaware that the vanity box was filled with tools worth far more than the vanity, the customer would wheel the flatbed cart to the parking lot to deliver the vanity box to the defendant. Thus, defense counsel elicited testimony from the defendant that, pursuant to this scheme, the defendant intended to take tools from the store worth far more than the $75 or $76 he allegedly tendered to the obliging customer to pay for a vanity.

During the charge conference and in his summation, it became clear that defense counsel's strategy in presenting this testimony was to persuade the factfinder—here, a Supreme Court Justice—that since the defendant never personally took the merchandise outside the store, he was guilty only of the lesser-included offense of attempted grand larceny in the fourth degree. Although the Trial Justice agreed to consider the lesser-included offense, defense counsel's strategy was legally unsustainable. The Trial Justice found the defendant guilty of both grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree. The defendant appeals, contending that his trial counsel was ineffective. We agree.

New York applies a “flexible standard” to evaluating claims of ineffective assistance of counsel ( People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584; see People v. Colville, 79 A.D.3d 189, 197, 909 N.Y.S.2d 463, lv. granted 17 N.Y.3d 793, 929 N.Y.S.2d 101, 952 N.E.2d 1096). Thus, where “the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation,” counsel's performance will not be found ineffective ( People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400; see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213; People v. Colville, 79 A.D.3d at 197, 909 N.Y.S.2d 463). In contrast to the federal standard, which looks to the outcome of the case, under our standard, a court must consider “prejudice ... [,] a component which focuses on the fairness of the process as a whole rather than any particular impact on the outcome of the case” ( People v. Colville, 79 A.D.3d at 197, 909 N.Y.S.2d 463; see People v. Hobot, 84 N.Y.2d 1021, 1022, 622 N.Y.S.2d 675, 646 N.E.2d 1102).

In evaluating claims of ineffectiveness, a reviewing court must take care to “avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis” ( People v. Baldi, 54 N.Y.2d at 146, 444 N.Y.S.2d 893, 429 N.E.2d 400; see People v. Colville, 79 A.D.3d at 197, 909 N.Y.S.2d 463). “As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance”; instead, a “claim of ineffective assistance of counsel will be sustained only when it is shown that counsel partook ‘an inexplicably prejudicial course’ ” ( People v. Benevento, 91 N.Y.2d at 712–713, 674 N.Y.S.2d 629, 697 N.E.2d 584, quoting People v. Zaborski, 59 N.Y.2d 863, 865, 465 N.Y.S.2d 927, 452 N.E.2d 1255).

A defense counsel's strategy of seeking the conviction of his or her client on a lesser-included offense does not, in and of itself, constitute ineffective assistance of counsel ( see People v. Hines, 46 A.D.3d 912, 913, 848 N.Y.S.2d 349). However, under the facts of this case, the strategy was legally indefensible.

In People v. Olivo, 52 N.Y.2d 309, 438 N.Y.S.2d 242, 420 N.E.2d 40, the Court of Appeals considered three shoplifting cases. In each, the defendant had taken steps toward an apparent planned theft, but had not actually left the store before being apprehended ( id. at 313–314, 438 N.Y.S.2d 242, 420 N.E.2d 40). After considering the law and the facts, the Court held that “in view of the modern definition of the crime of larceny, and its purpose of protecting individual property rights, a taking of property in the self-service store context can be established by evidence that a customer exercised control over merchandise wholly inconsistent with the store's continued rights” ( id. at 321, 438 N.Y.S.2d 242, 420 N.E.2d 40; see People v. Jennings, 69 N.Y.2d 103, 118, 512 N.Y.S.2d 652, 504 N.E.2d 1079; see generally People v. Medina, 18 N.Y.3d 98).

To “treat merchandise in a manner inconsistent with the owner's continued rights—and in a manner not in accord with that of a prospective purchaser,” an individual need not “actually walk[ ] out of the store” ( People v. Olivo, 52 N.Y.2d at 318, 438 N.Y.S.2d 242, 420 N.E.2d 40). Instead, “a customer who crosses the line between the limited...