People v. Benevento , 657 N.Y.S.2d 606 ( 1997 )

Judgment of the Supreme Court, New York County (Jay Gold, J.), rendered May 12, 1994, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him to a term of U/a to 41/2 years imprisonment, reversed, on the law, and the matter remanded to Supreme Court for a new trial.

Defendant contends that the record in this matter, which he has not expanded by means of a motion pursuant to CPL 440.10, establishes that he was deprived of his right to the effective assistance of counsel (US Const 6th Amend; NY Const, art I, § 6). Violation of this right is normally asserted in the context of a CPL 440.10 motion because, in the usual case, "ineffectiveness of counsel is not demonstrable on the main record” (People v Brown, 45 NY2d 852, 853). The difficulty in assessing counsel’s effectiveness solely upon the trial record is that it provides no explanation of counsel’s tactics (People v Diaz, 220 AD2d 260, 261). For example, where the failure to request a párticular hearing is in issue, the courts will necessarily presume that counsel exercised professional judgment unless the defendant can demonstrate that the asserted omission lacked a strategic or other legitimate explanation (People v Rivera, 71 NY2d 705). However, where the record "demonstrates beyond cavil that defendant was lacking effective counsel”, reversal is warranted (People v Brown, supra, at 853).

The record in the case before us discloses no discernible defense strategy and clearly indicates that counsel failed either to conduct meaningful cross-examination or to deliver a coherent summation. In his opening statement, the jury was told that defendant would be giving testimony, and its substance was outlined for the jurors. Defendant, however, never took the witness stand. At the charge conference, counsel asked for a jury instruction on intoxication, but he made no use of this, defense during trial and even objected when witnesses made reference to defendant’s drunkenness. Counsel requested that the jury be instructed on the lesser included offense of assault in the third degree, but based his argument that this was not a case of robbery but a case of assault on the outmoded precedent of People v Lett (39 NY2d 966; see, People v Miguel, 53 NY2d 920). He was successful in obtaining a Sandoval ruling precluding examination into the details of a prior guilty plea in a rape prosecution that also involved robbery. Even this accomplishment, however, was severely compromised. Having elicited from the arresting officer, over the prosecutor’s objection, that defendant thought the case "was being turned into a rape instead of a robbery”, counsel persisted in asking why defendant had reached this conclusion, evoking the response, "He said that he had done this once before.”

While " 'meaningful representation’ does not mean 'perfect representation’ ” (People v Ford, 86 NY2d 397, 404, quoting People v Modica, 64 NY2d 828, 829), the record before us demonstrates that defense counsel’s representation was less than meaningful under the circumstances (People v Satterfield, 66 NY2d 796, 798-799). Despite the bizarre circumstances of the crime, defense counsel failed to pursue a coherent strategy to demonstrate that defendant lacked the capacity to formulate the intent to steal, which is "an indispensable ingredient of the crime of robbery (People v Lopez, 58 AD2d 516), [and] must independently be established beyond a reasonable doubt” (People v Ramos, 83 AD2d 817). However, it is understatement to observe that the record also contains overwhelming evidence of defendant’s guilt, much of it provided by defendant himself, variously to passersby who assisted in his apprehension, to police officers who responded to the scene and to the Assistant District Attorney who first interviewed him. An eyewitness testified to seeing defendant strike the victim about the face as she lay on the ground trying to fend off his attack, and a police officer testified that it was defendant who led him to the money-defendant removed from the person of the victim and discarded during the ensuing pursuit. Defendant subsequently recounted these facts to an Assistant District Attorney. A motion to suppress his statements was denied, and no issue has been raised on appeal concerning this ruling.

As the Court of Appeals remarked in People v Brown (supra, at 853), "The result of reversal is unfortunate since the guilt of defendant was, and even with effective counsel most likely would have been, established by overwhelming evidence.” Nevertheless, the standard espoused by the United States Supreme Court in Strickland v Washington (466 US 668, 687), requiring that the defendant demonstrate both that "counsel’s performance was deficient and that the deficiency in performance prejudiced defendant” (People v Ford, supra, at 405), has not been adopted in this State (People v Claudio, 83 NY2d 76, 79; see also, People v Vilardi, 76 NY2d 67, 74, n 3). The standard under the New York Constitution (art I, § 6) remains that stated in People v Baldi (54 NY2d 137, 147): "So long as 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, the constitutional requirement will have been met”. As we conclude, on the record before us, that defendant’s representation was not meaningful under the totality of the circumstances, the judgment of conviction must be reversed. Concur— Murphy, P. J., Rosenberger and Rubin, JJ.