The People, Respondent,v.Christopher Oathout, Appellant.BriefN.Y.March 21, 2013To be argued by: Cheryl Coleman, Esq. Time requested: 10 Minutes STATE OF NEW YORK- COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- CHRISTOPHER OATHOUT, Defendant-Appellant, APPELLANT'S BRIEF AND APPENDIX Hon. P. David Soares Albany County District Attorney Albany County District Attorney's Office Albany Judicial Center- 6 Lodge Street Albany, New York 12207 Date: August 14, 2012 CHERYL COLEMAN, ESQ. Attorney for Defendant-Appellant 90 State Street, Suite 1400 Albany, New York 12207 518-436-5790 518-436-5793 (Fax) TABLE OF CONTENTS INDEX TO APPENDIX........................................................... 2 TABLE OF CASES AND AUTHORITIES .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .... 3 PRELIMINARY STATEMENT................................................ 4 QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 (1) Did the Appellate Division err in finding defense counsel was not ineffective despite his numerous errors and omissions at trial, including, but not limited to repeated failures to object to the People's illegal introduction of prejudicial uncharged crime evidence and misconduct by the prosecutor in summation? STATEMENT OF FACTS .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 6-20 POINT I......................................................................... 21-31 TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO DEFENDANT CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 1 INDEX TO APPENDIX Order Granting Leave dated May 18, 2012 ............................. A: 1 Memorandum and Order dated October 18,2011 ...................... A: 2-8 Indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A: 9 Excerpts from trial transcript dated December 11, 2007 . . . . . . . . . . . . . . A: 1 0-11 Excerpts from trial transcript dated December 12,2007 .............. A: 12-14 Notice of Motion dated April12, 2007.... ........ .. .. . ........ ....... ... A: 15 Affirmation in Support of Motion for Appointment of Stand by Counsel April 12, 2007 ........................................................................... A: 16 Affirmation in Opposition dated May 4, 2007 . . . . . . . . . . . . . . . . . . . . . . . . .. A: 17 Response to Cross Motion dated May 7, 2007. . . . . . . . . . . . . . . . . . . . . . . . . . A: 18-19 Excerpts from Suppression Hearing transcript dated June 19, 2007 A: 20-31 Excerpts from trial transcript dated December 10, 2007 ............... A: 32-34 Excerpts from trial transcript dated December 11, 2007 .............. A: 35-38 Excerpts for Sandoval Hearing dated November 29, 2007 .............. A: 39 Excerpts from trial transcript dated December 11, 2007 . . . . . . . . . . . . . . A: 40-45 Excerpts from trial transcript dated December 13 and 14, 2007 ....... A: 46-53 Motion to Set Aside the Verdict Pursuant to CPL 330.30 .............. A: 54-55 Affirmation dated June 25, 2007.. ........... .... ..... ...... ... ...... .. ... A: 56-57 Affirmation in Support of Motion for Appointment of Stand by Counsel dated April12, 2007................................................................ A: 58-59 Affirmation in Opposition dated May 4, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . A: 60 Affidavit dated April 23, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A: 61-62 Certification Pursuant to CPLR 2105 ..................................... A: 63 2 TABLE OF CASES AND AUTHORITIES Cases People v. Molineux, 168 NY 264 (1901) ........................ .. People v. Ventimiglia, 52 NY2d 350 (1981) ................... .. People v. Oathout, 90 AD3d 1418 (3rd Dept 2011) ............ . Matter of Aretakis, 57 AD3d 1160 (3rd Dept 2008) ........... .. People v. Huntley, 15 NY2d 72 (1965) .......................... . United States v. Wade, 388 U.S. 218, 87 S.Ct. 192 ............ .. Mapp v. Ohio, 367 U.S. 643 (1961) ............................. .. Dunaway v. New York, 442 U.S. 200 (1979) ................... .. People v. Rodriquez, 270 AD2d 956 (1992) ..................... . People v. Sandoval, 34 NY 2d 371 (1974) ..................... .. People v. Turner, 5 NY3d 476 (2005) .......................... .. Strickland v. Washington, 466 US 668 (1954) ................. . People v. Benevento, 91 NY2d 708 (1998) .................... .. People v. Fisher, 18 NY3D 964 (2012) .......................... . Peoplev. Brown, 17NY3d 742 (2011) ......................... .. Peoplev. Ashwal, 39NY2d 105,109-110 (1976) ............. .. People v. Baldi, 54 NY2d 137 (1981) ............................ . Statutes Penal Law Section 125.25(1) .................................... . CPL 190.80 ......................................................... . CPL 60.22 ........................................................... . CPL 290.10 ......................................................... .. Penal Law Section 125.15(1) .................................... .. CPL 330.30 ......................................................... . CPL 330.40 ......................................................... . 3 4,11-14,20,25-27 4,11-12,20,25-27 4,20 4,20 9, 10 9 9, 10 9, 10 9 11 23,24 23 23 23-25, 27-29 23-25 29 29 4,6 7 15, 18, 30 16 17 19,21 32 QUESTION PRESENTED (1) Did the Appellate Division err in finding defense counsel was not ineffective despite his numerous errors and omissions at trial, including, but not limited to repeated failures to object to the People's illegal introduction of prejudicial uncharged crime evidence and misconduct by the prosecutor in summation? 4 PRELIMINARY STATEMENT This appeal stems from Defendant-Appellant's (hereafter referred to as "defendant") conviction for Murder in the Second Degree, Penal Law Section 125.25(1), a Class A-I Felony. His conviction followed a jury trial in Albany County Court, in 2007, before Hon. Thomas A. Breslin. Defendant was sentenced on April 28, 2008 to 25 years to Life. Defendant appealed his conviction alleging ineffective assistance of counsel and a violation of defendant's rights under this Court's decisions regarding uncharged crime evidence. People v. Molineux, 168 NY 264 (1901); People v. Ventimiglia, 52 NY2d 350 (1981). By Decision and Order dated December 29, 2011, the Appellate Division Third Department affirmed his conviction. People v. Oathout, 90 AD3d 1418 (3rd Dept 2011). (A: 2) Defendant sought leave to appeal to this Court. On May 18, 2012, this Court by Order ofHon. Eugene F. Pigott, Jr., granted leave to appeal. (A: 1). 5 STATEMENT OF FACTS A homicide occurred at the De Witt Clinton Apartments in the City and County of Albany, on or about October 8, 2006. (A: 9). The victim, one Robert Taylor, was found dead in his apartment on October 9, 2006. (A: 10). He had been stabbed multiple times. (A: 11 ). Months later, on December 4, 2006, one Oswaida Lugo, who originally had denied knowledge of the homicide, told Albany Police that she was with defendant in Taylor's apartment when Taylor was killed, and that defendant had killed him. (A: 12). Lugo was well known to the Albany Police as a long-time prostitute, crack addict and heroin addict. (A: 13). Lugo was the People's only witness to the Taylor homicide. Worse yet, Lugo, once she told the police the aforementioned information in statement form, then told the police that she had lied as to when and where in the apartment the killing took place. She acknowledged that she did so due to concerns over her own potential criminal liability. (A: 14). Defendant was arrested shortly thereafter for the Taylor homicide. He was subsequently indicted by an Albany County Grand Jury for Murder in the Second Degree, Penal Law Section 125.25(1) on January 26, 2007. 6 Prior to pre-trial hearings, senous questions regarding defense counsel's competency were raised to the Court. That, of course, is not unusual. What is unusual, to the point of being unprecedented, is that these concerns were brought up not merely by the defendant or his family, but by the prosecutor on the case - and addressed to the Court in motion form. (A: 15). Defense counsel in this case was found guilty within a year of defendant's trial, of several unrelated counts of professional misconduct and suspended from the practice of law for one year. (Matter of Aretakis, 57 AD3d 1160 [3rd Dept 2008]). In the prosecutor's Affirmation in support of the motion, he pointed out defense counsel's lack of experience in criminal law, and warned the Court that based on counsel's actions thus far, allowing counsel to "continue representations through hearings and trial . . . might very well lead to an argument being raised on defendant's behalf that any convection be reversed." (A: 16). The questionable competency brought to the Court's attention by the prosecutor included the following: (1) Counsel's apparent lack of knowledge of rules of evidence pertaining to impeachment and laying a foundation, as evidence during the preliminary hearing. (2) Counsel's uninformed filing of a Notice of Appeal following his client being bound over after the preliminary hearing. (3) Counsel's lack of knowledge of both the 45 day writ procedures of CPL 190.80, as well as arraignment procedures. ( 4) Counsel's lack of knowledge of various other points 7 of the Criminal Procedure Law. The People's motion requested an inquiry by the Court as to counsel's effectiveness, or lack thereof, or appointment of standby counsel. Defense counsel, in his reply motion, which he termed a "cross-motion," made statements about his background in criminal law, the veracity of which were seriously challenged in the People's reply motion. (A: 17-19). Through both sides motions, it is apparent that for whatever reason, defense counsel, who was representing defendant on a civil matter, "volunteered" his services in the murder case to defendant's family. Oddly, counsel did not dispute or oppose the People's motion for the appointment of standby counsel. In fact, he joined in that portion of the People's motion, and even suggested names of several lawyers, "whose work (he) respect( ed)." The Court never addressed on this unprecedented action on the part of the People except for a fleeting inquiry of counsel just prior to defendant's suppression hearing. (A: 20). At that time, the Court simply asked defense counsel whether defendant wanted him (Mr. Aretakis) to represent him, and counsel indicated affirmatively, also representing that he had discussed "the representation question" with defendant fully. (A: 20). Actually as seen in defendant's affidavit accompanying new counsel's post-verdict motions, counsel never even showed defendant the People's motion which questioned counsel's competence. What is 8 not in question, however, is that despite the senous allegations and concerns brought by the People regarding defense counsel's ability to provide meaningful representation to defendant in his upcoming murder trial, the Court made no other record to address those concerns. Immediately after the above, the Court went forward with the scheduled Suppression Hearings. The Court had granted defendant Huntley, Wade, Mapp, and Dunaway hearings. (People v. Huntley, 15 NY2d 72 (1965); United States v. Wade, 388 U.S. 218, 87 S.Ct. 192; Mapp v. Ohio, 367 U.S. 643 (1961); Dunaway v. New York, 442 U.S. 200 (1979)). However, defense counsel, on no more than the People's assertion that all of the single - photo police - arranged identifications were "confirmatory," agreed to waive the Wade portion of the hearings. (A: 13). Moreover, he did not request that a Rodriquez (People v. Rodriquez, 270 AD2d 956 (1992)) hearing be held instead in order to explore whether the single-photo identifications were indeed confirmatory. The Court then turned its attention to the Mapp portion of the hearing. The Court began by asking defense counsel what property was alleged to have been the subject of an illegal search and seizure. Defense counsel responded that he was not contending that any property was seized illegally. (A: 22). That concluded the Mapp portion of the hearings. 9 The Court next turned to the defense counsel's motion for a Dunaway hearing. The Court asked defense counsel to outline the Dunaway issue. Defense counsel responded with the following: "We made that pro forma motion but --." He was unable to articulate whether or not he understood the concept of a Dunaway hearing, or how it did or did not apply to the facts of the case. Instead, he simply, with no other explanation, stated, "Waiving that." This was particularly indefensible since within the course of the Huntley hearing which followed pertaining to oral statements attributed to defendant, it was revealed that there was, in fact, a Mapp issue with respect to a DNA sample police obtained from defendant. Then there was a motion made to hold a Mapp hearing, after all. However, this motion did not come from defense counsel. It came from the prosecutor. (At least defense counsel knew enough not to object.) (A: 23-24). During the Huntley hearing, defense counsel pursued areas of questioning which served to advance no legitimate legal issue. (A: 25). Defense counsel inexplicably waived what was probably the most legitimate Huntley issue in the case, by not only failing to explore/argue the point of whether defendant was in "custody" during the questioning. In fact, defense counsel actually conceded that defendant was not in custody when he allegedly made the statements attributed to him by the People. (A: 26). 10 Defendant's final pre-trial hearings were held on November 29, 2007. These hearings related to Sandoval (People v. Sandoval, 34 NY2d 371 (1974) and Ventimiglia (People v. Ventimiglia, 52 NY2d 350 (1981) issues. Once again, counsel demonstrated both a lack of preparation and knowledge of the law pertaining to both aspects of the hearing. For example at the Sandoval hearing, defense counsel was not aware that the People (through a different prosecutor) had agreed not to utilize a recent felony plea on charges of Identity Theft and Attempted Grand Larceny against defendant for either Sandoval and Ventimiglia purposes at his murder trial. (A: 27-31). Counsel also stated that it was "fine" that defendant's prior conviction for unauthorized use of a vehicle, (a crime of dishonesty for Sandoval purposes) could be used by the People for Sandoval purposes. The Court then had to do defense counsel's job for him, and followed by precluding its usage anyway. (A: 27-28). Also, counsel's responses at the Sandoval hearing demonstrated a complete lack of familiarity with the relevant legal criteria. Similarly, during the Molineux/Ventimiglia (People v. Molineux, 168 NY 264 (1901; People v. Ventimiglia, 52 NY2d 350)) portion of the hearing, counsel could articulate no real legal response to the People's proffer. Specifically, the People sought to introduce on their direct case, evidence that defendant and the People's main witness, Oswaida Lugo, allegedly went to the victim's apartment the night of 11 the homicide to perform an act of prostitution. When the Court asked for defense counsel's position his response that the People, "(n)ever charged it, never brought it up" called into serious question whether he understood the applicable law (A: 21) regarding uncharged crime evidence. Defendant's trial commenced in Albany County Court on December 10, 2007. Less than a minute into his opening statement the prosecutor told the jury about uncharged crime evidence about which he had never sought an advance Molineux/Ventimiglia ruling. Specifically, he told the jury that defendant habitually possessed and used crack cocaine. (A: 32). Defense counsel never objected to same, nor did he ever subsequently raise the issue at trial. Defense counsel's opening was unfocused and devoid of the concept of reasonable doubt, which he disparaged as an "obscure technicality". (A: 33). In fact, rather than tell the jury that the People would fail to meet their burden of proving defendant's guilt beyond a reasonable doubt, defense counsel inexplicably took on the burden by telling them that the evidence would prove that defendant "didn't do this." (A: 33). Ironically, he concluded his opening by telling the jury that he would "(t)ry to represent (defendant) "adequately." (A: 34). The People presented their case against defendant. It can basically be summarized as follows: Albany Police canvassed the Dewitt Clinton Apartments after being alerted to an unattended death. Defendant was at his friend's apartment 12 in that building when they did the canvass, and he gave police a fake name. Then he went downstate and visited his sister. Months later, after previously having denied knowledge of the death (later ruled a homicide) one Osweigo Lugo, a women of dubious character, told police that she and defendant went to the victim's apartment together for prostitution purposes, that defendant killed the victim and they left. She was never charged. No physical or forensic evidence connected defendant to the crimes. Defendant gave no inculpatory statements to police. There were no other witnesses to the crime. The weapon was never found. Then, a week before defendant's trial was set to begin, Daniel Reuter, a self- described "white supremacist" and inmate at the Albany County Jail, contacted his lawyer and said defendant had told him about the murder. That was it. In light of the above, it was critical that defendant be provided with meaningful representation. However counsel's performance at trial once again was as inadequate, as the People had forewarned in their motion to County Court (A: 15), and proved the People's point about counsel's lack ofknowledge of criminal law. When the prosecutor again violated Molineux by once again introducing damaging uncharged crime evidence about which he had not even sought an advance ruling, defense counsel sat mute. This time a male acquaintance of defendant testified that defendant had sex with him for money. Despite the legal 13 issues implicated and the obvious prejudice to defendant, defense counsel neither objected nor raised the issue at any time during trial. (A: 35). The same thing happened when the People elicited more uncharged crime evidence about defendant's alleged crack cocaine usage through another witness. (A: 36-37). Not only did counsel fail to object, but he re-emphasized it in cross- examination. (A: 38). A further damaging failure of counsel with respect to Molineux, occurred ruing the testimony of Oswaigo Lugo, the People's main witness. County Court had previously made a ruling that evidence that defendant and Lugo went to the victim's apartment the night of the homicide to perform an act of prostitution, was admissible as part of the res gestae of the crime. (A: 39). However, at trial Lugo also testified that defendant routinely had sex with old men for money, which he then used to buy crack. (A: 40). This was not the subject of a pre-trial Molineux ruling, clearly not res gestae evidence, and clearly prejudicial. In fact, the prejudice can not be emphasized enough. This evidence, along with that of the male acquaintance who testified that defendant prostituted himself with him for money completely bolstered the otherwise dubious credibility of Lugo, when she testified that the motive for the murder was a fee dispute over an act of prostitution with the victim. Yet defense counsel let this testimony, which involved, at least 14 five questions and answers, go without any objection. Then, on the very next question, (on a new topic) counsel made a random "leading" objection. (A: 40). Counsel also demonstrated a lack of preparation with respect to the evidence. Counsel did not even view the physical evidence until mid-trial. (A: 41-42). And mid-trial, he was still unsure whether police had recovered, as he put it, "the murder weapon". (A: 42-43). And he failed to make the appropriate steps to understand what evidence he had previously been provided. (A: 44). Counsel's cross-examination of witnesses was focused on random and largely irrelevant issues. He made virtually no usage of discovery and prior statements for impeachment purposes. In particular, counsel's cross-examination of Lugo, the People's main witness and only purported witness to the homicide, was especially ineffective. (Lugo had previously given police a statement wherein she sworn that the murder had taken place in the bedroom. At trial, she swore it happened in the living room.) While he referenced the prior statement, counsel did not actually use it to impeach Lugo. He failed to properly explore her lack of prosecution for the crime or related crimes, and failed to develop facts that could have led to an accomplice corroboration requirement charge under CPL 60.22, even after Lugo testified police told her she could be charged. (A: 45). (In fact, counsel, as will be seen later, never even requested that the Court charge the jury, pursuant to CPL 15 60.22, that Lugo was an accomplice, either as a matter of law or as a matter of fact). Defense counsel had been present when defendant testified before the Grand Jury- an extremely rare move in a murder case. Yet defendant had little or nothing to say in his own defense at that time. Review of the trial colloquy between counsel and Court compels the conclusion that defense counsel did not know that defendant's Grand Jury testimony could be used against him by the People at trial. (A: 46). At the close of the People's case, counsel made a motion. The motion, of course, should have been for a trial order of dismissal, pursuant to CPL 290.10. However, counsel clearly did not know this. He moved instead, "to have the case dismissed." He went on to incorrectly state that the Court had the discretion to find Ms. Lugo was, "not credible as a matter of law." Counsel's motion showed he was unfamiliar, once again, with the appropriate law and procedure. The defense "case" then followed. Counsel called two witnesses from the New York State Police Forensic Investigation Center who did nothing but repeat what the forensic scientists who had previously testified for the People had testified to, namely that there was no forensic evidence tying anyone to the homicide. During the questioning of these witnesses, counsel struggled with his questions and showed a complete lack of knowledge with respect to the rules of evidence. Then, 16 unbelievably, counsel called the Chief Assistant District Attorney to the stand. By doing so, he elicited testimony which actually strengthened the People's case regarding the credibility of "jailhouse informant" Reuter. (A: 47). The defendant did not testify. Following the close of proof, the Court conducted a charge conference. Throughout the trial, the Court had reminded both the prosecutor and defense counsel to submit their requests to charge early. Yet, even at the charge conference, defense counsel was completely unprepared. He was unfamiliar with, and by his own admission, "did not get to read" the Criminal Jury Instructions "Consciousness of Guilt" charge (A: 48). And he had failed to prepare, as directed, his own request to charge. Things got even worse for defense counsel in the charge conference after that. After asking for a "Missing Photographs" charge, rather than an adverse inference charge, (A: 48) defense counsel showed his complete lack of knowledge (and willingness to falsely cover himself) when he apologized for his failure to recall exactly his "recollection from what I have seen in the en." The Court then told counsel that, in fact, there was no such charge in the en. (A: 49). Finally, counsel never requested that the Court charge the lesser included offense of Manslaughter in the Second Degree, Penal Law Section 125.15(1), or intoxication. In light of Lugo' s statements regarding drugs and the alleged 17 dynamics of the homicide, issues were raised regarding intent or lack thereof, and the potential effect of drugs on any culpable mental state. Despite the potential for criminal liability on the part of Oswaigo Lugo, defense counsel never requested a charge that she was an accomplice either as a matter of law or fact, under CPL 60.22. If he had made such a request, the corroboration requirement could also have been highlighted to the jurors in counsel's summation, if he had thought of it. Counsel's summation was likewise woefully inadequate. It was unfocused, rambling, and dwelled on irrelevancies, while simultaneously ignoring the major inadequacies in the People's proof. In a case arguably riddled with reasonable doubt, defense counsel told the jury that he was "not going to go into the concept of reasonable doubt". (A: 50). Nor did he ever once mention the People's failure to meet the requirement of proof beyond a reasonable doubt. Instead of focusing on that failure, he denounced it as "legal mumbo jumbo," and instead simply stated, "He did not commit this crime." (A: 51). Counsel's failures continued into the People's summation. He failed to object to the prosecutor's vouching for Lugo's credibility when the prosecutor told the jury that the police would not keep using her as a confidential informant if she were not credible. (A: 52). Then, the prosecutor committed reversible error by pointing out to them that the defendant, who did not testify at trial, took notes with 18 his left hand during the trial. (A: 53). He then continued to theorize how the crime was consistent with having been committed by a left-handed person like defendant. At trial, there was no evidence presented either that defendant was left handed or that the crime was committed by a left handed person. As unbelievable as this is, what is even more unbelievable is that defense counsel did not object to any of it. The jury deliberated over a two-day period before rendering a verdict of guilty. The Court set sentencing for February 8, 2008. It did not, however, take place. Following the verdict, defendant's family retained appellate counsel. Appellate counsel also prepared and filed an extensive motion pursuant to CPL 330.30, to set aside the verdict. (A: 54). Included within the motion was an attorney's affirmation relating to, among other things, trial counsel's statements to her about the trial, including an admission that he, "Didn't know criminal procedure." (A: 55). Also included was an affidavit from the defendant. Contained within it were several important allegations regarding trial counsel. The motion, in fact, centered around ineffective assistance of trial counsel. The Court rescheduled sentencing for April 28, 2008. Despite the allegations contained within the CPL 330.30 motion, and despite the pre-trial motion by the People relating to trial counsel's lack of competence, the Court never held a hearing, and denied the motion summarily at sentencing. He then sentenced defendant to the maximum 25 years to life. Defendant appealed to the Appellate 19 Division, Third Department. Defendant's main claim centered around ineffective assistance of counsel as well as a violation of his rights under Molineux/Ventimiglia. The Appellate Division found counsel's representation to be "unorthodox" but not "viewed as a whole, ineffective," and affirmed defendant's conviction. People v. Oathout, 90 AD3d 1418 (3rd Dept 2011). (A: 2). Defendant sought leave to appeal to this Court, which granted leave to appeal on May 18, 2012 per Order ofHon. Eugene F. Pigott, Jr. (A: 1) 20 POINT I TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO DEFENDANT It is not unusual for a defendant convicted after trial to allege ineffective assistance of counsel after the fact. It is not even that unusual for a dissatisfied defendant to make such an allegation while his/her case is pending. However, this Court, in all probability, has never before seen a case where the prosecutor, by way of pre-trial motion, alerted the Court to defense counsel's ineffectiveness. That is exactly what happened in the present case. Because of the unusual occurrence, and because defendant obtained new counsel after the verdict who filed an explicit CPL 330.30 motion which contained specific affidavits in support of the claim of ineffective assistance, this Court has before it a full record from which to make its determination. The record in this case shows the circumstances under which counsel John Aretakis entered the case. Counsel took on the case pro-bono, apparently at the request of defendant's uncle, because of his previous relationship with them involving abuse allegations against the Albany Diocese. (A: 56-57). Defendant has stated under oath that counsel told him that he, "had a practice in New York City, and had over 90 trials, had won almost all of them, and that he would represent him for free." 21 By the time defense counsel filed omnibus motions, it was apparent to the prosecutor that counsel was already "arguably ineffective." The prosecutor in his motion to the Trial Court affirmed that if counsel were, "allowed to continue representation through hearings and trial, any conviction could potentially be reversed." (A: 16). He pointed out that counsel had admitted to him that he did very little criminal work. The prosecutor set forth a number of concerns about defense counsel in a motion to County Court. (A: 15). He noted that the defendant was on trial for murder, and that his attorney, "has shown a lack of understanding and knowledge regarding some of the most basic criminal procedures and evidentiary principles." (A: 58-59). He cited numerous examples of counsel's incompetence, including but not limited to: counsel's inability to introduce evidence or cross-examine witnesses, particularly with regard to prior inconsistent statements, at the preliminary hearing - after which counsel filed a Notice of Appeal. (A: 58-59). The prosecutor moved the Court to appoint standby counsel, or at minimum, to conduct an inquiry. Oddly enough, while he denied being ineffective, defense counsel did not dispute, and in fact joined in, the People's motion for the appointment of standby counsel. He even suggested some names to the Court of lawyers whose work he respected. (A: 60). 22 The Court took no action on this matter except to ask counsel whether he discussed "the representation question" with his client. (A: 20). This is important since defendant affirmed subsequently that counsel never informed him that the prosecutor had made a motion calling into question counsel's competence. (A: 61). Moreover, defendant cannot waive a claim of ineffective assistance simply by proceeding with an incompetent attorney. The right to the effective assistance of counsel is a right guaranteed by the United States and New York State Constitutions. People v. Turner, 5 NY3d 476 (2005). It applies to all lawyers- appointed, retained, or, as in this case -volunteer. New York State has imposed a standard more favorable to defendants than the Federal "But for" rules for determining ineffectiveness of counsel in Strickland v. Washington, 466 US 668 (1984). Under New York's standard, the relevant issue is whether counsel's performance, viewed in totality, afforded defendant "meaningful representation." People v. Turner, supra, at page 480; People v. Benevento, 91 NY2d 708 (1998). Defendant respectfully submits that comparison of two recent cases from this Court compels the reversal of defendant's conviction upon ineffectiveness grounds. These two cases -People v. Fisher, 18 NY3d 964 (Decided April 3, 2012) and People v. Brown, 17 NY3d 742 (2011) both involve failures by defense 23 counsel to object to prosecutorial wrongdoings. Brown, supra, involved a single failure to object, while Fisher, supra, involved multiple failures to object. In Brown, supra, this Court upheld defendant's conviction in a case involving defendant counsel's failure to object to an improper "safe streets" comment by the prosecutor in summation. Because ineffective assistance was based solely upon a single failure to object, this Court employed the standard originally set forth in the appellate context in People v. Turner, 5 NY3d 476, 481 (2005); namely whether the single omission would have been a winning argument (required a mistrial), and whether the failure was one that "no reasonable defense lawyer" would have left without objection. Because both prongs could not be satisfied, this Court found that the failure to object to a single instance of prosecutorial overreaching did not constitute a deprivation of defendant's right to the effective assistance of counsel. By contrast, People v. Fisher, supra, involved defense counsel's multiple failures to object to improper remarks in the prosecutor's summation. This Court reversed defendant's conviction, finding that the multiple failures to object to the improper and prejudicial comments deprived defendant of the effective assistance of counsel. This Court pointed out that the People's case in Fisher, supra, hinged upon witness credibility, and that the proof, while sufficient, was not overwhelming. 24 It is respectfully submitted, that counsel's failures in that case at bar were such as to make counsel in Fisher, supra, seem like Clarence Darrow. And if the evidence, as found by this Court in Fisher, supra, was "not overwhelming," it was downright ironclad next to the proof in the case at bar. The whole case against defendant came from two interested witnesses- one shakier than the other. For example, while the proof in Fisher, supra, consisted of multiple child victim/witnesses, the proof in the case at bar came from Lugo, a long-time crack addicted prostitute who occasionally doubled as a police-paid informant. She originally denied any knowledge of the crime, but later gave multiple, diverse accounts of the crime. The only other witness implicating defendant was a "jail house informant" named Reuter. There was no forensic evidence, no admissions, no weapon, and no other identifying witnesses. Defendant's counsel's failures in the case at bar unlike Brown, supra, were numerous, important, and non-strategic. While counsel's failures were more akin then those in Fisher, supra, than to Brown, supra, they were much worse. This brief will not recite all of the pre-trial failings of counsel. However, defendant would refer this Court respectfully to defense counsel's response to the trial Court during the Molineux/Ventimiglia Hearing (A: 35-37) as a backdrop to what was arguably counsel's most egregious failing at trial- the failure to object even once to the repeated Molineux/Ventimiglia ·violations by the People. 25 Counsel's lack of knowledge of the legal principles involving Molineux/Ventimiglia, predicted by the prosecutor, and foreshadowed in pre-trial hearings, shows that misplaced strategy played no part in counsel's failures with regard to prejudicial uncharged crime evidence which corroborated the otherwise suspect credibility of the People's main witness, Ms. Lugo. Rather, it was the product of sheer incompetence. The essence of counsel's egregious failures under Molineux/Ventimiglia are as follows: Ms. Lugo, as per pre-trial ruling, was permitted to testify that she and defendant went to the victim's apartment the night of the murder to commit an act of prostitution, and that the crime occurred during that time. Admittedly, this is res gestae - type evidence, albeit prejudicial. However, at trial, the People went much further. They made repeated use of evidence of defendant's usage of crack cocaine through multiple witnesses. And they had another witness, an older man like the victim, testify that defendant also had sex with him for money. None of this was the subject of a pre-trial ruling under Molineux/Ventimiglia. None of it was objected to by defense counsel. And they elicited further testimony from Lugo that defendant routinely was a gay prostitute for old men like the victim, and that defendant did so to support his crack addiction. Again, defense counsel never objected to it. Any of it. Never. He did not object during the prosecutor's first violation of Molineux/Ventimiglia in 26 opemng. (A: 32). He did not object when the older male acquaintance of defendant testified to defendant's prostitution with him, as well as defendant's crack addiction. (A: 35-37). And he did not object to the violations during Lugo's testimony - a Molineux/Ventimiglia violation which involved at least five un- objected - to questions and answers. Then, on the very next question counsel made a random "leading" objection. (A: 40). The multiple and repeated failures to object throughout the trial to these highly prejudicial Molineux/Ventimiglia violations are, respectfully, even more egregious than the failure of counsel to object to the People's summation comments in Fisher, supra,. Furthermore, it is submitted that the Molineux/Ventimiglia violations themselves were more prejudicial, more of a prosecutorial abuse, and more potentially "outcome determinative" than the prosecutor's un-objected to comments which triggered this Court's reversal in Fisher, supra,. It was one thing for Lugo, a woman of dubious credibility and arguable criminal liability in the situation, to testify that defendant killed the victim in the context of an act of prostitution. It was quite another thing to illegally corroborate that account through evidence showing that defendant was, in fact, a gay prostitute and a crack addict as well. Without that illegal corroboration in violation of Molineux/Ventimiglia, Lugo's tale was suspect. With that illegal corroboration, the jury was encouraged to make the most damaging of propensity inferences, namely 27 - that of course Lugo was telling the truth about the circumstances of this murder and defendant's involvement in it, because after all, it had been independently (and illegally) shown that having sex with old men for money was what defendant routinely did. Also, even more so than in Fisher, supra, there was no conceivable strategic reason for counsel's failure to object. As this Court stated in Fisher, supra, at page 966, it was, "(A) circumstance that competent defense counsel should have sought to prevent." There is not even a question, unlike that raised by the dissent in Fisher, supra, as to whether "Counsel's choice not to object" was "the right one." Fisher, supra, at page 967. And since counsel, apparently oblivious to the violations, never thought to ask for a limiting instruction, the jurors were free to make wrongful propensity inferences. In addition to defense counsel's failures with respect to Molineux/Ventimiglia throughout the trial, counsel also failed, as in Fisher, supra, to object to two egregious comments by the prosecutor in summation. One such failure - probably not reversible by itself, involved the failure to object to the prosecutor's vouching for Lugo's credibility (A: 52). The second failure by counsel involved not objecting to an egregwus summation reference by the prosecutor. The prosecutor, in summation, told the jury that the defendant (who did not testify) had been taking notes with his left 28 hand during the trial. (A: 52). There was no evidence produced at trial that defendant was left handed. The prosecutor, after basically testifying that defendant was left-handed, went on to theorize that the crime had to have been committed by a left-handed person. This was also not based on any trial evidence. The above conduct by the prosecutor, even more so than the conduct of the prosecutor condemned by this Court in Fisher, supra, at page 966 "(e)ncouraged inferences of guilt based on facts not in evidence." And like the prosecutor in Fisher, supra, the prosecutor's actions of acting as a witness to defendant's left- handedness was an improper departure from "the four comers of the evidence," and therefore constituted prosecutorial misconduct. People v. Ashwal, 39 NY2d 105, 109-110 (1976). Defense counsel's total failure to object to these comments, coupled with his repeated failures to object throughout the trial, to the aforementioned Molineux/Ventimiglia violations, deprived defendant of his right to the effective assistance of counsel. People v. Baldi, 54 NY2d 137 (1981). In addition, to the aforementioned major errors, counsel committed a plethora of lesser, but still noteworthy errors. At trial, counsel's performance, both in the individual, and the aggregate, was every bit as bad as the aforementioned cases where this Court has reversed on grounds of ineffective assistance. Trial counsel, in opening, disparaged the reasonable doubt concept as "an obscure technicality" 29 and instead claimed that he would, "prove that defendant didn't do this." (A: 34, 33). Why counsel would take on the burden of proof is inconceivable. Counsel's cross-examination of the People's key witness, Lugo, was unfocused, confusing, and ineffective. He failed to make proper use of prior inconsistent statements made by Lugo. He failed to make a record which would have supported a request for a corroboration charge for her testimony pursuant to CPL 60.22. And of course, he never requested the accomplice corroboration charge for Lugo. These failures seriously prejudiced defendant. It was bad enough that counsel had defendant testify in the Grand Jury when his "testimony" consisted of nothing more than a blanket assertion of innocence, followed by a cross-examination which ultimately contradicted other witness' trial testimony. What was worse was that counsel clearly was unaware that defendant's Grand Jury testimony could be used by the People against him at trial. (A: 46). And there remains the unaddressed contention that counsel usurped defendant's decision on whether or not to testify. (A: 62). Counsel was equally bad questioning his own witnesses. The witnesses counsel called served no purpose, did not help defendant, and in the case of his decision to call the Chief Assistant District Attorney, counsel ended up bolstering the otherwise questionable testimony of the People's "jail house informant" Daniel 30 Reuter. Also, counsel was unprepared with the facts, the evidence, and the law, particularly at the charge conference. The People's case, which lacked any physical and forensic evidence, and relied completely on the arguable accomplice and a jailhouse informant, was meant for a "reasonable doubt" type summation. Unbelievably, defense counsel told the jury he was "not going to go into ... reasonable doubt." (A: 50). He never even pointed out to the jurors that the People were required to prove defendant guilty beyond all reasonable doubt. Worse yet, he denounced that requirement as "legal mumbo jumbo," telling the jury instead that he had showed that defendant, "did not commit this crime." (A: 51). Counsel's errors and omissions, some individually, but certainly in totality, deprived defendant of meaningful representation and violated his Constitutional right to the effective assistance of counsel. Reversal is therefore required. 31 CONCLUSION DEFENDANT'S CONVICTION SHOULD BE REVERSED AND THE INDICTMENT DISMISSED, OR, A NEW TRIAL ORDERED. AT A MINIMUM THE CASE SHOULD BE REMITTED FOR A HEARING PURSUANT TO CPL 330.40. Dated: August 14, 2012 32 I n, Attorney at Law eryl Coleman Law Offices 90 State Street, Suite 1400 Albany, New York, 12207 518-436-5790