The People, Respondent,v.Dwight Giles, Appellant.BriefN.Y.November 19, 2014APL-2013-00219 To be argued by NAOMI C. REED (15 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - DWIGHT GILES, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov SHERYL FELDMAN NAOMI C. REED ASSISTANT DISTRICT ATTORNEYS Of Counsel APRIL 4, 2014 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii INTRODUCTION................................................................................................................ 1 THE EVIDENCE AT TRIAL ............................................................................................ 9 The People’s Case ....................................................................................................... 9 The Defense Case ..................................................................................................... 12 The People’s Rebuttal Case ..................................................................................... 14 THE POST-VERDICT MOTION PRACTICE ............................................................ 15 POINT I DEFENDANT’S NEWLY-MINTED APPELLATE INEFFECTIVE ASSISTANCE CLAIM IS BASELESS ....................... 22 POINT II DEFENDANT’S CHALLENGE TO THE CONSTITUTIONALITY OF THE PROCEDURE BY WHICH HE WAS ADJUDICATED A PERSISTENT FELONY OFFENDER HAS BEEN REPEATEDLY REJECTED BY THIS COURT ................................................................. 40 CONCLUSION ................................................................................................................... 46 -ii- TABLE OF AUTHORITIES FEDERAL CASES Apprendi v. New Jersey, 530 U.S. 466 (2000) ................................................. 4, 6-8, 35, 42-45 Jones v. Barnes, 463 U.S. 745 (1983) ..................................................................................... 32 Kimmelman v. Morrison, 477 U.S. 365 (1986) ....................................................................... 24 Mickens v. Taylor, 535 U.S. 162 (2002) ................................................................................. 25 Portalatin v. Graham, 478 F.Supp2d 385 (2007) .................................................................. 42 Portalatin v. Graham, 624 F.3d 69 (2d Cir. 2010)(en banc), cert. denied, ___ U.S. ___, 131 S.Ct. 1693 (2011) ..................................................... 42-43 Southern Union Co. v. United States, ___ U.S. ___, 132 S. Ct. 2344 (2012) .............. 8, 42-45 Strickland v. Washington, 466 U.S. 668 (1984) ........................................................... 8, 23, 25 U.S. v. Southern Union Co., 630 F.3d 17 (2010) ................................................................... 44 United States v. Katz, 425 F.2d 928 (2d Cir. 1970) ........................................................ 26, 32 STATE CASES People v. Ai Jiang, 62 A.D.3d 515 (1st Dept. 2009) ............................................................ 35 People v. Baldi, 54 N.Y.2d 137 (1981) ............................................................................. 25-26 People v. Battles, 16 N.Y.3d 54 (2010) .............................................................................. 8, 42 People v. Benevento, 91 N.Y.2d 708 (1998) ............................................................ 8, 23, 25-26 People v. Bornholt, 33 N.Y.2d 75 (1973) ........................................................................... 29-30 People v. Brown, 45 N.Y.2d 852 (1978) ........................................................................... 28, 36 People v. Colon, 90 N.Y.2d 824 (1997) .................................................................................. 32 People v. Concepcion, 17 N.Y.3d 192 (2011) .......................................................................... 33 People v. Flores, 84 N.Y.2d 184 (1994) ................................................................................. 25 People v. Giles, 11 N.Y.3d 495 (2008) .................................................................................. 3-4 -iii- People v. Giles, 95 A.D.3d 670 (1st Dept. 2012) ....................................... 7-8, 22-24, 33, 35 People v. Green, 92 A.D.3d 894 (2nd Dept. 2012) ............................................................... 34 People v. Henry, 95 N.Y.2d 563 (2000) ................................................................................. 26 People v Herrington, 194 A.D.2d 379, lv. denied, 82 N.Y.2d 755 (1993). .................................................................................... 34 People v. Hobot, 84 N.Y.2d 1021 (1995) ......................................................................... 24, 26 People v. Jones, 55 N.Y.2d 771 (1981) ............................................................................. 28, 36 People v. Knox, 134 A.D.2d 704 (3rd Dept. 1987) .............................................................. 35 People v Kronberg, 243 A.D.2d 132 (1st Dept. 1998) ........................................................... 34 People v. LaFontaine, 92 N.Y.2d 470 (1998) ......................................................................... 33 People v. Love, 57 N.Y.2d 998 (1982) ................................................................................... 37 People v. Mitchell, 58 N.Y.2d 368 (1983) .............................................................................. 35 People v. Ortiz, 76 N.Y.2d 652 (1990) .................................................................................. 37 People v. Parris, 4 N.Y.3d 41 (2004) ..................................................................................... 33 People v. Quinones, 12 N.Y.3d 116, cert. denied 130 U.S. 104 130 S.Ct. 104 (2009) .......................................................... 42-43 People v. Rawlins, 10 N.Y.3d 126, cert. denied, sub. nom. Meekins v. New York, 129 S.Ct. 2856 (2009) ............................... 42 People v. Rivera, 5 N.Y.3d 61 (2005) ..................................................................................... 42 People v. Rivera, 71 N.Y.2d 705 (1988) ............................................................... 25-28, 36, 30 People v. Rosen, 96 N.Y.2d 329 (2001) .................................................................................. 42 People v. Satterfield, 66 N.Y.2d 796 (1985) ........................................................................... 25 People v. Shelton, 111 A.D.3d 1334 (4th Dept. 2013) ......................................................... 34 People v. Smith, 82 N.Y.2d 731 (1993) ................................................................................. 20 People v. Stultz, 2 N.Y.3d 277 (2004) ................................................................................... 26 -iv- People v. Turner, 5 N.Y.3d 476 (2005) .................................................................................. 30 People v. West, 5 N.Y.3d 740, cert. denied, 546 U.S. 987 (2005) ...................................................................................... 42 People v. Wolf, 284 A.D.2d 102 (1st Dept. 2001) ................................................................ 34 People v. Wolf, 98 N.Y.2d 105 (2002) ......................................................................... 6, 16, 34 STATE: STATUTES, RULES, REGULATIONS, CONSTITUTIONAL PROVISIONS CPL 330.30 ................................................................................................................ 15, 23, 34 CPL 330.30(1) ........................................................................... 5, 7, 16, 23-24, 33-36, 38-40 CPL 330.30(2) ....................................................................................................................... 37 CPL 330.30(3) ....................................................................................................................... 37 CPL 400.20 ............................................................................................................................ 40 CPL 440.10 ................................................................................................... 6-8, 16-20, 33-40 CPL 450.10 ............................................................................................................................ 38 CPL 450.15. ........................................................................................................................... 38 CPL 460.15 ............................................................................................................................ 38 CPLR § 4503(a)(1) ................................................................................................................ 35 Penal Law §§ 110.00/140.25(2) ............................................................................................ 1 Penal Law §140.35 .................................................................................................................. 2 Penal Law §165.45(2) ............................................................................................................. 1 Resource Conservation and Recovery Act ........................................................................ 43 OTHER AUTHORITIES 1971 Legislative Bulletin 30 ............................................................................................... 38, 39 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- DWIGHT GILES, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION By permission of the Honorable Jonathan Lippman, defendant Dwight Giles appeals from a May 22, 2012 order of the Appellate Division, First Department, modifying two judgments of the Supreme Court, New York County, to the extent of reducing the aggregate sentence on both to 15 years to life in the interest of justice. By the first judgment, rendered January 27, 2009, Justice Charles Solomon resentenced defendant, as a persistent felony offender, to concurrent prison terms of 20 years to life for his 2002 conviction, after a jury trial, of two counts of Criminal Possession of Stolen Property in the Fourth Degree (Penal Law §165.45[2]). By the August 18, 2009 judgment, defendant was convicted after a re-trial, before a jury and Justice Carol Berkman, of Attempted Burglary in the Second Degree (Penal Law §§ -2- 110.00/140.25[2]) and Criminal Possession of Burglar’s Tools (Penal Law §140.35).1 That court sentenced him, as a persistent felony offender, to a prison term of 20 years to life for the felony, and to one year for the misdemeanor. That aggregate prison term was imposed concurrently with the earlier one. Both judgments stemmed from the same indictment. At about 1:00 a.m. on November 7, 2001, defendant was caught red-handed trying to break into a medical office located on the ground floor of an apartment building on Central Park West in Manhattan. Police Officer Francisco Valverde and Sergeant Donald Dermody, who were patrolling the area, interrupted defendant as he tried to pry open the office door with a folding knife. Defendant fled when the officers confronted him, but he was apprehended after a brief chase in possession of the folding knife, whose blades were broken and scratched. Defendant also had a credit card that had been stolen in a recent burglary of a nearby residence, and a MetroCard that had been purchased with another credit card stolen in another recent burglary of a nearby residence. Both Officer Valverde and Jesus Vargas, the building superintendent, noticed fresh scratch marks on the locking mechanism of the door to the medical offices. 1 In the Appellate Division brief, the People erroneously listed the second judgment date as September 10, 2009. That date came from a Uniform Commitment and Sentencing Sheet (“UCS”) issued simply to correct a typographical error on the original UCS Sheet, dated August 18, 2009, when defendant was sentenced. Based on that error in the brief, the Appellate Division’s decision and this Court’s Order Granting Leave listed September 10, 2009, rather than August 18, 2009, as the judgment date. -3- By New York County Indictment No. 6804/01, filed on December 3, 2001, defendant was charged with attempted second and third-degree burglary, criminal possession of burglar’s tools, and two counts of fourth-degree criminal possession of stolen property. Defendant proceeded to trial on September 9, 2002, before Justice Charles Solomon and a jury. At that trial, both Officer Valverde and Vargas testified about the scratches that they saw on the door, and the People admitted a photograph of the scratched door. In an attempt to impeach these witnesses, defendant called Franklin Belle, a Legal Aid investigator, to testify that he looked at the door after the crime and did not see any scratches on the lock. In an effort to support his testimony, Belle provided blurry photographs of the door and lock. On September 18, 2002, the jury convicted defendant as charged. On March 24, 2003, defendant was adjudicated a discretionary persistent felony offender based on his criminal history, which consisted of five prior burglary-related convictions since 1980. Because that record demonstrated that defendant was an unrepentant recidivist burglar who posed a danger to the community, the court sentenced defendant to four concurrent prison terms of 20 years to life on the felonies, and to one year on the misdemeanor. On December 2, 2008, this Court reversed only the attempted burglary and burglar’s tools counts. People v. Giles, 11 N.Y.3d 495 (2008). The Court found that the trial court erred by failing to instruct the jurors that evidence that the MetroCard and credit card were stolen in uncharged burglaries could be considered only with respect -4- to the stolen property counts. Id. at 500. Although defendant also claimed that his adjudication as a persistent felony offender violated Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, the Court declined to reach that issue. Id. Instead, since the case was to be “remitted to the Supreme Court” for a retrial on some of the charges, the Court noted that the Supreme Court could “consider resentencing” on the two remaining counts of criminal possession of stolen property “in the exercise of its discretion.” Id. On January 27, 2009, Justice Solomon reconsidered but adhered to the original sentence imposed for the two stolen-property counts. Defendant’s retrial on the attempted burglary and burglar’s tools charges began on June 4, 2009 before Justice Carol Berkman and a jury. At that trial, defendant was no longer represented by the Legal Aid Society. His new lawyer, Paul Feinman, did not call Legal Aid’s investigator Franklin Belle to testify that he saw no scratches on the door lock or to put the blurry photos in evidence. On June 5, 2009, defendant was convicted of attempted burglary in the second degree and possession of burglar’s tools.2 On June 30, 2009, the original sentencing date, defendant filed a pro se motion to have Feinman removed and new counsel appointed on the ground that Feinman did not adequately represent him. Without addressing the merits of defendant’s 2 The court instructed the jury to consider third-degree burglary only if it found defendant not guilty of second-degree burglary (A476, A496). -5- complaints, the court appointed new counsel, who, on August 9, 2009, filed a motion to set aside the verdict pursuant to CPL 330.30(1) on defendant’s behalf. In that motion, defendant contended that the verdict was against the weight of the evidence and that he had received ineffective assistance of counsel (A527-29). In regard to this second claim, counsel appended a copy of the complaints that defendant had made about Feinman in his pro se motion (A529). They included defendant’s allegations that Feinman: “refused” defendant’s repeated requests to call Belle as a witness at the retrial; “refused to call” a “doctor” whose “name plate” appeared on the building, in the hope that he “could say what the condition of his door [was] before and after” the date of the crime; and refused to heed defendant’s claim that the two officers provided “perjured testimony” at defendant’s first trial (A529). In addition to those complaints, counsel added a new one: that it was “defendant’s belief” that the prosecutor was able to “prepare a cross examination and arrange for a rebuttal witness” only because Feinman had provided the prosecutor with the substance of defendant’s testimony in advance (A528 [emphasis in original]). The court instructed the People to respond to the substance of defendant’s motion. In papers dated August 17, 2009, the People opposed defendant’s motion (A530-82). The People contended that none of defendant’s complaints were the proper subject of a motion to set aside the verdict pursuant to CPL 330.30(1). With respect to the ineffective assistance of counsel claim, the People pointed out that, since it involved matters outside the record, it could be heard only as a premature, de -6- facto CPL 440.10 motion (A532, citing People v. Wolf, 98 N.Y.2d 105 [2002]). Proceeding with that understanding, the prosecutor addressed the merits of defendant’s claim. She appended a number of exhibits, including two affirmations from Feinman, who fully explained his trial strategy and directly refuted all of defendant’s accusations of incompetence (A558-77). On August 18, 2009, Justice Berkman summarily denied defendant’s motion. Acknowledging that she had to consider facts outside the record to reach the merits of defendant’s ineffective assistance of counsel claim, the court found that defendant’s complaints about Feinman’s effectiveness were entirely baseless and stemmed from simple disagreements over Feinman’s reasonable trial strategies (A597- 601). After rendering that decision, Justice Berkman proceeded to the issue of whether defendant was a persistent felony offender. Following a hearing, the court agreed with Justice Solomon’s assessment that defendant’s criminal history warranted his adjudication as a persistent felon and a 20-year to life aggregate prison term. On appeal to the First Department, defendant claimed, among other things, that Feinman was ineffective and that his adjudication as a persistent felony offender violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Defendant’s ineffective assistance claim was a newly-minted one. He challenged Justice Berkman’s conclusion that Feinman’s affirmations provided legitimate strategic reasons for not calling Franklin Belle as a witness (see Defendant’s Appellate Division Brief, Point I: 26-28). Abandoning four of the five complaints he made below, defendant added a new one, -7- which he never gave Feinman a chance to explain: that Feinman failed to cross- examine Vargas regarding a supposed inconsistency between his testimony at the first and second trials regarding the number of new scratches on the door. To that, defendant added his complaint about Belle, arguing that these two “critical” mistakes, when viewed together, showed that Feinman did not meaningfully address the issue of the scratches (see id.: 24-26). The People opposed defendant’s ineffective assistance of counsel claims on procedural grounds and on the merits (see Respondent’s Appellate Division Brief, Point IV: 31-43). The People further contended that defendant’s Apprendi claim had been repeatedly rejected by this Court (see id., Point V: 45-46). On May 22, 2012, the First Department unanimously rejected defendant’s ineffective assistance of counsel claims. The court observed that defendant raised only “one of his attacks on counsel’s strategy” in his “procedurally defective” CPL 330.30(1) motion to set aside the verdict. People v. Giles, 95 A.D.3d 670, 670 (1st Dept. 2012) (A4). The court further observed that “[t]o the extent the motion could be deemed a de facto or premature motion to vacate judgment pursuant to CPL 440.10,” defendant had failed to get leave to appeal. Id. Nonetheless, the court went on to decide the merits of defendant’s ineffective assistance of counsel claim. As it explained: To the extent that the existing record permits review, either standing alone or supplemented by the submissions on the CPL 330.30(1) motion, we find that defendant received effective -8- assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668 [1984]). Defendant has not shown that either or both of counsel's alleged deficiencies fell below a[n] objective standard of reasonableness, or that they deprived defendant of a fair trial, affected the outcome of the case, or caused defendant any prejudice Id. at 670-71 (A4-5). Relying on People v. Battles, 16 N.Y.3d 54 (2010), the Appellate Division also rejected defendant’s Apprendi claim. Id. at 671 (A6). 3 Before this Court, defendant claims that the Appellate Division should have found that Feinman was ineffective for not calling Franklin Belle and not cross- examining Jesus Vargas about his supposed prior inconsistent statement about the number of scratches he saw. He also contends that the Supreme Court’s recent decision in Southern Union Co. v. United States, ___ U.S. ___, 132 S. Ct. 2344 (2012) demonstrates the error in this Court’s repeated rejection of Apprendi challenges to New York’s recidivist sentencing laws. As will be demonstrated, defendant is wrong on both scores. 3 Defendant also contended that the court’s Sandoval ruling was erroneous; that portions of the prosecutor’s summation were improper; that the two sentencing courts abused their discretion in adjudicating him a persistent felony offender; and that it would serve the interest to reduce his sentences because they were excessive. The Appellate Division rejected all of these claims except for defendant’s excessive-sentence claim. As noted, in the interest of justice, it reduced the 20-year to life terms to 15 years to life. Giles, 95 A.D.3d at 671 (A5-6). -9- THE EVIDENCE AT TRIAL The People’s Case At about 12:45 a.m. on November 7, 2001, Sergeant DONALD DERMODY and Police Officer FRANCISCO VALVERDE were patrolling in a marked police car when they saw defendant facing the door to a suite of medical offices at Central Park West and 86th Street (Valverde: A206, A215-19, A262-63, A268-69; Dermody: A300- 301, A307-308). Although it had a different street address, that door, which was always kept locked, was a side entrance to Central Park West Medical, which occupied the first floor of a residential apartment building on the corner of Central Park West and 86th Street (Building Superintendent JESUS VARGAS, A333, A336, A351-53).4 Defendant stood out because he was the only person on the street and he was illuminated by the adjacent apartment-building entrance and by a street lamp on the nearby corner (Valverde: A236-37, A264-66, A298-99, A302, A304-305; Dermody: A300-301, 307-308). Defendant had his left shoulder pressed against the door, and his right arm was moving “up and down” in a “sawing motion,” at an angle towards the door handle on the right side of the door. Defendant had a “shiny” object in his right hand (Valverde: A219, A227, A273). Through the glass in the door, the officers could see that the building’s interior was dark, and that there was no movement inside (Valverde: A207-208, A243, A263; Dermody: A306-308). 4 A door in the basement of the medical suite led to the basement of the apartment building at the corner of Central Park West and 86th Street (Vargas: A336, A352-53). -10- When Dermody called out to defendant, “excuse me,” defendant stopped what he was doing, looked around, and made eye-contact with him (Valverde: A219-21, A228; Dermody: A309-10). As defendant moved, Valverde could see that the shiny object in defendant’s hand was a knife (Valverde: A220, A229, A258-59). Defendant “smoothly” folded the knife, put it into his pants pocket, and began to walk away (Valverde: A221, A229, A257-58; Dermody: A311). When Dermody called out, “excuse me,” a second time, defendant ran away. Dermody got out of the car and chased after him. As defendant neared the corner of 86th Street, he ran down the stairs to a subway station (Valverde: A216, A220-21; Dermody: A311-12). Dermody caught defendant as he was trying to exit the station (Dermody: A311-12). Valverde arrived and helped Dermody handcuff defendant. As they did so, Valverde asked defendant “what he was doing at the door, and defendant responded, “What door?” (Valverde: A221, A230, A236, A248; Dermody: A313). Valverde searched defendant and recovered a folding knife, a magnifying glass with a built-in light, a cellular phone, and a wallet, which contained a MetroCard and defendant’s identification card, but no money (Valverde: A222, A238-41; Dermody A313).5 The folding knife had two blades; one was broken, and the other had scratches on it (Valverde: A238, A255-56) 5 Subsequent analysis of the MetroCard revealed that the card had been used at 12:24 that morning at the subway station at 135th Street and St. Nicholas Avenue. New York City Transit Authority computer specialist HUNG LEONG estimated that a trip on the B or C (Continued…) -11- With defendant in custody, Valverde inspected the door to the medical offices, which was locked. With the aid of his flashlight, Valverde saw that the area around the lock and the latch had “new,” “fresh” scratches, areas where the metal was “shinier” (Valverde: A241-42, A259, A266, A268, A271-73). The next morning, building superintendent—Jesus Vargas—learned about the incident and went to inspect the door to the medical offices.6 Vargas saw two one- inch scratches near the lock. He also noticed that the lock plate had been “damaged”—there was a “deep” scratch on it, about two to three inches long. The color of that scratch was stainless steel—unlike the surrounding metal, which was “brown” (Vargas: A341-49; People’s Exhibit 1E). In keeping with his usual routine, Vargas had wiped down the door the previous day and had not seen those scratches. Vargas had installed the lock and its lock-plate only a month earlier (Vargas: A331, A345-47, A353-54). Vargas confirmed that defendant did not have permission or authority to enter or remain in the building (Vargas: A341). ______________________ (…Continued) train from that station to its stop at 86th Street and Central Park West would take about 15 minutes (Leong: A324, A328). 6 At the time of trial, Vargas no longer worked at the Central Park West medical offices; he had left that job about three years earlier (Vargas: A327). -12- The Defense Case In June 2009, defendant DWIGHT GILES had numerous felony convictions.7 He had used the aliases “John Lee,” “Mark Lee,” and “Johnny Taylor” because he “d[id not] like police” (Giles: A392-95). Defendant had been staying in various hotels in Manhattan for about three months, while working construction and “selling fish” off-the-books (Giles: A365-66, A380, A407-408, A420). On November 7, 2011, at about midnight, a woman called defendant and asked him to meet her at her apartment building at the corner of Central Park West and 86th Street. From there, they planned to go to Central Park to “smoke some weed,” which defendant agreed to bring with him. Although defendant had known the woman for about a month, and he had been to her building three or four other times, he did not remember her name. The two were not dating; the woman was just someone whom he had met through a mutual friend (Giles: A366-67, A373-78, A383- 84, A388-89, A405-406, A419-20). When the woman called, defendant was somewhere uptown, maybe with Victoria Vaughan, with whom he had two children. A few minutes after they spoke, defendant used a token, not a MetroCard, to enter the subway station at 135th Street and St. Nicholas Avenue. At about 12:55 a.m., defendant arrived at the 86th Street and Central Park West station. Moments later, he reached the apartment building. 7 Neither Valverde nor Dermody had been involved in any of defendant’s prior arrests (Giles: A395). -13- The woman had instructed him to call her when he was outside her apartment building, and she would come down to meet him. Defendant did not know why the woman did not invite him up to her apartment, but speculated that “maybe she had a man” (Giles: A376-81, A383-85, A388-89, A406, A409, A414-15, A421). Defendant saw a security guard inside the lobby of the apartment building on the corner of Central Park West and 86th Street, so out of “habit,” he “stepp[ed] out of his view” and stood by the entrance to the medical offices Central Park West. Although his phone had its own illumination, defendant was not standing in the doorway to that building because it would have been too dark there for him to see the phone clearly. Defendant stood “near” the doorway for about five minutes, trying to find the woman’s number in his phone. Although defendant had a knife with him, he was not using it on the door (Giles: A366-71, A373, A386-88, A390, A406). While defendant was trying to locate the woman’s number, Dermody drove up alone in a police car, leaned out the passenger window, and yelled, “excuse me.” Defendant turned around and looked at him briefly, and then refocused his attention on his phone. Dermody again yelled, “excuse me,” and asked defendant to come over to the police car. As defendant began to walk away, towards the nearby subway station, Dermody followed him in the car (Giles: A369-70, A389-92, A396). When defendant reached the subway entrance, he headed down the stairs to hide the marijuana in his possession. That way, when he came back up, it would be “okay for [the officer] to arrest [him].” While underground, defendant dropped his -14- marijuana into his boots, and then began to head back upstairs. On the staircase, he found a bag, which he grabbed as he continued towards the street. When defendant reached the top of the stairs, Dermody was there, pointing a gun at defendant and telling him to “stop” (Giles: A369-71, A395-96, A409, A413, A415-18). Valverde arrived on the scene, and the officers searched defendant. They recovered his wallet, his cellular phone and his knife, which had two blades, one of which was broken. In the bag that defendant had grabbed on his way out of the subway station, the officers found a magnifying glass and another wallet, containing a MetroCard and a $100 gift certificate made out to someone defendant did not know. The MetroCard was not his, and he had not used it to travel from 135th Street to 86th Street. Because he was never asked to remove his shoes or socks, the officers never discovered the marijuana he had secreted in his boots, even though they had performed a full-body search at the precinct (Giles: A370-71, A395-96, A409-414). The People’s Rebuttal Case TERRY RIVERA, T-Mobile Custodian of Records, inspected defendant’s cellular phone records and found that on the evening of November 6, 2001, defendant had not answered any incoming calls on his cellular phone. He had received only one call, at 10:42 p.m., but that call had gone to voicemail (Rivera: A433-34). -15- THE POST-VERDICT MOTION PRACTICE On July 1, 2009, after the verdict but before sentencing, defendant filed a pro se form motion seeking new appointed counsel. In support of that motion, defendant made a number of complaints about his trial counsel, Paul Feinman (A523-25). Justice Berkman appointed new counsel—Scott M. Schwartz—who filed a motion, on defendant’s behalf, to set aside the verdict pursuant to CPL 330.30 (A527-29). Defendant claimed that Feinman had rendered him ineffective assistance on a number of grounds, only one of which is pertinent here.8 In that regard, counsel adopted a complaint that defendant had made in his pro se motion for reassignment of counsel: Mr. Feinman refused to call Investigator Mr. Franklin Belle, who testif[ied] at [m]y last trial about the investigation he did two days after [m]y arrest on November 9, 2001, who said there w[ere] no scratches on the lock, this is the only witness who refutes all of the prosecutor’s witnesses besides [m]e, I asked Mr. Feinman a number of times before trial to call this witness to testify a[t] this trial. (A529). By papers dated August 17, 2009, the People opposed defendant’s motion (A530-82). In her affirmation, the prosecutor noted that the court had asked her to “respond substantively” to defendant’s allegations about Feinman, even though relief 8 As previously noted, in the motion filed by counsel, defendant claimed that the verdict was against the weight of the evidence and that Feinman was ineffective for five reasons (see A527-29). However, the only claim that defendant raised below that he repeats on appeal is that Feinman was ineffective because he refused to call Belle. Accordingly, that is the only claim discussed here. -16- pursuant to CPL 330.30(1) was “so clearly unavailable” (A530-31). As the prosecutor pointed out, defendant’s complaints about Feinman were not the proper subject of a motion pursuant to CPL 330.30(1) because they “rel[ied] on matters outside the record” (id.). Thus, the People could respond to defendant’s motion only as a “premature de facto application for post-judgment relief under CPL 440.10” (id. at 531, citing People v. Wolf, 98 N.Y.2d 105). With that understanding, the People appended to the motion several exhibits, including two affirmations from Feinman, who detailed his efforts on defendant’s behalf and his overall trial strategy, in addition to directly addressing defendant’s specific complaints (see A558-67, A576-77). Feinman even provided his own exhibits to support his representations (see A568-75). As is pertinent here, Feinman explained that, when he was assigned to represent defendant following the reversal by this Court, he “prepared for the retrial by reviewing the extensive trial record and case documentation provided by [d]efendant’s appellate counsel,” which included the full transcript of the pre-trial hearings, the transcript of the first trial, and the Rosario material (A559-60). Based on that review, Feinman learned that the People’s evidence consisted of “the observations by two police witnesses to [d]efendant using a knife to attempt to open the door of a suite of doctors’ offices … in an area sufficiently well-lit to allow accurate observations” (id. at A560). That evidence further “showed that [d]efendant was observed attempting to hide the knife in his pants pocket upon being confronted -17- by these police witnesses,” and that after a brief chase, the “knife was recovered from the exact pants pocket where the police witness saw [d]efendant place it” (id.). Moreover, “the evidence showed that one of the observing police witnesses saw scratch marks by the door area where [d]efendant was seen using the knife,” and a “civilian building employee” corroborated that claim (id.). Based on that review, Feinman concluded that “the case evidence against [d]efendant was overwhelming” (id.). Next, Feinman outlined his communications with defendant between February 12, 2009 and May 26, 2009 (A 560-61). Feinman explained that defendant had made clear that he would not “accept the pending plea bargain offer,” and instead wanted “the retrial to proceed” (id. at A561). Defendant further “explain[ed] his views about defense tactics and strategy for the retrial” (id.). In particular, defendant “made clear from the start” that he “wanted to pursue a different defense than what was used at the first trial” (id.). Defendant wanted his defense at the retrial to be that “both observing police witnesses had perjured themselves about what each had seen and done on the arrest date” (id.). In support of his allegation of perjured police testimony, defendant “stated that both police witnesses had started work on the arrest day in different precincts, that DERMODY had called VALVERDE after [d]efendant was apprehended, and that DERMODY had allowed VALVERDE to claim credit for the arrest as a professional courtesy,” claims that defendant had included in his -18- unsuccessful pro se motion to set aside the verdict after the first trial (id.) (capitalization in original). Feinman noted that he had “declined to use th[at] strategy” because of its “inherent incredibility” (A562). First, defendant “did not claim to have ever known either police witness prior to the arrest date as a basis for both witnesses seeking retribution against him by entering into a criminal conspiracy” (id.). Moreover, there was no evidence to support defendant’s “allegation of police corruption,” a claim that “was not employed in any manner at the first trial” (id.). Rather, the Rosario material, including the “memo books of both police witnesses” and other police reports, “supported” the officers’ testimony that they “had been working together on the night of the arrest” (A562). Under those circumstances, Feinman “respectfully declined to follow [d]efendant’s requested trial strategy,” and chose a different “strategy”—“that the People’s evidence, even if accepted as credible and accurate, fell short of what the law required for proof that [d]efendant had engaged in an ‘attempt’ to burglarize the doctors’ offices” (A563). Moreover, because defendant was charged with both second-degree and third-degree burglary, Feinman argued, as a “back-up” strategy, -19- that the People’s evidence did not support the second-degree burglary charge, because it failed to establish that the doctors’ offices were part of a residential building (id.).9 Feinman affirmed that he had repeatedly explained to defendant before trial that he chose this strategy because defendant’s approach “lacked any reasonable chance of success” (A563). Feinman explained that if defendant were to testify “regarding his allegations of police perjury,” that claim “would not likely be accepted by a jury,” since it lacked any support and defendant had an “extensive felony record and history of using false names” (A562). However, he added that if defendant still wanted to assert his “perjury” strategy by testifying to that effect, nothing in Feinman’s strategy would be “inconsistent” with that (A563). And, in fact, defendant did choose to testify at trial and raised his allegations of perjury against both police witnesses (A564). Feinman noted that, while he did not focus his cross-examination on “[d]efendant’s theory of police corruption,” he did “briefly examine both police witnesses about their claims to be working together on the night of the arrest” (id.). Feinman went on to explain why he did not call Franklin Belle as a witness at the retrial.10 He started by noting that Belle “was an employee of the public defender group which represented [d]efendant at the first trial,” and that he had testified that 9 Feinman noted that he had made in limine and dismissal applications in this regard, before and during trial (A563). 10 As noted, Feinman answered all of the specific complaints that defendant lodged in his motion. However, because defendant abandoned all of the other complaints on appeal, only the one about Belle is relevant here. -20- “he inspected the door soon after the arrest and claimed not to have seen any scratch marks” (A564). Feinman then explained his evaluation of Belle’s testimony at the first trial and his decision not to call him at the retrial: [T]he credibility of this possible defense witness was undermined by his failure to take reliable photographs in support of his claimed observations. The investigator produced photographs at the first trial that were too blurry or out-of-focus to support his claimed observations. Put another way, a paid defense witness at the first trial admitted that his own photographs did not support his testimony. (A564-65). Feinman “concluded that this conduct by the defense witness raised questions about his credibility,” and that such testimony would support an argument by the People that the investigator purposely took blurry photographs because accurate photographs would have shown the scratches” (id.). Feinman noted that the People had better photographs of the door” (A565). In short, Feinman concluded that he had no reason to believe Belle would have “contradicted the testimony of the People’s witnesses about the scratch marks” (A564). Based on Feinman’s affirmation, the People argued that all of defendant’s specific claims of ineffectiveness failed on the merits (A547-54). Again, as is pertinent here, the People argued that Feinman “offered legitimate strategic reasons” for not calling Belle (A549). Thus, defendant had failed to “m[e]et his burden of demonstrating the absence of such reasons” (A549, citing People v. Smith, 82 N.Y.2d 731, 733 [1993]). The People further argued that, even if that were not the case, -21- defendant utterly failed to show that he was prejudiced by Feinman’s decision not to call Belle. The People pointed out that Belle’s testimony had no effect on the outcome of the first trial, and the court had “no reason to believe” his testimony “would have affected the result of the second trial either” (A549). On August 18, 2009, Justice Berkman summarily denied defendant’s motion. In rendering her decision, the judge addressed “those matters, which [were] raised, which are outside the record,” such as “not calling the investigator who … did testify at the last trial, apparently unconvincingly” (A597). In that regard, Justice Berkman noted that Feinman explained “that his decision was based upon his assessment of the testimony of that gentleman at the last trial,” which, as Feinman explained, was not supported by his “blurry” photographs (A599). Under those circumstances, the court explained, it saw “no reason to have a hearing” on “what appears on its face to be a credible explanation from a “credible [and] respect[ed] member of the bar,” particularly since defendant had presented “[no]thing to the contrary” (A599). Later, the court observed that defendant’s complaints simply amounted to “a difference in strategies,” and that defendant was entitled to “a lawyer who will exercise his independent or her independent judgment,” not one who would simply “agree with [him]” (A601). -22- POINT I DEFENDANT’S NEWLY-MINTED APPELLATE INEFFECTIVE ASSISTANCE CLAIM IS BASELESS (Answering Defendant’s Brief, Point I, pp. 29-39). On appeal to the Appellate Division, defendant claimed once again that Feinman was ineffective. In obvious recognition that the ineffective assistance claim that he made before Justice Berkman was properly denied, defendant presented a newly-minted one on appeal. He abandoned four of the five complaints that he had made about Feinman and added a new one that he never gave Feinman a chance to explain. More specifically, he contended for the first time that “there was no credible strategic reason” for Feinman’s “failure to impeach” Vargas, the superintendent, with a supposed prior inconsistent statement from the first trial about the number of scratches that he saw on the door (Defendant’s AD Brief at 22-23; see generally id., Point I, 22-29). Defendant added as almost a side note that Feinman “inexplicably” did not present Belle’s “highly favorable testimony” from the first trial (id.). Defendant contended that, because the “scratches” on the door “were a critical element of the People’ case,” these “two critical mistakes,” both “individually and collectively, fatally undermined the fairness of [his] trial” (id. at 24). The Appellate Division observed that it was not proper for defendant to bring his newly-minted ineffective assistance claim on direct appeal because it involved matters of strategy not reflected in the record. Giles, 95 A.D.3d at 670-671 (A4-5). The court pointed out that defendant had not even included in his motion to set aside -23- his conviction his new complaint about Feinman’s supposed inexplicable failure to adequately cross-examine Vargas. Id. at 670 (A4). Thus, his newly-minted appellate ineffective assistance claim was not even litigated at the “procedurally defective” proceeding that expanded the record in violation of CPL 330.30 (1). Id. Under those circumstances, the court concluded that defendant’s newfound claim involved “matters of strategy not reflected in the record.” Id. The court went on to observe: To the extent that the existing record permits review, either standing alone or supplemented by the submissions on the CPL 330.30(1) motion, we find that defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668 [1984]). Defendant has not shown that either or both of counsel's alleged deficiencies fell below a[n] objective standard of reasonableness, or that they deprived defendant of a fair trial, affected the outcome of the case, or caused defendant any prejudice People v. Giles, 95 A.D.3d at 670-71 (A4-5). Before this Court, defendant contends that the question presented is “Whether the merits of [his] claim of ineffective assistance of trial counsel can be considered on direct appeal where, pursuant to C.P.L. 330.30, the issue was fully litigated below, a full factual record was created, and the trial court addressed the merits of the claim” (Defendant’s Brief: 3). But even he admits that he is wrong about that. Indeed, in a totally contradictory claim, defendant asserts that “only the merits of [his] claim that counsel was ineffective for failing to call the defense investigator is before this Court for review as that was the sole basis for the trial court’s adverse ruling (Defendant’s -24- Brief: 8; see also id.: 30-33). Of course, defendant’s newly minted claim is based in large part on Feinman’s supposed inexplicable failure to cross-examine Vargas about the number of scratches. And, defendant concedes that he never raised that issue below. Thus, the Appellate Division was correct to conclude that, even if the “procedurally defective” expansion of the record, in violation of CPL 330.30 (1), could be considered part of the record on appeal, that record would not support defendant’s newfound ineffective assistance of counsel claim. Giles, 95 A.D.3d at 670 (A4). After all, Feinman provided entirely reasonable explanations for all of the complaints that defendant actually litigated. And the court had no reason to suppose that his explanation for the scope of Vargas’ cross-examination would have been deficient had defendant given him the opportunity to provide one. Thus, defendant’s claim is not one that can succeed for the first time on appeal. A. The relevant law is well-settled. Counsel’s representation is presumed effective under both the New York and federal standards. Thus, it is the defendant who bears the “well-settled, high burden of demonstrating that he was deprived of a fair trial by less than meaningful representation.” People v. Hobot, 84 N.Y.2d 1021, 1022 (1995); see also Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (“There is a strong presumption that counsel’s performance falls within the wide range of professional assistance, . . . [and] the defendant bears the burden of proving that counsel’s representation was -25- unreasonable under prevailing professional norms and that the challenged action was not sound strategy”) (internal citations and quotations omitted). To meet that burden, defendant must make a two-part showing. First, he must demonstrate that his attorney’s performance was so deficient that it fell outside the scope of reasonable professional competence. See Strickland v. Washington, 466 U.S. 668, 690 (1984); People v. Baldi, 54 N.Y.2d 137, 146 (1981). Thus, “simple disagreement with strategies” or “tactics,” “weighed long after the trial, does not suffice” to demonstrate ineffectiveness. People v. Flores, 84 N.Y.2d 184, 187 (1994); see also People v. Benevento, 91 N.Y.2d 708, 713 (1998). Moreover, a court should not “second-guess whether a course chosen by defendant’s counsel was the best trial strategy, or even a good one … .” People v. Satterfield, 66 N.Y.2d 796, 799-800 (1985); see also Benevento, 91 N.Y.2d at 712. Instead, “it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations” for counsel’s conduct. People v. Rivera, 71 N.Y.2d 705, 709 (1988); see also Benevento, 91 N.Y.2d at 712. Second, defendant has to demonstrate that he was prejudiced by his attorney’s deficiencies. Indeed, as a matter of federal constitutional law, a defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. at 694; see also Mickens v. Taylor, 535 U.S. 162, 166 (2002). The New York “meaningful representation” test also contains a “prejudice component.” -26- People v. Henry, 95 N.Y.2d 563, 566 (2000); see also Benevento, 91 N.Y.2d at 713. Under State constitutional principles, “prejudice” is judged not only by its “particular impact on the outcome of the case,” but also on the “fairness of the process as a whole.” People v. Henry, 95 N.Y.2d at 566; Benevento, 91 N.Y.2d at 713-714 (ineffective assistance of counsel claim will be sustained only when counsel “partook an inexplicably prejudicial course”); People v. Hobot, 84 N.Y.2d 1021, 1024 (1995) (rejecting ineffective assistance claim where “counsel’s omission did not prejudice the defense or defendant’s right to a fair trial”). But a defendant’s ability to show prejudice is certainly “significant.” People v. Stultz, 2 N.Y.3d 277, 284 (2004). As this Court has explained, it would be “skeptical of an ineffective assistance of counsel claim absent any showing of prejudice.” Id. And, of course, critical to the assessment of an attorney’s competence is the strength of the evidence against a defendant. Benevento, 91 N.Y.2d at 714; Baldi, 54 N.Y.2d at 147. After all, where there is overwhelming proof “there is not too much the best attorney can do.” United States v. Katz, 425 F.2d 928, 930 (2d Cir. 1970). A simple application of these well-settled principles is fatal to defendant’s ineffective assistance claim. To begin, defendant utterly failed to meet his burden of demonstrating that there was no “strategic or other legitimate explanations” for Feinman’s decision not to call Belle as a witness at the retrial. People v. Rivera, 71 N.Y.2d 705, 709 (1988); see also Benevento, 91 N.Y.2d at 712. Feinman reasonably concluded that Belle was not a credible witness at the first trial. Rather, he was a -27- “paid defense witness,” who “admitted that his own photographs did not support his testimony (A564-65). While defendant characterizes Belle’s testimony at the first trial as “highly favorable” (Defendant’s Brief: 39), Feinman’s evaluation of that testimony was far more fitting: [T]he credibility of this possible defense witness was undermined by his failure to take reliable photographs in support of his claimed observations. The investigator produced photographs at the first trial that were too blurry or out-of-focus to support his claimed observations (A564-65). Understandably, Feinman was concerned that if he called a paid defense witness with questionable credibility, that would cast doubt on his own credibility and that of the entire defense. As he explained, it would support an argument by the People that the defense paid an investigator who “purposely took blurry photographs,” particularly since the People had better photographs of the door (id.). Under those circumstances, Feinman reasonably concluded that Belle’s testimony would have done more harm than good. Thus, as Justice Berkman correctly concluded, defendant’s disagreement with that strategic decision-making is not a valid basis for an ineffective-assistance claim. See People v. Rivera, 71 N.Y.2d 705, 708-709 (“A contention of ineffective assistance of trial counsel requires proof of less than meaningful representation, rather than simple disagreement with strategies and tactics.”). And defendant is simply wrong to contend that Feinman’s decision not to call Belle, even standing alone, undermined -28- the fairness of his trial. As the prosecutor pointed out, Belle’s testimony had no effect on the outcome of the first trial, and there was no reason for the court to believe his testimony would have affected the result of the second trial either (see A549). Obviously recognizing as much, defendant attempts to shore up his ineffective assistance claim by adding the complaint that he never gave Feinman a chance to explain—that Feinman did not adequately cross-examine Vargas about the scratches he saw. In that regard, defendant claims that, at the first trial, Vargas “testified that he saw only one scratch on the side of the door,” and that the number of scratches that he saw “tripled” at the second trial (Defendant’s Brief: 39). As defendant sees it, that was yet another example of Feinman inexplicably failing to impeach the evidence of scratches on the door (id. at 39-40). But, as the Appellate Division apparently realized, Feinman had perfectly reasonable explanations for all of defendant’s other complaints, including his decision not to use Belle to try to impeach the testimony about scratches. Thus, it had no reason to suppose that Feinman’s explanation for defendant’s newfound complaint would have been unreasonable if defendant had given Feinman the opportunity to provide one. Indeed, any other conclusion could be reached only by “resorting to supposition and conjecture,” rather than proof. Rivera, 71 N.Y.2d at 709; People v. Jones, 55 N.Y.2d 771, 773 (1981); People v. Brown, 45 N.Y.2d 852, 853-54 (1978). After all, Feinman’s affirmation clearly showed that he had read everything that he could get his hands on from the first trial, and that he thoughtfully used that information to -29- develop his overall strategy (see A559-60). Thus, there is no reason to believe that incompetence, rather than strategy, drove his decision not to focus the jury on the scratch evidence by exploring that discrepancy. That alone is reason to reject defendant’s newly-minted two-prong attack on Feinman’s competence with respect to the scratches. But, even if this Court were to attempt to decipher what was in Feinman’s head, defendant would still fail in meeting his high burden of demonstrating that counsel’s conduct was less than meaningful. Indeed, defendant does not even come close to doing that here. First of all, contrary to defendant’s claim (Defendant’s Brief: 43), it is not even clear that Vargas’s testimony at the first trial was a prior inconsistent statement. At defendant’s first trial, the direct examination of Vargas about damage to the lock was brief (A22-23). He simply said he saw a scratch after the burglary and pointed it out in a photograph (id.). But at the second trial, the questioning was more directed to specifics of all the damage he saw (A342-44). Notably, when Feinman attempted to question Vargas about potential discrepancies between Vargas’s current and previous testimony, the prosecutor raised a Bornholt objection, arguing that Vargas could not be impeached for failing to mention his installation of the lock at the first trial because, at that trial, he had not been specifically asked about that issue (A351). See People v. Bornholt, 33 N.Y.2d 75 (1973). And the court sustained the objection (A351). -30- Feinman took a few moments to review the transcript, and then indicated that he had no further questions (A351). That circumstance demonstrates that Feinman may have simply wanted to avoid another Bornholt objection, which could have had a negative effect on the jury. And, of course, he may have wanted to avoid redirect examination on the subject of the scratches too. Both of those decisions would have been reasonable strategic explanations for foregoing further cross-examination on that subject. And, again defendant’s disagreement with that strategic decision-making is not a valid basis for an ineffective-assistance claim. See People v. Rivera, 71 N.Y.2d 708-709. Indeed, even if it were a “significant mistake[]” for Feinman not to have plowed away in the face of the prosecutor’s objections—which it clearly was not—that would not “render counsel constitutionally ineffective,” since his “overall performance” was more than “adequate.” People v. Turner, 5 N.Y.3d 476, 480-481 (2005) (ineffective assistance claims based on errors such as “overlooking a useful piece of evidence” or “failing to take maximum advantage of a Rosario violation” were rejected). 11 But, in fact, it was wise for Feinman to resist the temptation to cross-examine Vargas about the supposed inconsistency. After all, Vargas actually marked the 11 It also bears noting that Feinman did cross-examine Vargas about matters that were relevant to the defense that he chose to assert, such as whether the medical offices had any signs of being residential spaces; whether there were any workable connecting passageways between the medical offices and the apartments above; and whether there was any damage to the door handle or the door glass (see A345-49). -31- location of the damage to the door in photographs at both the first and second trials (A22-23, A341). Thus, even if Feinman managed to get Vargas to admit that he had only seen one scratch, that would not have helped the defense in the least. Even one scratch on the door’s locking mechanism was consistent with defendant using a knife to try to pry open the door. While defendant suggests that Vargas’s testimony that there was only one scratch may have served to impeach Officer Valverde’s testimony about seeing several scratches, that discrepancy obviously did not have that effect at the first trial, where Vargas testified about seeing one scratch and Valverde testified about seeing three. As any rational juror would conclude, it was not the number of scratches that was important. It was the fact that there was damage to a door, which was consistent with an attempt to pry it open with a knife. And, as defendant conveniently ignores, not only was defendant caught red-handed trying to pry open the door with a knife, but he was arrested in possession of that knife that had broken and scratched blades. Feinman specifically mentioned that damning evidence in his affirmation (A560). As Feinman apparently realized, that evidence would not lose its power, even if he miraculously managed to have testimony about the scratches on the door eliminated from the case. Thus, defendant’s focus on the scratches on the door is simply misplaced. Indeed, defendant was not convicted simply because there was evidence about scratches; he was convicted because the People’s evidence of his guilt was -32- unimpeachable and overwhelming. And, as Feinman made plain, the evidence of guilt was made even stronger by defendant’s insistence on taking the witness stand, in an effort to convince the jury that the officers perjured themselves in a conspiracy to frame him (A561-62, A564). That testimony was incredible, and Feinman warned defendant that it would be viewed that way (A562). Yet, defendant ignored his counsel’s good advice and decided to testify (A564). Of course, that was defendant’s choice to make. Jones v. Barnes, 463 U.S. 745, 751 (1983) (decisions whether to plead guilty and whether to testify are left to defendant, not his attorney); People v. Colon, 90 N.Y.2d 824, 825-26 (1997). And, as Feinman predicted, that testimony did not aid defendant; it simply added to the already overwhelming proof against him. Not surprisingly, defendant had no credible explanations for the damning proof. Indeed, the entire premise of his testimony—that he was simply standing by a door on Central Park West, making phone calls to a female pot-smoker who lived in the building, when Dermody and Valverde entered into a conspiracy to frame him— made no sense at all. That is particularly true, given that he could not even recall the woman’s name, and phone records showed that he had not even used his phone (see A374, A433-34). And, of course, defendant had no innocent explanation for the scratched and broken knife in his pocket. In light of defendant’s chosen defense— against counsel’s advice—he is hardly in a position to blame Feinman for his conviction. See United States v. Katz, 425 F.2d at 930. -33- In short, the Appellate Division was correct to conclude that, even if the “procedurally defective” expansion of the record, in violation of CPL 330.30(1), could be considered part of the record on appeal, that record would not support defendant’s newly-minted ineffective assistance of counsel claim. B. Given the meritlessness of defendant’s ineffective assistance of counsel claim, it is not surprising that he spends the bulk of his brief arguing that the Appellate Division wrongly determined that his CPL 330.30(1) motion was a procedurally defective “de facto or premature motion to vacate judgment pursuant to CPL 440.10.” Giles, 95 A.D.3d at 670. Of course, whether that would result in the record of that proceeding being technically unreviewable is beside the point, since the Appellate Division did, in fact, review it in determining the merits of defendant’s newly-minted ineffective assistance of counsel claim. However, defendant’s mistaken contention that he was entitled to expand the existing record through his CPL 330.30(1) motion warrants a response.12 Defendant’s interpretation of CPL 330.30(1)—that it allows a defendant to expand the record—is belied by the plain language of the statute. CPL 330.30(1) 12 Contrary to defendant’s claim, People v. Concepcion, 17 N.Y.3d 192 (2011) and People v. LaFontaine, 92 N.Y.2d 470 (1998) are inapplicable here. The Appellate Division was evaluating a newly-minted claim that had never been brought before Justice Berkman. Thus defendant is in no position to claim that the scope of Justice Berkman’s decision bars this Court from reviewing the procedural issue. See Concepcion, 17 N.Y.3d at 198 (discussing the inapplicability of Concepcion and LaFontaine to People v. Parris, 4 N.Y.3d 41 [2004]). -34- provides that the motion may be made, after the verdict and before sentencing, on “[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court.” That statutory language dictates that a CPL 330.30(1) is properly made only when it is based on a ground that is apparent from the face of the record. Moreover, this Court has already determined that “factual assertions” that are “outside the record” “c[an] not be considered in a CPL 330.30(1) motion.” People v. Wolf, N.Y.2d 105, 119 (2002); see also People v Kronberg, 243 AD2d 132, 135, 152, lv denied 92 NY2d 880; People v Herrington, 194 AD2d 379, 380, lv denied 82 NY2d 755. In Wolf, this Court agreed with the Appellate Division that such an application is “at best, a de facto CPL 440.10 motion.” Id., citing People v. Wolf, 284 A.D.2d 102, 104 (1st Dept. 2001) (alleged error raised in 330.30 motion was “not one ‘appearing in the record’” and thus motion could be considered only as a de facto 440.10 motion). Indeed, every Department has read the statute that way. See, e.g., People v. Shelton, 111 A.D.3d 1334, 1334 (4th Dept. 2013) (“It is … well settled that a trial court lacks the authority to consider facts not appearing on the record in determining a defendant’s motion pursuant to CPL 330. 30[1];’ the “procedural vehicle” for such claims is a CPL 440.10 motion)(internal quotation marks omitted); People v. Green, 92 A.D.3d 894, 896 (2nd Dept. 2012) (holding that trial court “correctly held that it lacked the authority to consider facts not appearing in the record in determining the defendant’s motion -35- pursuant to CPL 330.30[1]”); People v. Ai Jiang, 62 A.D.3d 515, 516 (1st Dept. 2009) (defendant’s ineffective assistance claims involved “matters outside the record” and thus were improperly raised in a CPL 330.30[1] motion; that motion could instead be considered only as a “de facto or premature motion to vacate judgment pursuant to CPL 440.10”); People v. Knox, 134 A.D.2d 704, 704 (3rd Dept. 1987) (defendant’s ineffective assistance claim was “based on matters outside the record” and thus was not properly made pursuant to CPL 330.30[1]). Thus there can be no doubt that the Appellate Division properly characterized defendant’s CPL 330.30(1) motion as procedurally defective and thus as, at best, a “a de facto or premature motion to vacate judgment pursuant to CPL 440.10.” Giles, 95 A.D.3d at 670 (A4). None of defendant’s complaints were based on information apparent in the record before he filed his motion. Indeed, to make his complaints, defendant had to expand the record by recounting his privileged, confidential conversations with Feinman. See CPLR § 4503(a)(1) (communication between an attorney and his client is privileged and confidential); People v. Mitchell, 58 N.Y.2d 368, 373 (1983) (the attorney-client privilege ensures that a defendant’s “confidence will not later be revealed to the public”). Defendant’s motion thus did not ask the court to look back at facts already before it, but asked it to consider new information that was, as the court explained, “outside the record” (A597). Further, because the merits of defendant’s motion could not be determined based on the record as it existed at the time he filed his motion, it did not, as CPL -36- 330.30(1) also requires, present a “matter of law.” In the context of ineffective assistance of counsel claims raised for the first time on direct appeal, this Court has repeatedly emphasized that, with rare exceptions, an ineffective assistance of counsel claim cannot be evaluated based only on the trial proceedings. Those proceedings do not elaborate “what was in defense counsel’s mind,” and so provide a court no way to assess the reasonableness of counsel’s strategic choices. People v. Jones, 55 N.Y.2d 771, 773 (1981); see People v. Rivera, 71 N.Y.2d 705, 709 (1988); People v. Brown, 45 N.Y.2d 852, 853-54 (1978). Without defense counsel’s explanation of his strategy, a court is “asked to decide the claims of ineffective assistance of counsel by resorting to supposition and conjecture,” rather than based on legal principles and reasoning. Rivera, 71 N.Y.2d at 709. The same logic easily applies to CPL 330.30(1) motions and to defendant’s case. Defendant’s motion provided no information about what was in Feinman’s mind, and so gave the court no way beyond “supposition and conjecture” to determine whether Feinman had reasonable explanations in response to defendant’s complaints. Rivera, 71 N.Y.2d at 709. And, of course, without that information, defendant could not carry his burden of showing that Feinman’s performance was constitutionally deficient. Id. Thus there can be no doubt that the trial court should not have considered the merits of defendant’s motion, and that the motion was, at best, a “premature, de facto” 440.10 motion (A531). Of course, unlike CPL 330.30(1), CPL 440.10 allows a -37- defendant to expand the factual record in order to raise his claim of error.13 See People v. Love, 57 N.Y.2d 998, 1000 (1982) (review of an ineffective assistance of counsel claim required “additional background facts that might have been developed had an appropriate after-judgment motion been made pursuant to CPL 440.10”) (internal quotation marks and citation omitted). It codifies a court’s inherent power to correct fundamental errors affecting the validity of the judicial process, errors that plainly include a violation of a defendant’s right to competent, effective counsel. See People v. Ortiz, 76 N.Y.2d 652, 655-56 (1990) (right to competent counsel is “fundamental to our form of justice”). Defendant suggests that premature, de facto CPL 440.10 motions that are “fully litigated below” should be reviewable on direct appeal because “the full factual record was created” (Defendant’s Brief: 29). But that issue is for another day. As noted, defendant admits that only half of his newly-minted claim was litigated below (Defendant’s Brief: 8, 30-33). Thus, in his case, that question simply is not presented. But there can be no doubt that if defendant had brought his motion correctly, the record of the CPL 440.10 proceedings would not be before the Appellate Division, much less this Court, on direct appeal. Indeed, the CPL could not be clearer: a defendant has no appeal as of right from a denial of a 440.10 motion. See 13 CPL 330.30(2) and CPL 330.30(3) also allow a defendant to expand the record, but only to elaborate claims of jury misconduct or newly discovered evidence, and so were not options available to defendant here. -38- CPL 450.10; 450.15(1). Instead, he can appeal a denial of a 440.10 motion only if he obtains express permission from the Appellate Division to do so. See CPL 450.15, 460.15. This limitation on the right to appeal from the denial of a 440.10 motion came about through a deliberate legislative intervention. When the Criminal Procedure Law was first enacted, CPL 450.10 provided defendants with an appeal as of right from an order denying a 440.10 motion, a decision the Legislature quickly realized was a mistake. In 1971, only one year after the CPL was adopted, the Legislature’s Committee on Criminal Courts, Law, and Procedure declared that these appeals were a “gross waste of resources” that squandered “[t]oo much time, talent, and money.” 1971 Legislative Bulletin 30, at 47-48. Consequently, the Committee concluded that “[i]t [wa]s unnecessary to require appellate review of every post-conviction proceeding.” Id. The Committee accordingly urged its fellow legislators to amend the CPL to require defendants to obtain permission to appeal an order denying a 440.10 motion, and the Legislature enacted the proposal the next year. Despite the plain statutory language and clear legislative intent indicating that CPL 440.10 motions are subject to different rules than CPL 330.30(1) motions, defendant argues that policy concerns dictate that courts should allow defendants, like him, to bring premature 440.10 motions to avoid the structures of that statute. But that is an argument for the Legislature, not the courts. Thus, for example, while defendant thinks it unfair that defendants “ha[ve] a constitutional right to a -39- competent attorney throughout the pendency of the 330.30 motion,” a right they do not have on a 440.10 motion (Defendant’s Brief: 37), the Legislature has rejected his contention. As the Committee on Criminal Courts, Law, and Procedure explained, there is “no constitutional requirement for an appeal in every post-conviction proceeding,” and thus no constitutional requirement that a defendant be appointed counsel to pursue such a proceeding. 1971 Legislative Bulletin 30, at 48. In fact, in arriving at that conclusion, the Committee noted that the incredible number of “frivolous petitions” flooding the lower courts—and making up, at that time, about 50% of the Appellate Divisions’ dockets—dictated that CPL 440.10 motions “should be subject to disposition without a requirement that counsel be assigned to represent the defendant.” Id. at 49. Thus, courts do not have the power to afford defendants the right to bypass CPL 440.10 rules simply to afford them rights to which they are not entitled. And, of course, if the law were as defendant views it, a defendant who brings a motion in a procedurally defective manner would be better off than one who brings his motion the correct way. Thus, for example, if the rule that defendant is looking for were correct, a defendant who brings a proper CPL 440.10 motion would have to seek leave to appeal denial of the motion, but a defendant who improperly has his defective CPL 330.30(1) motion considered as a de facto CPL 440.10 motion would not have to go through that process. That interpretation of CPL 330.30(1) would -40- thus create a perverse incentive for defendants to file procedurally improper motions, and thereby effectively thwart the express intention of the Legislature. In short, the Appellate Division correctly determined that defendant’s CPL 330.30(1) motion was procedurally defective because it was based on matters outside the record. While the Appellate Division went ahead and looked at that expanded record, there can be no doubt that it correctly had legitimate concerns about doing so. Thus this Court should make plain that it is not permissible for defendants to smuggle in a CPL 440.10 motion under the guise of CPL 330.30(1), or for courts to litigate them as premature, de facto CPL 440.10 motions. POINT II DEFENDANT’S CHALLENGE TO THE CONSTITUTIONALITY OF THE PROCEDURE BY WHICH HE WAS ADJUDICATED A PERSISTENT FELONY OFFENDER HAS BEEN REPEATEDLY REJECTED BY THIS COURT (Answering Defendant’s Brief, Point II, pgs. 46-54). Defendant was found to be a persistent felony offender based on the fact that, prior to the convictions on the instant indictment, he had amassed five felony convictions since 1980 for burglary-related crimes. More specifically, as the People alleged in their statement pursuant to CPL 400.20 (see A55-71), in May 1980, defendant was convicted of Burglary in the Third Degree and Bail Jumping in the First Degree and sentenced to zero to five years and zero to three years, respectively; in April 1981, defendant was convicted of Attempted Burglary in the Third Degree -41- and sentenced to 16 months to four years; in January 1991, he was convicted of Burglary in the Second Degree and sentenced to six to twelve years; in January 1992, he was convicted of Burglary in the Second Degree and sentenced to seven and one- half to fifteen years (A57-58). The People also noted that in January 1991 defendant was adjudged a predicate felon in Onondaga County based on his May 1980 conviction for third-degree burglary. Moreover, in January 1992 defendant was adjudged a predicate felon in New York County based on his 1981 conviction for third-degree attempted burglary (A58). At defendant’s 2003 discretionary persistent felony hearing, the prosecutor explained that based on the timing of defendant’s prior crimes, he would have been a mandatory persistent violent felony offender. However, defendant’s “pattern of becoming a fugitive and committing a new crime while out on bail” had “affected the timing of his convictions.” Thus, the sequentiality requirements for establishing that he was a persistent violent felony offender were not met (A102, 104) (emphasis added). Based on his unabating criminal record, Justice Solomon concluded that defendant was “way beyond rehabilitation”: “[s]ome people are doctors, electricians, lawyers, pharmacists; he’s a burglar. If you look at his record, that’s clear” (A151-52). The court observed further that defendant’s prior prison terms had had “no [e]ffect, underline no [e]ffect;” defendant’s record indicated that he was “someone who is never going to be any different” (A153). In 2009, Justice Berkman echoed this assessment, explaining that she could “certainly understand why Judge Solomon was -42- adamant on the issue of the sentence here” (A633). As she observed, because defendant “persists in committing burglaries, larcenies,” “the only way to stop [him] is by locking him up” (A633). On appeal to this Court, defendant challenges the constitutionality of those determinations. He acknowledges that this Court, guided by Supreme Court precedent, has found the persistent felony offender statute to be constitutional (Defendant’s Brief: 49). However, he contends that the Supreme Court’s recent decision in Southern Union Co. v. United States, ___ U.S. ___, 132 S. Ct. 2344 (2012) draws into question the constitutionality of New York’s discretionary persistent felony offender sentencing scheme. Defendant is mistaken. Both this Court and the federal courts have repeatedly held that New York’s persistent felony offender statutes do not violate Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny. See People v. Battles, 16 N.Y.3d 54 (2010); People v. Quinones, 12 N.Y.3d 116, cert. denied 130 U.S. 104 130 S.Ct. 104 (2009); People v. Rawlins, 10 N.Y.3d 126, cert. denied, sub. nom. Meekins v. New York, 129 S.Ct. 2856 (2009); People v. Rivera, 5 N.Y.3d 61; People v. West, 5 N.Y.3d 740, cert. denied, 546 U.S. 987 (2005); People v. Rosen, 96 N.Y.2d 329 (2001). ; see also Portalatin v. Graham, 624 F.3d 69 (2d Cir. 2010)(en banc), cert. denied, ___ U.S. ___, 131 S.Ct. 1693 (2011).14 As this Court has explained, 14 At the 2009 sentencing proceedings, defendant admitted that New York courts had found the discretionary persistent felony offender sentencing scheme constitutional, but still mounted a constitutional challenge to it, emphasizing that in Portalatin v. Graham, 478 (Continued…) -43- in ruling once again that New York’s discretionary persistent felony offender sentencing scheme is constitutional: New York’s sentencing scheme … is a recidivist sentencing scheme. That is, under New York’s scheme, a defendant is subject to an enhanced sentence based solely on the existence of two prior felony convictions. This fact alone places the New York scheme outside the scope of the Apprendi rule. People v. Quinones, 12 N.Y.3d at 128-29. However, as defendant sees it, Southern Union demonstrates that all these holdings are wrong. That claim can be easily dismissed. Southern Union did not change the scope of the Apprendi rule. Instead, it did nothing more than apply Apprendi to criminal fines. In Southern Union, the defendant was convicted of storing mercury without a proper permit, in violation of the Resource Conservation and Recovery Act (“RCRA”), a federal environmental statute. RCRA violations are punishable by a fine of “not more than $50,000 for each day of violation.” Southern Union 132 S. Ct at 2349. However, the jury was not asked specifically to determine the duration of the violation, and its verdict sheet simply echoed the indictment, which charged the ______________________ (…Continued) F.Supp2d 385 (2007), the Eastern District of New York had found it unconstitutional (see A602-603). Defense counsel predicted that “eventually the Supreme Court will agree with [the E.D.N.Y.]” (A603). In fact, that decision was reversed on appeal to the Second Circuit and the Supreme Court later denied certiorari. Portalatin v. Graham, 624 F.3d 69 (2d Cir. 2010)(en banc), cert. denied, ___ U.S. ___, 131 S.Ct. 1693 (2011). -44- defendant with unlawful storage from “on or about September 19, 2002 to October 19, 2004.” Id. Prior to sentencing, the probation office determined that Southern Union faced a maximum fine of $38.1 million dollars: $50,000 for each of the 762 days between September 19, 2002 and October 19, 2004. Southern Union asserted that “the jury was not asked to determine the precise duration of the violation” and thus argued that any fine greater than the one-day maximum of $50,000 would require that the court engage in impermissible fact-finding, in violation of Apprendi and its progeny. Id. Such fact-finding would, they concluded, violate the Apprendi rule. The government agreed that fact-finding would have to occur, but contended that there was no Apprendi violation because that rule did not apply to criminal fines because fines did not involve the same kind of loss of liberty as imprisonment. The First Circuit Court of Appeals sided with the government. U.S. v. Southern Union Co., 630 F.3d 17 (2010). The Supreme Court sided with Southern Union, holding that a jury must “find beyond a reasonable doubt facts that determine [a] fine’s maximum amount.” Southern Union, 132 S. Ct at 2351. The Southern Union decision makes clear that it has no bearing on this Court’s prior decisions upholding New York’s recidivist sentencing schemes. As the Supreme Court explained, “The question here is whether [Apprendi] applies to sentences of criminal fines. We hold that it does.” Id. at 2348-49. Indeed, the very first sentence of the opinion reiterates that “[t]he Sixth Amendment reserves to juries the -45- determination of any fact, other than the fact of a prior conviction, that increases a criminal defendant’s maximum potential sentence.” Id. at 2348 (emphasis added). Defendant’s contention that Southern Union somehow alters the Apprendi rule thus ignores the Court’s own express assessment of its holding. Despite his best efforts, then, defendant only ends up proving the key point: Southern Union is merely an application of Apprendi to criminal fines. See Southern Union at 2348-49. As such, it in no way alters the Court’s holdings on the constitutionality of recidivist sentencing schemes. Accordingly, Southern Union gives this Court no reason to reconsider its own cases upholding the constitutionality of the persistent felony offender sentencing statute. -46- CONCLUSION The order of the Appellate Division should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: NAOMI C. REED Assistant District Attorney SHERYL FELDMAN NAOMI C. REED Assistant District Attorneys Of Counsel April 4, 2014