The People, Respondent,v.Isaac Diggins, Appellant.

Brief

N.Y.Apr 24, 2013

To be argued by SHERYL FELDMAN (20 Minutes Requested) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - ISAAC DIGGINS, 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 ALAN GADLIN SHERYL FELDMAN ASSISTANT DISTRICT ATTORNEYS Of Counsel OCTOBER 25, 2012 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii PRELIMINARY STATEMENT ......................................................................................... 1 COUNTER-QUESTION PRESENTED ......................................................................... 2 INTRODUCTION................................................................................................................ 2 THE EVIDENCE AT THE CPL 440 HEARING.......................................................... 9 The Evidence at Trial ................................................................................................. 9 The Pre-Trial Proceedings ....................................................................................... 16 The Trial ..................................................................................................................... 36 The Sentencing Proceeding ..................................................................................... 47 The Post-Judgment Proceedings ............................................................................. 50 POINT THE FIRST DEPARTMENT CORRECTLY CONCLUDED THAT THERE WAS AMPLE SUPPORT FOR THE DETAILED FINDINGS OF FACT AND CONCLUSIONS OF LAW THAT LED JUSTICE GOLDBERG TO DENY DEFENDANT’S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM ..................... 57 CONCLUSION ................................................................................................................... 89 -ii- TABLE OF AUTHORITIES FEDERAL CASES Florida v. Nixon, 543 U.S. 175 (2004) .............................................................. 70-73, 75-76 Harding v. Davis, 878 F.2d 1341 (11th Cir. 1989) ............................................................. 76 Martin v. Rose, 744 F.2d 1245 ............................................................................................ 76 Reyes-Vasquez v. United States, 865 F.Supp 1539 (S.D. Fla 1994) ............................... 76 Strickland v. Washington, 466 U.S. 668 (1984) ......................................... 54, 68-69, 86-87 United States v. Cronic, 466 U.S. 648 (1984) ................... 6, 8, 53-54, 58-63, 70-72, 74-77 United States v. Lespier, 558 F.2d 624 (1st Cir. 1977) ...................................................... 76 United States v. Sanchez, 790 F.2d 245 (2d Cir. 1986) .................... 6-8, 54, 58, 73-77, 82 STATE CASES People v. Aiken, 45 N.Y.2d 394 (1978) ................................. 6-7, 51, 53-62, 73-77, 80, 85 People v. Baldi, 54 N.Y.2d 137 (1981) ............................................................................... 69 People v. Benevento, 91 N.Y.2d 708 (1998) ................................................... 68-70, 76, 81 People v. Caban 5 N.Y.3d 143 (2005)........................................................................... 68-70 People v. Daddona, 81 N.Y.2d 990 (1993) ....................................................................... 84 People v. Diggins, 11 N.Y.3d ......................................... 6, 51, 53, 56-57, 61, 73, 75-76, 78 People v. Diggins, 45 A.D.3d 266 (1st Dept 2007) ......................... 5, 51, 61-62, 75-77, 80 People v. Diggins, 84 A.D.3d 667 (1st Dept. 2011) ............................................................ 7 People v. Harrison, 57 N.Y.2d 470 (1982) .................................................................. 77, 80 People v. Hobot, 84 N.Y.2d 1021 (1995) .......................................................................... 68 People v. McRay, 51 N.Y.2d 594 (1980) ........................................................................... 63 People v. Oden, 36 N.Y.2d 382 .......................................................................................... 63 -iii- People v. Parker, 57 N.Y.2d 136 (1982) .................................. 4, 8-9, 19-20, 22, 28, 62-63 People v. Rivera, 71 N.Y.2d 705 (1988) ................................................................ 68-69, 76 People v. Roldan, 88 N.Y.2d 826 (1996) ........................................................................... 84 People v. Stultz, 2 N.Y. 3d 277 (2004) ............................................................................... 70 People v. Syville, 15 N.Y.3d 391 (2010) ............................................................................ 85 People v. Tavares, 10 N.Y.3d 277 (2000) .......................................................................... 85 People v. Turner, 5 N.Y.3d 476 (2005).............................................................................. 70 People v. Vasquez, 66 N.Y.2d 968 (1985) ......................................................................... 62 People v. Zaborski, 59 N.Y.2d 863 (1983) ........................................................................ 70 Walker v. Maryland, 161 Md. App. 253 (2005) ............................................................ 73-74 FEDERAL STATUTES U.S. Const., Amend. VI. .......................................................................................... 68, 70, 75 STATE STATUTES Const., Art. I §6 .................................................................................................................... 68 CPL §440 ..................................................................................... 9, 11, 16, 18, 41, 51, 57, 81 CPL §440.10 .................................................................................................................. 1, 6, 52 CPL §460.30 .......................................................................................................................... 50 CPL §470.35 .......................................................................................................................... 63 N.Y. Const. Art. VI §3 ......................................................................................................... 63 Penal Law Section 120.14(1) ........................................................................................... 1, 83 Penal Law Section 265.02(4) ................................................................................................ 1 Penal Law Section 265.03(2) ................................................................................................. 1 -iv- OTHER AUTHORITIES ABA Model Rules of Professional Conduct ..................................................................... 86 Code of Professional Responsibility .................................................................................. 86 N.Y. Rules of Professional Conduct .................................................................................. 86 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ISAAC DIGGINS, Defendant-Appellant. BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Jonathan Lippman, defendant Isaac Diggins appeals from a May 26, 2011 order of the Appellate Division, First Department. That order unanimously affirmed an October 22, 2009 order of the Supreme Court, New York County (Arlene Goldberg, J.), denying defendant’s motion to vacate a judgment pursuant to CPL §440.10. By the underlying judgment, rendered June 15, 2004, defendant was convicted, after a jury trial, of Criminal Possession of a Weapon in the Second and Third Degrees (Penal Law Sections 265.03[2] and 265.02[4]), and Menacing in the Second Degree (Penal Law Section 120.14[1]). He was sentenced as a second violent felony offender to an aggregate prison term of twelve years followed by five years of post-release supervision, and is currently incarcerated. -2- COUNTER-QUESTION PRESENTED Where defendant impaired his attorney’s ability to wage a viable defense by choosing to abscond from the proceedings, and his attorney strategically decided that the best way to represent him was to protest a hearing and trial in absentia and to employ a strategy of silence, did defendant have a legitimate basis to claim that his attorney’s limited participation in the proceedings deprived him of meaningful representation without demonstrating that the strategy was unreasonable or that prejudice flowed from it? The Appellate Division answered this question in the negative. INTRODUCTION The issue before this Court stems from defendant’s willful and voluntary decision to abscond from his hearing and trial for his unlawful possession of a loaded gun that he used to menace his wife, April Diggins. The case against defendant was powerful and defendant’s wife was a sympathetic victim. During the early morning hours of August 17, 2003, April was in front of the Manhattan building where she lived with defendant, chatting with Debra Bryant and other friends whom she had not seen in years, when she spotted her husband with a woman nicknamed “Puddin.”1 When April confronted her husband and Puddin, who were rumored to be having an 1 For clarity’s sake, the People will refer to Mrs. Diggins by her first name, April. Since virtually no one referred to Puddin by her real name, Carolyn Harris, the People will refer to her by her nickname. -3- affair, defendant pulled out a gun and told April to “back up.” Puddin and Bryant, a witness at trial, convinced defendant to put the gun away, and he got in his car and drove off. Later that morning, another friend convinced April to go to the precinct and report the crime. The police asked April where defendant could be found, and she said it was possible that he was at Puddin’s apartment. The police immediately went there. When they arrived, Puddin directed them to defendant, who was hiding in a bedroom. With Puddin’s written consent, an officer searched the bedroom and recovered the gun from under the bed. It was loaded with five hollow-point bullets. Meanwhile, defendant kept asking an officer what was “going on,” and the officer told him to “calm down.” Defendant volunteered that he had “been in the apartment all evening.” Defendant was arrested and brought to the precinct, where April identified the gun as the weapon that defendant had used to menace her. At the precinct, defendant continued to ask “what happened.” An officer finally told him, “Your girl said you pulled a gun on her.” This time, defendant responded, “No, I had an argument with my wife on the street earlier.” By Indictment Number 0437/03, a New York County grand jury charged defendant with weapon possession in the second and third degrees and second-degree menacing. Defendant admitted to his lawyer, Thomas Giovanni, that he had argued with his wife, but claimed that no gun was displayed. Giovanni’s investigator was unable to find any evidence to support defendant’s claim. Even Puddin confirmed -4- April’s account, and she provided no information helpful to the defense about defendant’s arrest and the recovery of the gun. On May 10, 2004, a hearing on defendant’s motion to suppress his statements was scheduled to begin, followed by trial. Defendant, who was out on bail, failed to appear, even though Parker warnings had been given (see People v. Parker, 57 N.Y.2d 136 [1982]). Justice Robert A. Strauss held a Parker hearing, and found that defendant had voluntarily absented himself from the proceedings. Giovanni strenuously objected to the judge proceeding with the Huntley hearing and trial in absentia. He explained that, in this domestic violence case that was heavily dependent on defendant’s claim that his wife was lying because of her jealousy over Puddin, he could not wage a plausible defense without defendant present to assist him. When the judge decided to proceed, Giovanni asked to be relieved. When that application failed, Giovanni informed the court that he would not actively participate in the proceedings. Fearing that Giovanni was seeking to derail the trial in absentia or provide defendant with a basis for a future ineffective assistance of counsel claim, both the court and the People sought an acknowledgment from Giovanni that his decision not to participate was a tactical one. Giovanni repeatedly resisted characterizing his decision in those terms, but he acknowledged that he had made a conscious decision to proceed in this manner because he believed that it was the best way to represent defendant in these circumstances. Giovanni assured the court, however, that if, -5- during the course of the trial, he believed that it would serve defendant’s interest to actively participate, he would. As it turned out, Giovanni’s participation was limited. He repeatedly told the court that he did not think it would benefit defendant to do more. The jury convicted defendant of all three charges on May 18, 2004. On June 15, 2004, Giovanni spoke on defendant’s behalf at sentencing, urging the court to impose the minimum rather than the maximum sentence that the People had recommended. The court imposed an aggregate 12-year sentence, which was not executed until July 8, 2005, when defendant was involuntarily returned on the warrant pursuant to a new arrest for attempting to murder a man by shooting him. Defendant was convicted of attempted murder and other crimes in the new case and sentenced to 25 years to life in December 2005. One of the issues raised on appeal in that case was whether the court erred in sentencing defendant as a persistent violent felon without granting him an adjournment to challenge the constitutionality of the instant conviction, which he claimed was obtained in violation of his right to the effective assistance of counsel. Both the Appellate Division and this Court affirmed his conviction and sentence. See People v. Diggins, 45 A.D.3d 266 (1st Dept 2007), aff’d, 11 N.Y.3d 518 (2008). In rejecting defendant’s claim, this Court found that defendant’s assertion that Giovanni “failed to participate” in the instant “trial in absentia” gave “rise to an inference that the attorney’s non-participation was a protest -6- strategy that would not support a claim of ineffective assistance of counsel.” People v. Diggins, 11 N.Y.3d at 525, citing People v. Aiken, 45 N.Y.2d 394 (1978). On November 12, 2008, defendant claimed once again that Giovanni deprived him of meaningful representation, this time in a motion to set aside the instant judgment pursuant to CPL §440.10. In papers, filed by appellate counsel, defendant claimed that there was no legitimate explanation for Giovanni’s failure to: (1) participate in the Huntley hearing; (2) conduct voir dire or exercise challenges; (3) make opening or closing statements; (4) request a circumstantial evidence charge with respect to the gun possession counts; (5) cross-examine prosecution witnesses; and (6) file a notice of appeal (A634).2 He asserted that Giovanni’s representation was the equivalent of no representation at all and thus was inherently prejudicial under United States v. Cronic, 466 U.S. 648 (1984). The People opposed defendant’s motion. Since Justice Strauss had retired by then, the matter was assigned to Justice Arlene Goldberg, who held a hearing at which the transcripts of the underlying proceedings were admitted and Giovanni testified about his strategy. After both sides submitted additional written papers, Justice Goldberg issued a 30-page decision denying defendant’s motion (see A5-34). Relying primarily on People v. Aiken, 45 N.Y.2d at 394, People v. Diggins, 11 N.Y.3d at 525, and United States v. Sanchez, 790 F.2d 245 (2d Cir. 1986), the court found that, because defendant hampered 2 Parenthetical references preceded by “A” are to defendant’s appendix. -7- Giovanni’s ability to wage a viable defense by absconding from the hearing and trial, Giovanni’s “limited participation” in the proceedings was a legitimate “protest strategy” or “strategy of silence,” and that defendant failed to meet his burden of showing the unreasonableness of that strategy or prejudice that flowed from it (see A5-34). On May 18, 2010, Justice David Friedman granted defendant’s application for leave to appeal Justice Goldberg’s decision to the First Department. In that court, defendant repeated the arguments that he voiced in his 440 motion. On May 26, 2011, the court unanimously held that “the record support[ed]” Justice Goldberg’s “detailed findings of fact and conclusions of law.” People v. Diggins, 84 A.D.3d 667 (1st Dept. 2011) (A2). More specifically, the court found that, when defendant absconded, Giovanni’s “ability to conduct a defense was impaired.” Thus, faced with “overwhelming evidence of defendant’s guilt,” and a trial in absentia, Giovanni pursued a “protest strategy” or “strategy of silence” by “generally declin[ing] to participate” in the proceedings (A3-4). The court found that all of Giovanni’s strategic decisions were objectively reasonable,” both as to “his nonparticipation in general, as well as to each of the individual instances of nonparticipation cited by defendant,” and that defendant was not “prejudiced by any aspect of counsel’s nonparticipation” (A3-4). Pointing to People v. Aiken, 45 N.Y.2d at 399 and United States v. Sanchez, 790 F.2d at 253, the court held that, under these factual circumstances, a “protest strategy” or “strategy of silence” on defense counsel’s part -8- will not support a claim of ineffective assistance of counsel under federal or state law. Id. And, while Cronic provided that there may be circumstances in which prejudice from counsel’s representation is presumed, that presumption was “inapplicable to the facts of this case.” (A2). Before this Court, defendant attempts to re-litigate the facts. He claims that the record fails to support the notion that Giovanni’s ability to meaningfully represent him was impaired when he absconded from the hearing and trial or that Giovanni employed a protest strategy or strategy of silence, much less a legitimate one. As defendant sees it, because Giovanni completely failed to act as his advocate once the Parker hearing ended, Cronic dictates a finding that he was denied meaningful representation under both the state and federal constitutions. As will be demonstrated, since the lower courts’ version of the facts are the ones supported by the record, there is no basis for this Court to upset its conclusions of law. Indeed, defendant’s claim to the contrary presents a mixed question that is beyond the scope of this court’s review. It is also entirely meritless. -9- THE EVIDENCE AT THE CPL 440 HEARING3 The Evidence at Trial At the time of trial, defendant’s wife, APRIL DIGGINS, was a counselor at a group home for the “mentally challenged,” while attending theological school to become a minister (April: A428-430). April was not “with [her] husband at [that] time.” She lived with her four children; defendant was the father of one child (April: A430-431). On the evening of August 16, 2003, three of April’s childhood friends -- DEBRA BRYANT, Vicki Dillard and Diane Smith -- were in the neighborhood where they grew up.4 When they found out that April still lived in the area, they decided to visit her (April: A432; Bryant: A459-460). April was at home with defendant and her children when the women arrived sometime before midnight (April: 58). Bryant and April had not seen each other in about 20 years (April: A431; Bryant: A460). 3 As noted, all parenthetical references refer to defendant’s appendix (“A”). Giovanni was the only witness that the defense called at the 440 hearing. The references preceded by “G” are to his testimony in defendant’s appendix. At the commencement of the hearing, the transcripts of the underlying proceedings were made part of the record (A38). Parenthetical references preceded by “H” are to the transcript of the proceedings that occurred on May 11, 2004, which included the Parker and Huntley hearings. Those preceded by “T” are to the colloquy immediately prior to the commencement of trial and during the trial, and “S” are to the sentencing proceedings. 4 Bryant had two convictions for possession of cocaine. In 1994, she was convicted in state court and served eight months in jail. In 1995, she was convicted in federal court and served three years of her five-year prison sentence. At the time of trial, Bryant had a GED and a two-year-old son (Bryant: A457-458). -10- April went with the women to a restaurant. Afterwards, Smith drove the group back to April’s building, and they sat in the car and talked (April: A432; Bryant: A461). April told her friends about a book she was writing and went upstairs to retrieve it (April: A433-432; Bryant: A461). When she returned, April spotted her husband crossing the street and called out to him. Defendant got in a car and drove away (April: A433-434; Bryant: A461-462).5 April re-joined her friends (April: A434; Bryant: A462). Since they had never seen defendant before, April told them that he was her husband (Bryant: A462-463). April “was concerned” about “where [defendant] went” (Bryant: A462), so Smith “circled around the block” (April: A434). However, they “didn’t see” defendant (Bryant: A462). Smith parked on the side of April’s building -- on 137th Street near the corner of Seventh Avenue (April: A434- 435, 441; Bryant: A462; People’s exhibits 2 and 3 [photos showing area, including front and side of building]).6 5 Bryant identified People’s exhibit 1 as a photograph of April’s husband, whom she had seen for the first time on the “night in question” (Bryant: A459-460). April recalled that she spotted defendant and called out to him as she was exiting her building after retrieving the book, but that he ignored her, got in the car, and drove away (April: A433-434). Bryant thought that April had already returned to the car with the book when she spotted her husband crossing the street and called out to him, and that April spoke to defendant before he got in a car and drove away (Bryant: A461-462). 6 April recalled that they had originally been parked in front of her building, on Seventh Avenue between 136th and 137th Streets, and then parked on the side of her building, on 137th Street by the corner of Seventh Avenue, after circling the building (April: A432, 434-435). However, Bryant thought that, after they circled the block, Smith returned to the “same parking space” on 137th Street by the corner of Seventh Avenue (Bryant: A462). -11- As the women sat in the car and continued talking about “old times” and April’s book, a woman named “Puddin,” whom they knew since childhood, walked toward them (April A434-435; Bryant: A463). April told her friends that she had heard that Puddin was “messing with” her husband (April: A435-436). When Puddin walked past Smith’s car, they all turned to see where Puddin was going. They spotted defendant’s car parked about a half a block behind Smith’s car (April: A436; Bryant: A463). When Puddin reached defendant’s car, she started “arguing” with him (Bryant: A463). April got out of Smith’s car and headed toward her husband and Puddin (April: A436-437; Bryant: A463). When she was “halfway” there, defendant exited his car and approached April. She asked, “What is that girl doing where I live at to see [you]?” Defendant said Puddin “came to tell him something” (April: A437). Puddin joined the ensuing argument (April: A437; Bryant: A463-464). As the two women hollered back and forth (id.), defendant pulled out a gun, pointed it at April’s legs and told her to “back up” (April: A437-438). The gun was black “with a silver thing at the top” and “a little piece of silver at the front” (April: A445-446). April “was in shock that defendant would do that to [her]” (April: A437- 438).7 7 When April told the jury, “My husband pulled out the gun and pointed it towards my legs and told me to back up,” she started crying. Both the court and the prosecutor asked if she needed time to compose herself, but she said she was “all right” (April: A437; (Continued…) -12- Meanwhile, April’s friends had followed her out of the car (April: A64; Bryant: A463-464), with Dillard and Smith lagging behind Bryant as Smith locked her car (Bryant: A463). Bryant was just about to reach the two when she heard April say, “So what you’re going to do, shoot me?” Then, Bryant spotted the gun in defendant’s hand and realized that he had it pointed at April’s legs (Bryant: A464). Bryant said, “You’re going to pull out a gun on your wife just because she caught you with your girlfriend?” (Bryant: A464), or “You’re pulling a gun out on your wife?” (April: A438- 439). Puddin asked him if he was “crazy” and told him to “put the gun away” (April: A439). Defendant “kind of got disgusted” and put the gun in his waistband (Bryant: A464-465). He got in his car and drove off (April: A439; Bryant: A465). Puddin accompanied the women to April’s apartment, so April could show her that defendant actually lived there (April: A439; Bryant: A467). Afterwards, Puddin wanted the women to go with her for a drink. Since April was “a born-again Christian,” she did not want to do that (April: A439-440). Instead, they all went to a store, so Puddin could buy a beer. After that, the group left Puddin (April: A440; Bryant: A467). April’s friends took her home and “calmed her down” (Bryant: A467). Then they left (April: A440; Bryant: A467). April phoned her “best friend” to tell her ______________________ (…Continued) see also S: A596). After demonstrating how defendant pointed the gun, April lost her composure again when she told the jury that she “was in shock that he would do that to [her].” The judge asked, “Do you feel ready to continue?,” and April answered, “Yes” (April: A437-438; see also S: A596). -13- about the incident. Then, April called her mother and told her she was going to the precinct (April: A440). At approximately 7:00 a.m., April spoke to Sergeant JAMES COSGROVE and Officer CLARENCE CASH in the 32nd Precinct (April: A444-445; Cash: A449). She told the officers that the incident had occurred on 137th Street and Seventh Avenue (Cash: A449). During the “brief” conversation, April looked as if she had been “recently crying” and appeared to be “upset” (Cosgrove: A474). The officers asked April where her husband “may be” and she said it was possible that he was at Puddin’s apartment and gave them the address (April: A444-445). Shortly thereafter, the officers went to that apartment and knocked on the door (Cash: A449; Cosgrove: A474). After Sergeant Cosgrove announced that they were the police, he heard the sound of a door closing in the apartment (Cosgrove: A475). Then, Puddin opened the front door (Cash: A449; Cosgrove: A475). Cosgrove told Puddin that they were looking for defendant, and she pointed to a bedroom that was about two feet from the front door (Cosgrove: A475, 477). Cosgrove asked Puddin to step outside the apartment, and he knocked on that bedroom door and announced that he was “the police” (Cosgrove: A475). Cosgrove heard some “shuffling about” or “things being moved” in the room. Then defendant opened the door and came out of the bedroom (Cosgrove: A476). Cosgrove asked defendant to step into the hallway (Cosgrove: A477). When defendant appeared at the front door, Cash ushered him into the hallway and “briefly -14- patted him down to make sure he didn’t have a weapon on him” (Cash: A451).8 Cosgrove went back into the apartment with Puddin, and told her that the police were there because someone said that defendant had a gun. Puddin gave Cosgrove written consent to search the bedroom (Cosgrove: A477-478). Under the bed, Cosgrove found a black .380 caliber Grendel semi-automatic handgun (Cosgrove: A478-479; People’s exhibit 4 [gun]). Meanwhile, in the hallway, defendant asked Cash “a couple of times” what was “going on.” When Cash told defendant to “calm down,” defendant responded in substance, “Well I don’t know what’s going on, but I’ve been in the apartment. I’ve been with my girl and I’ve been in the apartment all evening” (Cash: A451). Shortly thereafter, Cosgrove returned to the hallway with the gun that he had found and defendant was placed under arrest (Cash: A451). Cosgrove gave Cash the gun, which was loaded with five hollow-point bullets (Cash: A451, A453; Cosgrove: A480; People’s exhibit 4 [gun and bullets]). Defendant and the gun were brought to the 32nd Precinct (Cash: A451). April returned to the precinct (April: A444; Cash: A454), and Cash showed her the gun that Cosgrove had recovered (Cash: A452-453; People’s exhibit 4). When April saw the black gun “with a silver thing in the middle and on the front of the 8 Both Cosgrove and Cash identified defendant in court through a photograph (Cash: A450; Cosgrove: A477; People’s exhibit 1). Cash recalled that defendant appeared at the door shortly after Puddin (Cash: A450). -15- gun,” she recognized it to be the same gun that her husband had pointed at her (April: A444-446; People’s exhibit 4). At about 2:30 p.m., Cash was about to fingerprint defendant, who kept asking “over and over again what happened.” Cash finally told him, “Your girl said you pulled a gun on her.” Defendant said, “No, I had an argument with my wife on the street earlier” (Cash: A454). At trial, when April was shown People’s exhibit 4, she identified it as the “gun that my husband pointed at me” (April: A447). April explained that she knew that, because “I remember that silver piece on the top. I just remember it. I remember the whole gun” (April: A447). When Bryant was shown People’s exhibit 4, she testified, “It looks like the gun [defendant] had” (Bryant: A465).9 Detective JAMES GIERY, an expert in the field of firearms investigation and examination, tested the gun with two of the five bullets that he received with it and found that both the gun and the ammunition were operable (Giery: A485-489; People’s exhibit 4).10 The five .380 9 Before she was shown People’s exhibit 4, Bryant had described the gun that defendant pointed at April as a “dark small handgun,” adding, “I don’t know calibers or things like that” (Bryant: A465). Detective Giery explained that the Grendel was a “compact weapon” that is about half the size of normal semi-automatic weapons (Giery: A492, A496). 10 Detective Giery had a degree in criminology and spent six and one-half years in the army where his primary function was criminal investigation. After that, he joined the Police Department and was a 20-year member of the force. He was promoted to detective in 1991 and worked in the Crime Scene Investigation for three years before he was transferred to the Ballistics Unit, which sent him to “many, many schools” in that specialty. He had tested “hundreds” of firearms in the police laboratory and testified as an expert in ballistics “[s]everal dozen times” (Giery: A482-483). When the People moved to have the (Continued…) -16- caliber bullets that he received with the gun were “hollow point,” which are “intended to punch a larger hole in the target” by “expand[ing] or “mushroom[ing] out” when they are fired (Giery: A493-495). The Pre-Trial Proceedings In this strong and powerful domestic violence case with a sympathetic victim, defendant provides Giovanni with a defense that can only be waged with defendant’s assistance since it has no other support. Defendant’s trial counsel, THOMAS GIOVANNI, had been employed at the Neighborhood Defender Service of Harlem since 2001. He started as a staff attorney and rose to supervising attorney. By 2009, when the CPL 440 hearing was conducted, he had handled 1700 to 2000 cases, including ones involving guns and domestic violence. He was in court on a daily basis and had tried approximately 25 cases, some of which ended in acquittals (G: A39-41, 69-70).11 Giovanni first appeared on defendant’s case on September 12, 2003, the day of his Supreme Court arraignment. Throughout the course of the case, defendant was “out on bond” (G: A42-43). Giovanni spoke with defendant regularly, “most often after court” (G: A54, 73). Defendant “wasn’t the easiest” client to talk to, but he ______________________ (…Continued) detective qualified as an expert in the field of firearms investigations and examination, defense counsel told the court that he had “[n]o objection” (Giery: A483). 11 By the time he tried defendant’s case in May 2004, Giovanni had “done” between 10 and 15 felony trials (G: A40). -17- “wasn’t the worst” (G: A73-74). Defendant admitted that he had an argument with his wife, but claimed “there was no gun displayed.” They also discussed the circumstances under which the police went to Puddin’s apartment and found the weapon, although Giovanni could not recall whether defendant admitted that he knew the weapon was there (G: A54-55).12 Defendant did not give Giovanni the names of any witnesses that he wanted him to speak to in connection with the case (G: A55). Nonetheless, as with any case, Giovanni “intend[ed] to provide a vigorous defense” and hoped to receive a favorable disposition for his client. Giovanni had his investigator, Jessica Haupt, visit pertinent locations and speak with “persons connected with this case,” including defendant’s wife and Carolyn Harris a/k/a Puddin (G: A44, 46, 72-74). The two women’s version of the events differed from defendant’s. April told Haupt that when she confronted defendant about his affair with Puddin, he pulled out a gun and pointed it at her “lower body, her legs” (G: A45, 55). The investigator spoke with Puddin at her apartment, but was “unsuccessful in obtaining any favorable information” about defendant’s arrest, the recovery of the gun, or the incident with April. In fact, Puddin “confirmed” April’s account (G: A49- 12 Before testifying, Giovanni reviewed copies of the hearing and trial transcripts in this case. He tried to retrieve defendant’s case file from his agency’s off-site storage facility, without success. His office maintained electronic “case tracking” and he provided the entries pertaining to defendant’s case to defendant’s appellate counsel (G: A41-42). At the hearing, Giovanni explained that he could not recall some details because, “It’s been a long time.” At times, he was able to refresh his recollection with his agency’s computer entries (G: A44, 50, 52). -18- 51). Puddin said that she lived with her mother and teenage son, but that they were not home when defendant was arrested (G: A53). Giovanni assessed the case as being “strong” and “difficult” (G: A77). As he explained: The idea of a man having his wife take the stand and talk about the betrayal and then talk about the idea that that person who betrayed her would then display a firearm at her when she’s complaining to him about her betrayal, I think, was the strongest factor (G: A77). Giovanni “thought the victim would appear sympathetic to the jury” (id.). Moreover, the gun that the police recovered was “a very significant piece of evidence,” since it provided “important corroboration of the victim’s allegation” and “having a gun in court can also have a significant emotional impact on a jury” (G: A75-76). Nonetheless, Giovanni approached the case like any other: he intended “to play the hand that [he] had been dealt” and to do his “best,” using “whatever tools were available at [his] disposal to secure as favorable a disposition as possible” (G: A77- 78).13 Based on his discussions with defendant, they decided the defense would be that April “was exaggerating or lying because she was jealous” of the “alleged relationship with Puddin” (G: A56, 75). 13 The People offered defendant, a “violent predicate felon,” a plea to a “D” violent felony with a five-year prison sentence. Giovanni discussed that disposition with defendant; he did not know whether defendant would have taken that plea on “the day of trial,” when “a lot of decisions” about pleas were made (G: A85-86). -19- Giovanni filed a suppression motion and the judge granted a Huntley hearing (G: A61). Defendant absconds, leaving Giovanni with no plausible defense. With defendant’s best interest in mind, Giovanni decides to protest a trial in absentia and to employ a strategy of silence. The hearing and trial were scheduled to begin on May 10, 2004. Giovanni was “surprised” when defendant failed to appear in court that day (G: A56-57, 73). Since Justice Bonnie Wittner had repeatedly issued Parker warnings to defendant, she issued a bench warrant and adjourned the case to the following day, May 11th, in Justice Strauss’ part for preliminary hearings and trial (H: A101). Giovanni spoke to his supervisors, including the Executive Director of his agency, about how he would proceed if Justice Strauss decided that the Huntley hearing and trial would be held in absentia. They decided that Giovanni would object to proceeding in defendant’s absence. If that failed, he would ask to be relieved. If the judge denied that application, Giovanni “wouldn’t say anything or make legal arguments” or otherwise “actively participate in the case” (G: A58-59, 67, 80). As Giovanni explained, during other trials, Giovanni’s clients “often provided [him] with important information about witnesses” and “extremely important insights about the case,” e.g., about “potential bias,” “credibility,” “background,” and “ability to see or perceive the events at issue.” By absconding, defendant made it “impossible” for Giovanni to gain those insights. Without defendant, “a defense that -20- involved attacking the credibility of the victim was futile.” Thus, “faced with a powerful case” and “no client to assist [him] in waging a defense, [Giovanni] made a conscious decision not to participate” in a hearing and trial in absentia (G: A79-80). Had defendant been present to assist Giovanni “in waging a defense,” Giovanni would have “taken a different approach” and “participated in a different manner” (G: A81). Giovanni’s strategy was motivated by his goal of “do[ing] what was best for [his] client.” He “thought that the chances of getting an acquittal of an empty chair domestic violence trial were very, very low and the less said the better.” Thus, he proceeded in that manner (G: A67, 78, 81, 87). At the Parker hearing, Giovanni strenuously protests defendant’s trial proceeding in absentia. Before the Parker hearing began, Giovanni asked Justice Strauss for an adjournment of the proceedings, noting that he had made efforts to secure defendant’s presence. He argued that “more time” was needed because the People had not made “reasonable” or “sufficient efforts with the resources at their disposal” to locate defendant (H: A102). Giovanni explained that this case was “highly dependent on [defendant’s] help to defend himself,” particularly because his wife was the complainant (H: A102). The court denied Giovanni’s application and proceeded with the Parker hearing (H: A103). -21- The sole witness -- LAWRENCE SPOLLEN, a paralegal for the District Attorney’s Office (H: A106) -- testified on direct examination regarding his fruitless efforts to locate defendant (H: A106-109).14 Giovanni cross-examined Spollen (H: A111-115). In response to Justice Strauss’ inquiries, Giovanni indicated that he had not spoken with defendant in a week, and that defendant had given him no “indication that he didn’t want to come to court” or “follow up with this” case (H: A119-120). Giovanni also said that the only family member for whom he had contact information was defendant’s wife, April, and that he had tried unsuccessfully to reach April after defendant disappeared. Giovanni said that he had met defendant’s mother a “long time ago,” but that he did not have her phone number and was not even sure that she lived in New York City (H: A120-121). Giovanni argued that the trial should not proceed without defendant. Among other things, Giovanni argued that, because defendant did not have a warrant history, “something unusual” may be “keeping him from being here,” rather than “voluntary absence,” and that the People’s efforts to locate defendant were not enough (H: A:121-129). He suggested that the court adjourn the case so that the 14 Those efforts included checking with the New York City and federal Corrections inmate locators and the precinct of defendant’s last known address to see if he was incarcerated, calling the 22 Manhattan hospitals to see if defendant had recently been admitted, checking with the Medical Examiner’s Office to see if defendant or any recent “John Does” were there, and phoning the “Missing Persons Line” to see if defendant had recently been reported missing (H: A106). -22- Warrant Squad could go to April’s and Puddin’s apartments to locate defendant (H: 123-124). Giovanni argued that an adjournment would not cause the People prejudice because this case involved menacing with a gun and the weapon was “not going anywhere.” Moreover, he opined that April “seems to be fairly available” to the People because they had answered ready the last “two times” that the case was on the calendar (H: A124-125). Giovanni then continued: So I don’t think that there’s unnecessary prejudice to the prosecution from taking the longer view in trying to secure his presence here where the case is such that his input will be critical to my ability to defend. Obviously if his wife takes the stand and talks about the circumstances, the relationship and perhaps even another female friend takes the stand, I would need him present to talk to him about the details to be able to cross-examine on those details they give. In addition, there’s a Huntley hearing that’s scheduled. Obviously the details that the detectives give will be something else that I would need to have information on. We have met extensively, but I don’t know what the subject of their testimony is going to be. It would be a severe prejudice to [defendant] and I think only a minimal inconvenience to the prosecution for us to take at least a day or two to see if we can really make efforts by physically going to the places he might be (H: A125-126). The prosecutor urged the court to go forward in defendant’s absence. She noted that defendant had received “very thorough” Parker warnings twice and thus was aware “that not coming into court would allow [the case] to go forward without -23- him” (H: A128, 134-135). The prosecutor further noted that the timing of defendant’s absence was telling, in that the People had initially “answered ready” for trial on April 20th and, after the defense sought an adjournment, defendant did not appear on the adjourn date (H: A129-130). The prosecutor argued that, contrary to Giovanni’s claim, no further “reasonable efforts” could be made to locate defendant (H: A130-132). The prosecutor had spoken to April just “yesterday morning,” and she said defendant “was not there,” and that he had not “been living there” since he pulled the gun on her (H: A132-133). Moreover, the prosecutor had spoken to Puddin and she indicated that she and defendant were “no longer together.” Thus, looking for defendant at either of these locations would be “fruitless” (H: A133). With respect to “the need to go forward,” the prosecutor reminded the judge that this was a “domestic violence case,” and that it is “very difficult” at times to get “individuals who are in these relationships” to the point where they are “willing to go forward” to trial. The prosecutor noted that April was “available and ready to go forward,” but that it would become “more difficult” for the case to stay in that posture as more time passed (H: A133-134). After considering the testimony of Spollen, the “comments and investigatory work by the People and defense counsel,” and the “chronology of events,” the court concluded that that the only “inference to be drawn” was that “defendant has absented himself intentionally and wil[l]fully.” The court accepted the People’s representation that they would be prejudiced by further delay and observed that, in -24- any event, there was “no reason” to conclude “that adjourning for a few days would produce any better results than we have right now after a day’s delay.” Thus, the court decided that the hearing and trial would proceed in defendant’s absence (H: A135-137). Giovanni voiced his objection (H: A138). With no basis to seek suppression, Giovanni employs his strategy of silence at the Huntley Hearing. The People called one witness at the hearing -- Police Officer CLARENCE CASH. He testified that, on August 17, 2003, at approximately 7:00 a.m., April arrived at the precinct and said that, at approximately 2:30 a.m., her husband had pointed a gun at her on 137th Street and Seventh Avenue (Cash: H: A139-140). April told Cash that defendant was dating a woman who lived at 133 West 140th Street, Apartment 65. Thus, Cash and Sergeant Cosgrove went to that apartment (Cash: H: A140-141). When they arrived, at about 7:20 a.m., the officers knocked on the door and a woman answered. Defendant appeared at the door shortly afterwards and Cash asked him to step into the hallway (Cash: H: A140-141). As defendant complied, Cash, concerned for his safety, “kind of placed [his] hand on [defendant’s] waist” to “make sure that he didn’t have a gun on him” (Cash: H: A141) Defendant offered “no resistance.” He asked “what was going on.” Cash told him to “calm down” and said “something happened on the street.” When defendant asked again “what was going -25- on,” Cash “just told him to calm down” (Cash: H: A142). Before Cash said anything else, defendant volunteered, “I didn’t see her tonight. I was with my girlfriend all day long in the apartment” (Cash: H: A143). Meanwhile, while Cash was in the hallway with defendant, Cosgrove was in the apartment. When Cosgrove returned to the hallway after a short period of time, he gave Cash a gun that he had found in the apartment (Cash: H: A143-144). Defendant was arrested and brought to the 32nd Precinct (Cash: H: A144). At approximately 2:30 p.m., Cash was about to take fingerprints from defendant, who kept asking “Why am I here?” Cash finally told him, “Your girl said you pulled a gun out on her.” Defendant “shook his head no,” and said, “Nah, nah, I had an argument with my wife earlier in the street that day. That’s it” (Cash: H: A144-147). At that time, defendant was not handcuffed and the officer had not threatened him in any manner (Cash: H: A145-146). At the conclusion of Cash’s direct testimony, the court told Giovanni, “You may proceed,” and Giovanni stated: For the reasons I pointed out earlier due to my client’s inability to assist me, I have no questions for this witness (H: A145; see also A146). Giovanni also told the court that he had no final argument (H: A147). In a lengthy oral decision that included citations to “a considerable amount of case law,” Justice Strauss determined that the People had met their burden of proving -26- the voluntariness of defendant’s statements beyond a reasonable doubt, and thus there was no basis to grant defendant’s motion to suppress (H: A163-169). The court found Officer Cash to be “a credible witness,” and, after making findings of facts in accordance with his testimony (H: A163-166), concluded that both statements had been “spontaneous[ly] made,” and that neither had been the “product of custodial interrogation” (H: A164-169). The court observed that perhaps Giovanni “didn’t offer any argument” because “there really wasn’t anything” to say, other than to rest on “the record itself” (H: A172). Giovanni explained his strategy at the 440 hearing. He was aware that a pre- trial hearing “can provide a source of discovery for the defense” in addition to “whatever might be gained by suppression,” but he “didn’t believe, given the position that [he] had taken and the discussion [he] had had with the judge that it would [be] beneficial to participate or ask questions” (G: A63). In any event, the hearing did provide Giovanni with new information that he was in no position to contest without defendant being present. As Giovanni explained, before the officer gave his testimony, he did not know what the officer was going to say in terms of the “who was where, what time they came, that sort of [thing].” Giovanni and defendant had “never” had “that level of discussions,” and defendant was not present to provide Giovanni with any information that would have been useful for cross-examination (G: A62-63, 89-91). -27- Concerned that Giovanni’s strategy of silence is geared toward derailing the trial in absentia or creating a future ineffective assistance of counsel claim, the court denies Giovanni’s request to be relieved and obtains Giovanni’s assurance that he will participate in the trial if he decides that it is in defendant’s best interest to do so. After issuing his suppression decision, Justice Strauss said that they would begin jury selection the following morning (H: A169-170). Giovanni told the court that he wanted to discuss the issue of how they would proceed without defendant (H: A170). The court suggested that, if Giovanni intended not to question any witnesses, he could tell the court outside the presence of the jury that his “reason for doing that is that [he] feel[s he] could not adequately defend [his] client because he is not present, and the [c]ourt has ordered the trial to proceed” (H: A172). The judge “strongly suggest[ed],” however, that before taking that stance, Giovanni consult with others in his office (H: A172). While appreciating that defendant’s “presence [was] important” to “assist [counsel] in his own defense,” the court noted that it had ordered the trial to proceed and that Giovanni “still [had] to do the best [he] can under those circumstances” (H: A173). Giovanni responded: I understand your position, and, respectfully, I disagree that I should continue … in a case that is heavily dependent on the personal relationships here … [T]his is a domestic case. It’s a wife having an argument … with a girlfriend, and these close relationships are going to be very important. Without [defendant] to assist me to cross-examine them about the details that she’s going to talk about, I have no ability to offer any relevant evidence besides the superficial. -28- This is not a buy-and-bust case when I’m trying to find out when the officer did what and what he did. It’s not just a difficulty, it’s an impossibility. I understand your Honor’s Parker ruling. Ethically, as his defense attorney, I feel I cannot adequately represent him and I could not proceed with any of these witnesses. I have spoken to my supervisors, and they do agree on this case. * * * It is certainly without any intent to illustrate any disrespect to the Court. I just feel that in a case of this nature it’s impossible to adequately and ethically represent [defendant’s] interest before the Court with these witnesses without him (H: A173-174). The court reminded Giovanni that defendant created this situation by “voluntar[ily]” absenting himself from the trial and that counsel could only do “the best [he] can or take what course [he] feel[s] is proper under the circumstances” (H: A175). When Giovanni made plain that he was asking to be relieved, and that he would not participate if the court denied that application, the prosecutor noted that the case had been pending since August and that Giovanni had conferred with his client and sent investigators to speak with witnesses. Thus, Giovanni had information about this case that new counsel would not have (H: A175-176). The court agreed that it could not “assign new counsel” who, unlike Giovanni, would “know nothing about the case.” Thus, the case “would simply go into a holding pattern until the day -29- when the defendant is once again before the Court,” and defendant would, in effect, wrongly “benefit” from his choice not to appear (H: A176-177). Giovanni responded that he had answered ready only because he “anticipated having [defendant] here” (H: A177). While acknowledging that the case had been pending for a while, Giovanni pointed out that he had just received “significant information” when the People turned over the Rosario materials “yesterday.”15 Giovanni emphasized that he needed defendant for cross-examination of witnesses (H: A177). As he explained: I don’t know what they’ll say until the moment they say it. When we have a person who has a personal relationship with the person testifying, it’s one thing to look at an empty desk and it’s another thing to look at that person and give testimony (H: A178). Thus, Giovanni strongly urged the court not to start the trial until further efforts were made to “physically go get [defendant]” (H: A177-178). As he told the court: I feel that I can’t properly do this case without him. I want him here, and I don’t think it’s to anyone’s benefit to have his wife and other persons testify and not have him here (H: A178). The judge denied Giovanni’s application to be relieved and recessed until the following day to begin jury selection (H: A179). 15 At the Huntley hearing, the prosecutor listed all the Rosario material that had been turned over. Giovanni acknowledged its receipt (H: 153-155). -30- When they reconvened, Giovanni reminded the court that they had to choose a procedure that “didn’t send an inaccurate message to the jury” regarding his decision not to participate (T: A181). The prosecutor suggested that, when it was Giovanni’s turn to do something, for example, cross-examining witnesses, the court could simply ask him, “Do you choose to cross-examine?” If counsel “tactically decide[d]” that it was in the “best interest of his client” not to do so, he could answer, “No.” The prosecutor argued that using that method would keep the record “clear,” in that it would show that he made a tactical decision not to participate at each stage of the trial (T: A:184-186). The court questioned whether proceeding in that manner might lead the jury to believe that counsel was “not adequately representing his client” and become concerned “with the fairness of the trial” (T: A186). The prosecutor agreed that, if counsel sat there silently “the whole time,” the jury “may think that.” However, she opined that the method she proposed was preferable to an advance “blanket statement” because Giovanni might hear a witness say something and choose to participate as a tactical decision, and if he chose to remain silent that would be a tactical decision, too (T: A187-188). As the lengthy discussion continued, the court questioned whether Giovanni was trying to create appellate issues. When the court asked Giovanni whether he felt that his participation would waive his objection to a trial in absentia, Giovanni answered: -31- That’s not quite the case. The core of my objection would be in what I said in terms of my ability to adequately represent him during the course of the trial. Obviously I preserve my objection to the Parker decision; but I think, as I said, I have a separate and distinct ethical obligation to my client’s interest. I can’t serve it by essentially half doing the trial without him here in this particular type of case because of the facts (T: A197-198). Justice Strauss also questioned whether Giovanni’s strategy was meant to create an ineffective assistance of counsel claim for appeal. As he put it, “Let’s assume, hypothetically, he’s found guilty and is ultimately apprehended, would the argument be made he had inadequate counsel and therefore, his conviction should be set aside? So we’re just wasting our time, in effect” (T: A193). The court warned Giovanni, “if you decided not to participate beyond simply being present in the courtroom, I would, of course, if I were reviewing the matter … not be particularly pleased with the argument that he received inadequate representation.” The court observed that to allow such an approach – “just don’t participate and then claim the defendant didn’t have a fair trial” – would effectively “defeat any trial in absentia” (T: A194). Giovanni responded: [I]nadequate assistance of counsel always is an [a]ppellate issue that defendants bring up when they’re convicted whether or not I fight this case question by question and make an objection every moment that she’s speaking or whether I sit silent. -32- As I said several times before, I think I’m doing the ethical thing. I’ve had a lot of discussion with my supervisors. We talked about this. We have gone over back and forth, and they support me. I think I’m doing the right thing (T: A194-195). While claiming that he was not engaging in gamesmanship to create appellate issues, Giovanni told the court that he did not “necessarily agree with [the prosecutor’s] characterization of [his] decision as a tactical decision” (T: A197). Throughout the remainder of the lengthy conversation, the prosecutor, and later her supervisor, repeatedly expressed their concern that Giovanni’s avoidance of the term “tactical” was an “attempt to derail this case.” Thus, they asserted that Giovanni should be held in contempt (see T: 198-228). As the supervisor explained, counsel was “playing games” by purposefully avoiding the word “tactical” in order to leave the impression that, “even if [he] thought that it would be to [his] client’s tactical advantage” to, for example, cross-examine a particular witness, he would “refuse to do it” because of a supposed “ethical” opposition to trying the case in absentia. The supervisor noted that the victim had a right to have her day in court without the risk of having to “do this all over again” because counsel was permitted “to create” a future ineffective assistance of counsel claim. Thus, the supervisor urged the court to ask counsel, “Will you if, in the middle of this trial, you believe that either cross- examining or making a closing or in some other way taking some active role in this case is to the best tactical advantage of your client at that moment, will you do it?” If -33- Giovanni would not answer, “yes,” the People wanted the court to hold him in contempt (T: A215-223; see also T: A202-205). Still, Giovanni resisted using the word “tactical” to describe his decision not to participate (see, e.g., T: A208, 223-226). For instance, at one point, when the prosecutor emphasized the importance of Giovanni acknowledging that he was acting in “the best interest of his client,” Giovanni responded: If you’d like me to say that for the sixth time at least, I think this is the best decision for the interest of my client. I think I said that when we talked about contempt. I said it when we brought this issue up to begin with, and I said it two or three times. That’s my point. I think it’s the best thing to do. I think this is the only thing I can do in this situation, from my own perspective and from the perspective of talking to people … I respect … about this situation (T: A207-208). When the prosecutor summed up Giovanni’s position as a “tactical decision,” Giovanni chided her “great desire to get the word ‘tactical’ put into this” (T: A208). With appellate issues in mind, Justice Strauss wondered whether an appellate court would “find it critical” for him to order Giovanni to participate. Giovanni told Justice Strauss that, even if he were ordered to participate, his position would “still [be] the same. Nothing changes.” He was willing to assume the “risks” of any personal “consequences” that may result from his nonparticipation because of his firm belief that he was acting in defendant’s best interest (T: A198, A204-207). Thus, when the court directed Giovanni “to defend [his] client to the best of [his] ability -34- under the circumstances,” Giovanni responded that the “position” he was taking was “the best thing” for his client (T: A:200). And, later, when the court observed that Giovanni “could be viewed as obstructionist,” Giovanni responded that “this is not about obstructing the process” or “stopping the trial”; he realized that “this trial [was] going to continue” and that “the odds [were] high” that his client would be “found guilty” whether he participated or not, given that this was a domestic violence case and defendant would not be present (T: A205-206). He emphasized that, “after much discussion with [his] supervisor,” he had reached the decision not to actively participate simply because it was “the best way to try a case in this situation” (T: A206). The court decided that the trial would proceed (T: 209, 212, 228). As it explained: The only other recourse would be not to have this trial take place, adjourn the case, hope the defendant is some day picked up on the warrant, and then see if the People can still prosecute the case. That can be five years from now. That could be never. The witnesses could be gone. The evidence could be gone. The will to pursue the case by the complainant could be gone. We don’t know what the results would be, but I don’t think that that alternative of simply allowing [Giovanni’s] position to, in effect, stop the trial should be the proper outcome (T: A209). The court observed that, since “[n]o other attorney could step in,” that would be the result if Giovanni were permitted to withdraw from the case (T: A209). The prosecutor agreed that assigning new counsel who, unlike Giovanni, had no -35- knowledge of the case would not be a reasonable alternative. She argued that proceeding in that manner would “create a slippery slope” since “[t]his would be a method every defense attorney could take,” i.e., “[w]henever their client doesn’t show up, they would simply refuse to participate with the aim toward keeping the case from going forward” (T: A212). The court asked Giovanni whether he would “consider the opportunity to enter into the trial” if he felt it would “help [his] client.” He answered, “Of course I’m keeping an open mind.” When Giovanni hedged by adding, “If [defendant] shows up 5 minutes from now, all my concerns would be gone and I would jump into this case,” the People objected (T: A222). Justice Strauss then asked Giovanni, “If you feel during the course of the trial at any time, with or without your client’s presence, that it would be a tactical advantage to cross-examine or make a statement to the jury of some kind or interpose an objection or take any legal action during the course of the trial, would you do so for that purpose, for some tactical purpose that would benefit your client?” (T: A224). Giovanni took issue with “the phrasing” of the question and asserted that he was not “prepared to just be the ventriloquist for the district attorney in giving him the actual language he thinks he wants to prepare his response for a possible appeal, assuming that there even is one” (T: A224-226). The court explained that there were two issues involved here. First, if he were convicted after trial, defendant might use counsel’s refusal to make a “declarative statement” that he was acting “in a tactical manner” to “make an ineffective assistance -36- of counsel claim,” and thus there was a risk that the entire trial would be “a waste of time” (T: A226). Second, the court had to determine whether it should hold Giovanni in contempt if he would not state his willingness to “participat[e] in the trial” if, “tactically,” he thought it would benefit his client to do so (T: A226-227). Giovanni responded, “Tactically and ethically, if I feel I need to interject myself, I will. That’s why we’re going to ask the question at every particular piece of the proceeding” (T: A227). The discussion ended with the following colloquy: THE COURT: So you understand, for instance if the People put a witness on the stand and the witness is being directly examined by the People, that you are prepared – if you feel it necessary to do so – to interpose an objection and/or to cross-examine the witness after the direct examination, if you believe that it would suit the cause of your client to do so? MR. GIOVANNI: Yes, yes, exactly. That’s exactly how I think it ought to be phrased. If I believe it will suit the cause of my client, I will interject myself at any point, during this questioning. I can unequivocally promise you that (T: A227-228). The Trial In response to Giovanni’s request, the court instructs the prospective jurors about Giovanni’s strategy of silence before it conducts an exhaustive voir dire. In response to Giovanni’s concern that “an inaccurate message” might be sent to the jury by “the procedure” they would use, the court decided that it would explain to the jury in advance that Giovanni had provided “reasons why [he] will not really be participating in this trial.” Then, at each stage of the trial, the court would ask -37- Giovanni whether he would be, for example, questioning the prospective jurors or cross-examining witnesses, and Giovanni could simply say “no,” unless he changed his mind (T: A181, 213). Giovanni said that would be “fine,” and requested that the court provide the jury with the “same instruction at the close of the case just so they don’t forget about it.” The court agreed to do that (T: A213). After the panel of prospective jurors was sworn, the court pointed out that defendant was not present in the courtroom. In a lengthy preliminary instruction, the court repeatedly emphasized that, if selected, the prospective jurors were “not to speculate” about the reason for his absence or “draw any inference whatever” from it. The court explained that “a defendant in a criminal case may choose to have his trial conducted in his absence” and that the “responsibility of the jury remains the same … whether the defendant is present or not,” i.e., they must decide the case based on the evidence at trial and nothing else (T: A232). In that instruction, the court also told the jury: I have been advised by defense counsel, Mr. Giovanni, that during this trial he may choose not to ask any questions of witnesses that are called during the trial. In other words, he may choose not to cross-examine witnesses. He may choose not to speak to the jurors initially when we go through the jury selection process, and he may choose otherwise not to participate in the case as he sees fit, as he determines. He has explained his reasons for this to me so that I understand that is his position, and he knows that I will be explaining that to the prospective jurors at this trial. -38- I instruct you that as to that, what I just told you, you are to draw no inferences whatsoever from that. You are to draw no inference favorable or unfavorable to the People or favorable or unfavorable to the defense based on whatever participation there may be from defense counsel during the course of the trial. And if he does not participate, then you are to draw no inferences from that in any way (T: A235-236). The court then conducted a lengthy and exhaustive voir dire of the prospective jurors. When prospective jurors approached the bench to talk to the court individually about questions that were asked, Giovanni and the prosecutor approached, too (T: A237-A296).16 Next, the judge had 26 prospective jurors put in “the box” and went over many of the preliminary questions he had asked the entire panel, seeking their assurance that they could, among other things, follow the legal instructions he had given, including the instruction about defense counsel’s potential non-participation (T: A301-315). Finally, the court had each juror verbally answer a biographical questionnaire (T: A318-338). When the jurors finished, Justice Strauss told them, “I have set a time limit for any inquiry that is made by either side because I’ve spent so much time with you” (T: A339). The prosecutor briefly questioned the jurors (T: A339-355). Giovanni said that he had “no questions” (T: A355). After the prosecutor’s sole challenge for cause 16 During that portion of the voir dire, only one juror who approached raised the issue of defendant not being present. That juror was excused (T: A264). -39- was denied, Giovanni told the court he had none. The prosecutor exercised peremptory challenges. Giovanni did not (T: A358-365). When the victim becomes unavailable before the selected jury is sworn, Giovanni opposes the People’s request for an adjournment and urges the judge to either declare a mistrial or swear the jury and allow jeopardy to attach. After the jury had been selected, but not sworn, the court adjourned for the day. The following morning, the prosecutor sought a brief recess. She said that she had been informed that April was unavailable because she had to take her daughter to the hospital. The prosecutor told the court that she had sent a police officer to April’s home to investigate the situation. She noted that, while April was “not thrilled to be involved in this process” and was not “happy about going forward,” she had told the prosecutor that she would “testify and tell the truth” and thus the People had answered ready. The prosecutor asked the judge not to swear the jury until after she received further word to avoid the possibility of “jeopardy attach[ing]” (T: A375- 377). Justice Strauss discussed the possibility of obtaining a material witness order or not proceeding in absentia at that time (T: A377). When Giovanni noted that he had been made to go forward even though he did “not have what [he] needed,” the court said there may actually be an “emergency with a child.” It adjourned until after lunch for an update (T: A379-380). After the break, the prosecutor asked the court to sign a material witness order for April and to allow the jurors to remain unsworn until the following day to avoid -40- “jeopardy attach[ing]” (T: A385-386). The court asked the prosecutor whether she had considered the alternative of waiting until after defendant was “picked up” to have the trial. The prosecutor said that she had, but feared that if April were not obtained as a witness now she might never appear. The prosecutor explained that April had always maintained that she would testify if ordered to do so, but now “she’s taking a different stance.” The prosecutor wondered whether defendant’s absence was causing the change in attitude (T: A391).17 After reading the material witness order affidavit, Giovanni proposed “two easy remedies for this situation”: (1) “swear in the jury and move on”; or (2) “declare a mistrial and pick up [defendant] later on” (T: A392-393). He opposed granting any further adjournments, emphasizing, “Forty-eight hours ago every moment of delay was an incredible prejudice to the People,” and, “I’ve been pushed to continue forward and now here we are with a witness known to be difficult who is not here. The People said they’re ready to present evidence today yet they don’t want to” (T: A393, 396). Giovanni expressed skepticism about the prosecutor’s claim that April had suddenly “changed her position,” reminding the court that there was a “request last night not to swear the jury in,” and “then this morning we hear that there’s an emergency” (T: A394). 17 The prosecutor noted that defendant had a violent history, including a shooting in the early 90’s that left his victim paralyzed. The prosecutor reminded the court that, in this case, he had a gun that was loaded with hollow point bullets (T: A390). -41- Justice Strauss agreed that the People had urged that defendant be tried in absentia because “it was vital to move the case along so [April] could have her day in court.” He also wondered whether the People would be “better off just obtaining a mistrial with no jeopardy attached,” and then determining whether they should go forward (T: A397). Nonetheless, after taking a brief recess “to think about it,” the court decided to issue a material witness order and to adjourn the case until the following day. Giovanni asked whether the court was going to swear the jury. Justice Strauss said that he would wait until the next day, and that he would declare a mistrial if the order was not executed by then (T: A399-400). The following day, April was taken into custody and brought to court. Her court-appointed lawyer said that she was “ready, willing and able” to testify “truthfully,” and that was confirmed when the court questioned April (T: A406-409). The jury was sworn and the court issued preliminary instructions (T: A416-424).18 Giovanni resumes his strategy of silence and repeatedly tells the court that it would not benefit defendant to do more. At the CPL 440 hearing, Giovanni explained that his “considered decision” not to “actively participate” in the trial was “based on the specific circumstances that confronted [him] at the time,” with the goal of “do[ing] what was best for [his] client.” 18 In those instructions, Justice Strauss told the jury, among other things, that defense counsel was not required to make an opening statement, and that he would be given the opportunity to question witnesses, to offer evidence, and to present a summation, if he wished to do so. However, the judge reminded the jury to recall his earlier instruction “that the defense ha[d] no burden of proof” (T: A416-419). -42- That was “always” Giovanni’s goal. He “never had a change of heart in that regard” (G: A67, 78, 81). For that reason, Giovanni continued his efforts to locate defendant (H: A78: 44).19 Moreover, he initiated “a lot of discussions” about whether the Warrant Squad was “truly attempting to locate him” (G: A84). If defendant had returned on the warrant during the trial, Giovanni “probably” would have moved for a mistrial, since the judge had repeatedly instructed the jury regarding defendant’s absence and his sudden reappearance may have created “great confusion” with the jury. If that failed, Giovanni “probably would have picked up the case in a fairly standard manner,” discussing with defendant whether he would testify and whether “any avenues of inquiry were opened up because of information [defendant] could have given [him]” (G: A85). Meanwhile, since defendant was not there to provide him with information about “details” that came to light only through the witnesses’ testimony, Giovanni “believed it better to say nothing than to cross-examine” (G: A81-83, 87-89). In fact, based on Giovanni’s “extensive experience, [his] knowledge, and [his] consultation with [his] supervisors,” Giovanni was concerned that cross-examining the victim “might, in fact, backfire” (G: A81). As Giovanni explained, defendant had not 19 Throughout the proceedings, Giovanni made a record of his continuing, though fruitless efforts, to locate defendant (see e.g., T: A375, 410, 471). At one point, Giovanni said that his investigator had managed to “make some contact” with defendant’s mother, who said she had not seen him in a while (T: A199). -43- provided him with a “significant amount of details” about the victim’s “background” or the various “relationships” in this “love triangle” (G: A88-89). Thus, when defendant absconded, it became “impossible” for Giovanni to gain the “insight into potential bias” that was needed for effective cross-examination. Beyond that, Giovanni concluded that trying to attack the credibility of a domestic violence victim who “would appear sympathetic to the jury” “would only serve to accentuate … any negative inference the jury would make regarding the defendant’s absence,” and that would not be “in the defendant’s interest” (G: A77, 80-82, 88-89). With respect to the officers, they testified about details, such as “noises” coming from the bedroom, which Giovanni had never heard before. Moreover, Giovanni had not had “any discussion about the recovery of the weapon with [defendant] other than the fact that it existed.” Without defendant being there to provide him with information, Giovanni could not effectively challenge the officer’s testimony in that regard (G: 89-91). In short, Giovanni’s approach was motivated by his goal of “do[ing] what was best for [his] client,” and the “thought that the chances of getting an acquittal of an empty chair domestic violence trial were very, very low and the less said the better” (G: A67, 78, 81, 87). He was mindful that if just one juror “voted not to convict,” he would get a hung jury, the case would be adjourned for a re-trial and “defendant might have been in custody” by then (G: A83). -44- Thus, when the court asked Giovanni if he “wish[ed] to open,” Giovanni responded, “I have no opening statement, your Honor” (T: A54). During April’s testimony, Giovanni viewed photographs of defendant and the crime scene that the People offered. He had no objection to their admission (T: A430, A440-441). He also viewed People’s exhibit 4 -- the gun -- before the People showed it to April (T: A446). At the conclusion of April’s and then Officer Cash’s testimony, Giovanni indicated that he had “no questions” (T: A447, A454-455). At that point, the judge excused the jury and addressed Giovanni: THE COURT: It was my understanding that as far as your participation in the trial, you were prepared, if the appropriate moment arose, to interject yourself into the case if you felt it would in some way be to the advantage of or to the benefit of your client. MR. GIOVANNI: That’s correct. THE COURT: By not opening and by not cross- examining either of the first two witnesses, did you make a conscious decision that to do so, to interject yourself would not benefit your client or would somehow bring up something that would be to his disadvantage? MR. GIOVANNI: Yes, that’s still my position. As you see, I’ve been taking notes keeping track of what was said. If it does change, I am prepared to interject myself if I think it will be to my client’s benefit (T: A455-456). At the conclusion of the direct testimony of the remaining three witnesses, Giovanni told the court that he had no cross-examination (T: A468, 480, 498). -45- After the People rested, Giovanni told the court that he did not “wish to address motions to the People’s direct case.” The court noted, “If there were a 290.10 motion, the motion would be denied as I believe the People have proved a sufficiently [sic] prima facie case” (T: A499). When Giovanni indicated that he would not call witnesses and simply rest after the break, the court ruled in advance that its decision on the motion to dismiss would be the same if it were renewed (T: A500). During the ensuing charge conference, Giovanni reminded Justice Strauss to “reiterate the instruction [he] gave earlier about the approach” (T: A502). That prompted the court to review what it intended to say about defendant’s absence and Giovanni’s decision not to participate. The court also asked Giovanni if he wanted it to add that the jury could “draw no inference against the defendant from the fact that [he] has not testified.” Giovanni had no objection to that. He explained that, while he believed that the concept was “included” in the court’s charge on defendant’s “absence entirely,” the additional language was not “going to create any additional problems” (T: 502).20 At the conclusion of the charge conference, Giovanni told the court that he would not be delivering a summation (T: A514). The following colloquy ensued: 20 When the court initiated a conversation regarding whether a circumstantial evidence charge was needed with respect to the weapon counts, the prosecutor argued that it was not required and Giovanni declined to be heard (T: A503-513). -46- THE COURT: It’s obvious there are areas that you could sum up in that might be seen as beneficial to your client in terms of the charges that have been brought. Have you thought that through and decided not to sum up? MR. GIOVANNI: I have judge. It’s a matter of balance. There is always something that could be said, but I would do more harm than good (T: A514). When the jury returned to the courtroom, Giovanni announced, “The defense has no witnesses. The defense rests” (T: A516). When it came time for summation, Giovanni announced, “The defendant has no summation” (T: A517). At the conclusion of the final charge, Giovanni told the court that he had no exceptions or requests (T: A561).21 Giovanni read and initialed the verdict sheet, indicating that it was “satisfactory” (T: A562). Both Giovanni and the prosecutor said that the court’s proposed responses to several jury notes were “agreeable” (T: A564- 566). After the jury returned its guilty verdict, Giovanni requested that the jurors be polled (T: A577). He reserved motions for sentencing (T: A581). 21 In accordance with Giovanni’s request, the court reminded the jury, in its final charge, of its earlier instructions regarding defendant’s absence and the manner in which Giovanni chose to proceed (T: A538-541). Among other things, the court emphasized that “no matter how the proceedings are conducted, no matter who is present in the courtroom, the defendant is presumed to be innocent and as such you must find him not guilty, unless on the evidence presented at the trial you conclude that the People have proven the defendant guilty beyond a reasonable doubt.” It emphasized further that “the defense is not required to prove that the defendant is not guilty. The defendant is not required to prove or disprove anything … The burden of proof never shifts from the People to the defense” (T: A539-541). -47- The Sentencing Proceeding At sentencing Giovanni argues that defendant should receive the minimum sentence. On June 15, 2004, Giovanni appeared at the sentencing proceeding and said that his continuing efforts to find defendant had proved fruitless (S: A585). The prosecutor noted that the Warrant Squad had not been able to locate defendant either (S: A585). Giovanni said that he was not filing any motions, and the court noted that, if a motion to set aside the verdict had been made, it “would have, in all likelihood, been denied” since there were “no grounds” for such relief (S: A586). The People filed and served a second violent felony offender statement. Giovanni objected to defendant being adjudicated as such since he was “not present to admit, deny, or take any other position on whether or not he is the person named” or to raise “any constitutional challenge” (S: A587-588). Justice Strauss found defendant to be a violent predicate felon (S: A588-589). The People asked the court to sentence defendant to 15 years, the maximum. The prosecutor noted that defendant had been convicted of a serious crime and that, while he had managed to elude the Warrant Squad, he had been “going around” the victim’s neighborhood asking questions about her whereabouts. Consequently, the People had been “making efforts to try to secure her safety” (S: A591-592). The prosecutor emphasized defendant’s “extremely violent record,” which included two -48- other convictions for possessing loaded guns; in one of those cases, defendant and his accomplice robbed an acquaintance and left him paralyzed by shooting him five times, resulting in defendant’s conviction of attempted murder and first-degree robbery (S: A590). For his part, Giovanni asked that defendant be sentenced to seven years, the minimum. He argued that defendant’s “old cases” did not justify the sentence that the People were recommending since “the legislature has already provided [for] enhanced penalties [on this case] simply because he’s a predicate felon” (S: A592-593). As to this case, Giovanni suggested that, because there was no recorded “history of domestic violence” and defendant merely pointed the gun at his wife and told her to “back up,” without “threatening or attempting to harm” her, this was “a gun case” (S: A594-596). Giovanni suggested that April was not harmed by defendant’s “unfortunate response” to “being caught cheating with another woman.” To support that notion, Giovanni pointed out that neither April nor her friend testified that defendant “engender[ed] fear” when he pointed the gun at his wife (S: A594-595). Thus, he opined, April was reluctant to testify because she had no “desire to go this far with the case,” not because she feared defendant (S: A593). He further opined that, because April did not fear defendant, it was of no consequence that defendant had been in the neighborhood asking about her (S: A594). The prosecutor responded that it was “disingenuous” for Giovanni to suggest that April “was not in fear” when defendant pointed the gun at her, reminding the -49- judge that “everyone in this courtroom watched as [April] started to cry” and showed “fear” when she re-lived that moment on the witness stand (S: A596). Beyond that, while agreeing that there were “no recorded” incidents of “domestic violence,” the prosecutor contended that April’s awareness of defendant’s violent criminal history added to her fear of him (S: A597). In fact, the prosecutor argued, that very well may have accounted for her reluctance to come forward in this case (S: A596-597). The prosecutor was certain that defendant’s violent history contributed to April’s present fear of defendant, since that prompted April to come to the District Attorney’s Office “specifically trying to get relocated” when she learned that defendant was looking for her after he had been convicted (S: A597). Giovanni countered that April’s “crying” on the witness stand may have been a response to her being “very stressed out to be here” or a reaction to her “recounting a situation in which she was betrayed by her husband, not only in front of her friends … but in front of the other woman.” He opined that her crying was “not about the fear” because she never said, “I was scared [defendant] was going to shoot me” (S: A598-599). The court told Giovanni, “I suppose you can put what sort of spin you wish on the event, but having heard the trial evidence and observed the witness and considering the background of [defendant], I’m sure that the incident did create fear” (S: A599). In any event, the court noted, “even if it didn’t” cause fear in April, having a loaded weapon pointed in their direction would cause fear “to most people,” given -50- “the danger” of this “most serious type of event” (S: A600). After all, defendant was “a threatening individual” who was carrying a gun that was “loaded with ammunition … designed to really create terrible damage to the human body, if not death” (S: A600-601). Having presided over the trial, Justice Strauss believed that the jury would have reached that conclusion “[w]hether [defendant] had been here or not” (S: A601). The court imposed an aggregate 12-year prison term followed by five years of post-release supervision (S: A602). Giovanni did not file a notice of appeal. He “believe[d] that was an oversight” (G: A65). The Post-Judgment Proceedings Defendant’s sentence is executed when he is involuntarily returned on a warrant following his new arrest. After he is convicted on that new case, defendant attempts to challenge his status as a persistent violent felon by asserting that Giovanni’s representation was ineffective. Defendant’s sentence was executed on July 8, 2005, when he was involuntarily returned on the warrant pursuant to his new arrest for attempted murder in the second degree and related crimes (A9). On January 6, 2006, defendant filed a motion in the Appellate Division seeking an extension of time to take an appeal pursuant to CPL §460.30, asserting, “I just assumed that my trial attorney would handle all of the necessary paperwork needed to file my notice of appeal” (A9). That request was denied on May 9, 2006 (A9). -51- Meanwhile, defendant was convicted of attempted second degree murder, first degree assault, and weapon possession in the second and third degrees following a jury trial on his new arrest. On December 14, 2005, he was sentenced as a persistent violent felony offender to an aggregate term of 25 years to life on that case (A9, citing Diggins, 45 A.D.3d at 266, aff’d 11 N.Y.3d at 518). The instant conviction served as one of his predicate violent felonies. On appeal from the 2005 conviction, defendant contended that it was error for the sentencing court to have adjudicated him a persistent violent felon without affording him an adjournment to obtain the minutes of the instant trial so that he could establish that his “conviction, in absentia, was obtained without the effective assistance of counsel, who allegedly failed to put in a defense or otherwise participate in the trial.” Diggins, 45 A.D.3d at 267. The First Department rejected that claim, Id. at 268, and this Court agreed. Diggins, 11 N.Y.3d at 520-521 (see also A9). This Court noted that, in seeking the adjournment, defendant “simply asserted [Giovanni] completely failed to participate in the [instant] trial.” This Court observed that defendant was “tried in absentia, giving rise to an inference that the attorney’s nonparticipation was a protest strategy that would not support a claim of ineffective assistance.” Diggins 11 N.Y.3d at 525, citing, Aiken, 45 N.Y.2d at 394. Defendant files his CPL 440 motion -52- On November 12, 2008, over three years after defendant’s sentence was executed in the instant case and a week before this Court rendered its decision in his new case, appellate counsel filed a motion on defendant’s behalf to set aside the instant judgment pursuant to CPL 440.10. Defendant alleged that he had been deprived of his right to the effective assistance of counsel (see A604-648). To support his claim, defendant submitted a one-page affirmation from Giovanni, in which he briefly set forth the procedural history, including defendant’s failure to appear and the court’s ruling that defendant would be tried in absentia (A618). Giovanni affirmed that, before absconding, defendant had indicated that “his defense at trial would be to allege that his wife fabricated the charges against him” because she “was jealous after meeting another woman with whom [defendant] was romantically involved” (id.). Giovanni briefly explained why he did not actively participate in defendant’s trial: I believed that without my client present at trial, his defense would be futile. I also believed it better to say nothing than to cross-examine Mr. Digg[i]n’s wife, because I believed that any attacks on her character and credibility would only accentuate the probable negative influences the jury would make regarding [defendant’s] absence (A618). Defendant asserted that, while that affirmation set forth an explanation that “remotely approach[ed] a legitimate trial strategy” (A616), it offered no explanation for his failure to participate in the Huntley hearing or jury selection, make opening or closing statements, cross-examine witnesses, request a circumstantial evidence charge -53- with respect to the gun counts, or file a notice of appeal (A616, 634-646). Defendant argued that Giovanni’s “total lack of participation” was the equivalent of having no lawyer at all, and that his representation was thus presumed to be ineffective under Cronic, 466 U.S. at 666 (1984), (A624-630). In the alternative, defendant attempted to show that there was no legitimate explanation for Giovanni’s omissions and that they were prejudicial (A630-647). Consequently, defendant asked the court to set aside the judgment or to grant him a hearing on the matter (A648). The People opposed defendant’s motion. Pointing to Aiken, 45 N.Y.2d 394, and Diggins, 11 N.Y.3d at 518, the People argued that Giovanni’s “decision not to participate fully” was “the result of his considered and reasonable trial strategy, which he adopted in response to defendant’s absence from the trial, and not incompetence.” The People argued that, “since defendant made it impossible for his lawyer to wage a vigorous defense when he voluntarily absented from his trial,” and he failed to demonstrate that any of Giovanni’s omissions prejudiced him, defendant’s ineffective assistance claim should be summarily rejected (A649-659). In a Reply Memorandum (A660-679), defendant asserted, among other things, that Aiken was factually “distinguishable” from his case (A665-671). First, he contended that, unlike Aiken’s absence, his absence did not impair Giovanni’s ability to wage a defense. As defendant saw it, unlike in Aiken, the case against him was not “strong,” and Giovanni could have participated because he did have something “of an affirmative nature to offer the jury” (A665-669). Second, defendant asserted that any -54- suggestion that “Giovanni, like the lawyer in Aiken, pursued a strategy designed to provoke a mistrial or otherwise upset the trial court’s verdict through the appellate review process [was] completely baseless” (A669-671). 22 Justice Goldberg’s decision On October 19, 2009, Justice Goldberg issued a 30-page written decision rejecting defendant’s ineffective assistance claim (see A5-34). The judge began by carefully reviewing the 440 record, including the transcripts of the underlying proceedings, Giovanni’s testimony at the 440 hearing, and the written submissions of counsel (A1-16). Then, the court conducted a meticulous review of the applicable law as it applied to those facts (A16-30). The court rejected defendant’s claim that Giovanni’s ineffectiveness was presumed under Cronic, 466 U.S. at 648. Rather, the court observed, Sanchez, 790 F.2d at 254, showed that where, as here, a defendant “by his absence effectively force[s] his attorney into a strategy of silence,” counsel’s “limited participation” is not the equivalent of “having no counsel” (A27). Since Sanchez held that the “two prong test of Strickland” applied, and defendant failed to meet either prong, the court rejected defendant’s claim that his federal right to effective assistance had been 22 At the conclusion of the hearing, the parties submitted further papers that reiterated their earlier points (see A680-700). Defendant essentially argued that Giovanni’s hearing testimony demonstrated that he had no legitimate strategy for his nonparticipation (A680-692), and the People argued that Giovanni’s testimony further established the legitimacy of his strategy of silence (A693-700). -55- violated (A26-28). The court noted that all of the federal decisions on which defendant relied for a contrary result were “distinguishable from the instant case” because those defendants were present and “the ineffectiveness findings were not solely based on the attorney’s failure to participate” (A24-28). As to defendant’s complaint that he was denied “meaningful representation” under the State Constitution, the court observed that, contrary to defendant’s claim, the situation here was indistinguishable from Aiken, 45 N.Y.2d at 394, which held that “a defendant who absents himself from trial may not succeed on appeal by raising counsel’s purported ineffectiveness where counsel affirmatively, as a matter of trial strategy, sought to obstruct the trial of his client” (A23, 29). The court observed that it was “clear” from “Giovanni’s statements to the trial court, his affidavit and his 440 hearing testimony” that “he made a conscious, strategic decision not to participate in the Huntley hearing and the trial in absentia” (A29), and that he chose that course because he had “little or nothing of an affirmative nature to offer the jury” when defendant absconded and deprived him “of the benefit of his assistance.” The court rejected defendant’s suggestion that this case, unlike the one in Aiken, was not strong and defensible (A29-33). The court noted that, while defendant complained that Giovanni’s testimony and his affidavit only provided an explanation for his decision not to cross-examine April, “defendant, who has the burden of proof, neglected to ask …Giovanni what he was trying to accomplish” by not participating in other -56- aspects of the case. The court found that it was “reasonable and likely” that Giovanni’s goal was the same as the one in Aiken (A30). As the court explained: Had Mr. Giovanni abandoned his protest strategy by participating in the trial, he would have sacrificed the possibility of a juror perceiving the proceedings as unfair so as to produce a hung jury. He would have also deprived the defendant of the ability to complain that his nonparticipation constituted ineffective assistance, as he does in the instant motion to vacate the judgment (A30-31). Since defendant failed to meet his burden of establishing the unreasonableness of that strategy or prejudice that flowed from any of Giovanni’s omissions, the court rejected defendant’s claim that he was deprived of meaningful representation under the state constitution (A30-34). Relying on the reasoning of this Court in Aiken, Justice Goldberg observed that, if she were to rule otherwise, “attorneys would be able to manufacture automatic reversals” by “simply choosing not to participate at trials in absentia,” and those trial would “be rendered a nullity by an attorney’s strategic decision not to participate in them” (A34). Justice Goldberg found it “notabl[e]” that this Court “had occasion to reaffirm the principle set forth in Aiken in the appeal taken by defendant” to challenge this predicate conviction on his new attempted murder case (A24, citing Diggins, 11 N.Y.3d at 518). -57- POINT THE FIRST DEPARTMENT CORRECTLY CONCLUDED THAT THERE WAS AMPLE SUPPORT FOR THE DETAILED FINDINGS OF FACT AND CONCLUSIONS OF LAW THAT LED JUSTICE GOLDBERG TO DENY DEFENDANT’S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM (Answering Defendant’s Brief). In Aiken, this Court held that defense counsel’s “conscious strategic decision” not to participate in the trial in an effort to provoke a mistrial provided no basis for an ineffective assistance claim. Just a week before defendant filed his CPL 440 motion, seeking to overturn this conviction on the ground that Giovanni was ineffective, this Court reaffirmed Aiken in an appeal taken by defendant to challenge the use of this very conviction as a predicate conviction in his later attempted murder case. Citing Aiken, this Court observed that defendant was “tried in absentia, giving rise to an inference that the attorney’s nonparticipation was a protest strategy that would not support a claim of ineffective assistance.” Diggins, 11 N.Y. 3d at 518. Justice Goldberg held an evidentiary hearing at which Giovanni testified, and she reviewed the trial record. The court then denied defendant’s motion, finding that defendant impaired Giovanni’s ability to wage a viable defense by choosing to abscond from the proceedings, and that Giovanni made the strategic decision that, under those circumstances, the best way to represent defendant was to protest a hearing and trial in absentia and to employ a strategy of silence. As a result, Justice Goldberg concluded that defendant had no legitimate basis to claim that Giovanni’s -58- limited participation in the proceedings deprived him of meaningful representation without demonstrating both that the strategy was unreasonable and that prejudice flowed from it. Indeed, as the court recognized, Aiken 45 N.Y.2d at 398, and Sanchez, 790 F.2d at 254, make plain that “[a]ny other result would permit a defendant to forestall adjudication indefinitely by intentionally sabotaging his own defense” (A27, quoting Sanchez, 790 F.2d at 254), and trials in absentia would “be rendered a nullity by an attorney’s strategic decision not to participate in them” (A34, citing Aiken, 45 N.Y.2d at 398). The Appellate Division concluded that there was ample support for Justice Goldberg’s “detailed findings of fact and conclusions of law,” and thus that she properly rejected defendant’s ineffective assistance of counsel claim. Diggins, 83 A.D.3d at 667. On appeal to this Court, defendant claims that Justice Goldberg and the Appellate Division erred. According to him, the lower courts were wrong to rely on Aiken because it has “has been effectively overruled by Cronic, which was decided years later” (DB: 39). He believes that Cronic holds that any strategy that involves “complete nonparticipation [is] inherently prejudicial,” and thus compels reversal without more (DB: 39, 64). However, Justice Goldberg concluded that this was not a case where Giovanni completely failed to participate; rather Giovanni participated only to the extent that it would further his strategy of silence. Thus, to save his claim that Cronic mandates reversal, he argues that that ruling by Justice Goldberg was “not supported by the record” (DB: 42-45). -59- Beyond that, while defendant acknowledges that Giovanni made a “deliberate choice” not to take various steps at the hearing and trial, such as conducting cross- examination or delivering final arguments, he argues that that choice still did not constitute “professionally competent assistance” (DB: 46). If defendant truly believes that Giovanni did not participate at all at the hearing and trial and that nonparticipation in and of itself requires reversal, it is unclear why he advances this argument; presumably, he believes that it shows that, even under standard ineffective assistance analysis, he should prevail (see DB: 53 fn. 13). In any event, on this subject, defendant claims that “it is clear” that his absence “in no way prevented [Giovanni] from mounting a vigorous defense to the charges” in this “eminently defensible” case with “weaknesses” (DB: 5-6, 48). Thus, Giovanni’s “complete inaction was not a legitimate course of conduct … undertaken to advance his client’s interest” (DB: 46). While the hearing court and the Appellate Division found that Giovanni employed a strategy of silence and protested the in absentia proceedings, defendant even argues that those findings are not supported by the record (DB: 64- 65). Defendant’s complaints are unavailing for several reasons. First of all, since defendant never suggested below that Cronic overruled Aiken, that claim is unpreserved for this Court’s review. In any event, defendant’s claim that his interpretation of Cronic compelled reversal rests on a view of the facts – that Giovanni completely failed to participate in the trial – that was rejected by the courts -60- below. That is a classic mixed question of law and fact, and since the lower courts’ determination was amply supported by the record, their determination is beyond this Court’s review. Even apart from the factual difficulty with defendant’s claim, his interpretation of Cronic is entirely mistaken. This Court’s application of the ineffective assistance law to situations where counsel declines to participate on account of defendant’s voluntary absence, from Aiken through this Court’s prior take on this very case, is perfectly correct and completely consistent with Cronic and ensuing Supreme Court precedent clarifying Cronic. All that remains, then, is to assess Giovanni’s performance under the usual meaningful representation analysis. The lower courts correctly performed that analysis. Indeed, in contending otherwise, defendant is yet again impermissibly seeking to overturn determinations of fact, and of mixed questions of law and fact, that find support in the record. A. To begin, defendant’s complaints are all grounded in the faulty notion that whenever a lawyer refuses to participate in a trial, his conduct is per se ineffective assistance under Cronic, regardless of whether his nonparticipation is viewed as a strategy (DB: 45-65). Obviously recognizing that Aiken is flatly inconsistent with this position, defendant barely mentions Aiken in his brief, even though it was the linchpin of the lower courts’ decisions. Instead, defendant attempts to dispatch Aiken -61- by claiming that it “has been effectively overruled by Cronic,” which was decided over 20 years later (DB: 38-39, 66). That claim is unpreserved for review. To be sure, defendant argued in his initial papers that he was denied ineffective assistance of counsel under Cronic. Significantly, however, when the People filed their response to defendant’s motion, this Court had already decided Diggins, which itself relied on Aiken. The People pointed out in their responding papers that this Court had already ruled that defendant’s assertion that Giovanni “failed to participate” in the instant “trial in absentia” gave “rise to an inference that [Giovanni’s] non-participation was a protest strategy that would not support a claim of ineffective assistance of counsel” (see A658, citing Diggins, 11 N.Y.3d at 518). Obviously that was the time for defendant to contend that, unbeknownst to this Court when it decided Diggins, Aiken had been overruled by Cronic over 20 years earlier. But defendant did no such thing. Instead, defendant filed reply papers conceding that Aiken was good law, and he simply tried to distinguish Aiken factually (A665-671). In other words, defendant effectively conceded that, if the facts of this case were indistinguishable from Aiken, he could not prevail on his ineffective assistance of counsel claim. And, Justice Goldberg indeed found that Aiken was controlling. Thus, she reasoned, the concerns of Cronic were inapplicable to the facts of this case, and prejudice from Giovanni’s limited participation could not be presumed (A22-28). -62- Now, defendant asks this Court to rule that Justice Goldberg was wrong to rely on Aiken because it “has been effectively overruled by Cronic,” which was decided years later (DB: 39). But, quite simply, defendant should have argued to Justice Goldberg that Aiken was no longer good law, rather than permitting her to proceed under the notion that all she had to decide was whether Aiken applied. Defendant’s “failure to preserve his present argument, by specifically placing it for disposition before the [hearing] court, leaves no basis for [this Court’s] review.” People v. Vasquez, 66 N.Y.2d 968, 970 (1985).23 B. Defendant’s claim is beyond the jurisdiction of this Court for another reason. His argument that Cronic mandates reversal rests entirely on the factual premise that, after the Parker hearing, Giovanni completely failed to participate in the proceedings (DB: 36, 39-45). Indeed, he concedes that, even under his view of Cronic, that case is “limited” to instances where defense counsel completely failed to participate at trial (DB: 52). However, Justice Goldberg and the Appellate Division found that Giovanni did participate to some extent after he employed his strategy of silence at 23 Notably, too, even in the Appellate Division, defendant did not advance his current legal theory about Cronic overruling Aiken. Instead, as he did before the hearing court, he maintained that his situation was factually distinguishable from Aiken’s and thus that the People’s reliance on Aiken and Diggins was misplaced (Defendant’s A.D. Reply Brief at 13-14). The Appellate Division made the same factual findings and drew the same legal conclusions as Justice Goldberg (A75-76). -63- the Huntley hearing (see A27-28, A2). Thus, defendant is now forced to complain that Justice Goldberg was wrong.24 Of course, however, this Court has jurisdiction only to review questions of law in criminal cases. See N.Y. Const. Art. VI §3; CPL §470.35. Defendant’s claim presents a classic “mixed question of law and fact: the truth and existence of the facts and circumstances bearing on the issue being a question of fact, and the determination of whether the facts and circumstances found to exist and to be true constitute [meaningful representation under Cronic] being the question of law.” People v. Oden, 36 N.Y.2d 382, 394. As this Court has emphasized, determinations that “involve questions of fact or mixed questions of law and fact, generally are beyond the review powers of this [C]ourt.” People v. McRay, 51 N.Y.2d 594, 601 (1980). “[W]here the facts are disputed, where credibility is at issue or where reasonable minds may differ as to the inference to be drawn from the established facts,” this Court “will not disturb” those findings unless they are erroneous as a matter of law. Id. Here, there is simply no basis for defendant to contend that, “[a]fter the Parker hearing, [Giovanni] did nothing to defend [him]” (DB: 8), and that from that point 24 Justice Goldberg found that Giovanni “participated to a limited extent” (A27). The Appellate Division explicitly found that “the record supports the court’s detailed findings of fact and conclusions of law,” and then cited to Justice Goldberg’s opinion (see A75). Yet, defendant suggests that “[i]t does not appear that the Appellate Division reached the same conclusion, as it noted that counsel ‘generally declined to participate’ in the trial” (DB: 42). Obviously, he is wrong. -64- on, “no one advocated on [defendant’s] behalf” (DB: 36, 39-45). As Justice Goldberg observed, the record shows that, after Giovanni refused to participate at the Huntley hearing, he: participated to a limited extent. He repeatedly objected to the trial going forward in absentia, requested an instruction to the prospective jurors about his plan not to participate, requested the instruction be repeated in the court’s final charge to the jury, indicated approval of the court’s final charge to the jury and the court’s proposed answer to a jury note, and had the jury polled after the verdict was rendered. Additionally when Mrs. Diggins failed to appear to testify on May 13, Mr. Giovanni, obviously recognizing the potential advantage to his absent client to having jeopardy attach, made an extended argument as to why the court should swear in the jury and have the People go forward with the police witness who was present to testify (A27). To make his claim that Giovanni’s nonparticipation was “complete,” defendant nitpicks through Justice Goldberg’s list, trying to show that her conclusion that he “participated to a limited extent” is “erroneous as a matter of law” (DB: 42-45). But that method falls flat. For example, defendant claims that all of Giovanni’s objections to the trial going forward in defendant’s absence occurred before he refused to participate at the Huntley hearing. As he sees it, once that hearing started, Giovanni completely failed to act as his “partisan advoca[te]” (DB: 42-43). But, that is not true. The record shows that Giovanni’s most strenuous protests to the trial in absentia occurred after the court issued its suppression decision (see pp. 26-36, supra). During that lengthy -65- discussion, Giovanni was such a zealous advocate that he told the trial court that he was willing to assume the risks of any personal consequences that might result from his nonparticipation due to his firm belief that he was acting in defendant’s best interests (see pp. 26-36, supra.). Most notably, it was during that proceeding that Giovanni asked to be relieved -- a result that both the trial court and the People recognized would effectively prevent the trial from going forward, since, unlike Giovanni, “new counsel” would know “nothing” about the case (H: A176-177, 209, 212). The court recognized that if it were to grant Giovanni that relief, the case “would simply go into a holding pattern” until defendant was returned to court. Thus defendant would, in effect, wrongly “benefit” from his choice not to appear (H: A176-177). Equally unsupported is defendant’s claim that the “record belies” Justice Goldberg’s observation that Giovanni “request[ed]” jury instructions. As defendant sees it, Giovanni simply “announced that he would not participate, then agreed to the judge’s proposed jury instruction” (DB: 43). However, the record shows that Giovanni did much more than that. He expressed concern that “an inaccurate message” might be sent to the jury by “the procedure” they would use (T: A181). And, in response, the court decided that it would explain to the jury that Giovanni had provided “reasons why [he] will not really be participating in this trial” (T: A181, 213). Giovanni requested that the court provide the jury with the “same instruction at the close of the case just so they don’t forget about it.” The court agreed to do that -66- (T: A213). Then, later, during the final charge conference, Giovanni requested that the court “reiterate the instruction [he] gave earlier about the approach” of nonparticipation and defendant’s absence (T: A502). That prompted the court to ask Giovanni whether he also wanted an instruction that the jury should “draw no inference against the defendant” for not testifying. Giovanni told the court that he did not think that the additional language would “create any additional problems” (T: A502-503). Thus, contrary to defendant’s assertion, the hearing court correctly determined that Giovanni took an active role in shaping the jury instructions. As to Justice Goldberg’s observation that Giovanni approved the court’s final jury charge, defendant claims that the record reflects “only” that Giovanni “stated his lack of objection to an instruction that the jury should draw no inference from [defendant’s] absence” (DB: 44). In fact, however, at the conclusion of the final charge, Giovanni told the court that he had no exceptions or requests with respect to the entire charge (T: A561). Next, defendant contends that Giovanni’s “approval of the court’s response to a jury note does not indicate that he was fulfilling his role as [defendant’s] advocate.” Presumably, then, defendant does not think that the prosecutor was acting as the People’s advocate when she found the court’s proposed responses “agreeable” too (T: A564-566). Notably, defendant does not even mention the court’s observation that Giovanni requested that the jurors be polled (see T: A577). -67- The most glaring example of defendant’s misrepresentation of the record pertains to Justice Goldberg’s mention of the “extended argument” that Giovanni made when April initially failed to appear at trial to testify (see A27; see also pp. 39- 41, supra) (DB: 44). As defendant sees it, Giovanni’s “comments cannot be viewed as ‘argument,’ much less advocacy on his client’s behalf” (DB: 44, quoting A24). He asserts that Giovanni “did not ask the court to take any particular course of action, such as declaring a mistrial” (DB: 45). In fact, however, during what can only be fairly characterized as “zealous advocacy” (DB: 45), Giovanni specifically asked the judge to either “swear the jury and move on,” or to “declare a mistrial and pick up [defendant] later on” (T: A392- 393; see generally pp. 39-41, supra). He vehemently objected to any adjournments and almost convinced the court to grant his request (see T: A392-401). Giovanni’s strategy was self-evident. With the first option, he was hoping that jeopardy would attach and April would not appear, thereby preventing the People from presenting sufficient evidence and obtaining a trial order of dismissal or acquittal. Under the second option, he would avoid the trial in absentia that he thought made it impossible to mount a vigorous defense. And, of course, that “extended argument” occurred during the trial (see pp. 39-41, supra). In short, when it comes to Justice Goldberg’s determination that Giovanni did participate to some degree in the trial proceedings, defendant is hardly in a position to accuse Justice Goldberg of making assertions that are “not supported by the record,” -68- much less “erroneous as a matter of law” (DB: 42). Thus, defendant’s quarrel with those facts does not present an issue of law. And because the lower court’s finding that Giovanni did not completely fail to participate in the trial is unassailable, defendant’s attempt to apply what he thinks is the law on complete nonparticipation can be rejected without more. C. Not only is defendant wrong on the facts, he is wrong on the law. Of course, a criminal defendant is entitled to the effective assistance of trial counsel under both the state and federal constitutions. See U.S. Const., Amend. VI, N.Y. Const., Art. I § 6. Under both standards, counsel’s representation is presumed effective, and it is the defendant who bears the well-settled high burden of demonstrating that that he was deprived of a fair trial by less than meaningful representation People v. Hobot, 84 N.Y.2d 1021, 1022 (1995); see Strickland v. Washington, 466 U.S. 668, 695 (1984). Under the federal standard, a defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Strickland, 466 U.S. at 691. Likewise, under the State constitution’s meaningful representation standard, "[i]t is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings.” People v. Benevento, 91 N.Y.2d 708, 712 (1998), quoting People v. Rivera, 71 N.Y.2d 705, 709 (1988); see People v. Caban 5 N.Y.3d 143, 152 (2005). -69- Under both standards, “effective assistance” is not “amenable to precise demarcation applicable in all cases.” Benevento, 91 N.Y.2d at 712; see People v. Baldi, 54 N.Y.2d 137, 146 (1981). Rather, “it varies according to the unique circumstances of each representation.” Id.; see also Rivera, 71 N.Y.2d at 708. The “most critical concern in reviewing claims of ineffective assistance of counsel is to avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis.” Baldi, 54 N.Y.2d at 146; see Benevento, 91 N.Y.2d at 712; see Strickland, 466 U.S. 668. Thus, “a simple disagreement with strategies, tactics or the scope of possible cross-examination, weighed long after the trial, does not suffice” to demonstrate ineffectiveness. Benevento, 91 N.Y.2d at 713. “As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance.” Benevento, 91 N.Y.2d. at 713; Strickland, 466 U.S. at 695. Of course, the federal standard normally requires a defendant to demonstrate that, but for, counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 698. Under the state’s meaningful representation standard, a defendant is not required to “fully satisfy the prejudice test of Strickland.” Caban, 5 N.Y.3d at 155. Rather, the “prejudice component focuses on the fairness of the process as a whole rather than its particular outcome of the case.” Id. at 155. And, it is well-settled that the test for judging effectiveness under the state constitution is “somewhat more favorable to defendants” than the federal -70- test. People v. Turner, 5 N.Y.3d 476, 480 (2005); Caban, 5 N.Y.3d at 155-156. Specifically, under the New York standard for prejudice, “the question is whether the attorney’s conduct constituted egregious and prejudicial error such that defendant did not receive a fair trial.” Benevento, 91 N.Y.2d at 713. Thus, an ineffective assistance of counsel claim “will be sustained only when counsel partook ‘an inexplicably prejudicial course.’” Benevento, 91 N.Y.2d at 713, quoting People v. Zaborski, 59 N.Y.2d 863, 865 (1983). Notably, this Court has declared that it would be “skeptical of an ineffective assistance of counsel claim absent any showing of prejudice.” People v. Stultz, 2 N.Y. 3d 277, 284 (2004). In Cronic, 466 U.S. at 648, the Supreme Court recognized a “narrow exception” to Strickland’s requirement that a defendant meet the prejudice prong of the two-part test. Florida v. Nixon, 543 U.S. 175 (2004). Cronic reasoned that “if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” Cronic, 466 U.S. at 659. In Nixon, 543 U.S. at 175, the Court clearly demonstrated how rarely that exception is applicable. Id. at 189. In that capital murder case, Nixon’s attorney made a “strategic decision to concede, at the guilt phase of the trial, the defendant’s commission of murder, and to concentrate the defense on establishing at the penalty-phase, cause for sparing the defendant’s life.” Id. at 178. That concession was made without defendant’s consent. -71- Id. Relying on Cronic, the defendant argued on appeal that his lawyer’s concession “should be presumed prejudicial because it left the prosecution’s case unexposed to ‘meaningful adversarial testing.’” Id. at 175. While acknowledging that counsel’s strategy may have been in Nixon’s best interests -- because of the “strength of the evidence of guilt,” the “gruesome” nature of the crime, and Nixon’s “disruptive and uncooperative” conduct -- the Florida court believed that Cronic required that “[a]ny concession of that order … automatically ranks as prejudicial ineffective assistance of counsel necessitating a new trial.” Id. at 178, 185-186. The Supreme Court held that the Florida court’s view of Cronic was wrong. Id. at 189-190. In so holding, it clarified the test under Cronic. Id. at 190. The Court observed that the Florida court erroneously “first presumed deficient performance, then applied [Cronic’s] presumption of prejudice.” However, as the Supreme Court made clear, Cronic still “required” Nixon to show that counsel’s strategy was “unreasonable” before the court decided whether the “circumstances [were] so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Id. Moreover, it emphasized that, in making those determinations, a court must view the circumstances that “affect[ed] counsel’s strategic calculus.” Id. In light of the circumstances that Nixon’s counsel faced, the Supreme Court held that his strategic concession of guilt did not warrant Cronic’s presumption of “prejudicially inadequate” performance because it did “not rank as a ‘fail[ure] to function in any meaningful sense as the Government’s adversary.’” Id. at 190-191, citing Cronic, -72- supra 466 U.S. at 666. Rather, Nixon was required to meet the two-pronged standard of Strickland. Id. at 191. In short, Nixon declared that the Cronic exception is “reserved for situations in which counsel has entirely failed to function as the client’s advocate,” and should be applied “infrequently.” Nixon, 543 U.S. at 189. No particular conduct or lack thereof on counsel’s part is per se prejudicially ineffective under Cronic. A defendant always has the burden of establishing the first prong of the ineffective assistance analysis -- showing that counsel’s supposed deficiency was not the result of reasonable trial strategy in light of the “surrounding circumstances.” Nixon, 543 U.S. 189-191. While Cronic may, on rare occasions, relieve a defendant of actually having to demonstrate that counsel’s conduct affected the outcome of the case, the second prong of the analyisis -- even in those cases, the defendant still must make a showing of “likely prejudice.” Id. at 190. With the actual principles of Cronic understood, it is clear that Cronic does not remotely suggest that Giovanni’s limited participation requires reversal without more. Indeed, defendant is simply wrong to suggest that whenever a lawyer fails to participate at a trial, his conduct is per se ineffective assistance under Cronic, regardless of whether his nonparticipation is viewed as a strategy and regardless of whether he is able to show any resulting prejudice (DB: 45-65). Rather, a defendant always has the burden of showing both that the attorney’s strategy was so “unreasonable” that he entirely “failed to function as [defendant’s] advocate,” and that -73- that deficiency occurred under “circumstances so likely to prejudice [him] that the cost of litigating their effect” was “unjustified.” Nixon, 543 U.S. at 189-190. Here, as the lower courts correctly found, defendant failed to meet his burden in that regard. Instead, all of his complaints amount to nothing more than his disappointment that he did not receive the trial that would have taken place had he shown up. Clearly, that is not a basis for an ineffective assistance claim under either the federal or state constitutions. Indeed, both this Court and other courts have squarely considered the circumstances presented here, and concluded that a defense counsel’s considered choice to refrain from participation in a trial in absentia does not amount to deficient performance under the first prong of the analysis. To be sure, as Justice Goldberg recognized (A18), a defendant “may not, by absence alone, waive his right to effective assistance of counsel.” Aiken, 45 N.Y.2d at 398. But, as this Court pointed out, a defendant’s “absence must, of necessity, be taken into consideration on the issue of counsel’s effectiveness.” Id. at 399. Thus, as this Court, the Second Circuit, and even the Court of Special Appeals of Maryland, have all recognized, where an attorney is confronted with a client who voluntarily and willfully absents himself from trial, a “strategy of silence on defense counsel’s part may be quite appropriate.” Sanchez, 790 F.2d at 253; Diggins, 11 N.Y.3d at 518; Aiken, 45 N.Y.2d at 399; Walker v. Maryland, 161 Md. App. 253, 272 (2005). After all, “a defendant’s absence from trial may severely hamper even the most diligent counsel’s ability to represent his client -74- effectively.” Aiken, 45 N.Y.2d at 399. Thus, where, as here, a defendant’s absence “precludes any reasonable basis for an active defense, the strategy of silence – perhaps in hopes that the government will produce insufficient evidence or that the government or court will commit reversible error – may actually constitute a defense strategy.” Sanchez, 790 F.2d at 253. Under those circumstances, the Second Circuit and the Maryland Court expressly found, Cronic does not apply. Sanchez, 790 F.2d at 254; Walker, 161 Md. App. at 272. A defendant “may not by his absence effectively force his attorney into a strategy of silence and then complain” that “in effect he had no counsel at all.” Sanchez, 790 F.2d at 254. As the Sanchez Court observed, “[c]ertainly the right to counsel does not impose upon a defense attorney a duty to investigate and find evidence, or to pursue a fishing expedition by cross-examination, or to present opening or closing remarks on the basis of no helpful information, or to object without purpose, on behalf of an uncooperative and unavailable client.” 790 F.2d at 253. Thus, “where, as here, the defendant by his own obstructive conduct precludes his counsel from pursuing an intelligent active defense, the concerns of Cronic … are not invoked and the general test of effectiveness of counsel applies.” Sanchez, 790 F.2d at 254. As both the Second Circuit and Justice Goldberg rightly observed: Any other result would permit a defendant to forestall adjudication indefinitely by intentionally sabotaging his own -75- defense. To reward such tactics would defy both the purposes of the Sixth Amendment and common sense Id; see (A ). As previously noted, this Court used similar logic in Aiken: Having previously held that a defendant who voluntarily and willfully absents himself from trial waives his right to confrontation and to be present at his trial, we would erode, if not destroy, the significance of that ruling were we to reverse an absented defendant’s conviction because of counsel’s refusal to actively participate at trial. To do otherwise would be to permit defendant’s counsel to accomplish that which we will not permit a defendant to accomplish himself: that is, to render his trial a nullity. People v. Aiken, 45 N.Y.2d at 399. This Court reaffirmed the principle set forth in Aiken in defendant’s appeal from his sentence as a persistent violent felon on his attempted murder case. Diggins, 11 N.Y.3d at 525. In short, defendant entirely misses the point of Cronic when he contends that it overruled Aiken. Aiken and Diggins are fully compatible with Cronic because in those cases this Court determinate that, when the defendant is absent, nonparticipation can be a perfectly valid strategy, so that the defendant cannot prevail on the performance prong of the ineffective assistance test. As Nixon makes clear, Cronic has nothing to do with the first prong of the test. Instead, Cronic merely stands for the proposition that if nonparticipation is defective performance under the first prong, then a defendant may well not have to establish the second prejudice prong. -76- In an effort to demonstrate that this Court nonetheless erred in Aiken and Diggins, defendant points to federal cases that applied Cronic, and argues that they involve “comparable instances of nonparticipation” (DB: 45, 53-58). However, as Justice Goldberg concluded, these cases “are distinguishable from what occurred here, as they involve overt errors by defense counsel at trials where the defendant was present,” or the “ineffectiveness findings were not based solely on the attorney’s failure to participate” (see A20-22, citing, e.g., Martin v. Rose, 744 F.2d 1245 [6th Cir. 1984; Reyes-Vasquez v. United States, 865 F.Supp 1539 [S.D. Fla 1994]; Harding v. Davis, 878 F.2d 1341 [11th Cir. 1989]; United States v. Lespier, 558 F.2d 624 [1st Cir. 1977]). Those are the kind of cases in which “there exists some reasonable basis for an active defense,” and thus “defense counsel’s silence may amount to a violation of [constitutional] rights.” Sanchez, 790 F.2d at 254. As Giovanni made plain, and as Justice Goldberg found, that simply was not the situation here. “[B]y his absence,” defendant “effectively force[d] his attorney into a strategy of silence.” Id. That strategy was a legitimate strategic choice and such a choice defeats an ineffective assistance of counsel claim. Id. at 253-254; see Diggins, 11 N.Y. 3d at 518; Aiken, 45 N.Y.2d at 399; see generally, Nixon, 543 U.S. 175; Benevento, 91 N.Y.2d at 712; Rivera, 71 N.Y.2d at 709. In short, since defendant failed to demonstrate that Giovanni’s strategy was unreasonable, his ineffectiveness assistance of counsel claim must fail without more. -77- The question of whether defendant can demonstrate prejudice from Giovanni’s performance -- the only question at issue in Cronic – simply does not arise here. D. Under the standard ineffective rubrics that, as Aiken, Sanchez, and Diggins make plain, apply here, there is no basis for overturning the lower court’s rulings. Indeed, defendant’s arguments suggesting otherwise once again improperly call for overturning lower court rulings on issues of fact or mixed questions of law and fact even though they find support in the record. As the lower courts found, Giovanni clearly did pursue a thought-out, comprehensive strategy of protesting the hearing and trial going forward in absentia and then remaining silent, in the belief that that was in defendant’s best interests. Moreover, his decision to so proceed was entirely reasonably given the severe obstacles facing Giovanni in light of both the evidence of defendant’s guilt and defendant’s failure to appear to assist him. Notably reasonableness is a mixed question: “questions of the reasonableness of conduct can rarely be resolved as a matter of law even when the facts are not in dispute.” People v. Harrison, 57 N.Y.2d 470, 477 (1982). To begin, the evidence at trial fully supported Justice Goldberg’s conclusion that there was “substantial and powerful evidence” of defendant’s guilt (A29). April Diggins was a sympathetic victim, who gave biographical information that made any suggestion that she was lying or exaggerating seem farfetched. Defendant committed the crime in front of a friend of April’s who had no motive to testify falsely, since she -78- did not know defendant and had not seen April in 20 years. When the police went to Puddin’s apartment on the morning of the crime, Puddin directed them to defendant, who was hiding in a bedroom. With Puddin’s written consent, an officer searched the bedroom and recovered from under the bed the distinctive gun that April had described and later identified as the one that defendant had used to menace her. It was loaded with five hollow-point bullets. And, of course, defendant gave conflicting spontaneous statements. Given all of that proof, even the trial judge understandably opined that the jury would have reached the same verdict “[w]hether [defendant] had been [present] or not” (S: A601). Likewise, the Appellate Division found the evidence “overwhelming” (A4). Thus, there is simply no support for defendant’s claim that this was an “eminently defensible” case with “weaknesses” (DB: 5-6, 48). As Giovanni made plain, not only was this case strong and difficult from the start, but it became impossible to defend once defendant chose to abscond (see pp. 16-20, supra). Giovanni’s investigator was unable to find any evidence to support defendant’s claim that April was lying or exaggerating. Even Puddin confirmed April’s account, and she provided no helpful information about defendant’s arrest and the recovery of the gun. And, before he fled, defendant provided Giovanni with no insights about potential bias, credibility, background or ability to see or perceive the events at issue with respect to any of the witnesses at trial (see pp. 16-20, 41-43, supra). Defendant’s absence thus critically impaired Giovanni’s ability to cross- examine successfully the witnesses against defendant. -79- Consequently, Giovanni made a conscious a decision that he would ask to be relieved, and if the judge denied that application he “wouldn’t say anything or make legal arguments” or otherwise “actively participate in the case.” He made plain that his strategy was motivated by the goal of “do[ing] what was best for [his] client.” Specifically, Giovanni “thought that [while] the chances of getting an acquittal of an empty chair domestic violence trial were very, very, low,” the “less said the better.” Giovanni testified before Justice Goldberg that he “never had a change of heart in that regard” (G: A67, 78-81, 86). Indeed, Giovanni repeatedly told the trial court throughout the trial, and confirmed to Justice Goldberg, that he thought it would do more harm than good for him to do more (see. pp. 41-46, supra). Thus, defendant is simply wrong to contend that Giovanni’s “statements to the court indicate that he did not believe that his inaction would inure to [defendant’s] benefit” (DB: 46). Furthermore, as already noted, Giovanni asked to be relieved and the court recognized that granting such relief would in effect bar a trial in absentia since, unlike Giovanni, “new counsel” would know “nothing” about the case (H: A176-177, 209, 212). Giovanni also made plain that, if his request to be relieved were not granted he would refuse to participate in the trial. Not surprisingly, both the court and the People became concerned that Giovanni was seeking to derail the trial in absentia or provide defendant with a basis for a future ineffective assistance of counsel claim. Thus, they sought an acknowledgment from Giovanni that his decision not to -80- participate was a tactical one (see pp. 27-36, supra.). Obviously thinking that it would help defendant’s future ineffective assistance claim, Giovanni repeatedly resisted using the word “tactical” to characterize his decision. Nevertheless, he freely and repeatedly acknowledged that he had made a conscious decision to proceed in that manner because he believed that it was the best way to represent defendant under those circumstances (id.). Notably, as Giovanni anticipated, defendant is selectively culling his words to further his ineffective assistance claim (DB: 46-47). Thus, Giovanni did indeed employ precisely the type of strategy at issue in Aiken and which this Court presumed Giovanni was employing in Diggins. As a result, defendant is wrong to insist that, although the Appellate Division referred to counsel’s inaction as a “protest strategy” or a “strategy of silence,” the record fails to support either characterization (DB: 64). Importantly, too, during that conversation, Giovanni assured the court that if, during the course of the trial, he believed that it would serve defendant’s interest to participate actively, he would (T: A227-228). And the record shows that he took notes during the trial “keeping track of what was said” so that he would be “prepared to interject [him]self if he [thought] it [would] be to [his] client’s benefit” (A456). That demonstrated that Giovanni was ready to be flexible and change tactics only if he concluded that it would help defendant. Simply put, as Justice Goldberg concluded, the record shows that Giovanni strategically participated in the trial only to the extent that it would advance his goal of -81- derailing the trial in absentia or otherwise upsetting the verdict on appeal (A30-31). Contrary to defendant’s claim (see DB: 39-45), that evidence provided ample support for Justice Goldberg’s conclusion that, while Giovanni’s trial participation was “limited,” it nonetheless was “the professionally competent representation required of counsel.” Defendant now disputes the wisdom of Giovanni’s strategic choices. But that is the kind of strategic second-guessing that cannot support a viable ineffective assistance claim. Benevento, 91 N.Y.2d at 713. Beyond that, counsel’s so-called failures are easily explained, and, in any case, none harmed him in the least. For example, defendant complains that Giovanni did not participate at the Huntley hearing (DB: 10-12, 41). But, as Giovanni explained at the CPL 440 hearing, “given the position that he had taken and the discussion [he] had had with the judge” about his refusal to participate in the in absentia proceedings, he did not believe that it would “be beneficial to participate or ask questions,” particularly since he had nothing of value to offer (G: A62-63, 89-91). Indeed, as the record of that proceeding confirms, neither cross-examination nor argument would have made any difference at all (see pp. 24-26, supra). The same holds true for jury selection. (see pp. 36-38, supra; DB: 16-17, 41). Thus, it is hardly surprising that, as Justice Goldberg observed, “[d]efendant does not identify any juror who should have been challenged” (A31). Next, defendant complains that counsel failed to make opening or closing statements, cross-examine any witnesses, call any defense witnesses, or raise any -82- objections at trial (DB: 17-27, 41-42). However, as Giovanni stressed, in his discussions with defendant before he absconded, defendant had not provided him with useful fodder for cross-examination, and Giovanni’s investigation had not been able to find any helpful information. In that context, cross-examination of witnesses could have been downright dangerous. After all, a basic rule of cross-examination is that a lawyer should not ask a question if he does not know the answer, and Giovanni knew few answers precisely because defendant had absconded. As the Sanchez Court observed, “Certainly the right to counsel does not impose upon a defense attorney a duty to investigate and find evidence, or to pursue a fishing expedition by cross- examination, or to present opening or closing remarks on the basis of no helpful information, or to object without purpose, on behalf of an uncooperative and unavailable client.” 790 F.2d at 253. Beyond that, as Justice Goldberg observed, had Giovanni more actively participated in the trial, he would have been, in effect, abandoning his strategy and thus “would have sacrificed the possibility of a juror perceiving the proceedings as unfair so as to produce a hung jury,” and “also deprived the defendant of the ability to complain that his nonparticipation constituted ineffective assistance, as he does in the instant motion to vacate the judgment” (A30-31). As Giovanni told the trial court, he could not serve his client’s interests “by essentially half doing the trial” (T: A192). Nonetheless, defendant faults Giovanni for not arguing to the jury that the People failed to prove second degree menacing -- a misdemeanor -- because the -83- testimony of neither April nor her friend demonstrated that they were actually in fear of physical injury – an assertion that counsel advanced in requesting that the court impose the minimum sentence (DB: 28, 41-42). However, as Justice Goldberg observed, the menacing statute that defendant was charged with violating, Penal Law Section 120.14 (1), provides that a person is guilty of that crime even when he “intentionally attempts to place another in fear of physical injury, by displaying a firearm or what appears to be a firearm,” and both the indictment and judge’s charge included that language (A33 [emphasis added]; see Charge: T: A552-555). Beyond that, given the response that defense counsel received when he advanced that argument at sentencing, he was plainly better off not making it to the jury (see pp. 47-50, supra.). Indeed, the prosecutor reminded the judge that counsel’s claim was belied by April’s demeanor when she re-lived that moment on the witness stand. As the prosecutor put it, “everyone in this courtroom watched as [April] started to cry” and showed “fear” (S: A596). Surely, it would not have helped defendant’s cause for counsel to have prompted the jury to recall that moment prior to deliberations. And, of course, the jury may well have had the same reaction as the court when counsel made that argument to him: “I suppose you can put what sort of spin you wish on the event, but having heard the trial evidence and observed the witness and considering the background of [defendant], I’m sure that the incident did create fear” (S: A599). -84- Defendant next complains that counsel did not “express any position regarding the giving of a circumstantial charge” (DB: 26-27, 41). But that is easily explained by the fact that defendant was not entitled to one. April testified that defendant had pointed a gun at her and Officer Cosgrove recovered an operable gun that was loaded with hollow point bullets – ammunition that is expressly meant to cause maximum injury – from a bedroom, in which he found defendant hiding. April positively identified that gun as the one that her husband had pointed at her. Clearly, then, that identification was direct evidence of defendant’s possession of the gun with intent to use it unlawfully. And, it is axiomatic that special instructions for assessing circumstantial evidence are not needed where both direct and circumstantial evidence are employed to demonstrate a defendant’s culpability. People v. Daddona, 81 N.Y.2d 990, 992 (1993); People v. Roldan, 88 N.Y.2d 826, 827 (1996). Next, defendant complains that counsel did not “move for dismissal at the close of the prosecution case” (DB: 26). But, as the record shows, when Giovanni declined to make those motions, the court said that it would have denied them had they been made (T: A499-500). That is not surprising, given that the hearing court and the Appellate Division have underscored the powerful nature of the proof. Finally, defendant complains that Giovanni failed to file a notice of appeal on defendant’s behalf – an omission that Giovanni explained as an “oversight” (see G: A65). But, that was not a basis for granting defendant’s 440 motion. First of all, as Justice Goldberg observed, a failure to file a timely notice of appeal is not properly -85- raised in a 440 motion (A33). Instead, at most, it is a basis for permission to file a belated notice of appeal via a coram nobis. See People v. Syville, 15 N.Y.3d 391, 401 (2010). Beyond that, given that defendant’s whereabouts were still unknown, Giovanni counsel could hardly be faulted for forgetting to file a notice that would be immediately subject to a motion to dismiss the appeal under the fugitive disentitlement doctrine. See generally, People v. Tavares, 10 N.Y.3d 277, 232-233 (2000). Moreover, in the end, defendant suffered no prejudice from Giovanni’s omission. After all, by obtaining leave to appeal Justice Goldberg’s decision, defendant has been given the opportunity to have this Court examine every aspect of the proceedings to determine whether he received a fair trial. Defendant would have received no more than that if Giovanni had filed a notice of appeal. Simply stated, defendant has utterly failed to show either that Giovanni’s choice of tactics amounted to ineffective representation or that he suffered any prejudice from the “failures” that defendant claims deprived him of meaningful representation. E. One more thing needs to be said about defendant’s claim. In launching his new attack on Aiken, defendant lectures this Court, Justice Goldberg, and the trial court on the proper way to ensure that “all defendants receive the effective assistance of counsel to which they are constitutionally entitled” (DB: 66). He suggests that when confronted with an attorney who, like Mr. Giovanni, has “indicated that, even if -86- ordered by the court to defendant his client to the best of his abilities, he will not participate in the trial,” this Court “can and should hold him in contempt” (DB: 67- 68). Defendant suggests that, because the trial court was “inexplicably reluctant to use its contempt power,” the entire “criminal justice system” failed to secure him a fair trial. That claim is erroneous on many levels. First of all, here, as in other portions of his brief, defendant points to the ABA Model Rules of Professional Conduct, the N.Y. Rules of Professional Conduct, and the Code of Professional Responsibility conduct to suggest that Giovanni’s failure to participate was unethical and therefore constitutionally ineffective (DB: 37-38, 69). None of those provisions address a situation where the defendant has absconded and is to be tried in absentia. Instead, they simply state that an attorney must provide zealous representation. As Strickland warns: In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. Prevailing norms of practice as reflected in American Bar Association standards and the like … are guides to determining what is reasonable, but they are only guides. No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions. Indeed, the existence of detailed guidelines for representation could distract counsel from -87- the overriding mission of vigorous advocacy of the defendant’s cause. 466 U.S. at 688-689. A fair view of this record, demonstrates that Giovanni was a “vigorous” advocate for defendant. Indeed, Giovanni did not refuse to defend his “client to the best of his abilities.” He told the court that he was willing to be held in contempt, rather than actively participate, because he so firmly believed that he was acting in his client’s interest. Once he gave the court that assurance, and agreed that he would actively participate if, at any point, he believed that it would be to defendant’s benefit, there was no basis for the court to hold him in contempt. Moreover, as the court recognized, if he had held Giovanni in contempt, then defendant would have gotten what he wanted -- the freedom to abscond without a trial in absentia. Beyond that, the trial was proceeding in absentia not only because defendant decided to abscond from his trial; they were also proceeding because any delay imperiled the case, or worse, defendant’s wife. That was made plain during the pre-trial arguments (see pp. 27-36, supra.), at the proceeding where April failed to appear to testify (see pp. 39-41, supra), and at the sentencing proceeding (see pp. 47-50). Finally, while defendant asserts that both Giovanni and the whole court system deprived him of rights, the fact is that Giovanni’s supposed ineffectiveness has brought defendant before this Court on two occasions. Justice Goldberg found that that was one of Giovanni’s goals in the first place; thus, defendant has no legitimate -88- basis to complain. As Justice Strauss observed (S: A601), given the strength of the case against him, defendant surely would not have received a better result even if he had bothered to appear for trial. * * * In sum, the Appellate Division correctly concluded that there was ample support for the detailed findings of fact and conclusions of law that led Justice Goldberg to deny defendant’s ineffective assistance of counsel claim. Defendant’s claims to the contrary do not present an issue of law and are entirely without merit. -89- CONCLUSION The order of the Appellate Division should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: SHERYL FELDMAN Assistant District Attorney ALAN GADLIN SHERYL FELDMAN Assistant District Attorneys Of Counsel October 22, 2012 -90-