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

Brief

N.Y.April 24, 2013

To be argued by: ROY L. REARDON, ESQ. (Counsel requests 20 minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ISAAC DIGGINS, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant By: ROSEMARY HERBERT, ESQ. Supervising Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 (212) 402-4100 (phone) (212) 402-4199 (fax) ROY L. REARDON, ESQ. SIMPSON THACHER & BARTLETT LLP Of Counsel Date Compteted: June 27, 2012 i TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Counsel Prepared For Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 The Parker Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Counsel Refused to Participate in the Huntley Hearing . . . . . . . . . . . . . . 10 Counsel Re-Affirmed That He Refused to Participate At Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Counsel Refused to Participate in Jury Selection . . . . . . . . . . . . . . . . . . . 16 Counsel Refused to Participate in the Trial . . . . . . . . . . . . . . . . . . . . . . . . 17 Counsel Did Not Cross-Examine April Diggins or Debra Bryant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Counsel Did Not Cross-Examine the Police Officers Involved in the Arrest of Mr. Diggins and the Recovery of the Gun . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Counsel Did Not Move for a Trial Order of Dismissal, Did Not Present Any Evidence or Call Any Witnesses, Did Not Participate In Discussions Regarding the Jury Charge and Did Not Make a Closing Argument . . . . . . . . . . . . . . . 26 ii At Sentencing, Counsel Made Arguments About the Sufficiency of the Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Counsel Failed to File a Notice of Appeal . . . . . . . . . . . . . . . . . . . 29 Mr. Diggins Moves To Vacate His Conviction. . . . . . . . . . . . . . . . . . . . . 30 The Hearing Court Rules That, Notwithstanding Counsel’s “Limited” Participation, He Provided Effective Assistance of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 The Appellate Division Affirms the Denial of Mr. Diggins’ 440 Motion, Finding Counsel’s Non-Participation To Be a Reasonable Strategic Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 POINT: ISAAC DIGGINS WAS DEPRIVED OF HIS RIGHT TO THE ASSISTANCE OF COUNSEL UNDER THE FEDERAL AND STATE CONSTITUTIONS, WHEN HIS ATTORNEY REFUSED TO PARTICIPATE IN ANY ASPECT OF HIS TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 A. Mr. Diggins Suffered A Constructive Deprivation Of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 1. Counsel’s nonparticipation was “complete” . . . . . . . . . . . . 39 2. The hearing court’s conclusion that counsel participated to a “limited extent” is unsuppor- ted by the record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 iii B. Counsel’s Complete Nonparticipation Was Not Professionally Competent Assistance . . . . . . . . . . . . . . . . . . . . . . . 45 C. Where Counsel’s Nonparticipation Caused A Complete Break-Down In the Adversarial Process, Prejudice Must Be Presumed Under Cronic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 D. Counsel’s Nonparticipation Also Violates Mr. Diggins’ Right To Meaningful Representation Under The State Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 E. The Trial Court Had The Means To Prevent Counsel From Failing To Fulfill His Ethical Obligation To Zealously Defend His Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 iv TABLE OF AUTHORITIES CASES PAGE Avery v. Alabama, 308 U.S. 444 (1940) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Bell v. Cone, 535 U.S. 685 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 60 Cannon v. State, 252 S.W.3d 342 (Texas Crim. App. 2008) . . . . . . . . . . . . . . . . 59 Childress v. Johnson, 103 F3d 1221 (5th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . 39 Elliot v. Williams, 248 F.3d 1205 (10th Cir. 2001) . . . . . . . . . . . . . . . . . . . . 37, 38 Harding v. Davis, 878 F.2d 1341 (11th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . 57 Herring v. New York, 422 U.S. 853 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Hiner v. State, 557 N.E.2d 1090 (Ind. Ct. App. 1990) . . . . . . . . . . . . . . . . . 58, 59 Hurrell-Harring v. New York, 15 N.Y.3d 8 (2010) . . . . . . . . . . . . . . . . . . . . . 4, 52 Lovett v. Foltz, 884 F.2d 579, 1898 WL 101522 (6th Cir. 1989) . . . . . . . . . . . . . 45 Martin v. Rose, 744 F.2d 1245 (6th Cir. 1984) . . . . . . . . . . . . 46, 54, 55, 66, 67, 69 Miller v. Martin, 481 F.3d 468 (7th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . 56, 57 Patrasso v. Nelson, 121 F.3d 297 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . 57 People v. Adams, 2007 WL 3171259 (Mich. 2007) . . . . . . . . . . . . . . . . . . . . . . 59 People v. Aiken, 45 N.Y.2d 394 (1978) . . . . . . . . . . . . . . . . . . . . . . . 34, 37, 38, 66 People v. Baldi, 54 N.Y.2d 137 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 63 People v. Benevento, 91 N.Y.2d 708 (1988) . . . . . . . . . . . . . . . . . . . . . . 35, 63, 64 v People v. Caban, 5 N.Y.3d 143 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 64 People v. Claudio, 83 N.Y.2d 76 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 62, 63 People v. Diggins, 25 Misc.2d 1218(A) (N.Y. Co. Sup. Ct. 2009) . . . . . . . passim People v. Diggins, 83 A.D.3d 667 (1st Dep’t 2011) . . . . . . . . . . . . . . . . . 34, 42, 64 People v. Diggins, 11 N.Y.3d 518 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 People v. Parker, 57 N.Y.2d 136 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 People v. Rivera, 71 N.Y.2d 705 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 People v. Stulz, 2 N.Y.3d 277 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 People v. Turner, 5 N.Y.3d 476 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Reyes-Vasquez v. United States, 865 F.Supp. 1539 (S.D. Fla 1994) . . . . . . . . . 58 State v. Harvey, 692 S.W.2d 290 (Mo. 1985) (en banc) . . . . . . . . . . . . . . . . . . . . 59 Strickland v. Washington, 466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . . passim United States v. Cronic, 466 U.S. 648 (1984) . . . . . . . . . . . . . . . . . . . . . . . passim United States v. Lespier, 558 F.2d 624 (1st Cir. 1977) . . . . . . . . . . . . . . . . . 53, 67 United States v. Morrisson, 449 U.S. 361 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . 4 United States v. Sanchez, 790 F.2d 245 (2d Cir. 1986) . . . . . . . . . . . . . . 35, 60, 61 United States v. Theodore, 468 F.3d 52 (1st Cir. 2006) . . . . . . . . . . . . . . . . . 52, 60 Warner v. Ford, 752 F.2d 622 (11th Cir. 1985) . . . . . . . . . . . . . . . . . . . . 61, 62, 64 Washington v. Hofbauer, 228 F.3d 689 (6th Cir. 2000) . . . . . . . . . . . . . . . . . . . . 45 vi STATUTES & CONSTITUTIONAL PROVISIONS N.Y. Const. Art. I § 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 36, 62 N.Y. Crim. Proc. Law § 440.10 (McKinney 2005) . . . . . . . . . . . . . . . . . . . . . 1, 30 N.Y. Judiciary Law § 2-a (McKinney 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 N.Y. Judiciary Law § 750 (McKinney 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 N.Y. Penal Law § 120.14 (McKinney 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 N.Y. Penal Law § 215.50 (McKinney 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 N.Y. Penal Law § 265.02 (McKinney 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 N.Y. Penal Law § 265.03 (McKinney 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 U.S. Const. Amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim U.S. Const. Amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 OTHER AUTHORITIES ABA Model Rules of Professional Conduct, Preamble . . . . . . . . . . . . . . . . . . . . 37 N.Y. Rules of Professional Conduct, Rule 1.1(c)(1) . . . . . . . . . . . . . . . . 37, 38, 69 Code of Professional Responsibility, Canon 7 . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Code of Professional Responsibility, Ethical Consideration 7-19 . . . . . . . . . . . 38 -1- COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : : Respondent, : : -against- : Ind. No. 4637/03 : ISAAC DIGGINS, : : Defendant-Appellant. : ---------------------------------------------------------------------x PRELIMINARY STATEMENT By permission of the Honorable Jonathan Lippman, Chief Judge of the Court of Appeals, granted March 30, 2012, appeal is taken from an order of the Appellate Division, First Department, entered on May 26, 2011, see People v. Diggins, 84 A.D.3d 667 (1st Dep’t 2011), lv. granted, __ N.Y.3d __ (2012). The Appellate Division affirmed an order rendered on October 22, 2009, by the Supreme Court, New York County (Goldberg, J.), which denied Isaac Diggins’ motion pursuant to N.Y. Crim. Proc. Law § 440.10 (McKinney 2005). In his motion, Mr. Diggins sought to vacate the judgment of the Supreme Court, New York County, convicting him, after a jury trial in absentia, of criminal possession of a weapon in the second degree, N.Y. Penal Law § 265.03 (McKinney 2008), criminal possession of a weapon in the third degree, N.Y. Penal Law § 265.02 -2- (McKinney 2008), and menacing in the second degree, Penal Law § 120.14 (McKinney 2009). Mr. Diggins was sentenced to concurrent terms of imprisonment of twelve years, seven years and one year, respectively. (Straus, J., at pre-trial hearing, trial and sentencing). Mr. Diggins is currently incarcerated pursuant to the judgment. -3- QUESTION PRESENTED Was Isaac Diggins deprived of his right to the assistance of counsel, guaranteed by the Sixth Amendment of the United States Constitution and Article I, § 6 of the New York State Constitution, where his attorney refused to participate in any aspect of his trial? -4- INTRODUCTION Ours is an adversarial system of criminal justice. The Sixth Amendment guarantee of the assistance of counsel “is fundamental to our system of justice” and “is meant to assure fairness in the adversary criminal process.” United States v. Morrisson, 449 U.S. 361, 364 (1981). The United States Supreme Court has consistently recognized that the adversarial process protected by the Sixth Amendment requires that the accused have “counsel acting the role of an advocate.” . . . The right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing. . . . [I]f the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated. United States v. Cronic, 466 U.S. 648, 656-57 (1984) (citation and footnotes omitted). This Court has also recognized the fundamental importance of the assistance of counsel to the fairness and reliability of criminal trials. “The failure to honor this right, then, cannot but be presumed to impair the reliability of the adversary process through which criminal justice is under our system of government dispensed.” Hurrell-Harring v. New York, 15 N.Y.3d 8, 25-26 (2010). See also People v. Claudio, 83 N.Y.2d 76, 80 (1993) (recognizing the right to effective representation “as the bulwark of our adversary system of -5- criminal justice and an absolute necessity to achieve fairness to the accused within that adversary system”). The charges against Isaac Diggins arose from an argument between Mr. Diggins and his wife, during which he was alleged to have pointed a gun at her. A gun was later recovered from another location, where Mr. Diggins was staying. Mr. Diggins failed to appear for trial and, after conducting a Parker hearing, the court concluded that he had voluntarily absented himself and that the trial would proceed in absentia. Following this decision, Mr. Diggins’ attorney announced that he would not participate in Mr. Diggins’ trial in any way. Beginning with the pre-trial hearing, extending through jury selection, trial and verdict, Mr. Diggins’ lawyer refused to subject the prosecution’s case to any adversarial testing. Without counsel to advocate on his behalf, Mr. Diggins was found guilty of all charges. And, while Mr. Diggins’ lawyer expressed a lack of confidence in his client’s chances for a favorable verdict, having announced to the court that he expected that his client would be convicted, a review of the record shows that the case was eminently defensible. As even the one-sided factual presentation at trial demonstrated, all of the five witnesses called by the prosecution were candidates for vigorous cross-examination. Yet no cross-examination took place. Moreover, -6- even on this record, it is clear that there were gaps in the prosecution’s case. Most notably, there was no direct evidence that the gun was loaded when it was displayed on the street. No argument was offered that highlighted for the jury this or any other weaknesses in the prosecution’s case. Instead of helping his client, the conduct of defense counsel could only have left the jury with one overpowering inference, namely, that Mr. Diggins was guilty and had no defense to the charges. The failure of the criminal justice system that occurred in this case went well beyond the refusal of the lawyer to represent his client. Equally significant was the failure of the trial court to ensure that the proceedings were fair and the outcome was reliable. With full knowledge of the lawyer’s plan not to participate in the trial in any way – even after the court had ordered him to do so – the trial court failed to hold the lawyer in contempt or take any other measures to secure for Isaac Diggins an advocate who would provide him with a vigorous defense. -7- STATEMENT OF FACTS The charges against Isaac Diggins arose from a domestic dispute between Mr. Diggins and his wife, April Diggins. It took place on the street in front of their apartment, in the early morning hours of August 17, 2003. No harm came to anyone as a result of this incident. Mrs. Diggins accused her husband of pointing a gun at her when she confronted him on the street, after seeing him with a woman, Caroline Harris, who was known in the neighborhood as “Puddin.” Mrs. Diggins believed that Puddin was “messing around” with her husband. The confrontation included angry shouting, screaming and cursing between Mrs. Diggins, her husband and Puddin. It ended when Puddin told Mr. Diggins to put the gun away. Several hours later, the police went to Puddin’s apartment, recovered a gun and arrested Mr. Diggins. There was no direct evidence that the gun was loaded at the time of the earlier incident on the street. Mr. Diggins was charged with criminal possession of a weapon in the second and third degrees and menacing in the second degree. Mr. Diggins was released on bail on October 2, 2003. On May 10, 2004, Mr. Diggins did not appear for a pre-trial suppression hearing and, following a 1 See People v. Parker, 57 N.Y.2d 136 (1982). 2 The transcript of the May 14, 2009 evidentiary hearing held before Justice Arlene Goldberg on Mr. Diggins motion pursuant to Crim. Proc. Law § 440.10 will be cited as “H2." The transcript of the May 11, 2004 Parker and Huntley hearings held before Justice Robert Straus will be cited as “H.” The separately-paginated transcripts of the jury selection, trial and sentencing will be cited as “J.”, ‘T.”, and “S.”, respectively. All record citations will also include a citation to the corresponding page of the Appendix, “A.” -8- Parker1 hearing, the court determined that he had voluntarily absented himself. The court proceeded with the Huntley hearing and trial in Mr. Diggins’ absence. After the Parker hearing, Mr. Diggins’ lawyer did nothing to defend his client. In fact, his conduct actually harmed Mr. Diggins. Counsel Prepared For Trial Thomas Giovanni, an attorney with the Neighborhood Defender Services of Harlem (NDS), first appeared as Mr. Diggins’ attorney in September of 2003. H2. 6, 8, 9; A. 40, 42, 43.2 In order to prepare for trial, Mr. Giovanni met with Mr. Diggins on several occasions. H2. 20-21; A. 54-55. During these meetings, Mr. Giovanni heard his client’s version of the events in question, including the recovery of the gun from Puddin’s apartment. Id. Mr. Diggins told him that he and his wife had argued, but there was no gun. H2. 20; A. 54. Mr. Giovanni also worked with an investigator. -9- H2. 10; A. 44. The investigator interviewed Mrs. Diggins, as well as Puddin. H2. 10-12; A. 44-46. In addition, the investigator visited both the scene of the argument and Puddin’s apartment, where the gun was recovered. H2. 12, 15; A. 46, 49. In the course of the investigation, the investigator learned that three people, including Puddin’s teenage son, were living in the apartment at the time of Mr. Diggins’ arrest. H2. 19; A. 53. The Parker Hearing On May 10, 2004, Mr. Diggins did not appear for the pre-trial Huntley hearing and trial, which had been referred to Justice Robert Straus. H. 2; A. 101. The next day, the court held a Parker hearing, at which Mr. Giovanni argued that the prosecution had not made sufficient efforts to locate Mr. Diggins. H. 22-27; A. 121-26. He also maintained that he needed Mr. Diggins to be present in order to cross-examine witnesses at trial. H. 26; A. 125 Specifically, he argued that, if the complaining witness on the menacing count, Mrs. Diggins, “takes the stand and talks about the circumstances, the relationship and perhaps even another female friend takes the stand, I would need [Mr. Diggins] present to talk to him about the details to be able to cross-examine on those details they give.” Id. Mr. Giovanni also claimed that he needed his client in order to cross-examine -10- witnesses at the Huntley hearing, arguing that “[o]bviously 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.” Id. The court concluded that Mr. Diggins had voluntarily absented himself, and ordered that the hearing and trial would proceed without him. H. 38. The court also denied Mr. Giovanni’s request for additional time to locate Mr. Diggins. H. 38; A. 137. Counsel Refused to Participate in the Huntley Hearing. Before the start of the Huntley hearing, Mr. Giovanni asked for a short adjournment to speak to a supervisor. H. 39; A. 138. That request was denied. Id. The court then proceeded with the Huntley hearing, the purpose of which was to determine whether statements Mr. Diggins allegedly made to the arresting officer were admissible at trial. H. 39-51; A. 138-150. Police Officer Clarence Cash was the only witness called by the prosecution at the hearing. Officer Cash testified that, at 7 a.m. on August 17, 2003, after receiving a report from April Diggins, he and Sergeant Cosgrove drove to 133 Est 140th Street, Apartment 65. H. 41; A. 140. That address had been supplied to the officers by Mrs. Diggins. H. -11- 41-42; A. 140-41. Officer Cash recounted that a woman responded to his knock on the apartment door and that, shortly after, Mr. Diggins also appeared at the door. H. 42; A. 141. After Officer Cash “escorted” Mr. Diggins into the hallway, id, Sergeant Cosgrove went inside the apartment. H. 44; A. 143. Less than a minute later, Sergeant Cosgrove came out of the apartment with a gun he had found inside. H. 44-45; A. 143-44. Officer Cash testified as to statements allegedly made by Mr. Diggins in the hallway of the apartment and later at the precinct. H. 44, 46; A. 143, 145. According to Officer Cash, in the first statement, Mr. Diggins maintained that he had been with his girlfriend in the apartment “all day long.” H. 44; A. 143. In the second statement, after being told that he was being arrested for pulling a gun on his wife, Mr. Diggins stated that he had an argument with her in the street, but “[t]hat’s it.” H. 46; A. 145. Mr. Giovanni did not conduct any cross-examination of Officer Cash. He explained that “[f]or the reasons I pointed out earlier due to my client’s inability to assist me, I have no questions for this witness.” Id. Mr. Giovanni called no witnesses, introduced no evidence and offered no argument at the conclusion of Officer Cash’s testimony. H. 47, 48; A. 146, 147. In an oral ruling, the court denied the motion to suppress Mr. Diggins’ statements. H. 64-70; A. 163-69. The -12- court concluded that Mr. Diggins was not in custody at the time he made the first statement, H. 65-66; A. 164-65, and that the second statement was not the product of interrogation. H. 66-67; A. 165-66. Counsel Re-Affirmed That He Refused to Participate at Trial During a recess at the Huntley hearing, Mr. Giovanni spoke to his supervisors at NDS. H. 56, 63; A. 155, 162. After this discussion, Mr. Giovanni informed the court that he would not “say anything or make any legal arguments or participate in the trial.” H2. 25; A. 59. At the conclusion of the Huntley hearing, the court expressed to Mr. Giovanni its “feeling” that he should “do the best” he could at trial, despite the absence of his client. H. 74; A. 173. In response, Mr. Giovanni insisted that he could not present any defense without his client: I understand [the court’s] position, and respectfully, I disagree that I should continue, I think, in a case that is heavily dependent on the personal relationships here. As [the prosecutor] pointed out, this is a domestic case. It’s a wife having an argument that she had with a girlfriend, and these close relationships are going to be very important. Without [Mr. Diggins] here 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. -13- 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. Id. Mr. Giovanni then made a motion to withdraw from the case, which the court denied. H. 77-79; A. 176-78. On the following day, May 12, 2004, the court again raised the issue of Mr. Giovanni’s decision not to participate in the trial. Mr. Giovanni continued to insist that he could not – and would not – do his job without his client. See, e.g., J. 12; A. 191 (“I don’t intend to do anything.”); J. 17; A. 196 (“I think I can’t do my job if he’s not here.”); J. 29; A. 208 (“I think this [decision not to participate] is the only thing I can do in this situation”). The court explored what Mr. Giovanni’s response would be if he were ordered by the court to defend his client: THE COURT: . . . I really don’t want to order you to defend your client only to have you say that you declined to follow that order which puts me in an awkward position, what do I do about it? So – but if I don’t order you to defend your client to the best of your ability under the circumstances, then it might be argued later on that the Court didn’t do enough to direct defense counsel to do what defense counsel ordinarily does. . . . -14- THE COURT: . . . If I were to order you to defend your client, would your position still be the same? MR. GIOVANNI: My position is still the same. It’s unfortunate. It is still the same. Nothing changes. J. 18-19; A. 197-89. Despite having heard that it would have no effect on Mr. Giovanni’s willingness to participate in the proceedings, the court nonetheless indicated that “to make a clear record,” it would “direct [Mr. Giovanni] to defend your client to the best of your ability under the circumstances.” J. 21; A. 200. The court also announced its intention to instruct the jury that “defense counsel may not choose . . . to ask any questions of witnesses . . . or to otherwise participate in the case” and not to speculate or to draw any inferences from counsel’s nonparticipation. J. 21-22; A. 200-01. Counsel asked for a “small” change in the wording of the instruction. J. 22; A. 201 (suggesting “may choose not to” ask questions). Mr. Giovanni told the court that he had discussed his planned nonparticipation with his supervisors at NDS. J. 27-28; A. 206-07. Mr. Giovanni indicated that, while his supervisors were “going to back me in making my decision,” he “honestly . . . doubt[ed]” that they would “take the same position,” if they were ordered to try the case. J. 28; A. 207. He admitted, “I think they -15- wouldn’t.” Id. Later in the colloquy, Mr. Giovanni stated that, if he were relieved, “I think . . . my supervisors themselves might even try this case.” J. 31; A. 210. During the colloquy about Mr. Giovanni’s non-participation, ADA Johanna Sullivan was joined by her supervisor, William Mahoney. J. 35; A. 214. Ms. Sullivan and Mr. Mahoney repeatedly urged the court to hold Mr. Giovanni in contempt for his “obstructionist” plan not to participate in Mr. Diggins’ trial. See, e.g., J. 23; A. 202 (“He should be held in contempt. He is ignoring a direct order that you’re giving him to represent [his client]”); J. 33; A. 212 (characterizing counsel’s plan not to “say anything” as “obstructionist”); J. 36; A. 215 (“Hold him in contempt”); J. 39; A. 218 (“So hold him in contempt. . . . Don’t let him try to shanghai this trial.”). The court declined to hold Mr. Giovanni in contempt. The court reasoned that “it won’t change the ultimate outcome . . . . He simply will not participate.” J. 25; A. 204. Both prosecutors also sought to characterize Mr. Giovanni’s inaction as designed to gain a tactical advantage for his absent client. See, e.g., J. 24-25, 29, 36; A. 203-04, 208, 215. However, Mr. Giovanni denied trying to gain an advantage by not participating. He expressly disavowed any intention to “defeat any trial in absentia.” J. 15; A. 194. He also insisted that “this is not about stopping the trial. This is not about creating a record for appeal.” J. 27; A. 206. 3 This instruction was repeated in the court’s final charge to the jury. See T. 166; A. 539. -16- Further, Mr. Giovanni maintained that his client “would gain no advantage from this. I think my client is going to be convicted.” J. 41; A. 220. After raising the issue of whether Mr. Giovanni should be held in contempt “with the ultimate punishment to be determined at the conclusion of the trial,” J. 48; A. 227, the court asked Mr. Giovanni if he would “interpose an objection and/or cross-examine the witness . . . , if you believe that it would suit the cause of your client to do so?” Id. Mr. Giovanni initially equivocated, J. 45-46; A. 224-25, but when pressed by the court, he agreed that ‘[i]f I believe it will suit the cause of my client, I will interject myself at any point during the questioning.” J. 48-49; A. 227-28. He never did. Counsel Refused to Participate in Jury Selection Prospective jurors were given the instruction proposed by the court, namely, that defense counsel “may choose not to ask any questions of witnesses . . . , 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” and that they were to draw no inferences “from that.” J. 56-57; A. 235-36. 3 -17- As he had promised, Mr. Giovanni did not participate in selecting the jury. He did not question jurors, nor did he exercise any cause or peremptory challenges. See, e.g., J. 84, 102, 112-113, 179, 180, 181; A. 263, 281, 291-92, 358, 359, 360. Counsel Refused to Participate in the Trial On the morning of May 13, 2004, the first day of the trial, April Diggins did not appear. T. 2; A. 375. Counsel took no position on the prosecution’s request to adjourn until the afternoon. T. 6; A. 379. When Mrs. Diggins had still not appeared, the court issued a material witness order. T. 26; A. 399. The next morning, Mrs. Diggins was taken into custody, brought before the court and counsel was appointed for her. T. 33; A. 406. The jury was sworn in and Mr. Diggins’ trial began. T. 43; A. 416. Following the prosecutor’s opening statement, Mr. Giovanni declined to deliver an opening statement on Mr. Diggins’ behalf. T. 54; A. 427. Throughout the trial, Mr. Giovanni did not make a single objection, ask a question of any witness or offer any legal argument. -18- Counsel Did Not Cross-Examine April Diggins or Debra Bryant. Mr. Giovanni did not cross-examine the prosecution’s first witness, April Diggins. T. 74; A. 447. Mrs. Diggins testified about a dispute with her husband in the early morning hours of April 17, 2003. According to Mrs. Diggins, she and three childhood friends had gone out to a restaurant at around midnight. T. 58-59; A. 431-32. After leaving the restaurant, the four women sat in a car in front of Mrs. Diggins’ apartment building for several hours. T. 60; A. 433. Mrs. Diggins claimed that she saw her husband come out of the building and walk toward a parked car. T. 61; A. 434. She called out to him, but he ignored her. Id. Mrs. Diggins and her friends drove around the block, re-parked the car and continued to talk. Id. Mrs. Diggins then saw “Puddin.” T. 62; A. 435. She told the other women in the car that Puddin was “messing around” with her husband. T. 62-63; A. 435- 36. According to Mrs. Diggins, she saw Puddin get into Mr. Diggins’ car, which was parked behind the one containing Mrs. Diggins and her friends. T. 63; A. 436. Mrs. Diggins then got out of her car and confronted her husband. T. 64; A. 437. She demanded to know “what is that girl doing where I live at to see [you]?” Id. Mrs. Diggins claimed that Mr. Diggins responded by pulling out a gun and pointing it at her lower body. T. 64-65; A. 437-38. She maintained that her -19- friends got out of the car and walked toward her and that one friend, Debra Bryant, actually approached Mr. Diggins, while the gun was pointed at her. T. 65; A. 438. While she said that she was “in shock” as a result of her husband’s behavior, id., she did not claim that she was afraid. After Ms. Bryant approached Mr. and Mrs. Diggins, Mrs. Diggins testified that Puddin told Mr. Diggins to put the gun away. T. 66; A. 439. Mr. Diggins complied and drove away by himself. Id. After he left, Mrs. Diggins, her three friends and Puddin went to Mrs. Diggins’ apartment to “show [Puddin] that he did live with me.” Id. Puddin wanted a drink, so the five women “went to the store.” Id. Puddin left and, after talking some more to her three friends, Mrs. Diggins called her best friend, Denise Washington, and discussed the incident with her. T. 66-67; A. 439-40. Mrs. Diggins then called her mother. T. 67; A. 440. It was after the conversations with Ms. Washington and her mother that Mrs. Diggins went to the police. Id. Mrs. Diggins identified the gun which was recovered several hours later from Puddin’s apartment. T. 74; A. 447. She had been shown the gun by Officer Cash at the precinct on the morning of August 17, 2003. T. 72; A. 445. She claimed that she recognized the gun because it was “black with silver at the top and a little piece of silver at the front.” T. 73; A. 446. -20- Mr. Giovanni did not cross-examine Debra Bryant, Mrs. Diggins’ friend. T. 95; A. 468. She was the only other eye-witness to the argument between Mr. and Mrs. Diggins to testify at trial. Ms. Bryant acknowledged on direct examination that she had been convicted twice for criminal possession of cocaine, once in state court in 1994 and once in federal court in 1995. T. 84-85; A. 457-58. Ms. Bryant received a sentence of one year in the state case and five years in the federal case. T. 85; A. 458. Ms. Bryant described an initial encounter between Mrs. Diggins and her husband on the street, during which Mrs. Diggins yelled out to Mr. Diggins and spoke to him before he got into a car and drove off. T. 89; A. 462. Ms. Bryant recounted how she and her friends drove around the block “to see if we could see where he went,” but then returned and parked in front of Mrs. Diggins’ building. Id. She then described how Puddin, a girl she had known “from childhood,” walked across the street to Mr. Diggins’ car, which was parked behind theirs T. 90; A. 463. Puddin started to argue with Mr. Diggins, at which point Mrs. Diggins got out of her car and she, too, started to argue with her husband. T. 90-91; A. 463-64. According to Ms. Bryant, Mr. and Mrs. Diggins were on the sidewalk “screaming and hollering and cursing” and Puddin was by Mr. Diggins’ car, also “screaming out and cursing.” T. 91; A. 464. -21- Ms. Bryant followed Mrs. Diggins, as she approached her husband. T. 90- 91; A. 463-64. The other two women who had been in the car with Mrs. Diggins left the car and headed toward where Mrs. Diggins, Mr. Diggins and Puddin were arguing. T. 90; A. 463. According to Ms. Bryant, she heard Mrs. Diggins say, “So what are you going to do, shoot me?” while Mr. Diggins had the gun pointed at her legs. T. 91; A. 464. Ms. Bryant claimed that she then asked Mr. Diggins, “how you’re going to pull out a gun on your wife just because she caught you with your girlfriend?” and proceeded to have a conversation with him. T. 91-92; A. 464-65. After the conversation, Mr. Diggins “kind of got disgusted,” put the gun back in his pants and drove off. T. 92; A. 465. Ms. Bryant maintained that the gun introduced into evidence “looks like the gun” that Mr. Diggins had during the argument with his wife. Id. Mr. Giovanni did not use cross-examination to undermine the credibility of either of these witnesses. Mr. Giovanni made no attempt to expose Mrs. Diggins’ obvious bias; she had reason to be displeased with her husband, who she saw in public with another woman with whom she believed he was “messing around.” T. 63; A. 436. Nor did counsel question Mrs. Diggins’ delay in reporting the incident to the police or the fact that there appear to have been extensive discussions between Mrs. Diggins, Puddin, and the three friends she was with that evening, as 4 In addition, Ms. Bryant’s testimony differed from Mrs. Diggins’ in several respects. For example, both women testified that, earlier in the evening, they had seen Mr. Diggins in the street. Mrs. Diggins claimed that she initially saw Mr. Diggins crossing the street and had called out to him, but he ignored her and got into a car. T. 61: A. 434. In contrast, Ms. Bryant testified that Mrs. Diggins “yelled out” to Mr. Diggins, approached him and had a conversation with him before he got in the car and drove away. T. 89; A. 462. Mr. Giovanni did not question either Mrs. Diggins or Ms. Bryant about this inconsistency. -22- well as telephone conversations with her mother and her best friend, before any report was made. T. 66-67; A. 439-40. In addition, counsel did not question Mrs. Diggins about her reluctance to testify, about the fact that she failed to appear the previous day and had to be taken into custody and brought to court. Counsel did not explore the ability of Mrs. Diggins and Ms. Bryant to identify the gun allegedly displayed by Mr. Diggins. Given that it was 4:00 a.m. and both women had been up all night, their ability to identify a gun could reasonably have been called into question. Despite these potentially fruitful avenues of inquiry, Mr. Giovanni conducted no cross-examination of either witness.4 Counsel Did Not Cross-Examine the Police Officers Involved in the Arrest of Mr. Diggins and the Recovery of the Gun Mr. Giovanni did not cross-examine Police Officer Clarence Cash, who testified about the circumstances of Mr. Diggins’ arrest. See T. 82; A. 455. Officer Cash first met April Diggins at the precinct on August 17, 2003, at approximately 7:00 a.m. T. 76; A. 449. Based on the information provided by -23- Mrs. Diggins, Officer Cash and his partner, Sergeant Cosgrove, went to an apartment located at 133 West 140th Street. Id. A woman named Caroline Harris answered the door and Mr. Diggins appeared at the door a “few seconds” later. T. 77: A. 450. When Mr. Diggins appeared, both Officer Cash and Sergeant Cosgrove were standing in the hallway. Id. Officer Cash waited in the hallway with Mr. Diggins while Sergeant Cosgrove went into the apartment. Id. Cosgrove returned, with a gun he had found. Id. According to Officer Cash, the gun was loaded with five hollow point bullets. T. 80; A. 453. Officer Cash also described the statements allegedly made by Mr. Diggins, that had been the subject of the Huntley hearing. T. 78, 81; A. 451, 454. Mr. Giovanni did not cross-examine Sergeant Cosgrove, notwithstanding that his account of the recovery of the gun differed significantly from Officer Cash’s testimony at both the Huntley hearing and at trial. Sergeant Cosgrove stated that he had accompanied Officer Cash to Ms. Harris’ apartment to locate Mr. Diggins. T. 102; A. 475. He testified that he knocked on the door and stated that they were the police. Id. He heard a door inside the apartment close and then Ms. Harris opened the apartment door. Id. She was by herself. T. 103; A. 476. Sergeant Cosgrove informed her that he and his partner were looking for Isaac Diggins. Id. According to Sergeant Cosgrove, Ms. Harris pointed to a closed 5 Mr. Giovanni did not object when the prosecutor asked Sergeant Cosgrove if the gun was recovered from “the same bedroom the defendant, Isaac Diggins was hiding in (continued...) -24- bedroom door. Id. He claimed that he knocked on that door and again identified himself as a police officer, at which point he heard “some shuffling about” in the room before Mr. Diggins opened the bedroom door and came out. Id. He asked Mr. Diggins to step into the hallway and went back inside the apartment with Ms. Harris. T. 104; A. 477. He told her that someone said Mr. Diggins had a gun and asked if it would be okay to search the bedroom. T. 104-05; A. 477-78. Ms. Harris agreed and signed a sheet of paper granting permission to search the apartment. T. 105; A. 478. Sergeant Cosgrove claimed that he found a black semi-automatic handgun under the bed in the bedroom Mr. Diggins had been in. Id. The accounts of the two police officers differed in significant respects. Sergeant Cosgrove testified that, before he knocked on the apartment door, he heard an interior door closing. T. 102; A. 475. He claimed that Ms. Harris was by herself when she answered the door. T. 103; A. 476. He further claimed that he heard shuffling noises coming from the bedroom, that he observed Mr. Diggins coming out of that room and that he then went into the room and recovered a gun from under the bed. T. 103-04; A. 476-77.5 In contrast, Officer Cash did not 5(...continued) moments before you recovered the gun,” T. 106; A. 479 (emphasis added), notwithstanding the absence of any evidence that Mr. Diggins was “hiding” in the bedroom. Relying on this testimony, the prosecutor argued in summation that Mr. Diggins was “hiding in” the bedroom when the police came to Puddin’s apartment. T. 151; A. 524. -25- claim to hear an interior door closing or testify about any noises coming from the bedroom where the gun was recovered. T. 76-78; A. 449-51. Moreover, under Officer Cash’s version of events, Mr. Diggins came into the hallway before Sergeant Cosgrove even entered the apartment, T. 77; A. 450, and could not, therefore, have been responsible for the noises allegedly heard by Cosgrove. T. 103; A. 476. Nor could Mr. Diggins have been observed leaving the bedroom where the gun was found, as Cosgrove had claimed, id., since he was already in the hallway with Officer Cash. Mr. Giovanni did not explore these troubling inconsistencies. Nor did he make any effort to elicit from the officers any information about the other people living in the apartment, even though he knew from his pretrial investigation that Puddin’s teenage son was living there. H2. 19; A. 53. The prosecution’s final witness was Detective James Giery, who was qualified as an expert, without objection. T. 110; A. 483. He testified about the tests he performed on the gun recovered from Ms. Harris’ apartment and his -26- conclusion that the gun was operable. T. 113-25; A. 486-98. Detective Giery also described the bullets submitted to him with the gun and their lethal capability. T. 121-22; A. 494-95. Mr. Giovanni did not cross-examine this witness. T. 125; A. 498. Critically, he did not ask him whether he had any first-hand knowledge about the gun displayed on the street and whether it had been loaded at that time, essential elements of the weapons possession crimes with which Mr. Diggins was charged. Counsel Did Not Move for a Trial Order of Dismissal, Did Not Present Any Evidence or Call Any Witnesses, Did Not Participate In Discussions Regarding the Jury Charge and Did Not Make a Closing Argument After the prosecution rested, the court asked if Mr. Giovanni “wish[ed] to address motions to the People’s direct case?” T. 126; A. 499. Mr. Giovanni responded, “No, I do not.” Id. He did not make a motion for a trial order of dismissal or otherwise challenge the sufficiency of the prosecution’s case. Id. Mr. Giovanni did not call any defense witnesses or introduce any evidence for the defense. T. 143; A. 516. During the charge conference, Mr. Giovanni did not request that the jury be given a circumstantial evidence charge with regard to the most serious count in the indictment, criminal possession of a weapon in the second degree. The trial court -27- raised the issue sua sponte, noting that, in order to convict Mr. Diggins on the second degree weapons possession count, the jury would have to infer that the gun was loaded and operable at the time of the alleged confrontation between Mr. Diggins and his wife, which had occurred hours earlier and at a different location. T. 132-38; A. 505-11. However, Mr. Giovanni did not argue that such a charge should be given or otherwise participate in the court’s consideration of the issue, even when the court sought his input. T. 135-36; A. 508-09 (“THE COURT: Well, do you want to be heard on the issue, Mr. Giovanni? MR. GIOVANNI: No, Judge, I don’t.”). At the prosecutor’s urging – and without any objection from Mr. Giovanni – the court decided not to give the circumstantial evidence charge. T. 139; A. 512. Mr. Giovanni made no closing argument to the jury, T. 144; A. 517, even after the trial court remarked, “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.” T. 141; A. 514 . Mr. Giovanni made no objections during the prosecutor’s summation, which included such highly prejudicial misstatements of the evidence as “[w]e’re fortunate . . . Sergeant Cosgrove removed a loaded gun from the defendant’s hands. He removed that gun from a man’s hands.,” T. 152; A. 525 (emphasis added), “lo and behold, the defendant has a gun on him in the -28- bedroom [where] he was hiding,” T. 153; A. 526 (emphasis added), and “the defendant himself tells you, he tells you that the gun he had on him in that apartment is the very same gun he pointed at his wife.” T. 155; A. 528 (emphasis added). As Mr. Giovanni had predicted before the start of the trial, see, e.g., J. 27, 41; A. 206, 220, Mr. Diggins was convicted on all counts. T. 203; A. 576. In his parting remarks to counsel, the trial court acknowledged the highly unusual character of the proceedings that had taken place, stating, “Well, it’s been different.” T. 210; A. 583. At Sentencing, Counsel Made Arguments About the Sufficiency of the Evidence After refusing to advocate for Mr. Diggins during the pretrial hearing, jury selection or trial, Mr. Giovanni did object at sentencing to Mr. Diggins being found a predicate violent felony offender, S. 5; A. 588, and also argued that Mr. Diggins should receive the minimum sentence. S. 9-13, 15-16; A. 592-96, 598- 99. Specifically, he noted that Mrs. Diggins had been a “reluctant witness,” S. 10; A. 593, as well as pointing to the behavior of Mrs. Diggins and Ms. Bryant, which, he argued, was inconsistent with fear. S. 11-12; A. 594-95. The latter argument that could have been made in a motion to dismiss at the conclusion of the -29- prosecution’s case, and both arguments could have been made to the jury in summation. The court sentenced Mr. Diggins in absentia to a term of twelve years imprisonment. S. 19; A. 602. Counsel Failed to File a Notice of Appeal Mr.Giovanni did not file a notice of appeal. At the hearing on the CPL 440 motion, he claimed that his failure to file a notice of appeal was an “oversight.” H2. 31; A. 65. On January 6, 2006, after being taken into custody, Mr. Diggins filed a notice of appeal, along with a pro se motion for extension of time to file a notice of appeal. Mr. Diggins explained that “I just assumed my trial attorney would handle all of the necessary paper work to file for my appeal notice.” See Notice of Appeal, dated Jan.6, 2006; Motion for Appeal: Extension of Time, dated Jan. 6, 2006; A. 604. Mr. Diggins’ motion was denied by the Appellate Division, First Department. See Order, dated May 9, 2006; A. 621. Accordingly, Mr. Diggins was unable to appeal his conviction or sentence. 6 Justice Straus was no longer on the bench and the CPL 440 motion was assigned to Justice Arlene Goldberg. -30- Mr. Diggins Moves To Vacate His Conviction. On November 12, 2008, Mr. Diggins filed a motion pursuant to N.Y. Criminal Procedure Law § 440.10 (McKinney 2005) (“440 Motion”), in which he contended that he did not receive the effective assistance of counsel guaranteed by the federal and state constitutions. See Affirmation In Support Of Motion To Vacate Judgment, dated Nov. 12, 2008, at ¶ 25; A. 616. He argued that he was effectively without counsel as a result of Mr. Giovanni’s refusal to participate in his trial and that, under United States v. Cronic, 466 U.S. 648 (1984), such deprivation of counsel was inherently prejudicial. See Defendant’s Memorandum Of Law In Support Of Motion To Vacate Judgment, at 3-9; A. 624-30. In the alternative, Mr. Diggins argued that Mr. Giovanni’s failure to participate in the trial constituted ineffective assistance of counsel and that, but for counsel’s deficient performance, the outcome of his trial would have been different. See Id. at 9-26; A. 630-47. The court6 ordered an evidentiary hearing on the motion. Thomas Giovanni was the only witness at the hearing. His testimony revealed that his pretrial -31- preparation had provided a basis on which to mount a defense – with or without the presence of Mr. Diggins. Mr. Giovanni claimed that he was unable to locate Mr. Diggins’ case file. H2. 7; A. 41. He recalled that he had met with Mr. Diggins on several occasions and had discussed with Mr. Diggins his version of the events at issue, including the recovery of the gun from Puddin’s apartment. H2. 20-21; A. 54-55. Mr. Giovanni also testified that he worked with an investigator. H2. 10; A. 44. The investigator had interviewed both Mrs. Diggins and Puddin and had been to the scene of the argument between Mr. and Mrs. Diggins. H2. 10-12, 15: A. 44-46, 49. In addition, the investigator visited Puddin’s apartment, the location from which the gun was allegedly recovered and learned that three people, including a teenage boy, were living there at the time of Mr. Diggins’ arrest. H2. 14-15, 19; A. 48-49, 53. Mr. Giovanni recounted how, after the judge ordered the trial to proceed in Mr. Diggins’ absence, he moved to be relieved. H2. 24; A. 58. He also spoke to his supervisors at NDS, after which he decided that he would not “say anything or make any legal arguments or participate in the trial.” H2. 25; A. 59. At the hearing, Mr. Giovanni described his explanation to the trial court as follows: “I thought it would be even worse for my client’s chances in the case if we were to -32- conduct the cross-examination and any possible direct examination without my client there to assist me or even speak on his behalf should we have made the decision that he would testify.” H2. 26; A. 60. Other than this statement, which accounted only for his decision not to cross-examine witnesses, Mr. Giovanni did not testify as to any strategic or tactical explanation for his complete inaction during Mr. Diggins’ trial. Mr. Giovanni’s hearing testimony was consistent with the affirmation he executed, which was filed in support of Mr. Diggins’ 440 motion. In the affirmation, Mr. Giovanni stated that he “did not participate at the trial” and listed the portions of the trial in which he did not participate. Affirmation of Thomas Giovanni, at ¶ 9-10; A. 618. By way of explanation for his non-participation. Mr. Giovanni stated only that he believed that without my client present at trial, his defense would be futile. I also believed it was better to say nothing than to cross- examine Mr. Digg[i]ns’s wife, because I believed that any attacks on her character and credibility would only accentuate the probable negative influences [sic] the jury would make regarding Mr. Digg[i]ns’s absence. Id. at ¶ 8; A. 618. -33- The Hearing Court Rules That, Notwithstanding Counsel’s “Limited” Participation, He Provided Effective Assistance of Counsel The hearing court found that Mr. Diggins was not deprived of the effective assistance of counsel, where Mr. Giovanni objected to Mr. Diggins’ trial going forward in absentia, requested a jury instruction about his own plan not to participate, indicated his approval of the court’s final charge to the jury and its proposed response to a jury note, and urged the court not to proceed with the trial when April Diggins failed to appear on May 13, 2004. See People v. Diggins, 25 Misc. 3d 1218(A) at *13 (N.Y. Co. Sup. Ct. 2009). Rather, the court concluded that Mr. Giovanni’s “limited” participation in Mr. Diggins’ defense was sufficient to require Mr. Diggins to demonstrate prejudice under Strickland v. Washington, 466 U.S. 668 (1984). Id. The court then held that Mr. Diggins had not demonstrated that, but for his attorney’s omissions, the outcome of his trial would have been different. Id. at *13. Accordingly, the court rejected Mr. Diggins’ federal constitutional claim. Id. at *13-14. The court also rejected Mr. Diggins’ claim under the state constitution. It distinguished Mr. Giovanni’s behavior from those cases which relied on “overt errors by defense counsel.” Id. at *14. The court held that, in contrast, Mr. Giovanni had “made a conscious, strategic decision” not to participate. Id. 7 Justice David Friedman granted Mr. Diggins’ application for leave to appeal from the denial of the 440 motion to the Appellate Division, First Department. -34- According to the court, Mr. Diggins’ state constitutional claim must fail because “[p]ursuant to People v. Aiken [45 N.Y.2d 394(1978)], the wisdom of Mr. Giovanni’s decision does not constitute grounds for finding ineffective assistance . . . .” Id. The hearing court expressed concern that a finding of ineffective assistance of counsel under these circumstances would enable attorneys to “manufacture automatic reversals or successful 440 motions by simply choosing not the participate at trials in absentia.” Id. at *17. The Appellate Division Affirms the Denial of Mr. Diggins’ 440 Motion, Finding Counsel’s Non-Participation To Be a Reasonable Strategic Decision. The Appellate Division, First Department, affirmed the hearing court’s denial of Mr. Diggins’ 440 motion.7 See People v. Diggins, 84 A.D.3d 667 (1st Dep’t 2011). The court recognized that, under United States v. Cronic, 466 U.S. 648, 659 (1984), there is a “presumption of prejudice where ‘counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.’” Id. at 667. However, without any explanation, the court found the presumption “inapplicable -35- to the facts of this case.” Id. at 667 (citing United States v. Sanchez, 790 F.2d 245, 254 (2d Cir. 1986)). The court then stated that it was applying the federal and state standards for ineffective assistance of counsel. Id. (citing Strickland and People v. Benevento, 91 N.Y.2d 708, 713-14 (1998)). Under the federal standard, the court held that counsel’s “strategic decisions were objectively reasonable” and that Mr. Diggins was not prejudiced by “counsel’s nonparticipation.” Id. The court did not specifically discuss the application of the “meaningful representation” standard under the state constitution. -36- ARGUMENT ISAAC DIGGINS WAS DEPRIVED OF HIS RIGHT TO THE ASSISTANCE OF COUNSEL UNDER THE FEDERAL AND STATE CONSTITUTIONS, WHEN HIS ATTORNEY REFUSED TO PARTICIPATE IN ANY ASPECT OF HIS TRIAL. Isaac Diggins’ attorney, Thomas Giovanni, did not participate as an advocate in Mr. Diggins’ trial. Counsel did not question the witness at the pre- trial suppression hearing, did not voir dire prospective jurors or exercise any challenges, did not give an opening statement, did not question any of the prosecution’s witnesses, did not make a single objection, did not call any defense witnesses or offer any evidence for the defense, did not make a closing argument and did not make any requests regarding the court’s charge to the jury. After his client was convicted, counsel did not file a notice of appeal. Throughout these proceedings, no one advocated on Issac Diggins’ behalf. Mr. Diggins truly did not have the assistance of counsel. Counsel’s refusal to participate violated Isaac Diggins’ constitutional right to the assistance of counsel. See U.S. Const. amends. VI & XIV; N.Y. Const. Art. I, § 6. Like any defendant in a criminal trial, Mr. Diggins has a right to the assistance of counsel, a right the Supreme Court has described as “[t]he very premise of our adversarial system of criminal justice . . . [because ] partisan -37- advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.” United States v. Cronic, 466 U.S. 648, 655 (1984) (quoting Herring v. New York, 422 U.S. 853, 862 (1975)). See also Elliot v. Williams, 245 F.3d 1205, 1209 (10th Cir. 2001) (“the proper functioning of the adversarial process contemplates the presentation of adverse views” ). In addition to the right to counsel conferred by the Sixth Amendment, the New York State Constitution also requires that every defendant in a criminal case receive “meaningful representation” by counsel. People v. Baldi, 54 N.Y.2d 137, 147 (1981). As this Court has recognized, the right to counsel applies to defendants who, like Mr. Diggins, are tried in absentia. See People v. Aiken, 45 N.Y.2d 394, 398 (1978). An attorney’s ethical obligations also dictate that he act as a partisan advocate and subject the prosecution’s case to meaningful adversarial testing. Thus, for example, lawyers have a well-established duty to zealously advocate on behalf of a client. See ABA Model Rules of Professional Conduct, Preamble ¶ 2 (“As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”). New York’s recently-adopted Rules of Professional Conduct recognize that “the touchstone of the client-lawyer relationship is the lawyer’s obligation to assert the client’s position under the rules of the adversary -38- system.” N.Y. Rules of Professional Conduct, Preamble at ¶ 2. Under Rule 1.1(c)(1), “a lawyer shall not intentionally . . . fail to seek the objectives of the client through reasonably available means permitted by law and these Rules.” Similarly, Canon 7 of the Code of Professional Responsibility, in effect at the time of Mr. Diggins’ trial, directed that “[a] lawyer shall represent a client zealously within the bounds of the law.” See also Ethical Consideration 7-19 (“. . . An adversary presentation counters the natural human tendency to judge too swiftly in terms of the familiar that which is not yet fully known; the advocate, by zealous preparation and presentation of facts and law, enables the tribunal to come to a hearing with an open and neutral mind and to render impartial judgments.”). Mr. Diggins’ right to the assistance of counsel was violated when his attorney failed to act as his advocate throughout his trial. Mr. Diggins was convicted after a process that can hardly be considered a trial at all, because it lacked the requisite adversarial component. Completely missing from these proceedings was any “partisan advocacy,” Cronic, 466 U.S. at 655, or “presentation of adverse views.” Elliot, 248 F.3d at 1209. Instead of the “adversarial process protected by the Sixth Amendment,” Cronic, 466 U.S. at 656, Mr. Diggins’ trial was an entirely one-sided affair, at which only the prosecution questioned prospective jurors, examined witnesses and offered argument. Indeed, -39- it was a conducted like an inquest by the prosecution. Under Cronic, counsel’s complete nonparticipation was inherently prejudicial. 466 U.S. at 658-60. To the extent that People v. Aiken, 45 N.Y.2d 394 (1978), which was decided years before Cronic, applied a different standard, that portion of the decision has been effectively overruled by Cronic. A. Mr. Diggins Suffered A Constructive Deprivation Of Counsel Denial of the assistance of counsel can be actual or constructive. Thus, the “guarantee of assistance of counsel cannot be satisfied by mere formal appointment.” Avery v. Alabama, 308 U.S. 444, 446 (1940). Even in those situations where counsel is present, “the performance of counsel may be so inadequate that, in effect, no assistance of counsel is provided.” Cronic, 466 U.S. at 654 n.11. See also Childress v. Johnson, 103 F.3d 1221, 1228 (5th Cir. 1997) (a “constructive denial [of counsel] will also be found when counsel fails to subject the prosecution case to meaningful adversarial testing”). 1. Counsel’s nonparticipation was “complete.” Mr. Diggins’ attorney announced to the trial court, after the court ruled that the trial would proceed in Mr. Diggins’ absence, that he would not “say anything -40- or make any legal arguments or participate in the trial.” H2. 25; A. 59. See also J. 12; A. 191. True to his word, counsel did not: • cross-examine the witness called by the prosecution at the Huntley hearing; • make any legal argument at the conclusion of the Huntley hearing; • question any prospective jurors during voir dire; • exercise any for cause or peremptory challenges; • make an opening statement; • cross-examine any of the prosecution’s trial witnesses; • raise any objections; • move for a trial order of dismissal at the close of the prosecution’s case; • call any defense witnesses or present any evidence; • make a closing argument; • make any requests to charge the jury or express any position regarding the giving of a circumstantial evidence charge; or • file a notice of appeal. See generally H2. 28-31; A. 62-65 Even when presented with opportunities to act as an advocate – at no risk to his client – counsel did nothing. At the Huntley hearing, for example, Mr. -41- Giovanni did not ask any questions of the police officer who assisted in the recovery of the gun attributed to Mr. Diggins, H. 46; A. 145, even though he recognized that this would have been an important source of discovery for the defense. H2. 28; A. 62. He failed to question prospective jurors about their views on, and experiences with, domestic violence and gun possession, two areas in which jurors may have harbored views that could have biased them against Mr. Diggins. H2. 29; A. 63; see also J. 84, 102, 112-13; A. 263, 281, 291-92. Counsel did not highlight, in an opening statement or elsewhere, T. 54, 144; A. 427, 517, that this incident grew out of a dispute between a husband and wife. He did not explore on cross-examination, much less argue in summation, significant contradictions in the testimony of the two officers who responded to Puddin’s apartment and recovered the gun Mr. Diggins was charged with possessing. T. 82, 107, 144; A. 455, 480, 517. Nor did counsel question April Diggins about her delay in reporting the incident to the police, her extensive discussions with her friends prior to doing so or her obvious bias against Mr. Diggins or her reluctance to testify against her husband. T. 74; A. 447. When the trial court sua sponte proposed giving the jury a circumstantial evidence charge, counsel did not argue in favor of such an instruction, which could only have benefitted his client. H2. 30; T. 132-38; A. 64, 505-511. Finally, counsel did not argue in summation that 8 It does not appear that the Appellate Division reached the same conclusion, as it noted that counsel “generally declined to participate” in the trial. Diggins, 84 A.D.3d at 667. -42- Ms. Diggins’ and Ms. Bryant’s conduct was entirely inconsistent with the “reasonable fear of physical injury” element of the menacing count, even though he made such an argument at sentencing and admitted that it would have been “possible” to make such an argument in summation. H2. 32; A. 66. Even the trial court noted that “[i[t’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.” T. 141; A. 514. 2. The hearing court’s conclusion that counsel participated to a “limited extent” is unsupported by the record. Notwithstanding this compelling record of inaction and dereliction, the hearing court concluded that Mr. Giovanni “participated to a limited extent.” 25 Misc.3d 1218(A) at *13.8 This conclusion is not supported by the record and is erroneous as a matter of law. The few instances of “participation” cited by the hearing court simply do not rise to the level of partisan advocacy, much less the professionally competent representation required of counsel. First, the hearing court noted that Mr. Giovanni made repeated objections to the trial going forward in Mr. Diggins’ absence. Id. However, these objections occurred before the 9 Mr. Giovanni asked for a “small” grammatical change in the wording of the court’s proposed instruction. See J. 22; A. 201 (asking that “may not choose to” be changed to “may choose not to”). -43- Huntley hearing, jury selection and trial, at which he refused to participate. Mr. Giovanni’s refusal to participate occurred only after these objections were rejected by the trial court. The objections cannot, therefore, be considered as evidence of his participation at Mr. Diggins’ trial. The second instance of “participation” identified by the hearing court was counsel’s purported “request” for a jury instruction on his own nonparticipation. Id. As an initial matter, the record belies the lower court’s characterization. Mr. Giovanni did not “request” a jury instruction. Rather, he merely agreed to the court’s proposed explanation of his nonparticipation to the jury.9 J. 22; A. 201. That counsel announced that he would not participate, then agreed to the judge’s proposed jury instruction explaining his nonparticipation to the jury cannot be evidence of participation. Such circular reasoning must be rejected. The hearing court also relied on Mr. Diggins’ “approval” of the court’s final charge to the jury, as well as his “approval” of the court’s response to a jury note, as evidence of Mr. Giovanni’s participation in the trial. 25 Misc. 3d 1218(A) at *13. However, neither instance can be considered as partisan advocacy on Mr. Diggins’ behalf. As to the former, the record reflects only that Mr. Giovanni -44- stated his lack of objection to an instruction that the jury should draw no inference from Mr. Diggins’ absence. T. 130; A. 503. Similarly, Mr. Giovanni’s “approval” of the court’s response to a jury note does not indicate that he was fulfilling his role as Mr. Diggins’ advocate. He simply indicated that the court’s proposed response was “agreeable.” T. 193; A. 565. Finally, the hearing court noted that Mr. Giovanni “made an extended argument as to why the court should swear in the jury and have the People go forward” after Ms. Diggins failed to appear to testify on May 13, 2004. 25 Misc.3d 1218(A) at *13. Again, the record contradicts the hearing court’s characterization. Although Mr. Giovanni unquestionable spoke on the subject of Ms. Diggins’ failure to appear, his comments cannot be viewed as “argument,” much less advocacy on his client’s behalf. Indeed, Mr. Giovanni’s comments simply reflect his continued displeasure with the court’s Parker ruling and what he perceived to be a lack of candor on the part of the prosecutor. Thus, for example, counsel pointed out that “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. 20; A. 393. See also T. 23; A. 396 (“Forty-eight hours ago every moment of delay was an incredible prejudice to the People. . . . I’m just pointing out what they said about the time.”). -45- Notably, counsel did not ask the court to take any particular course of action, such as declaring a mistrial. At no point in the Huntley hearing, jury selection or trial did Mr. Giovanni assume the role of a zealous advocate for his client and become an active participant in the proceedings. Accordingly, this case must be analyzed as one of nonparticipation, not limited participation. B. Counsel’s Complete Nonparticipation Was Not Professionally Competent Assistance. The record here demonstrates that counsel failed to render “professionally competent assistance.” Strickland, 466 U.S. at 690. That counsel’s nonparticipation was viewed as a “strategy” by the hearing court does not remove it from the ambit of Cronic. “[T]he label ‘strategy’ is not a blanket justification for conduct which otherwise amounts to ineffective assistance of counsel.” Lovett v. Foltz, 884 F.2d 579, 1989 WL 101522 *4 (6th Cir. 1989). See also Washington v. Hofbauer, 228 F.3d 689, 704 (6th Cir. 2000) (finding ineffective assistance of counsel, despite “articulated strategy” by counsel). Confronted with comparable instances of nonparticipation, the federal courts have rejected assertions of strategy to justify counsel’s refusal to subject the prosecution’s case to meaningful -46- adversarial testing. The decision by Mr. Giovanni not to participate in any aspect of Mr. Diggins’ trial was neither “sound trial strategy” nor “professionally competent assistance.” Martin v. Rose, 744 F.2d 1245, 1249 (6th Cir. 1984). While counsel’s refusal to participate in the proceedings was certainly a deliberate choice on counsel’s part, that does not make it professionally competent assistance. “[E]ven deliberate trial tactics may constitute ineffective assistance of counsel if they fall ‘outside the wide range of professionally competent assistance.’” Id. at 1249 (quoting Strickland, 466 U.S. at 690). It is not enough to label a course of action (or inaction) taken by an attorney as a “strategy;” rather, the actions must be those of a reasonably competent attorney, under all of the relevant circumstances. Strickland, 466 U.S. at 690. The conduct must be reasonably calculated to benefit the client in some way. Here, counsel’s complete inaction was not a legitimate course of conduct and counsel’s explanations demonstrate that it was not undertaken to advance his client’s interests. To the contrary, counsel’s statements to the court indicate that he did not believe that his inaction would inure to Mr. Diggins benefit. Thus, for example, Mr. Giovanni disavowed any intention to influence the jury to sympathize with his client. See, e.g., H. 72; A. 171 (responding to the prosecutor’s concerns that counsel would make statements referring to his client’s 10 Viewed against this backdrop, counsel’s representation that he would “interject” himself into the proceedings if he “believed it [would] suit the cause” of his client, J. 48-49; A. 227-28, was entirely disingenuous. His subsequent failure to “interject” himself by making objections, cross-examining witnesses, or making arguments entirely belies this statement. -47- absence, Mr. Giovanni stated “I would never say anything like that to influence the jury. . . . I’m not trying to gain points by his absence.”). He also disclaimed any intention of gaining a tactical advantage through his inaction. See, e.g., J. 15; A. 114 (responding to the court’s concern that, based on his inaction, then claim that Mr. Diggins did not receive a fair trial, “That’s completely not my intention.”); J. 27; A. 206 (“This is not about obstructing the process”; “This is not about stopping the trial.”). At one point, Mr. Giovanni flatly declared, “I do not think there will be an advantage for my client in doing this.” J. 46; A. 225. At an earlier point, he stated, “[W]e would gain no advantage from this. I think my client is going to be convicted.” J. 41; A. 220. See also J. 27; A. 206 (“He’s probably going to be found guilty. Everybody knows that.”).10 Nor was Mr. Giovanni’s inaction premised on an erroneous belief that it was necessary to preserve his objection to the court’s Parker ruling and decision to proceed with the trial in absentia. He expressly denied that this was his motivation. J. 12; A. 191 (“Obviously I preserve my objection to the Parker decision.”). Finally, Mr. Giovanni stated that his inaction was not designed to -48- make a record for appeal. J. 27; A. 206 (“ This is not about creating a record for appeal.”). Moreover, his subsequent failure to file a notice of appeal suggests that this was not merely an oversight. While Mr. Giovanni stated that his inaction was not intended to gain a tactical advantage, to engender sympathy for his absent client or to make a record for appeal, he offered little to explain what his decision not to participate was based on. While he couched his planned nonparticipation in terms of “ethics,” see, e.g., J. 12-13; A. 191-92 (“referring to his “separate and distinct ethical obligation to my client’s interest.”); J. 15; A. 194 (“I think I’m doing the ethical thing.”), he never identified any ethical rule or concept that would be furthered by this plan of inaction. To the contrary, as discussed above, supra, at 37-38, Mr. Govanni’s ethical obligation was to zealously defend his client. Moreover, it is clear that his client’s absence in no way prevented him from mounting a vigorous defense to the charges. Mr. Giovanni had prepared for trial. As he stated to the trial court, he had met with Mr. Diggins “extensively.” H. 26; A. 125; see also H2. 20-22; A. 54-56. Over the course of these meetings, Mr. Diggins shared with counsel his version of the incident on the street, namely, that there was an argument, but there was no gun. H2. 20; A. 54. As the prosecutor noted to the trial court, H. 76-77; A. 175-76, as Mr. Giovanni acknowledged at the 11 It is unclear whether counsel was claiming that he needed his client to question Mrs. Diggins and her friend, or only Mrs. Diggins. Since the friend, Debra Bryant, testified that she had never seen Mr. Diggins before that night, T. 88, there was no “close relationship” between her and Mr. Diggins. -49- 440 hearing, his investigator had interviewed both Mrs. Diggins and Puddin and had gone to the location of the argument, as well as Puddin’s apartment, from which the gun was recovered. H2. 10-12, 15; A. 44-46, 49 . Mr. Giovanni had announced ready for trial several weeks earlier and, in fact, appeared to be fully prepared to try the case. H. 78; A. 177. The only difficulty resulting from Mr. Diggins’ absence specifically identified or discussed by Mr. Giovanni related to the cross-examination of Mr. Diggins’ wife, who was the complainant on the menacing count. Counsel maintained that “[t]his is a domestic case. It’s a wife having an argument that she had with a girfriend and these close relationships are going to be very important. Without [Mr. Diggins] 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.”11 H. 74; A. 173. See also H. 78-79; A. 177-78; H2. 33; A. 67 Where a defense investigator had spoken to Mrs. Diggins about the incident, see H2. 11-12; A. 45-46: J. 76-77; A. 175-76, counsel clearly had information about the content of her testimony, in addition to whatever information regarding -50- his wife Mr. Diggins had previously supplied to counsel during their “extensive[]” pre-trial discussions. H. 74; A. 173; see also H2. 20-22; A. 54-56. Even taking counsel’s explanation for his inaction at face value, moreover, it fails to account for his compete nonparticipation. At most, it explains his failure to cross-examine Mrs. Diggins. Mr. Diggins’ absence did not impede Mr. Giovanni’s ability to cross- examine the police officers who testified about the recovery of the gun from Puddin’s apartment. With respect to Mrs. Diggins’ testimony, Mr. Giovanni argued that “[t]his is not a buy-and-bust case when I’m trying to find out when the officer did what and what he did.” H. 74; A. 173. As to the testimony of the two police officers, however, this justification is complete inapplicable. As to these witnesses, who offered critical testimony relating to the felony gun counts, this was just like a “buy-and-bust” case, where competent counsel needed to “find out when the officer[s] did what.” Id. Nor did Mr. Diggins’ absence – and counsel’s stated concern for his client’s “personal relationship[],” id., with a witness – explain counsel’s inaction during all aspects of the trial unconnected with the cross-examination of this witness. Not only did it not explain or excuse his failure to cross-examine the police officers who testified at the Huntley hearing and at trial, but it also did not explain -51- or excuse his failure to question prospective jurors, to exercise for cause or peremptory challenges, to deliver an opening statement, to make appropriate objections, to move for a trial order of dismissal, to advocate for the circumstantial evidence charge proposed by the court, and to make a closing argument. Indeed, counsel acknowledged (perhaps inadvertently) the limited impact of Mr. Diggins’ absence when he stated, ”The cross-examination is what I need him for.” H. 78; A. 177. In sum, where counsel did not fulfill his role as zealous advocate, did not subject the prosecution’s case to any adversarial testing and, moroever, acknowledged that his client would not benefit from his nonparticipation, his conduct did not fall within the range of “professionally competent assistance.” Strickland, 466 U.S. at 690. C. Where Counsel’s Nonparticipation Caused A Complete Break- Down In the Adversarial Process, Prejudice Must Be Presumed Under Cronic. The Sixth Amendment “envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results.” Strickland, 466 U.S. at 685. The Supreme Court has recognized the dire consequences that result when counsel abdicates his role as partisan advocate. “[I]f counsel entirely fails to 12 The two other situations where “the defendant need not show that the proceedings were affected” are the “‘complete denial of counsel’” and “where counsel is called upon to render assistance under circumstances where competent counsel very likely could not.” Bell, 535 U.S. at 695-96 (quoting Strickland, 466 U.S. at 659). See generally Cronic, 466 U.S. at 659-62. -52- 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. See also Strickland, 466 U.S. at 692 (“[a]ctual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.”). Counsel’s failure to subject the prosecution’s case to meaningful adversarial testing is one of three situations “implicating the right to counsel that involved circumstances ‘so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.’” Bell v. Cone, 535 U.S. 685, 695 (2002) (quoting Cronic, 466 U.S. at 658-59)).12 See also Hurrell-Harring v. New York, 15 N.Y.3d 8, 24 (2010) (citing with approval the Cronic “presumption of prejudice” standard). To be sure, situations in which a constructive denial of counsel will be found – thereby triggering a presumption of prejudice – are rare. See United States v. Theodore, 468 F.3d 52, 56 (1st Cir. 2006). They are limited to those situations where the attorney’s failure to test the prosecution’s case is “complete.” Bell, 535 U.S. at 697. This is such a case, however. Mr. Diggins’ attorney 13 Even under the conventional Strickland prejudice standard, namely, that a defendant must establish that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different, 466 U.S. at 694, Mr. Diggins has made an ample showing of prejudice. Counsel’s failure to explore significant conflicts between the testimony of the police officers, regarding the recovery of the gun, to explore the evident bias of Mrs. Diggins against her husband, as well as her delay in reporting the incident and her reluctance to testify, as well as counsel’s refusal to point out to the jury in summation obvious gaps in the prosecution’s case, such as the absence of evidence the gun was loaded when it was allegedly displayed on the street, are errors that cumulatively “undermine confidence in the outcome” of Mr. Diggins’ trial. Id. -53- “entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing.” Cronic, 466 U.S. at 659. Although physically present in the courtroom, Mr. Giovanni did not function as counsel. He conducted no cross-examination, made no objections and offered no argument. He left the prosecution’s case entirely untested. See United States v. Lespier, 558 F.2d 624, 629 (1st Cir. 1977) (conviction vacated where attorney’s “persistent refusal to undertake the most ordinary tasks of advocacy” left defendants “without even the pretense of a competent defense.” ). As the Supreme Court recognized in Strickland, “[t]hat a person who happens to be a lawyer is present at trial . . . is not enough to satisfy the constitutional command.” 466 U.S. at 685. Accordingly, prejudice from counsel’s nonparticipation must be presumed.13 This case is entirely analogous to those in which the federal courts have found constructive denial of counsel and have applied the presumption of -54- prejudice. These cases cannot be distinguished, as the hearing court concluded, based on the fact that they did not involve absent defendants. Diggins, 25 Misc.3d 1218(A) at * 12. As this Court has recognized, a defendant who has absented himself from trial does not surrender his right to effective assistance of counsel. See Aiken, 45 N.Y.2d at 398 (while a defendant may waive his right to be present and to confront witnesses against him, “he may not, by absence alone, waive his right to effective assistance of counsel.”). The additional bases on which the hearing court sought to distinguish federal authority are similarly unconvincing and must be rejected. In Martin v. Rose, 744 F.2d 1245 (6th Cir. 1984), for example, the Court of Appeals for the Sixth Circuit considered nonparticipation by counsel comparable in scope to that which occurred here. Counsel had moved to dismiss the case against his client on speedy trial grounds and also asked for a continuance, as he was unprepared for trial. Id. at 1247. The trial court denied both motions and announced that the trial would begin immediately. Id. In response, counsel stated that he would not “participate in the trial.” Id. Counsel did not participate in jury selection, “did not cross-examine any witnesses, make any objections, call any witnesses for the defense, make any closing argument or object to any part of the -55- court’s charge to the jury.” Id. In his habeas petition, Martin argued that his counsel was ineffective. Id. at 1248. The Sixth Circuit held that, under Cronic, “[t]he failure of Martin’s attorney to participate in the trial made the adversary process unreliable. . . . The attorney’s total lack of participation deprived Martin of effective assistance of counsel at trial as thoroughly as if he had been absent. This was constitutional error even without any showing of prejudice.” 744 F.2d at 1250-51. The court reached this conclusion notwithstanding that it recognized that “the attorney’s failure to participate was a deliberate trial tactic.” Id. at 1249. The court held that “a trial strategy of refusing to participate is not an ‘exercise of reasonable professional judgment.’” Id. at 1250 (quoting Strickland, 466 U.S. at 690). The same is true here. The hearing court attempted to distinguish Martin because the attorney’s inaction was premised on an erroneous belief that he would waive the denial of his speedy trial and continuance motions or render them harmless on appeal, whereas Mr. Giovanni’s decision was not based on “a mistake of law.” 25 Misc.3d 1218(A) at *12. This distinction is meaningless, however. Whereas the attorney in Martin had some justification for his complete inaction – albeit one based on an incorrect understanding of the law – Mr. Giovanni had none. In fact, Mr. -56- Giovanni repeatedly denied that he sought to gain any advantage for his client through his inaction. See, e.g., J. 27, 41; A. 206, 220. Moreover, the resulting damage to the adversarial process is equally grave, regardless of the explanation. A similar analysis to that in Martin was employed by the Seventh Circuit in Miller v. Martin, 481 F.3d 468 (7th Cir. 2007). In Miller, the defendant was tried and convicted in absentia. Id. at 470. He was apprehended soon after the trial and appeared for sentencing with counsel. Id. Counsel was convinced that the in absentia trial was a nullity and that the conviction would be overturned on appeal. Id. Because counsel was concerned that his client might reveal that he had notice of the trial date, he directed him not to speak at sentencing. Id. Counsel remained mute himself, other than to assert that his client did not recognize the validity of the trial or the authority of the court to impose sentence. Id. After his conviction was upheld on appeal, Miller filed a habeas petition in which he claimed that counsel’s failure to participate at the sentencing hearing was so complete that prejudice should be presumed under Cronic. Id. at 472. The court agreed: Other than orally moving for a new trial and explaining several times that neither he nor Miller would participate in the proceedings, [counsel] said nothing throughout the sentencing hearing. . . . By his own admission, he did not offer a shred of mitigating evidence, object to . . . errors in the [Pre-Sentence Report] or even lobby for a sentence lower than the one urged by the State. -57- Id. at 473. Significantly, the court in Miller rejected the state’s argument that counsel’s failure to participate was “strategic.” Id. The court found that there was “no discernable strategy at work here. . . . We fail to see any way his silence could have improved his client’s position at sentencing.” Id. See also Patrasso v. Nelson, 121 F.3d 297, 304-305 (7th Cir. 1997) (applying presumption of prejudice, where counsel’s “effectively abandoned his client at sentencing”). In other nonparticipation cases, the federal courts have also found ineffective assistance of counsel. In Harding v. Davis, 878 F.2d 1341, 1342 (11th Cir. 1989), counsel’s inaction followed the defendant’s unsuccessful attempts to have new counsel appointed. Counsel made no opening statement, did not cross- examine any witnesses, make any objections, call any witnesses for the defense or, most significantly, object to the prosecution’s request for a directed verdict. Id. at 1343. Citing Cronic, the court held that counsel’s silence was presumed to be prejudicial. Id. at 1345. While the hearing court correctly noted that the court’s analysis in Harding focused on counsel’s failure to move for a directed verdict, see 25 Misc.3d 1218(A) at *12, the court in Harding was equally critical of counsel’s inaction during the remainder of the trial. See 878 F.2d at 1344 (noting that counsel “did nothing to fulfill the obligations of his position as counsel” and that 14 As with Martin, the hearing court sought to distinguish Reyes because counsel’s inaction was due to his misunderstanding of the rules of preservation and the defenses available to his client. See 25 Misc.3d 1218(A) at *12. As discussed above, supra, at 55-56, this distinction is irrelevant. -58- “even a defendant’s complete noncooperation does not free his lawyer to abdicate his professional responsibility to represent his client.”). Similarly, in Reyes-Vasquez v. United States, 865 F. Supp. 1539, 1541 (S.D. Fla. 1994), the district court found ineffective assistance of counsel where the defendant’s attorney “decided to proceed to trial without taking part in the trial in any way.” The attorney in Reyes, like Mr. Giovanni, “gave no opening statement, did not cross-examine the prosecution’s witnesses, put on no evidence for the defense, and gave no closing statement.” Id. The court explained that the prosecution’s case “was never subject to adversarial testing of any kind” and concluded that counsel’s nonparticipation was ineffective assistance of counsel under Cronic. Id. at 1547. In Reyes, as in Martin and Miller, counsel’s nonparticipation was the result of a “strategy,” albeit an entirely ineffectual or misguided one. Id. at 1543-45.14 Inherent prejudice from counsel’s complete nonparticipation was also recognized by state courts. In Hiner v. State, 557 N.E.2d 1090, 1091-92 (Ind. Ct. App. 1990), for example, counsel decided to stand mute after a pre-trial ruling that -59- precluded evidence critical to the defense. Id. at 1091. Counsel “did nothing during the trial. He made no argument, made no objections, refused to cross- examine the State’s witnesses and presented no defense on Hiner’s behalf.” Id. at 1092-93. The Indiana Court of Appeals found that counsel’s inaction “substantially prejudiced [the defendant’s] right to a fair trial.” Id. at 1092. “[C]ounsel’s decision, in effect, rendered him without counsel throughout the remainder of his trial.” Id. The court quoted approvingly from its analysis in another case, which found that “‘the record graphically portrays a breakdown in the adversarial process which casts substantial doubt on the reliability of [the] trial, as required by Strickland.’” Id. (quoting Williams v. State, 508 N.E. 2d 1264 (Ind. Ct. App. 1987)). See also Cannon v. State, 252 S.W.3d 342, 350 (Texas Ct. Crim. App. 2008) (finding ineffective assistance under Cronic standard, where counsel “effectively boycotted the trial proceedings and entirely failed to subject the prosecution’s case to meaningful adversarial testing.”); People v. Adams, 2007 WL 3171259 *2 (Mich. 2007) (counsel’s performance “which involved a strategy of nonparticipation, was deficient and objectively unreasonable and . . . defendant incurred prejudice,” citing Cronic); State v. Harvey, 692 S.W.2d 290, 293 (Mo. 1985) (en banc) (“defense counsel’s nonparticipation constructively deprived -60- appellant of his constitutional right to effective assistance of counsel,” citing Cronic). Cases in which the federal courts have rejected the application of Cronic involve less-than-complete inaction by counsel. Thus, for example, in Bell, the Supreme Court held that Cronic was inapplicable where “respondent’s argument is not that his counsel failed to oppose the prosecution throughout the sentencing proceeding as a whole, but that his counsel failed to do so at specific points.” 535 U.S. at 697. See also Theodore, 468 F.3d at 57 (Cronic did not apply, where counsel “participated in the trial” by presenting an opening statement, cross- examining all of the prosecution’s witnesses, introducing several defense exhibits, and making a motion for judgment of acquittal and a closing argument). Indeed, United States v. Sanchez, 790 F.2d 245 (2d Cir. 1986), cited by both the hearing court, 25 Misc.3d 1218(A) at *13, and the Appellate Division, 84 A.D.3d at 667, did not involve complete nonparticipation by counsel comparable to what occurred in this case. As the hearing court acknowledged, 25 Misc.3d 1218(A) at *13, counsel in Sanchez actually participated to a limited extent in the trial of his absent client. He moved for a judgment of acquittal and objected to the flight instruction given by the trial court. 790 F.2d at 253. In addition, Sanchez’ co-defendant presumably cross-examined government witnesses and otherwise 15 The Sanchez court also relied on the defendant’s “own obstructive conduct,” which had “preclude[d] defense coiunsel from pursuing an intelligent active defense,” 790 F.2d at 254, as a basis for finding Cronic inapplicable. The “obstructive conduct” consisted of the defendant’s refusal “to communicate or otherwise cooperate with counsel.” Id. at 253. Here, the record shows that Mr. Diggins communicated with counsel before trial and was otherwise cooperative. H2. 20-21; A. 54-55. -61- subjected the prosecution’s case to adversarial testing. Id. at 247-48. Accordingly, where counsel did act as an advocate for his client on several occasions during the trial, under Bell, the case cannot be analyzed as one of complete nonparticipation, but must be analyzed under traditional Strickland standards for ineffective assistance of counsel.15 The same cannot be said of Mr. Giovanni. At no point in Mr. Diggins’ trial did Mr. Giovanni act as a partisan advocate for his client. The other case cited by the hearing court to support its conclusion that a “strategy of silence” did not constitute ineffective assistance of counsel, Warner v. Ford, 752 F.2d 622 (11th Cir. 1985), also did not involve complete nonparticipation. In Warner, the defendant was tried along with two co- defendants, on charges of theft and possession of a firearm. Id. at 623. Before the trial started, Warner tried twice to plead guilty, but the plea was rejected by the court. Id. At the trial of all three defendants, Warner’s attorney played a largely “inactive role.” Id. However, he moved for a directed verdict on the firearm -62- count, moved for a mistrial three times and recommended that his client not take the stand when he was called as a witness by a co-defendant. Id. at 624. Moreover, in Warner, the government witnesses were cross-examined by counsel for the two co-defendants, id. at 625, with whom Warner’s counsel had arranged to “handle the voir dire” and to receive additional peremptory challenges. Id. Accordingly, the “strategy of silence” in Warner is simply not comparable in scope or impact to what occurred at Mr. Diggins’ trial. D. Counsel’s Nonparticipation Also Violates Mr. Diggins’ Right To Meaningful Representation Under The State Constitution. Counsel’s nonparticipation also violated Mr. Diggins’ right to counsel guaranteed by the New York State Constitution. See N.Y.Const. Art. I, § 6. Like its federal counterpart, the state constitutional right to effective assistance of counsel is rooted in the critical role played by counsel in our adversarial system of criminal justice. The purpose of the state right to effective assistance of counsel is the recognition that “‘partisan advocacy on both sides of a case will best promote the ultimate objectives that the guilty be convicted and the innocent go free.’” People v. Claudio, 83 N.Y.2d 76, 80 (1993) (quoting Cronic, 466 U.S. at 655). Thus, the fundamental “‘right to “effective assistance of counsel is recognized not -63- for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.’” Id. (quoting Cronic, 466 U.S. at 655). Claims of ineffective assistance of counsel under the New York State Constitution are analyzed under a somewhat different standard from those under the United States Constitution. This Court has applied a more “flexible standard,” People v. Benevento, 91 N.Y.2d 708, 712 (1998), under which the constitutional requirements for effective assistance of counsel are met when the defense attorney provides “meaningful representation.” People v. Stultz, 2 N.Y.3d 277, 282 (2004). See People v. Baldi, 54 N.Y.2d 137, 147 (1981). As this Court has recognized, the meaningful representation standard is “somewhat more favorable to defendants,” People v. Turner, 5 N.Y.3d 476, 480 (2005) , because its prejudice component focuses on “the fairness of the process as a whole rather than its particular impact on the outcome of the case. In that regard, we have refused to apply the harmless error doctrine to in cases involving substantiated claims of ineffective assistance.” Benevento, 91 N.Y.2d at 714. Mr. Giovanni failed to supply the “meaningful representation” to which his client was entitled under the state constitution. Indeed, it is hard to conceive of representation less deserving of the term “meaningful” than what was provided by Mr. Giovanni in this case. There can be no doubt that the refusal of counsel to -64- subject any facet of the prosecution’s case to meaningful adversarial testing – or testing of any kind – undermines the “fairness of the process as a whole.” Benevento, 91 N.Y.2d at 714. To prevail on his claim under the state constitution, Mr. Diggins must “‘demonstrate the absence of strategic or other legitimate explanations’ for counsel’s allegedly deficient conduct.” People v. Caban, 5 N.Y.3d 143, 152 (2005) (quoting People v. Rivera, 71 N.Y.2d 705, 709 (1988)). Here, counsel’s nonparticipation cannot be excused, based on “strategic or other legitimate explanations.” Caban, 5 N.Y.3d at 152. While counsel’s refusal to participate in the proceedings was certainly a deliberate choice on counsel’s part, that does not make it a legitimate strategy. To the contrary, any “strategy” that fails to subject the prosecution’s case to adversarial testing cannot be legitimate. Moreover, although the Appellate Division referred to counsel’s inaction as a “protest strategy” or a “strategy of silence,” 84 A.D.3d at 667, the record fails to support either characterization. That counsel may have been largely silent does not mean he was pursuing a “strategy of silence.” Thus, unlike the attorney in Warner v. Ford, Mr. Giovanni never indicated that his plan not to participate in Mr. Diggins’ trial represented a “silent strategy.” 752 F.2d at 624-25. Unlike the attorney in that case, counsel 16 This Court used that term on a prior appeal by Mr. Diggins. See People v. Diggins, 11 N.Y.3d 518, 525 (2008). In that case, Mr. Diggins challenged the procedure under which he was sentenced as a mandatory persistent felony offender. The mandatory persistent sentence was based, in part, on his violent felony conviction in this case. Counsel in the subsequent case had objected to the use of this conviction, claiming that it was unconstitutionally obtained, due to counsel’s inaction, and had unsuccessfully requested an adjournment to gather evidence to support his claim. Id. at 521. This Court concluded that the sentencing court “was not required, as a matter of law, to grant defendant an adjournment,” id. at 525, and noted that counsel’s assertion that the attorney failed to participate in the 2004 trial gave “rise to an inference” that it was a “protest strategy.” Id. at 525. This dicta was made without the benefit of any record of counsel’s statements and actions. The record now before the Court fails to support any such a characterization. -65- was not in a position to ride the coattails of his co-defendants’ “thorough cross- examination of prosecution witnesses,” nor could he defer to others to “handle the voir dire.” Id. at 625. Rather, Mr. Giovanni stated only that he did not intend to question any witnesses because, without his client to assist him, he considered it an “impossibility.” H. 74; A. 173. As discussed above, supra, at 48-51, this characterization failed to explain counsel’s complete inaction. Nor can Mr. Giovanni’s conduct be excused or even fairly characterized as a “protest strategy.”16 Counsel certainly never characterized his nonparticipation in those terms. And, while Mr. Giovanni was clearly displeased with the court’s ruling following the Parker hearing, he denied that his inaction was an attempt to relitigate this issue. See J. 27; A. 206 (“This is not about stopping the trial.”). Moreover, a “protest” to a court ruling, without any discernable benefit to the -66- client, falls far outside of the range of strategic or legitimate explanations that can be offered for counsel’s failure to participate as an advocate on behalf of his client. E. The Trial Court Had The Means To Prevent Counsel From Failing To Fulfill His Ethical Obligation To Zealously Defend His Client. This Court in Aiken expressed its concern that a finding of ineffective assistance of counsel under circumstances where counsel refused to participate in the trial of an absent client would “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.” 45 N.Y.2d at 399. Similarly, the hearing court stated that, if Mr. Giovanni’s conduct were found to be ineffective assistance of counsel, “attorneys could manufacture automatic reversals or successful 440 motions by simply choosing not to participate in trials in absentia.” 25 Misc.3d 1218(A) at *17. As an initial matter, it seems unlikely “that members of the bar will cold-bloodedly adopt the bizarre and irresponsible strategem of abandoning clients at trial.” Martin, 744 F.2d at 1251. Moreover, Aiken and the hearing court ignore the ability – indeed, the obligation – of the trial courts to ensure the integrity of the adversarial process and, specifically, that all defendants receive the effective assistance of counsel to which they are constitutionally entitled and that counsel -67- fulfill his ethical obligation to zealously defend his client. See generally N.Y. Judiciary Law § 2-a (McKinney 2002). Trial courts have at their disposal ample means to ensure that attorneys who appear in their courtrooms provide their clients – whether present or absent – with the effective representation required by the federal and state constitutions. Thus, “if such a tactic develops, the trial court . . . is not helpless before an attorney’s threat to withdraw from participation in a trial. . . . [T]he court’s contempt power or the disciplinary mechanism of the bar may be appropriately invoked.” Martin, 744 F.2d at 1251. Similarly, in United States v. Lespier, 558 F.2d 624, 630 (1st Cir. 1977), the court noted that the need for a new trial based on the attorney’s refusal to participate would have been obviated “if the court had taken a firmer hand . . . with counsel.” Specifically, the appellate court directed that, should a trial court be confronted with a similar situation, it should “advise the attorney that while he is fully entitled to preserve all objections on the record, he is obliged to go forward and use his best efforts to defend the case, or else face contempt.” Id. Thus, when confronted with an attorney who, like Mr. Giovanni, has announced that he did not intend to participate in his client’s trial, the court can and should hold him in contempt. Where Mr. Giovanni indicated that, even if ordered by the court to defend his client to the best of his abilities, he would not -68- participate in the trial, J. 19-20; A. 198-99, he was unquestionably in violation of a court order and subject to contempt proceedings. See, e.g., N.Y. Judiciary Law § 750 (Mckinney 2003); N.Y. Penal Law § 215.50 (McKinney 2007). It is the rare lawyer that will risk a contempt conviction and jeopardize his ability to practice law in order to pursue such a reckless plan. Here, the trial court was inexplicably reluctant to use its contempt power to ensure that the integrity of the adversarial process was protected. Although the court was repeatedly urged by the prosecutor and her supervisor to hold Mr. Giovanni in contempt, see, e.g., J. 23, 36, 39; A. 202-215, 218, the court declined to do so. Instead, the court merely directed counsel to defend his client, while at the same time acknowledging that counsel would not participate in the trial: THE COURT: Okay. I think just to cover the matter . . . it is best that I direct you to defend your client to the best of your ability under the present circumstances. If you tell me that you decline to do so for the reasons stated, I will not really feel that you are contemptuous of the court in any way or trying to deliberately thwart the process of justice. You have your ethical reasons and you decided to stick with them, but I think to make a clear record that I will direct you to defend your client to the best of your ability under the circumstances. J. 20-21; A. 199-200. And, while the court later secured a representation from counsel, that he would “interject” himself into the proceedings if it would benefit -69- his client, J. 49; A. 228, counsel failed to do so. The court’s inaction in this case is all the more perplexing, where the court noted, in no uncertain terms, its disagreement with counsel’s refusal to participate in the trial: “The fact that I haven’t yelled and creamed at Mr. Giovanni doesn’t mean I agree with his position. I don’t and I said that at the beginning, but that’s his position.” T. 142; A. 515. In addition to using their contempt powers, trial courts can refer a recalcitrant attorney to the appropriate bar disciplinary committee. See Martin, 744 F.2d at 1251 (citing invocation of the “disciplinary mechanism of the bar” as a response to an attorney’s threatened nonparticipation). An attorney who fails to zealously defend a client, even an absent one, stands in violation of his ethical obligations. See, e.g., N.Y. Rules of Professional Conduct, Rule 1.1(c)(1). Such an attorney can properly be the subject of a complaint, which can result in a range of sanctions, including suspension or disbarment. In this case, the trial court alluded to such disciplinary action, but never sought to use it. J. 25; A. 204 ( THE COURT: . . . Mr. Giovanni has to be aware that he could suffer consequences to his detriment from taking the position that he’s taking, whether it’s by the Court, the Bar Association or the New York State Ethics Board.”). As with contempt, it is extremely unlikely that any attorney -70- would persist in “obstructionist” behavior in the face of a judge’s threat to make a disciplinary complaint. Finally, where Mr. Giovanni was part of NDS, an institutional provider of indigent defense services, the court could have demanded the appearance of his supervisors, with whom he had evidently consulted about his planned nonparticipation. See J. 28, 31; A. 207, 210. Mr. Giovanni’s supervisors might have been able to prevail upon him to provide a vigorous defense for his absent client and, if they were unable to convince him to do so, they could have removed him from the case and “themselves . . . tr[ied] the case.” J. 31; A. 210. While this substitution might have resulted in some delay in the proceedings, it was preferable to having a trial go forward without anyone to advocate for Mr. Diggins. Inexplicably, even though Mr. Giovanni referred to this possibility, J. 31; A. 210, this option was never explored by the trial court. The trial court had an obligation to take prompt and decisive action when confronted with counsel’s plan not to participate in Mr. Diggins’ trial. However, the court failed to use any of the tools at its disposal and, as a result, Mr. Diggins was left entirely without a partisan advocate. -71- CONCLUSION Isaac Diggins’ appointed counsel did not act as an advocate. He played no part in Isaac Diggins’ trial and completely failed to subject the prosecution’s case to meaningful adversarial testing. Counsel’s inaction, coupled with the trial court’s failure to ensure that counsel provide a zealous defense for his client, resulted in a trial that entirely lost its character as a confrontation between adversaries. Because Mr. Diggins was, for all intents and purposes, without counsel, the outcome of the trial cannot be considered either fair or reliable. Mr. Diggins’ conviction must be vacated. Dated: June 27, 2012 New York, New York RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant By: ______________________________ ROSEMARY HERBERT, ESQ. Supervising Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 (212) 402-4100 (phone) (212) 492-4199 (fax) ROY L. REARDON, ESQ. SIMPSON THACHER & BARTLETT LLP Of Counsel