The People, Appellant,v.Dennis O'Kane, Respondent.BriefN.Y.January 10, 2018To Be Argued By: Time Requested: Paul R. Edwards, Esq. Ten (10) Minutes STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Appellant, - against - DENNIS O’KANE, Defendant-Respondent. APL-2016-00163 RESPONDENT'S BRIEF PAUL R. EDWARDS, ESQ. Attorney for Defendant-Respondent OFFICE & P.O. ADDRESS 112 State Street, Suite 1330 Albany, New York 12207 TEL. 518/462-2200 FACSIMILE: 518/462-2883 Website: courtroomsuccess.com Dated: February 13, 2017 TABLE OF CONTENTS TABLE OF CASES AND AUTHORITIES ............................... 2 STATEMENT OF FACTS ........................................... 4 QUESTIONS PRESENTED .......................................... 6 POINT I NEW YORK REQUIRES APPELLATE COURTS TO CONSIDER THE TOTALITY OF THE EVIDENCE, LAW, AND CIRCUMSTANCES OF A CASE IN EVALUATING COUNSEL’S EFFECTIVENESS ........................... 7 POINT II ALBANY COUNTY COURT CORRECTLY APPLIED THE ‘TOTALITY OF THE CASE’ TEST IN EVALUATING TRIAL COUNSEL’S ACTIONS INCLUDING CONSENT TO THE VERDICT SHEET ........................................ 16 CONCLUSION ................................................. 25 1 TABLE OF CASES STATUTE PAGE(S) CPL 310.20(2) 20, 22 CASE Strickland v. Washington, 466 US 668 7, 8 People v. Baldi, 54 NY2d 137 7, 8, 9, 12, 14, 16, 18, 20, 23 People v. Bank, 28 NY2d 131 8 People v. Benevento, 91 NY2d 708 7, 8, 12, 14 People v. Flores, 84 NY2d 184 9 People v. Henry, 95 NY2d 563 7 People v. Hobot, 84 NY2d 1021 8 People v. Miller, 18 NY3d 704 23 People v. Oathout, 21 NY3d 127 9, 11, 12 People v. Oliveras, 21 NY3d 339 9 People v. Rivera, 71 NY2d 705 9 2 People v. Speaks, 28 NY3d 990 12, 13 People v. Stultz, 2 NY3d 277 8 People v. Taylor, 1 NY3d 174 12, 13 People v. Zaborski, 59 NY2d 863 9, 11 People v. Arnold, 85 AD3d 1330 (3d Dept 2011) 9, 10 People v. Bjork, 105 AD3d 1258 (3d Dept 2013) 22 People v. Brown, 300 AD2d 314 (2d Dept 2002), lv denied 100 NY2d 560 9, 10, 11 People v. Clarke, 66 AD3d 694 (2d Dept 2009) 9, 10 People v. Davydov, 144 AD3d 1170 (2d Dept 2016) 9 People v. McCloud, 121 AD3d 1286 (3d Dept 2014) 22 People v. Ramsaran, 141 AD3d 865 (3d Dept 2016) 8 People v. Washington, 9 AD3d 499 (3d Dept 2004) 22 People v. Washington, 184 AD2d 451 (1st Dept 1992) 24 People v. Young, 86 AD3d 796 (3d Dept 2011) 12, 13, 15 3 STATEMENT OF FACTS Dennis O’Kane was charged in Albany City Court with Aggravated Harassment in the Second Degree (four counts), Stalking in the Fourth Degree (two counts), and Criminal Contempt in the Second Degree (eight counts). The overall nature of the case is that Dennis O’Kane continued to contact his former landlady for a long time after he had moved out; Mr. O’Kane’s position is that he wanted only to befriend and protect her, and that he stopped all contact once he learned of the existence of an Order of Protection. Jury Trial commenced on February 24, 2014. On February 28, 2014, the jury returned a verdict of not guilty on two of the Criminal Contempt charges (Counts Ten and Eleven) and guilty on all other counts. On May 9, 2014, Dennis O’Kane was sentenced to the maximum possible sentence of two consecutive terms of one year’s imprisonment. On direct appeal to Albany County Court, Dennis O’Kane argued that he received ineffective assistance of counsel from his trial attorney Carolyn George, Esq. Mr. O’Kane argued that trial counsel 4 committed errors during jury selection, opening statement, the People’s direct case, cross-examination of the People’s witnesses, the Trial Order of Dismissal stage, the presentation of defense evidence, and summation, errors which had the cumulative effect of depriving him of meaningful representation. Albany County Court examined the totality of the evidence, law, and circumstances of the case and determined that trial counsel had provided ineffective assistance. County Court disagreed with several of appellate counsel’s criticisms of trial counsel. County Court agreed, however, that trial counsel had committed a pattern of failures to object to improper testimony. County Court also agreed that a remark in the prosecutor’s summation, to which trial counsel failed to object, had been improper. County Court further found that trial counsel’s consent to an inflammatory verdict sheet, “evidences ineffective assistance of counsel at its worst.” (A 35). The People now appeal because the primary deficiency of trial counsel cited by Albany County Court was her consent to the improper verdict sheet. This example of trial counsel’s ineffectiveness had not been cited or referenced by the parties in discussing the effectiveness of trial counsel, but was considered by County Court among all the evidence, law, and circumstances of the case in determining that trial counsel had not provided meaningful representation. 5 QUESTIONS PRESENTED 1). Does New York require an intermediate appellate court to examine the totality of the evidence, the law, and the circumstances of each case in assessing a claim of ineffective assistance of counsel? Yes, an intermediate appellate court must examine the totality of the evidence, law, and circumstances in determining whether counsel provided meaningful representation. 2). Did Albany County Court properly carry out its responsibility to examine the totality of the evidence, law, and circumstances in determining that Dennis O’Kane received ineffective assistance of trial counsel? Yes, Albany County Court did properly carry out this responsibility. 6 POINT I NEW YORK REQUIRES APPELLATE COURTS TO CONSIDER THE TOTALITY OF THE EVIDENCE, LAW, AND CIRCUMSTANCES OF A CASE IN EVALUATING COUNSEL’S EFFECTIVENESS New York established its standard of evaluating ineffective assistance of counsel claims in People v. Baldi, 54 NY2d 137. The Federal standard of evaluating ineffective assistance of counsel claims requires the defendant to show that counsel’s performance was deficient and that a reasonable probability existed that such deficiency contributed to the outcome, Strickland v. Washington, 466 US 668. New York’s standard, which predates Strickland, does not require a showing that the result would have been different but for counsel’s deficiencies; rather, the New York test requires a showing that counsel’s deficiencies denied the defendant of “meaningful representation” and therefore deprived the defendant of a fair trial, People v. Baldi, 54 NY2d 137; see People v. Benevento, 91 NY2d 708. Prejudice to the defendant is relevant and significant but not strictly necessary to a claim of ineffective 7 assistance of counsel under the New York standard, People v. Henry, 95 NY2d 563; People v. Benevento, 91 NY2d 708; People v. Bank, 28 NY2d 131. “Strickland’s prejudice prong is what chiefly separates it from Baldi,” People v. Stultz, 2 NY3d 277, 283. Because “meaningful representation” can vary greatly from one case to another, the rule of People v. Baldi, 54 NY2d 137 requires appellate courts to evaluate all of the evidence, the law, and the circumstances of each case in reaching a determination as to whether the representation provided was meaningful. “[T]he effectiveness of the assistance of counsel is analyzed in terms of whether the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation,” People v. Ramsaran, 141 AD3d 865 (3d Dept 2016). New York’s standard of review of the effectiveness of counsel is based upon the “totality” of the evidence, law and circumstances in the case regardless of the number or kind of errors alleged. A single substantial error by counsel can deprive the defendant of a fair trial, but even where only such a single substantial error is alleged, “...all of the evidence must be weighed in context and as of the time of representation to assess the alleged deficient representation,” People v. Hobot, 84 NY2d 1021. “So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal 8 that the attorney provided meaningful representation, the constitutional requirement will have been met ...,” People v. Baldi, 54 NY2d 137, 147. Appellate courts must apply this ‘totality of the case’ standard to determine whether allegedly deficient representation was “meaningful,” People v. Oathout, 21 NY3d 127; People v. Flores, 84 NY2d 184; People v. Rivera, 71 NY2d 705; People v. Zaborski, 59 NY2d 863; People v. Oliveras, 21 NY3d 339, 346; People v. Davydov, 144 AD3d 1170 (2d Dept 2016); People v. Brown, 300 AD2d 314 (2d Dept 2002), lv denied 100 NY2d 560; People v. Arnold, 85 AD3d 1330 (3d Dept 2011); People v. Clarke, 66 AD3d 694 (2d Dept 2009). Applying this ‘totality of the case’ standard of People v. Baldi, 54 NY2d 137, New York appellate courts have found the cumulative effect of defense counsel’s errors to have deprived a defendant of meaningful representation when viewed under the evidence, law, and circumstances of a given case, People v. Oathout, 21 NY3d 127; People v. Zaborski, 59 NY2d 863; People v. Davydov, 144 AD3d 1170; People v. Brown, 300 AD2d 314, lv denied 100 NY2d 560; People v. Arnold, 85 AD3d 1330; People v. Clarke, 66 AD3d 694. A good example of the ‘totality of the case’ test applying in favor of an ineffectiveness claim was found in People v. Arnold, 85 AD3d 1330. In Arnold, trial counsel committed errors during opening statement, cross-examination of prosecution witnesses, 9 direct examination of defense witnesses, and summation. The Appellate Division, Third Department, found that, “While none of these errors or unexplained omissions on the part of counsel, standing alone, necessarily constitutes ineffective assistance of counsel, the cumulative effect of counsel’s actions deprived defendant of meaningful representation,” People v. Arnold, 85 AD3d 1330, 1334. Similarly in People v. Clarke, 66 AD3d 694, trial counsel failed to cross-examine the complainant regarding prior inconsistent statements, failed to object to improper testimony, and failed to seek redaction of prejudicial material. The Appellate Division, Second Department did, ... not find that any single example of deficient representation was sufficient to deprive the defendant of the effective representation of counsel ... rather, we conclude that, given the totality of his counsel’s deficient representation, the cumulative effect of these errors deprived the defendant of meaningful representation and a fair trial ... – People v. Clarke, 66 AD3d 694, 698 (internal citations omitted) In People v. Brown, 300 AD2d 314, lv denied 100 NY2d 560, the Appellate Division, Second Department applied the ‘totality 10 of case’ test and found trial counsel’s failure to prepare for trial, lack of familiarity with applicable law, poor cross- examination, and unwise concessions during summation cumulatively deprived the defendant of a fair trial. “While no single error on counsel’s part would constitute ineffective assistance of counsel, the cumulative effect of these errors deprived the defendant of meaningful representation ...” People v. Brown, 300 AD2d 314, lv denied 100 NY2d 560. In People v. Zaborski, 59 NY2d 863, the Court of Appeals considered a finding by the Appellate Division, Third Department that trial counsel had provided meaningful representation despite having raised an affirmative defense of entrapment which contradicted the defendant’s own theory of the case and opened the door to damaging evidence. The Court of Appeals reversed, finding that, “[v]iewed in its entirety, the record demonstrates that defendant was not provided meaningful representation ...” People v. Zaborski, 59 NY2d 863. Again in People v. Oathout, 21 NY3d 127, the Court of Appeals considered a finding by the Appellate Division, Third Department of meaningful representation where trial counsel, a civil litigator unfamiliar with criminal law, had made wide- ranging mistakes throughout a murder trial. The Court of Appeals reversed, finding that counsel’s numerous failures to object, unfamiliarity with applicable law, and lack of preparation had 11 the cumulative effect of denying the defendant of meaningful representation. “While defense counsel’s errors in this instance individually may not constitute ineffective assistance, the cumulative effect of [defense] counsel’s actions deprived the defendant of meaningful representation,” People v. Oathout, 21 NY3d 127, 131 (internal quotations omitted). In contrast, New York Courts often have found that although defense counsel committed some error or omission, counsel’s representation was effective because counsel’s overall performance was adequate – counsel made objections, cross- examined witnesses, and performed other basic functions which constituted meaningful representation under the facts, law, and circumstances of the case at hand despite the mistakes in question, People v. Speaks, 28 NY3d 990; People v. Taylor, 1 NY3d 174; People v. Benevento, 91 NY2d 708; People v. Young, 86 AD3d 796 (3d Dept 2011). A good example of the ‘totality of the case’ test applying against an ineffectiveness claim was found in People v. Speaks, 28 NY3d 990. Defendant in Speaks argued that his trial counsel was ineffective for failing to object to improper remarks in the prosecutor’s summation. Applying the Baldi ‘totality of the case’ test, the Court of Appeals found the overall representation effective: 12 Throughout the course of the trial, defense counsel, demonstrating his familiarity with the relevant law and the particular facts of the case, vigorously advocated for the defendant, made proper objections and appropriate motions, competently cross- examined witnesses, and presented a cogent defense case. – People v. Speaks, 28 NY3d 990, 992. Similarly, in People v. Taylor, 1 NY3d 174, the Court of Appeals found that despite some failures to object, Defense counsel presented a coherent, cogent defense ... defense counsel participated actively in jury selection, consulting with defendant at various points; objected vigorously, and often successfully, during the testimony of all the People’s witnesses; cross-examined the People’s witnesses thoroughly; participated intelligently in numerous bench conferences and the jury charge conference; and made numerous objections during the prosecutor’s summation... Defense counsel objected almost 50 times during the prosecutor’s cross-examination of the alibi witness. She may have concluded that further objections would serve only to annoy the trial court or – more importantly – the jury... – People v. Taylor, 1 NY3d 174, 176-177 In People v. Young, 86 AD3d 796, the Appellate Division, Third Department found that despite a claimed error in failing to 13 object to a jury instruction, “Reviewing the record as a whole, it is apparent that counsel was well prepared, pursued a plausible defense strategy, offered articulate opening and closing arguments and vigorously cross-examined witnesses,” and that the totality of the evidence, law, and circumstances showed that the defendant received meaningful representation. An interesting example of the ‘totality of the case’ standard militating against an ineffective assistance claim was found in People v. Benevento, 91 NY2d 708. Benevento was a robbery trial where the defendant had been chased and caught by passers-by near the scene of a mugging. Trial counsel had argued that intoxication negated the element of intent. The Appellate Division, First Department had found trial counsel’s representation ineffective for failure to pursue an identifiable strategy, but the Court of Appeals, having examined the totality of the case, found that trial counsel had pursued a legitimate strategy given the facts and the law of the case. These examples show that appellate courts must evaluate everything before them in making their determinations as to counsel’s effectiveness. Counsel’s every action or inaction, from jury selection through the taking of the verdict, falls within this scrutiny. Appellate courts which consider counsel’s every action throughout the trial are doing precisely what New York’s Baldi standard requires. 14 In none of these cases did an appellate court appear to have called for additional briefing to address each action of trial counsel, as the People here suggest Albany County Court should have done here. For example, when the Third Department found in People v. Young, 86 AD3d 796 supra, that trial counsel had been effective, citing among other factors the articulate opening statement and vigorous cross-examination of witnesses, the parties on appeal presumably were not invited to submit additional briefs to argue whether trial counsel’s opening statement truly was “articulate” or whether cross-examination truly was “vigorous.” Once ineffective assistance of counsel is claimed, the entirety of counsel’s performance comes under review regardless of which specific aspects of counsel’s representation are claimed to have been deficient. The parties have their opportunity to address any and all of counsel’s actions at that time. They cannot claim to be surprised when the appellate court cites some specific motion, objection, or argument of counsel in making its assessment of counsel’s overall performance, regardless of whether each such act was specifically argued by the parties. 15 POINT II ALBANY COUNTY COURT CORRECTLY APPLIED THIS ‘TOTALITY OF CASE’ TEST IN EVALUATING TRIAL COUNSEL’S ACTIONS INCLUDING CONSENT TO THE IMPROPER VERDICT SHEET Albany County Court correctly found that Dennis O’Kane received ineffective assistance of counsel from court-appointed attorney Carolyn George, Esq. under the Baldi standard. On his direct appeal to Albany County Court, Dennis O’Kane cited numerous errors by trial counsel to show that he had been deprived of meaningful representation. The errors which Mr. O’Kane listed spanned jury selection, openings, the People’s case, the defense case, and summations. Albany County Court was required under Baldi to consider all of trial counsel’s actions and omissions in assessing counsel’s performance under “the evidence, the law, and the circumstances” of the trial, including actions not specifically argued by the parties. Jury selection errors by trial counsel cited by Mr. O’Kane 16 included implying that Mr. O’Kane might explain why he did not testify, referring to the complainant as a “victim,” asking jurors with prior jury service what verdicts they had reached, asking a burden-shifting question, and improperly asking jurors to consider punishment, prompting objection. Opening statement error which Mr. O’Kane cited consisted of trial counsel again referring to the complainant as the “victim.” Errors by trial counsel on the People’s direct case included multiple failures to object to irrelevant testimony critical of Mr. O’Kane, opening the door to damaging testimony, failure to object to improper questions, failure to control complainant Michelle Gilson’s rambling non-responsive testimony by moving to strike unresponsive answers or seeking judicial admonishment of the witness, and failure to properly move for a trial order of dismissal at the close of the People’s case. Errors by trial counsel on the defense case included the failure to properly prepare her client to testify, failure to familiarize herself with the facts of the case, inadequate direct examination of the defendant, and failure to object to improper cross-examination. Error by trial counsel during summations consisted of failure to object when the prosecutor asked jurors to “tell Mr. O’Kane this is enough.” 17 Albany County Court put the Baldi requirements into practice and considered each of these examples of trial counsel’s deficiency in light of all the evidence, law, and circumstances. The People’s Brief to this Court portrays Albany County Court as having found no error in the actions of trial counsel cited by Mr. O’Kane in his direct appeal: County Court later issued a written decision that rejected each and every ground raised by defendant. Nevertheless, county court reversed the conviction after searching the record and, sua sponte, addressing an issue not raised or briefed by either party. The court addressed the issue without calling for additional briefing or even asking for the views of the parties at oral argument. (People’s Brief at P. 8) ... In its decision, county court rejected each and every ground for reversal raised by defendant (People’s Brief at P. 19) But in reality, Albany County Court agreed with Mr. O’Kane’s appellate argument regarding trial counsel’s pattern of failure to object to highly prejudicial and improper evidence: 18 Defendant argues that his trial counsel engaged in a flagrant pattern of failing to object to highly prejudicial and improper evidence. For example, Defendant argues that trial counsel failed to object to the alleged victim’s testimony that the Defendant was obsessive, creepy, and horrible, all in response to questions about how Defendant’s actions made her feel. Frankly, witness examination is not a free for all in which the witness can engage in a continuous and unbridled denigration of the defendant. It is manifest that defense counsel should have been more proactive in moving to strike the inflammatory remarks, which were not responsive to the questions being asked ... (A 32) Thus trial counsel’s consent to the inflammatory verdict sheet was not the sole deficiency of counsel identified by County Court. Contrary to the People’s argument in their brief to this Court, County Court did not “...reject[] each and every ground for reversal raised by the defendant (People’s Brief at P. 19). County Court agreed with Mr. O’Kane’s view of trial counsel’s persistent failures to object to improper evidence. This was not the only area where County Court agreed with Mr. O’Kane. His direct appeal alleged among trial counsel’s errors the failure to object to the prosecutor’s summation remark, “Tell Mr. O’Kane this is enough.” County Court agreed with Mr. O’Kane that this remark, to which trial counsel failed to object, had been improper (A 33). County Court found that this error alone did not necessitate a new trial (A 33), but as the cases cited above show, 19 individual errors need not constitute ineffective assistance of counsel on their own in order to cumulatively amount to ineffective assistance. Continuing to examine trial counsel’s performance as a whole, County Court evaluated her consent to the verdict sheet. Properly, County Court turned to trial counsel’s consent to the verdict sheet as part of the analysis of her overall performance. Contrary to the People’s contention, examination of counsel’s consent to the verdict sheet was not a new issue being raised sua sponte by the Court. Rather, examination of counsel’s consent to the verdict sheet was an integral part of County Court’s proper function to evaluate counsel’s overall performance as Baldi requires. The People in their brief complain that Albany County Court Judge Peter Lynch asked how he could ignore the verdict sheet (A 82-83). The answer is that he could not have ignored it under New York’s ‘totality of the case’ standard. County Court had not only the authority but the responsibility to scrutinize trial counsel’s every act and omission, including her consent to this verdict sheet. Verdict sheet notations are governed by Criminal Procedure Law 310.20(2). This statute authorizes inclusion of, “...the dates, names of complainants or specific statutory language, without defining the terms, by which the counts may be distinguished ...” CPL 310.20(2). Here, the verdict sheet contained inflammatory 20 commentary: “calling approximately 36 times and sending approximately 13 emails” (Count One); “calling approximately 50 times” (Count Two); “calling, emails, and leaving package of personal items, file and taped recording”(Count Three); “emailing approximately 15 times” (Count Four); “calling approximately 90 times” (Count Five); “calling approximately 90 times, emailing approximately 15 times, and sending a sympathy card” (Count Six); “package with card & portrait left at house” (Count Seven); “response to Craigslist ad” (Count Eight); “filing complaints with the City, HUD and small claims court” (Count Nine); “occurrence in small claims court” (Count Ten); “occurrence in this criminal court” (Count Eleven); “driving by house, beeping horn and yelling out window” (Count Twelve); “mailing motion to dismiss petition” (Count Thirteen); and “sending letter asking about her attorney” (Count Fourteen) (A 76-79). As the People correctly point out in their brief to this Court, trial counsel consented to the verdict sheet bearing these descriptive annotations (A 150). That consent is precisely the problem. County Court found counsel’s consent to the verdict sheet to have been a significant factor militating in favor of a finding of ineffective assistance. By arguing that trial counsel’s consent to the verdict sheet rendered that very action unreviewable, the People essentially argue that trial counsel waived appellate review of her own effectiveness. 21 The People concede in their brief that the verdict sheet annotations would “offend the letter of the law” in the absence of consent (P. 26); see People v. Miller, 18 NY3d 704. The People argue that trial counsel’s consent to the inflammatory verdict sheet constituted a waiver of the issue. It is counsel’s very act in consenting to the verdict sheet that County Court properly considered and found deficient. Both of these positions were anticipated and answered in County Court’s Decision: I am mindful of the fact that Defense counsel consented to the highly inflammatory verdict sheet. I am equally mindful of the fact that consent can be deemed a waiver of the CPL 310.20(2) violation (People v. McCloud, 121 AD3d 1286, 1289-1290 [3d Dept 2014]; People v. Bjork, 105 AD3d 1258, 1264 [3d Dept 2013]; People v. Washington, 9 AD3d 499, 501 [3d Dept 2004]}. Where, as here, however, the extensive annotations on the verdict sheet effectively marshalled and bolstered the People’s proof, it is this Court’s judgment that the consent to the verdict sheet evidences ineffective assistance of counsel at its worst. The point made is that defense counsel utterly failed to recognize, let alone grasp, the annotation restrictions on verdict sheets imposed by CPL 310.20. Counsel’s ineffectiveness on this crucial point most certainly deprived Defendant of a fair trial ... (A 35) This resolves thee People’s argument that trial counsel failed to preserve for appeal the issue of the verdict sheet because trial 22 counsel failed to object to it. Again, trial counsel’s deficiencies are what is at issue. County Court did not need to invoke its interest of justice jurisdiction in order to review counsel’s error in consenting to this verdict sheet because Baldi already required County Court to consider it. Finally, the People contend that because the parties had not discussed trial counsel’s consent to the improper verdict in their appellate briefs, Mr. O’Kane failed to illustrate that trial counsel’s consent to the verdict sheet was not a strategic decision. On the contrary, County Court’s finding that “defense counsel utterly failed to recognize, let alone grasp, the annotation restrictions on verdict sheets imposed by CPL 310.20,” obviously implies that County Court found a lack of any strategic decision. Such a finding was reasonable considering that nothing in the record suggests that trial counsel consulted with her client regarding the verdict sheet annotations (A 150); see People v. Washington, 184 AD2d 451 (one indication that counsel’s allegedly deficient actions were a strategic decision is when counsel consulted with the client regarding the decision). The People dramatize County Court’s examination of the totality of evidence, law, and circumstances as somehow exemplifying an inquisitorial rather than an adversarial system of justice. On the contrary, our adversarial system of justice has produced the rule of Baldi which requires just such a ‘totality of 23 the case’ review in assessing ineffective assistance of counsel claims. Albany County Court correctly determined that the ‘totality of the case’ showed that Mr. O’Kane received ineffective assistance of trial counsel. The Decision of County Court should not be disturbed. 24 CONCLUSION FOR ALL THE AFORESTATED REASONS, THE DECISION AND ORDER OF ALBANY COUNTY COURT SHOULD BE AFFIRMED. Dated: February 13, 2017 Word Count Certification: 4,434 Respectfully submitted, PAUL R. EDWARDS, ESQ. Attorney for Defendant/Respondent OFFICE & P.O. ADDRESS 112 State Street, Suite 1330 Albany, New York 12207 TEL.: 518/462-2200 FACSIMILE: 518 / 462-2883 Website: courtroomsuccess.com 25