People v Diggins

[*1] People v Diggins 2009 NY Slip Op 52187(U) [25 Misc 3d 1218(A)] Decided on October 19, 2009 Supreme Court, New York County Goldberg, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 19, 2009
Supreme Court, New York County

The People of the State of New York, Plaintiff,

against

Isaac Diggins, Defendant.



4637/03



For the People: Robert M. Morgenthau, District Attorney New York County, Elliot Felig[FN1]

and Larry Glasser, of counsel

For the Defendant: Rosemary Herbert, Esq., Office of the Appellate Defender andNicholas F. Cohen, Esq., Simpson Thacher & Bartlett LLP, Of Counsel.

Arlene D. Goldberg, J.

Following a jury trial held in absentia, the defendant was convicted of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree and menacing in the second degree. The defendant was sentenced in absentia as a second violent felony offender to concurrent terms of twelve years and seven years imprisonment, with five years post release supervision, respectively, on the second and third degree weapon counts and to a concurrent definite sentence of one year on the menacing charge. Pursuant to CPL§ 440.10 (1)(h), the defendant has moved to vacate the conviction on the ground that he was denied his federal and state constitutional right to the effective assistance of counsel. The claim is based on his prior attorney's failure to participate in the pre-trial Huntley hearing, also conducted in absentia, and the jury trial, or file a notice of appeal.[FN2]

I held a hearing on the defendant's motion after which the parties' made written submissions. Based on the testimony adduced at the hearing, and upon all the other proceedings and submitted papers, and review of relevant case law, I make the following findings.[FN3] [*2]

PERTINENT HISTORY

The charges against the defendant were based on his having pointed a gun at his wife on a public street which was recovered a few hours later when the police arrested the defendant at his girlfriend's apartment. The weapon was loaded with five hollow point bullets. The People served notice that defendant had made statements to Police Officer Cash at the scene of the arrest and also at the precinct. During the pendency of the case, the defendant's attorney, Thomas Giovanni, an experienced attorney with the Neighborhood Defender Services of Harlem (hereinafter NDS), filed a motion to suppress the statements and was granted a Huntley hearing.

On May 10, 2004, the defendant's case was calendared for the hearing and trial. The defendant, who was free on bail, failed to appear, whereupon his bail was forfeited, a bench warrant issued for his arrest and the matter sent out for hearing and trial.

The following day, Mr. Giovanni and the prosecutor appeared before the Justice to whom the case had been referred. Mr. Giovanni requested an adjournment to allow more time to obtain the defendant's appearance in court explaining that, "[t]his case is highly dependent on his help to defend himself. These are his wife and his female friend who are the main complainants here." T, May 11, 2004, at 3.The Court denied the request and proceeded to conduct a "Parker" hearing (see, People v. Parker, 57 NY2d 136 [1982] ). Mr. Giovanni, who had represented the defendant since the time of his arraignment on the indictment on September 13, 2003, actively participated in the Parker hearing. After the hearing, the Justice concluded that the defendant had willfully and voluntarily absented himself and, further, that the Huntley hearing and the trial, would proceed in the defendant's absence. T, May 11, 2004, at 36 - 38.

Mr. Giovanni again requested that the case be adjourned to secure the defendant's presence for the Huntley hearing and trial insisting that he could not effectively represent defendant unless the defendant was present for the proceedings. Id.Over Mr. Giovanni's objection, the Justice proceeded to conduct the Huntley hearing in absentia. The People called one witness, Police Officer Clarence Cash, who recounted the circumstances surrounding oral statements that defendant made in the hallway outside of his girlfriend's apartment and at the precinct.

Mr. Giovanni did not conduct any cross-examination of the Officer, stating "[f]or the reasons that I pointed out earlier due to my client's inability to assist me, I have no questions for this witness." T, May 11, 2004, at 46. He also did not make any arguments as to why either of defendant's statements should be suppressed. The Court denied the motion to suppress finding that defendant had not been subjected to custodial interrogation or its functional equivalent with respect to either statement and therefore Miranda warnings were not required. Id. 64 -71.

Following the Huntley hearing, the Court indicated that he was going to adjourn the case to the following day for jury selection. Id. at 71. The Court also told Mr. Giovanni, "If he's [the defendant] not here to assist you in his own defense, and over your objection the Court orders the trial to proceed, then it's my feeling that you still have to do the best you can under those circumstances." Id. at 74. In response, Mr. Giovanni, among other things, stated: [*3]

"I understand your [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 she [the prosecutor] pointed out

this is a domestic [violence] 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 him [the defendant] to assist me to cross-examinethem about the details that she's going to talk about, I have no ability to

offer any relevant evidence besides the superficial.

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." Id.

Mr. Giovanni, subsequently stated: "I was asking to be relieved, and if I'm not, you already know how I would fail to participate." Id. at 77.

After acknowledging to the Court that he had been the attorney assigned to represent the defendant almost from the beginning of the case, some eight months before, and that he had prepared for the trial, Mr. Giovanni pointed out that he had not received the Rosario material until the previous day. Id. at 78. Mr. Giovanni went on to state:

"The cross-examination is what I need him [the defendant] for.

I don't know what they'll say until the moment they say it. When we

have a person who has a personal relationship with the person

testifying, it's one thing to look at an empty desk and it's another thing

to look at that person and give testimony." Id. at 78 - 79.

"I feel that I can't properly do this case without him [the defendant].

I want him here, and I don't think it's to anyone's benefit to have his

wife and other persons testify and not have him here." Id. at 79.

The Court then denied Mr. Giovanni's application to withdraw from the case and adjourned the case to May 12 for jury selection. Id. at 79-80.

At the outset of the proceedings on that date, there was additional and extensive discussion relative to the Mr. Giovanni's plan not to participate at the trial and what should be said to the prospective jurors regarding his intended non-participation. T, May 12, 2004, see pp. 2 - 49.With respect to the jury instruction, Mr. Giovanni stated that, "[a]ny resolution is acceptable to me as long as it is understood I am making a conscious choice [not to participate], or at least try to suggest I am making a [*4]conscious choice." Id. at 10. He also confirmed that he was not going to open and that he did not intend to do anything during the trial including voir dire. Id. at 11 - 12

Fearing that Mr. Giovanni was seeking to derail the trial in absentia or provide the defendant with a basis to obtain a reversal on appeal for ineffectiveness of counsel, the prosecutor repeatedly sought an acknowledgment from Mr. Giovanni that his decision not to participate was a tactical decision. See, e.g. Id. 12 - 13, 16 - 17, 29, 44.Mr. Giovanni continuously resisted characterizing his decision in those terms. See, e.g. id. at 15 -16, 18, 29, 44, 46. He also denied that he was trying to stop the trial or gain any advantage from defendant's absence for appellate purposes. Id. at 27. Mr. Giovanni acknowledged that he knew that participation in the trial would not constitute a waiver of his objection to the trial in absentia. Id. at 12. He further said that he had discussed the matter with his supervisors who thought that he was doing the right thing by not participating. Id. at 15 -16. Mr. Giovanni insisted that "I think I can't do my job if he's [the defendant] not here. " Id. at 17.

After more discussion, the Court directed Mr. Giovanni "to defend your client to the best of your ability under the circumstances." Id. at 21. Mr. Giovanni responded, "[a]nd with all due respect, I am still taking my position that this [not participating at the trial] is the best thing that I'm doing for my client." Id. In fact, as Mr. Giovanni revealed, he thought that non-participation was not only "the best way to represent his client" but also "the best way to try a case in this situation." Id. at 27.

Following additional argument on the issue, the Court secured assurances from Mr. Giovanni that whether the defendant subsequently appeared at the trial or not, Mr. Giovanni would participate in each phase of the trial, including making objections, if he thought doing so would be beneficial to his client. Id. at 43 - 44, 48. In this regard, Mr. Giovanni stated: "Tactically and ethically if I feel I need to interject myself, I will." Id. at 46 "If I believe it [participating in the trial] will suit the cause of my client, I will interject myself at any point during this questioning. I can unequivocally promise you that." Id.

The Court then proceeded with jury selection. Id. 77 - 187. Mr. Giovanni did not question the prospective jurors. Id. at 176. He also did not interpose any cause or peremptory challenges Id. at 180 - 186. Although the jury was selected, the court stated that he would swear them in the next day. Id. at 186.

On May 13, 2004, the People requested an adjournment because the complainant, Mrs. Diggins, had not appeared to testify. The People additionally requested that the Court continue to defer swearing in the jury so that jeopardy would not attach. Since there was at least one police officer present who the People could have called, Mr. Giovanni expressed the view that the Court either declare a mistrial or swear the jury in and proceed with that witness. The Court indicated it would swear the jury in the following day and, at the People's request, issued a material witness order to secure Mrs. Diggins appearance for May 14, 2004 and that counsel be assigned to represent her.

Mrs. Diggins appeared with her assigned counsel on May 14, and agreed to testify. The jury was sworn and the case proceeded. Mr. Giovanni did not make an opening statement and did not cross-examine Mrs. Diggins or the People's second witness, Officer Cash. The trial court questioned Mr. Giovanni about this outside the [*5]presence of the jury. T, May 14, 2004, at 82 - 83.

THE COURT: "By not opening or cross-examining either of the first

two witnesses, did you make a conscious decision

that to do so, to interject yourself would not benefit

your client or would somehow bring up something

that would be to his disadvantage."

MR. GIOVANNI: "Yes, that's still my position. As you see, I'vebeen taking notes keeping track of what was said. If it

does change, I am prepared to interject myself if

I think it will be to my client's benefit."

The prosecutor called three other witnesses at the trial, Debra Bryant, Sergeant James Cosgrove and Detective James Geary. Mr. Giovanni did not cross-examine any of them and did not make any motion at the close of the People's case. The trial judge stated that even had a motion to dismiss been made, it would have been denied. T, May 18, 2004, at 126.

Mr. Giovanni did not call any witnesses and throughout the trial never registered any objections, other than what has been previously detailed. He also declined to be heard on whether a circumstantial evidence charge should be given. Id. at 136. However, he did request that the court repeat the instruction to the jurors regarding his non-participation during the trial. After the charge conference, Mr. Giovanni confirmed that he would not be making a summation, which led to the following exchange:

THE COURT: It's obvious there are areas that you could sum

up in that might be seen as beneficial to your client in terms of

the charges that have been brought.

Have you thought that through and decided not to sum up?

MR. GIOVANNI: I have Judge. It's a matter of balance. There

is always something that could be said, but I would do more

harm than good. Id. at 141.

The record reflects that Mr. Giovanni indicated that he was satisfied with

the trial court's charge to the jury (id. at 188) and the proposed response to the jury notes requesting an explanation of the difference between the two weapon counts and the definition of intent to use in the context of the second degree weapon count. Id. at 193.

On May 18, 2004, the jury found the defendant guilty of all three counts. At Mr. Giovanni's request the jury was polled. Id. at 204. The case was then adjourned to June 15, 2004 for sentence.

On that date, the defendant, who had a prior felony conviction for robbery in the first degree, was adjudicated, in absentia, a predicate violent felony offender and sentenced to the previously recited terms on the three counts. [*6]

At the sentencing proceeding, Mr. Giovanni made a variety of arguments in support of his request that the Court sentence the defendant to the minimum term authorized by law, including the claim that the testimony showed that defendant's behavior "actually did not engender any fear in his wife or the people who were on the street, but indignation and surprise." T, June 15, 2004, at 9 - 13. Mr. Giovanni did not file a notice of appeal for the defendant.

Execution of the sentences that were imposed on the defendant did not occur until July 8, 2005 when the defendant was involuntarily returned on the warrant pursuant to a new arrest for attempted murder in the second degree and related crimes. The defendant was subsequently convicted in that matter and sentenced in December 2005, as a persistent violent offender to 25 years to life. The 2004 weapon conviction in the case at bar was utilized as one of the defendant's previous violent felonies.[FN4]

On January 6, 2006, the defendant filed a motion in the Appellate Division for an extension of time to appeal the 2004 conviction, asserting that, "I just assumed that my trial attorney would handle all of the necessary paper work needed to file my notice of appeal. " See, Cohen affirmation dated November 12, 2008, Exhibit C. The Appellate Division, First Department denied defendant's request on May 9, 2006. Id. Exhibit D; People v. Diggins, 2006 NY Slip Op 682256 [U].

On November 12, 2008, the defendant filed the instant 440 motion. Following further submissions and oral argument, I ordered a hearing on the motion, which I conducted on May 14, 2009.

SUMMARY OF RELEVANT PARTS OF THE TRIAL EVIDENCE

On August 17, 2003, at about 4:00 a.m., the defendant's wife, April Diggins, was in the vicinity of her apartment building with Debra Bryant and some other friends, when she saw the defendant in the company of "Puddin," a woman she believed the defendant was having an affair with. Mrs Diggins walked over and confronted her husband. He responded by pulling out a gun, pointing it at Mrs. Diggins' legs and ordering her to back up. Mrs. Diggins, who has one child with the defendant, testified, "I was in shock that he would do that to me." T, May 14, 2004, at 65. While the defendant had the gun pointed at her, Mrs. Diggins saw Debra Bryant approach and state to defendant, "You're pulling a gun on your wife." The defendant subsequently put the gun away, got in his car and drove off alone. Mrs. Diggins then went to her house with her friends and Puddin to show Puddin that the defendant lived with her [Mrs. Diggins]. At about 7:00 a.m., Mrs. Diggins went to the precinct and spoke with Police Officer Cash and Sergeant Cosgrove about the incident and provided a location (Puddin's address) where the defendant might be found. [*7]

Mrs. Diggins identified People's exhibit four as the gun the defendant had pointed at her. When asked how she knew it was the gun, Mrs. Diggins replied, "Because I remember that silver piece on the top. I just remember it. I remember the whole gun." Id. at 74.

Debra Bryant testified that she followed Mrs. Diggins to where the defendant and Puddin were and as she approached them, she heard Mrs. Diggins say, "what are you going to do shoot me?" Ms. Bryant looked down and saw that the defendant was pointing a gun at Mrs. Diggins' legs. Id. at 91. Ms. Bryant then went up to the defendant and said, "how you're going to pull out a gun on your wife just because she caught you with your girlfriend." Id. After Ms. Bryant had further conversation with the defendant, she saw him put the gun back in the waistband of his pants and drive away. Id. Ms. Bryant testified that the gun she saw defendant pointing at his wife was a small black handgun and that People's exhibit four "looked like the gun that he [the defendant] had." T, May 14, 2004, at 92.

Officer Cash testified that after speaking with Mrs. Diggins, he and Sergeant Cosgrove went to the address she provided to find the defendant. Shortly after they knocked on the apartment door, a woman [Puddin] opened it and a few seconds later the defendant appeared. Officer Cash escorted the defendant into the hallway and Sergeant Cosgrove went inside the apartment. A short time later, Sergeant Cosgrove came out of the apartment and handed Officer Cash a loaded gun, which Officer Cash subsequently vouchered. Officer Cash identified People's 4 as the loaded gun he received from Sergeant Cosgrove.

Officer Cash additionally testified to the unsolicited statements that the defendant made to him in the hallway and at the precinct. Specifically, while in the hallway outside Puddin's apartment, the defendant asked Officer Cash what was going on? Officer Cash told the defendant to calm down, whereupon the defendant stated, "[w]ell, I don't know what's going on, but I've been in the apartment, I've been with my girl and I've been in the apartment all evening." Id. at 78. Later on that day, while Officer Cash was processing the defendant's arrest at the precinct, the defendant repeatedly asked Officer Cash what happened. Officer Cash advised the defendant that, "Your girl said you pulled a gun on her." Id. at 81. Defendant responded, "No, I had an argument with my wife on the street earlier." Id.

Sergeant Cosgrove testified that after knocking on the apartment door and stating police, he heard a door inside the apartment close, which sounded as if it was just behind the entrance to the apartment. T, May 18, 2004, at 102.After that, a woman [Puddin] opened the door and Sergeant Cosgrove told her they were looking for Isaac Diggins. Puddin pointed to a closed bedroom door that was two feet from the entrance of the apartment. After knocking on this door and stating police, Sergeant Cosgrove heard some shuffling about in the room, and then the defendant opened the door and came out of the room. After receiving written consent from Puddin to search the apartment, Sergeant Cosgrove immediately looked underneath the bed in the room the defendant had been in moments before, and recovered a black semi automatic 380 handgun that was loaded with five rounds of hollow point bullets. Sergeant Cosgrove then exited the apartment and gave the gun to Officer Cash. Sergeant Cosgrove identified People's 4 as the loaded gun he had recovered. [*8]

Finally, Detective James Geary testified that he tested the gun and the bullets and both were operable. He also stated that the gun could only be loaded by hand, bullet by bullet, and indicated that hollow point bullets are designed to cause more damage than regular bullets.

SUMMARY OF THE 440 HEARING

The sole witness at the hearing was Thomas Giovanni, who was called by the defendant. At the time Mr. Giovanni represented the defendant he had been a staff attorney with NDS since 2001, and had done all aspects of criminal defense work, including felony and misdemeanor trials. Mr. Giovanni is currently a supervising attorney with NDS.

Mr. Giovanni described the efforts he made to prepare defendant's case for trial. They included preparing motions, meeting with the defendant and engaging the services of an investigator, who interviewed Mrs. Diggins and Puddin and went to the location where defendant allegedly pointed the gun at his wife and also the apartment in which the gun was recovered. The investigation revealed that Mrs. Diggins was hostile to the defendant and that Puddin's mother and teenage son also lived in the apartment but that only Puddin and the defendant were in the apartment when the gun was recovered. The investigation did not uncover any information favorable to the defendant.

Mr. Giovanni acknowledged that while he knew a Huntley hearing could be used as a source of discovery, he did not cross-examine the Officer or make any legal argument stating, "I didn't believe, given the position that I had taken and the discussion I had had with the Judge that it would be beneficial to participate or to ask questions." T, May 14, 2009, at 29. Mr. Giovanni confirmed that he knew that the gun

was recovered from a different place than where the alleged menacing occurred. He also acknowledged that the argument he made at sentence that Mrs. Diggins was not placed in fear by defendant's actions could have been made to the jury. He further confirmed that he did not conduct voir dire, make an opening or closing statement, cross-examine or call any witnesses, make any objections, or take any of the other actions listed in the affidavit he provided (see, Cohen affirmation dated November 12, 2008, Exhibit B). Mr. Giovanni characterized his failure to file a notice of appeal as an "oversight."T, May 14, 2009, at 31.

Mr. Giovanni explained that the defendant admitted that he had argued with his wife but denied that a gun was ever displayed. They had planned to claim that Mrs. Diggins was jealous about his relationship with Puddin and therefore lied or exaggerated about the defendant displaying a gun on the street. However, without defendant present at trial, Mr. Giovanni concluded that defense would be futile. He believed it better to say nothing than to cross examine Mrs. Diggins reasoning that cross examination might backfire. He also confirmed that he felt that attacking the victim's credibility would only serve to accentuate the negative inferences the jury would make regarding the defendant's absence and that it was in the defendant's interest not to cross examine her. These conclusions were based on his experience and the discussions he had about the case with his supervisors.

Mr. Giovanni viewed the case as being particularly difficult because it involved domestic violence and the victim would appear sympathetic to the jury, [*9]particularly in light of the marital betrayal component. Mr. Giovanni believed that the recovery of the gun, which he perceived as a significant piece of evidence that could be seen as important corroboration of Mrs. Diggins' allegations, compounded the challenges the case presented and would also emotionally impact the jury. Mr. Giovanni also believed that without defendant present to provide insight into the witnesses testimony, biases, background, ability to see and perceive the events and other information for cross-examination, it was virtually impossible for him to wage a vigorous defense. When defendant failed to appear for trial, Mr. Giovanni made repeated efforts to try and locate him but was unable to find him.

As with all his cases, Mr. Giovanni stated that his intent was to do his best for his client. However, faced with a powerful case and no client to assist him, Mr. Giovanni made a conscious and considered decision not to participate. Id. at 46. The decision was made after consultation with his supervisors. Mr. Giovanni also confirmed

that [not participating] was something he decided to do based on the specific circumstances that confronted him at the time. He explained that he felt that, "the chances of getting an acquittal of an empty chair domestic violence trial were very, very low and that the less said the better actually." Id. at 53. He also was aware throughout the trial that if only one juror had voted not to convict there would have been a hung jury and the defendant might have been picked up in time for a retrial.

ARGUMENTS

The defendant maintains that Mr. Giovanni's representation was the equivalent of having no lawyer at all and, hence, constitutes a violation of the defendant's federal and state constitutional right to effective assistance. According to the defendant, since there was no adversarial testing of the evidence against him, the court should presume that he was prejudiced by Mr. Giovanni's omissions. See, People v. Cronic, 466 US 648, 666 (1984). Thedefendant further makes the claim that the federal courts have consistently held that an attorney who stands mute during a trial renders ineffective assistance of counsel.

Additionally, the defendant argues that Mr. Giovanni's affidavit as well as his "440" hearing testimony only provides an explanation for why Mr. Giovanni did not cross examine Mrs. Diggins. Thus, defendant contends Mr. Giovanni's other omissions cannot be excused as being the result of a valid trial strategy. The defendant also argues that even if, as the People claim, Mr. Giovanni's nonparticipation was a deliberate tactical choice, it should be viewed as an unreasonable one since defendant's absence did not make it impossible for Mr. Giovanni to mount a defense.

The People argue that Mr. Giovanni's omissions do not render his representation ineffective and, in any event, the defendant has failed to establish that

he was prejudiced. They further contend that Mr. Giovanni's 440 hearing testimony demonstrates that his nonparticipation was a well considered, deliberate and reasonable tactical choice brought about by the specific circumstances of defendant's absence, and not by ineptitude. As such, the People maintain that under prevailing law, Mr. Giovanni's chosen strategy of silence cannot be found to be ineffective assistance.

DISCUSSION

I

[*10]In order to establish a violation of the federal constitutional right to the effective assistance of counsel, a defendant must establish both that the attorney's performance was deficient by failing to meet an objective standard of reasonableness, and, but for counsel's errors, there is a "reasonable probability" that the outcome of the proceedings would have been different. Strickland v. Washington, 466 US 668, 687 (1984). The Court defined a "reasonable probability" as "a probability sufficient to undermine confidence in the outcome." Id. at 694.

As Strickland makes clear, whether an attorney's representation was reasonable or not must be based on a consideration of all the circumstances, including the actions and statements of the defendant. In order to fairly evaluate the reasonableness of the representation, a court must "make every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. In determining the issue, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that under the circumstances, the challenged action might be considered sound trial strategy.' [citation omitted]." Id.

Even assuming that a defendant is able to demonstrate that the attorney's representation falls short of the reasonableness standard, the defendant cannot prevail

unless the requisite prejudice is also established. However, in very limited circumstances prejudice may be presumed. Id. at 693.

A more flexible standard is applied to determine whether defendant has been denied his right to the effective assistance of counsel under Article I § 6 of the New York State Constitution. People v. Benevento, 91 NY2d 708 (1998). Under the State Constitution, the focus is on the fairness of the proceeding as a whole. Id. at 714. The core inquiry is whether the defendant has received "meaningful representation." See, People v. Baldi, 54 NY2d 137 (1981). "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 that the attorney provided meaningful representation, the constitutional requirement will have been met." Id. at 147. An attorney's performance "will not be considered ineffective, even if unsuccessful, as long as it reflects an objectively reasonable and legitimate trial strategy under the circumstances and evidence presented [citations omitted]." See, People v. DeLaCruz, 11 Misc 3d 1069(A), (Bronx Co., Seewald, J. 2006) citing, People v. Berroa, 99 NY2d 134, 138 (2002). "In applying this standard, counsel's efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective." People v. Benevento, supra , at 712, citing, People v. Satterfield, 66 NY2d 796, 799 (1985).Unlike the federal standard, New York Courts do not require a showing that a reasonable probability exists that the result of the proceeding would have been different, but instead adopt a more favorable rule that while prejudice to the defendant is a significant factor in the meaningful representation analysis, it is not an "indispensable element." See e.g., People v. Stultz, 2 NY3d 277, 284 (2004); People v. Calderon, 884 NYS2d 29; 2009 NY Slip Op. 06156 (1st Dept August 11, 2009). Thus, in order to establish that he or she did not receive "meaningful representation" under the Baldi standard, a defendant must show that there was no "strategic or other legitimate [*11]explanation" for defense counsel's allegedly deficient conduct. See, People v. Benevento, supra , at 712.

It is also settled law that a defendant "may not, by absence alone waive his right to the effective assistance of counsel [citation omitted]." People v. Aiken, 45 NY2d 394, 398 (1978). However, a defendant's "absence must, of necessity, be taken into consideration on the issue of counsel's effectiveness." Id.at 399. It goes without saying, as the Court of Appeals observed in Aiken, that, "a defendant's absence from trial may severely hamper even the most diligent counsel's ability to represent his client effectively." Id.

Furthermore, in People v. Aiken, the Court of Appeals emphasized that:

"a defendant who absents himself from trial may not succeed

on appeal by raising counsel's purported ineffectiveness

where counsel affirmatively, as a matter of trial strategy,

sought to obstruct the trial of his client. Having previously

held that a defendant who voluntarily and wilfully absents

himself from trial waives his right to confrontation and to be

present at trial, we would erode, if not destroy, the significance

of that ruling were we to reverse an absented defendant's

conviction because of counsel's refusal to actively participate at

trial. To do otherwise would be to permit defendant's counsel toaccomplish that which we will not permit a defendant to accomplishhimself: that is, to render the trial a nullity. " Id.

In Aiken, the defendant absented himself after nine jurors had been selected. The trial court denied Aiken's attorney's request for a mistrial and directed the attorney to proceed with the defendant's defense in his absence. The attorney, however, did not participate. The defendant was convicted and on appeal complained that he was denied the effective assistance of counsel. The Court of Appeals stated, "we view counsel's conduct as indicative of a conscious strategic decision designed to pressure the trial court into declaring a mistrial. As such the wisdom of counsel's decision can provide no basis for appellant's claim that he was denied effective counsel." Id.

The Court of Appeals, in any event, went on to analyze Aiken's specific contentions of his attorney's alleged ineffectiveness which consisted of the attorney's waiver of an opening and closing statement, the failure to cross examine any witnesses or call any witnesses as well as the failure to object to the introduction of any evidence at trial.The Court of Appeals concluded that the defendant was not denied the effective assistance of counsel. Id. at 400.

Notably, the Court of Appeals had occasion to reaffirm the principle

set forth in Aiken in the appeal taken by defendant Diggins from his being sentenced as a persistent violent felon on his attempted murder case. Specifically, the Court of Appeals found that the assertion that the attorney failed to participate in the 2004 trial in absentia " [gives] rise to an inference that the attorney's nonparticipation was a protest strategy that would not support a claim of ineffective assistance of counsel (see, People [*12]v. Aiken, 45 NY2d 394, 399 [parallel citations omitted] ." People v. Diggins, 11 NY3d 518 (2008), supra , at 525.

Similarly, In People v. Verdel, 22 AD3d 324 (1st Dept 2005) leave denied

6 NY2d 819 (2006), the defendant complained that he was denied effective assistance by his attorney's failure to participate in a suppression hearing after the hearing court did not give the attorney as much time as he wanted to review Rosario material. The Appellate Division concluded that the attorney's conduct was either a protest strategy or a concession that his motion lacked merit neither of which would support a finding of ineffective assistance. The federal court denied defendant Verdel's application for a writ of habeas corpus based on a finding that the attorney's failure to cross-examine was a strategic decision and the defendant had not been prejudiced. See, Verdel v. Cunningham, 2008 WL 2755833 (SDNY July 14, 2008).

II

The federal decisions on which the defendant relies to support his claim that an attorney's failure to participate at trial constitutes ineffective assistance are distinguishable from the instant case. For one thing, in each of the cited cases, the defendant was present for the trial. Additionally, with one exception, the ineffectiveness findings were not solely based on the attorney's failure to participate.

For example, in Martin v. Rose, (744 F2d 1245 [6th Cir. 1984]) the defendant's trial attorney stood mute based on his belief that his participation in the defendant's trial would waive his pretrial speedy trial and continuance motions or render them harmless error on appeal. However, the Court found that the belief that a waiver would occur was erroneous. The Court further found that the attorney's decision not to

mount a defense in order to preclude an appellate finding that the defendant had not been prejudiced by the denial of his motions was unreasonable because the attorney knew that the defendant had a strong defense, had no prior record and was willing to testify at his trial. In light of all this, the Court presumed that the defendant had received ineffective assistance of counsel because the attorney completely failed to participate. In the instant case, Mr. Giovanni's decision not to participate was not based on a mistake of law and since defendant, who did have a prior record, had bench warranted, he was not available to testify. Furthermore, Mr. Giovanni did not completely fail to participate.

The presumed ineffectiveness in Reyes-Vasquez v. United States,

(865 F. Supp. 1539 [S.D. Fla. 1994]), was also occasioned by the attorney erroneously believing that he had to stand mute in order to preserve issues for appeal as well as misunderstanding the court's ruling regarding defenses that were available to the defendant.Again, this is not the situation in the instant case.

In Harding v. Davis, (878 F2d 1341 [11th Cir. 1989]), the trial court refused the defendant's repeated requests for a new attorney. Although the attorney was silent throughout almost all of the trial, the ineffectiveness finding was only based on the attorney's failure to object to the trial court's direction to the jury to return a verdict of guilty. This omission was found to be so egregious as to warrant a per se finding of ineffectiveness without a need of showing prejudice. Defendant Diggins has not identified any instances where an objection should have been interposed. Certainly, the trial record does not reveal any error of the kind described in Harding. [*13]

In United States v. Lespier, 558 F2d 624 (1st Cir. 1977), the attorney, claiming that he was unprepared and inexperienced, requested a continuance of the trial until the lead counsel would be available. The trial court found that the attorney was capable of trying the case and ordered him to proceed. The attorney did not participate in the trial indicating at various stages that he did not know how to do it. The defendants had also made requests to await the return of the lead counsel. On appeal, it was held that the defendants had been denied effective assistance by the attorney's complete lack of participation. In contrast, Mr. Giovanni did not completely fail to participate, nor did he ever claim that he was unprepared or inexperienced.III

Notably, my own research has revealed federal decisions where the "strategy of silence" was held not to constitute ineffective assistance of counsel. See, e.g. Warner v. Ford, 752 F2d 622 (11th Cir. 1985); United States v. Sanchez, (790 F2d 245 [2nd Cir. 1986], cert denied, 479 US989 [1986]).

The Second Circuit decision in Sanchez is particularly relevant since it involved a jury trial held in absentia where the attorney failed to make an opening or closing statement or objections to the admission of evidence or cross examine witnesses. The Court held that these omissions did not constitute ineffective assistance since the defendant's actions precluded any reasonable basis for an active defense. United States v. Sanchez, supra , at 253. The Court found that the attorney's limited participation of objecting to the trial in absentia, a jury charge on flight and moving for dismissal, was adequate, and that even if it were not, the defendant had not demonstrated that "but for" the attorney's silence, he would not have been convicted.

As here, the defendant in Sanchez argued that the representation he received amounted to having no counsel, and therefore the two prong Strickland test should not apply. The Court found otherwise reasoning that the defendant "may not by his absence effectively force his attorney into a strategy of silence and then complain that he was denied counsel or never waived his right to counsel." Id. at 254. According to the Second Circuit in Sanchez, the two prong test of Strickland generally applies except when a court has prevented counsel from pursuing a defense or total absence of counsel. Id. As aptly stated by the Court in Sanchez, "Any other result would permit a defendant to forestall adjudication indefinitely by intentionally sabotaging his own defense. To reward such tactics would defy both the purposes of the Sixth amendment and common sense." Id.

In this case, Mr. Giovanni also participated to a limited extent. He repeatedly objected to the trial going forward in absentia, requested an instruction to the prospective jurors about his plan not to participate, requested the instruction be repeated in the court's final charge to the jury, indicated approval of the court's final charge to the jury and the court's proposed answer to a jury note, and had the jury polled after the verdict was rendered. Additionally, when Mrs. Diggins failed to appear to testify on May 13, Mr. Giovanni, obviously recognizing the potential advantage to his absent client to having jeopardy attach, made an extended argument as to why the Court should swear in the jury and have the People go forward with the police witness who was present to testify. See, T, May 13, 2004, at 19 -23, 27. Furthermore, as in Sanchez, the defendant here has not demonstrated that "but for" the attorney's omissions, the outcome of the trial would have been any different. Accordingly, [*14]defendant's claim that his Federal constitutional right to effective assistance was violated is denied.

IV

Defendant's assertion that Mr. Giovanni's omissions rendered his representation ineffective under State constitutional standards is also rejected.

As an initial matter, I note that the cases on which the defendant relies are distinguishable from what occurred here, as they involve overt errors by defense counsel at trials where the defendant was present. See, e.g. People v. Bell, 48 NY2d 933 (1979) [attorney failed to request pretrial hearing, conduct voir dire or make an opening statement and elicited incriminating hearsay evidence and joined in his co-defendant's motion that only his client was involved in crime]; People v. Droz, 39 NY2d 457 (1976) [attorney unprepared and ignorant of basic principles of law]; People v. Daley, 172 AD2d 619 (2d Dept 1991) [absence of any strategy given that attorney hadn't read Grand Jury minutes, unfamiliar with relevant law, unable to formulate questions, failed to move for suppression of pre-recorded buy money and additional shortcomings]; People v. Dinkle, 302 AD2d 1014 (4th Dept 2003) [In addition to not pursuing defense on one charge or challenging strength of People's case with respect to it on cross-examination, defense counsel effectively conceded on summation that the defendant was guilty of the charge]; People v. Riley,101 AD2d 710 (4th Dept 1984) [Among other things, attorney failed to use record from prior proceeding to impeach and elicited damaging testimony. Counsel's performance demonstrated obvious lack of trial preparation and marked unfamiliarity with prior proceedings and pursued inexplicable prejudicial course of cross -examination of police witnesses].

In this case, it is clear from Mr. Giovanni's statements to the trial court, his affidavit and his 440 hearing testimony, that he had made a conscious, strategic decision not to participate in the Huntley hearing and the trial in absentia. Pursuant to People v. Aiken, the wisdom of Mr. Giovanni's decision does not constitute grounds for finding ineffective assistance under the State constitutional standard.

The defendant argues that Aiken should not dictate the outcome of this case because Aiken involved strong evidence whereas defendant claims this case did not. Defendant's assessment of the proof against him is inaccurate. However, even assuming that it does not rise to the level of proof that existed in the Aiken case, there was still substantial and powerful evidence of the defendant's guilt. There were two witnesses to defendant having pointed the gun at his wife. Defendant clearly had a motive to menace her since she had confronted him about the affair right in front of his paramour. The defendant made conflicting statements about seeing his wife that night. He also offered an alibi as to where he had been all evening before he even knew why the police had come to Puddin's home. The gun, which had the distinctive metal feature, was recovered underneath a bed in a room that defendant had been in moments before. Officer Cosgrove heard shuffling noises in that room before defendant came out of it, which suggests that defendant had taken steps to secrete the gun there. That the gun did not belong to Puddin is amply demonstrated by the fact that she consented to the apartment being searched. Mrs. Diggins identified the gun as being the one pointed at her and Ms. Bryant said it looked liked the gun. Common sense supports the inference that the loaded gun found under the bed was also loaded [*15]at the time the defendant had it on the street. Logic dictates that a person doesn't have an unloaded gun while on the street which he points at his wife, only to go to his girlfriend's apartment to load it, bullet by bullet, and then stick it under the bed.

V

At a hearing on a motion to vacate judgment, "the defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion." See, CPL§ 440.30 (6). As previously recounted, the defendant points out that Mr. Giovanni did not give any explanations for his omissions aside from the reasons that he didn't cross-examine Mrs. Diggins. However, the defendant never solicited any explanations from Mr. Giovanni regarding those omissions. Therefore, defendant's assertion that Mr. Giovanni had no valid strategic reason for not engaging in the described conduct is speculative at best.

The defendant is dismissive of the People's assertion that Mr. Giovanni's

strategy was aimed at having at least one juror feel that the process was unfair and therefore not cast a vote of guilty so as to secure a mistrial. The defendant claims this is

mere speculation. However, the defendant, who has the burden of proof, neglected to ask Mr. Giovanni what he was trying to accomplish. The People's view of

his goal seems reasonable and likely. Had Mr. Giovanni abandoned his protest strategy by participating in the trial, he would have sacrificed the possibility of a juror perceiving the proceedings as unfair so as to produce a hung jury. He would have also deprived the defendant of the ability to complain that his nonparticipation constituted ineffective assistance, as he does in the instant motion to vacate the judgment.

The defendant's complaint that Mr. Giovanni did not make any objections does not provide a basis for finding ineffective assistance since, as previously mentioned, the defendant never identified what testimony or evidence was objectionable.

The fact that Mr. Giovanni did not conduct voir dire does not render his representation ineffective since the trial court did an extensive inquiry of the jurors. Defendant does not identify any juror who should have been challenged.

Defendant contends that Mr. Giovanni's failure to make an opening or closing statement was ineffective assistance of counsel. However, as the Court explained in Aiken, declining to open or close may be a matter of trial strategy where counsel has "little or nothing of an affirmative nature to offer the jury." People v. Aiken, supra , at 400.

Similarly, defense counsel's choice not to cross-examine witnesses can be explained where counsel concludes that it is best to forego cross-examination rather than reinforce a witnesses' testimony when counsel does not have a point of substance. Id. In his affidavit and 440 hearing testimony, Mr. Giovanni explained his reasons for not wanting to cross-examine the victim. In addition, Mr. Giovanni explained that his investigation did not reveal any favorable information.

As for the failure to call witnesses, the defendant does not even identify who Mr. Giovanni should have called as a witness or why. Since the defendant chose not to appear, counsel was deprived of the benefit of his assistance to find any witnesses that could have been called. Id.

Defendant also faults Mr. Giovanni for not arguing that the gun belonged [*16]to Puddin's teenage son since Mr. Giovanni's investigation revealed that he also lived in the apartment. However, the investigator's report was hearsay and inadmissible.The defendant does not identify what witness could have been called to lay the blame on this teenager.

Defendant additionally faults the attorney for not eliciting an inconsistency between Mrs. Diggins' and Ms. Bryant's testimony. However, the inconsistency related to whether or not Mrs. Diggins had spoken to the defendant before he came around the block and was joined by Puddin. As the inconsistency was minor and did not relate to the charged crimes, one can readily see why an attorney would not raise it.

Defendant also faults the attorney for not pointing out that unlike Sergeant Cosgrove, Officer Cash never heard shuffling noises or the interior door shut before the defendant appeared. However, Officer Cash testified first and the ADA never asked him what he heard. In any event, there was no real inconsistency in their accounts but simply different observations.

Defendant maintains that his attorney should have questioned Mrs. Diggins concerning her bias toward him. However, Mr. Giovanni explained why he concluded that would not have been a good idea. Inasmuch as the record indicates that Mrs. Diggins cried when she described the defendant pointing a gun at her and her reaction to it, it would seem that Mr. Giovanni made a wise choice. Furthermore, cross-examination which suggested that she was there to get revenge on the defendant would have probably opened the door to the fact that her appearance at the trial was not voluntary. Additionally, given the biographical information she imparted at the trial,

the suggestion that she was lying or exaggerating would have seem farfetched. Furthermore, her testimony did not have the flavor of exaggeration. She simply said that the defendant had pulled out the gun and told her to back up.

Defendant further complains that his attorney could have argued that Mrs. Diggins was not placed in fear by his pointing the gun at her, as he had done at sentence. The argument is based on the fact that she testified that she was in shock. However, shock does not preclude fright and it sounds absurd to suggest that Mrs. Diggins was not placed in fear by his actions, just because she and/or Ms. Bryant may have spoken to him. In any event, the menacing statute under which the defendant was charged, Penal Law §120.14 [1], provides that a person also commits menacing in the second degree when he intentionally attempts to place another in fear of physical injury, by displaying a firearm or what appears to be a firearm. The indictment in this case and the judge's charge to the jury included this portion of the menacing statute.Defendant also faults Mr. Giovanni for not requesting a circumstantial

evidence charge. Even assuming that such charge should have been given, the failure to request it does not constitute ineffectiveness.

The fact that Mr. Giovanni, through oversight, did not file a notice of appeal, does not provide a basis for relief. A failure to file a timely notice of appeal

is not properly raised in a CPL§440 motion. See, People v. Lard, 45 AD3d 1331 (4th Dept 2007); People v. Morales, 2003 WL 1093005 (Sup Ct NY Cty, Cataldo, J., June 23, 2003).

The other areas that the defendant claims Mr. Giovanni should have pursued do not merit any discussion. Suffice it to say, none provide a basis for finding [*17]the attorney ineffective.

In sum, the defendant's claims, either individually or collectively, do not

establish a violation of his state constitutional right to effective assistance of counsel.VI

Finally, defendant claims that "if Mr. Giovanni's representation of Mr. Diggins is found constitutionally effective here, any defense attorney faced with an absent client can, with impunity, refuse to participate once a court orders trial to proceed. " (Cohen, post hearing reply memorandum of law, dated July 31, 2009.)However, this argument overlooks or ignores the fact that were it otherwise, attorneys would be able to manufacture automatic reversals or successful 440 motions by simply choosing not to participate at trials in absentia. This of course would provide an incentive for defendants to abscond and thereby obtain retrials. The adjudicative process cannot be subject to such manipulation. Nor can trials in absentia be rendered a nullity by an attorney's strategic decision not to participate in them. See, People v. Aiken, supra . See, also, Walker v. State, 892 A2d 547 (Court of Appeals, Maryland 2006).

CONCLUSION

The defendant has failed to establish a violation of either his federal or state constitutional right to effective assistance of counsel. Accordingly, defendant's motion to vacate judgment is denied in all respects.

The foregoing constitutes the decision and order of the court.

Dated: New York, New York

October 19, 2009

______________________________

Arlene D. Goldberg, J. Footnotes

Footnote 1:Mr. Felig, who represented the People on the 440 motion, left the D.A.'s office in July of 2009. Mr. Glasser was thereafter assigned to the case.

Footnote 2:The motion was randomly assigned to me as the Justice who presided at the Huntley hearing, the trial and the sentencing proceeding is retired.

Footnote 3:The portions of the minutes of the various proceedings are referenced in this decision by a T followed by the date of the proceeding and the page number at which the material is found.

Footnote 4:The conviction and sentence in the attempted murder case were affirmed by the Appellate Division and the Court of Appeals. See, People v. Diggins, 45 AD3d 266 (1st Dept 2007), affirmed, 11 NY3d 518 (2008). One of the issues raised on defendant's appeal was that it was error not to grant him an adjournment of sentence to obtain proof that his 2004 conviction arose from a trial at which defendant was denied effective assistance of counsel.