People v Laboy

[*1] People v Laboy 2017 NY Slip Op 50883(U) Decided on July 6, 2017 Supreme Court, Bronx County Newbauer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 6, 2017
Supreme Court, Bronx County

The People of the State of New York,

against

Alexis Laboy, Defendant.



2749-2010



Noah J. Chamoy, Assistant District Attorney, Office of the Bronx District Attorney Darcel D Clark, for the People

Matthew L. Bush, Of Counsel, Office of the Appellate Defender, 11 Park Place, Suite 1601, NY, NY 10007, for the Defendant
April A. Newbauer, J.

Defendant Alexis Laboy has moved for an order pursuant to Criminal Procedure Law section 440.10 to vacate his conviction of assault in the first degree and his sentence of a determinate prison term of fifteen years plus five years' post-release supervision as a second felony offender. The defendant's CPL § 440 motion is predicated on ineffective assistance of counsel. The defendant claims that his trial attorney failed to conduct an adequate investigation when he did not obtain therapy records from Helen Hayes Rehabilitation Center, and failed to proffer an expert in traumatic brain injury to opine on the complainant's memory deficits. The complainant suffered brain damage as a result repeated blows to his head during the incident. The People oppose the motion, claiming that the defendant received effective assistance of counsel; that overwhelming evidence established the defendant's guilt; and that the defendant did not suffer prejudice or deprivation of a fair trial from counsel's strategic decision to his cross examine the complainant rather than employ an expert to highlight his potential memory loss. In addition, the People assert that trial counsel provided active and capable advocacy on behalf of the defendant during the trial, and that the defendant's appellate counsel significantly overstated the evidentiary value of his proposed expert witness in traumatic brain injury. The People [*2]dispute that the complainant's therapy records would have been probative. After review of the papers submitted:

*Notice of Motion to Vacate Conviction and Sentence, Affirmation of Matthew L. Bush with Exhibits A, B, C, D, 5 & 16A, Affirmation of Arnold S. Kronick and Memorandum of Law in support of defendant's motion

*Affirmation in Opposition, Memorandum of Law, and Exhibits 1, 2, and 3

*Reply Memorandum in support of defendant's motion and consideration of the relevant statutes and case law, the defendant's motion is denied.

Facts

On June 18, 2010, Peter Brennan was severely beaten by a number of people, including two Hispanic men later identified as the co-defendants Alexis Laboy and Jaquel Flores. Before the incident, the complainant Brennan drove through a stop sign and accidently struck the defendant, who was riding his bicycle. An off duty auxiliary police officer, Hector Ramos, observed Flores hit Brennan with a piece of wood and saw the defendant repeatedly strike Brennan in the head with a hammer. Ramos knew both assailants from the neighborhood. Brennan suffered a depressed skull fracture pressing on the brain, multiple facial fractures, lacerations and dental fractures. He remained in a coma for twenty-eight days. After being discharged from the hospital on July 13, 2010, Brennan was transferred to Helen Hays Rehabilitation Center where he had to relearn how to walk, talk and eat.

On July 30, 2010, a Bronx grand jury charged the co-defendant, Jaquel Flores, with acting in concert with others to commit the crimes of attempted murder in the second degree, assault in the first degree, gang assault in the first degree, assault in the second degree (three counts) and in the third degree, and criminal possession of a weapon in the fourth degree (two counts). Defendant Laboy was arrested on September 18, 2010 and on October 21, 2010, a Bronx grand jury charged him with the same counts.

On November 5, 2010, defendant's counsel at the time filed an omnibus motion to inspect the grand jury minutes and request suppression hearings. On November 15, 2011, Arnold Kronick, Esq. was assigned to represent the defendant after his prior counsel was relieved. On December 30, 2010, the court (Clancy, J.) granted the defendant's motion for a Mapp/Wade/Dunaway hearing and denied other relief. Prior to commencing the suppression hearing, the People filed a motion to consolidate the defendant's case with that of the separately indicted co-defendant Flores. On May 9, 2011, the motion to consolidate was granted in part except for unrelated charges relating to defendant's arrest for possession of drugs.

On March 20 and 22, 2013, this court conducted a joint suppression hearing. On March 25, 2013, the motion to suppress was denied by written decision. After a joint jury trial, the defendant was convicted of assault in the first degree. On May 14, 2013, the defendant was sentenced as a second felony offender to a determinate term of fifteen years' incarceration with five years' post release supervision. On June 19, 2013, co-defendant Flores was convicted of gang assault in the second degree and sentenced as a second felony offender to a determinate [*3]term of seven years' incarceration with five years' post release supervision.[FN1]

The record does not reveal whether the defendant filed a notice of appeal. On December 13, 2016, the defendant through appellate counsel filed a CPL §440 motion alleging that his trial counsel was ineffective. The People filed an affirmation in opposition on April 20, 2017. On May 12, 2017, the defendant filed a reply to the People's affirmation.

Findings

A defendant challenging his conviction on the grounds of ineffective assistance of counsel under the United Stated Constitution must satisfy the two-prong test set out in Strickland v. Washington, 422 US 668 (1984). The defendant must establish that counsel's performance was deficient and that the deficient performance resulted in prejudice to the defendant. Id. at 687. The first prong requires a showing that the representation of counsel fell below an objective standard of reasonableness. Id. In making such a determination, the court must assess the attorney's performance against "prevailing professional norms." Id at 688.

The New York State Constitution requires that a defendant receive meaningful representation. People v. Henry, 95 NY2d 565 (20020; People v. Benevento, 91 NY2d 708, 713 (1998). Under the State Constitution, inadequacy of counsel warrants reversal even in the absence of a reasonable probability of a different outcome when the defendant is denied a fair trial overall. See People v. Caban, 5 NY3d 143, 155-156 (2005).

Trial tactics which terminate unsuccessfully do not automatically indicate ineffectiveness. "[S]o 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." People v. Baldi, 54 NY2d 137, 146-46. Often a convicted defendant, with the benefit of hindsight, can point to where he believes his trial counsel went awry. Yet, to prevail on a claim of ineffective assistance of counsel, the defendant must demonstrate to absence of strategic or other legitimate explanations for counsel's failure to proceed in a certain manner. Absent such a showing, it will be presumed that counsel acted in a competent manner and exercised professional judgment. People v. Rivera, 71 NY2d 705, 709 (1988).

Moreover, courts must weigh the value of the efficient resolution of CPL §440 motions against the greater goal of full due process in determining whether to grant a post conviction hearing. But where detailed proof that refutes the defendant's arguments conclusively, a court may reasonably deny the defendant's motion without a hearing. See, CPL §440.30(4)(d); People v. Samandarov, 13 NY3d 433 (2009).

The defendant obtained an affirmation from his trial counsel which refuted a number of the allegations raised by the defendant. Counsel's affirmation clearly established that he had conferred with prior counsel as well as the defendant in forming a trial strategy that he implemented during the course of the trial. Trial counsel articulated that his primary strategy was to focus on discrediting the eyewitness to the assault (Ramos), since he believed based on the [*4]discovery and hearing minutes that Brennan could not necessarily identify the defendant as the person who participated in the assault. Brennan's "identification" of the defendant in court was subject to interpretation, because he identified the defendant as the person riding the bicycle that Brennan hit with his car, and later stated that he saw him holding a hammer, but could not say who assaulted him.[FN2] Trial counsel also indicated that he did not rely on Brennan's injury as part of his trial strategy. Although he did not consult with an expert on traumatic brain injury, trial counsel did consult with doctors who were acquaintances of his and who directed him to concentrate on Brennan's inability to recall the details of the event as a result of the injuries sustained.

The defense strategy was on view during trial counsel's summation and his cross-examination of Brennan; trial counsel elicited some contradictory statements from Brennan and he exploited the fact that the complainant recalled new details in his trial testimony that were not put before the grand jury. Trial counsel illustrated to the jury through cross examination of Brennan and the People's expert that the complainant could be found incredible because his brain injury caused memory deficiencies. In short, trial counsel, a 40-year veteran litigator, developed a misidentification defense [FN3] which was "meaningful" as a matter of law [FN4] and visible throughout the trial. The trial strategy was partially successful in that the defendant was acquitted of the top charge of attempted murder in the second degree. Trial counsel demonstrated a strong understanding of procedures and grasp of the law. The fact that his strategy was unsuccessful as to a felony count does not signal that he was ineffective or that he provided less than meaningful representation. See People v. Taylor, 1 NY3d 174, 177 (2003).

To prevail on an ineffective assistance of counsel claim in New York, defendant must demonstrate that he was deprived of a fair trial by less than meaningful representation. See People .v Benevento, 91 NY2d 708, 713 (1998). "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 representation, the constitutional requirement will have been met." People v. Baldi, 54 NY2d at 147. Given the strength of the evidence submitted during the trial, there is no reasonable probability that the results of the proceeding would have been different had an expert in brain trauma injury been called to testify. Brennan and Ramos were consistent and corroborated each other in most respects. A video surveillance tape of the incident was introduced as was a 911 call describing the scene. All pointed to the defendant's guilt.

The defendant faults trial counsel for failing to call an expert in traumatic brain injury. A trial counsel's failure to call a particular witness does not necessarily constitute ineffective assistance of counsel. See People v. Ozuna, 7 NY3d 913 (2006). A defense attorney's strategic decision not to present expert testimony rarely amounts to ineffective assistance of counsel. See [*5]People v. Caldavado, 26 NY3d 1034 (2015). Defendant has not proffered affidavits from experienced defense counsel suggesting that consulting an expert would be part of the minimum standard of effective representation under these circumstances. Defendant puts forth the affidavit of a traumatic brain expert who reviewed Brennan's medical records and who concludes as follows:

....Mr. Brennan sustained a moderate-sever traumatic brain injury as a result of an assault that occurred on June 18, 2010, and by his own report his memory for those events is incomplete. The medical records available, which indicate a period of disorientation, inability to follow commands consistently, and severe cognitive impairments documented on a screen conducted three weeks post-injury, are consistent with Mr. Brennan's report that his memory for the events of June 18, 2010 is limited.....

This assessment is entirely consistent with Brennan's own testimony at trial; in fact it adds very little. While it can hardly be argued that consulting an expert is a negative strategy, the benefit to be gleaned from such an expert does not justify vacating the defendant's conviction merely because trial counsel failed to consult with one. Further, trial counsel's decision not to consult with a traumatic brain injury expert or call one to testify about a victim's mental faculties, did not necessarily prejudice the defendant. See People v. Bracey, 123 AD2d 419 (1st Dept 2014). For trial counsel to have pursued the strategy of calling an expert to delve into every aspect of Brennan's permanent memory loss could also have emphasized the seriousness of the physical injury inflicted upon him and predisposed the jury to a conviction.

The defendant has not shown a reasonable possibility that an expert's testimony would have been any more successful than the impeachment devices counsel employed at trial. See e.g. People v. Carmichael, 188 AD3d 603 (1st Dept 2014). Additionally, the defendant was not able to demonstrate the absence of strategic or other legitimate explanation for counsel's actions (see People v. Rivera, 71 NY2d 705, 709 (1988)), given that trial counsel supplied them in his affidavit. There is no guarantee or likelihood that the trial would have had a different outcome had a defense expert been called. See People v Benjamin, 151 AD2d 685 (2d Dept 1989)(counsel's decision not to use an alibi defense, choosing instead to raise misidentification, was a well-advised trial strategy and cannot be characterized as ineffective assistance of counsel); see cf People v. Divine, 193 AD2d 562 (1st Dept 1993), lv denied 82 NY2d 717. On these facts, defendant cannot establish that 'but for' counsel's purported errors, the verdict would have been different. See People v. Styles, 156 AD2d 223, 225 (1st Dept 1989), lv denied 75 NY2d 872; People v Diaz, 157 ad2d 569 (1st Dept 1990). "A claim of ineffective assistance of counsel will not lie where the purported failures of counsel are the result of a calculated trial strategy which, in the final analysis, does not work..." People v. Washington, 184 AD2d 451, 452 (1st Dept 1992), lv denied 80 NY2d 91. Accordingly, no hearing is needed on this issue. But cf. People v. Castricone, 224 AD2d 1019 (hearing granted on defendant's §440 motion where defense counsel failed to explain strategy).

The defendant's reliance on People v. Oliveras, 21 NY3d 339 (2013), is misplaced. In Oliveras, the People's case rested primarily on defendant's inculpatory statement, so trial counsel's ability to undermine the voluntariness of those statements was crucial. The defense counsel's strategy at trial was to demonstrate that the defendant's mental illness undermined the [*6]voluntariness of his admission of guilt. Despite the centrality of the defendant's mental illness in Oliveras, counsel failed to investigate critical documents concerning defendant's mental illness history and condition. Here in contrast, the complainant's ability to recall past events accurately was just one aspect of the prosecution's case against Laboy. The People called an eyewitness who was familiar with both defendants, observed the incident and identified them as the perpetrators. Together with the testimony of the complainant Brennan, the People also introduced a video surveillance tape and a 911 call.[FN5]

Finally, defendant mistakenly claims that his trial attorney failed to conduct an adequate investigation because he did not obtain therapy records from Helen Hayes Rehabilitation Center. In considering how to proceed to zealously defend a client, it is essential for an attorney to investigate the law, the facts and the issues that are relevant to the case to determine if matters of defense can be developed. See Strickland v Washington, 466 US 668 (1984). After assessing his options, trial counsel formulated a trial strategy concentrating on misidentification as a defense and in doing so, focused on impeaching the credibility of Ramos and the inconsistencies of Brennan's prior testimony. Trial counsel cross-examined Brennan regarding his ability to recall events and impeached him on inconsistencies in his prior testimony.

The defendant presently speculates that documents from Helen Hayes Rehabilitation Center for the period of one year after Brennan's release from the hospital would have shed critical light on Brennan's memory loss. This claim is both speculative and unsubstantiated. Defendant's own expert did not assert that these records would be of value in determining Brennan's cognitive status. At trial, Brennan described his rehabilitation at Helen Hayes to include physical, occupational and speech therapies, not all of which would relate to his ability to recall. Even assuming that counsel should have tried to obtain the records, the defendant fails to demonstrate that his counsel's error prejudiced his right to a fair trial overall. See People v. Benevento, 91 NY2d 708, 713-14 (1998). Nor would counsel have had an absolute right to examine the records, which were subject to a HIPAA release from Brennan. See, e.g. Matter of Sackett, 109 AD3d 427 (1st Dept 2013).[FN6]

In this case, trial counsel prepared a trial strategy; made appropriate motions; delivered a clear opening; meaningfully pursued the trial strategy during cross examinations of Brennan and Ramos; lodged objections consistent with the defense's theory; highlighted inconsistencies in the witnesses' testimony; made cogent arguments during his summation; and emphasized that the defendant was a victim of misidentification. Trial counsel's performance was objectively reasonable and legitimate and reflected a performance commensurate with that of a competent veteran attorney who conducted a defense in accordance with a reasoned trial strategy. [*7]Considering the record as a whole, the defendant was provided meaningful representation. In this case, the defendant has failed to sufficiently challenge the strong presumption that trial counsel rendered effective assistance of counsel so as to warrant a hearing.

Conclusion

The defendant has failed to adequately challenge the strong presumption that trial counsel rendered effective assistance of counsel. Accordingly, the defendant's motion to vacate the judgment pursuant to C.P.L. section 440 is denied.

ENTER,

Dated: Bronx, New York

July 6, 2017

________________________

Honorable April A. Newbauer Footnotes

Footnote 1:The Court notes that co-defendant Flores time appealed his conviction. On January 5, 2016, the First Department unanimously affirmed the judgment of conviction. (People v. Flores, 135 AD3d 415, lv denied 27 NY3d 1068 (2016)).

Footnote 2:Nonetheless, the defendant is correct that the prosecutor characterized this testimony as an identification in her summation.

Footnote 3:A unified defense with Flores' counsel.

Footnote 4:See People v. Baldi, 54 NY2d 137.

Footnote 5:Confronted with the ambiguity of Brennan's "identification", the court gave a one witness identification instruction and did not specify that it applied only to the co-defendant Flores, who was identified only by Ramos.

Footnote 6:Had the complainant refused to sign a HIPAA release, rendering the defense unable to secure the records without court intervention, the defense counsel would have had to request a court issued subpoena, and the court would have had to balance the complainant's HIPAA rights against the defendant's right to obtain probative evidence for trial.