People v Wright

[*1] People v Wright 2018 NY Slip Op 28288 Decided on September 17, 2018 Supreme Court, New York County Farber, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on September 17, 2018
Supreme Court, New York County

The People of the State of New York, Plaintiff,

against

Alan Wright, Defendant.



1934/17



For the Defendant: Steven R. Fusfeld 321 Broadway 3rd Fl NY 10007 212-226-5688

For the People: New York County Office of the District Attorney by Assistant District Attorney Jennifer Abreu 1 Hogan Place NY 10013
Thomas A. Farber, J.

Defendant Alan Wright moves, pursuant to Section 330.30(1) of the Criminal Procedure Law, to set aside the verdict rendered on March 26, 2018, convicting him of Robbery in the Second Degree [PL §160.10(2)(b)] and Burglary in the Second Degree [PL §145.25(1)(d)].[FN1] Defendant alleges that he received ineffective assistance of counsel.

Defendant in this case was charged with Robbery in the First Degree and Burglary in the Second Degree for a robbery that occurred in a laundromat in uptown New York. Defendant was, essentially, on videotape committing the crime and was arrested with the victim's property shortly after the crime. The evidence was, to say the least, overwhelming. Faced with a case where there was little, if any, chance of acquittal, trial counsel took the path of least resistance. He did absolutely nothing for his client, simply repeating the prosecutor's questions on cross-examination and reading his notes to the jury during his summation. He did not even argue for an acquittal. The jury, nevertheless, acquitted defendant of the Robbery in the First Degree, finding [*2]him guilty only of Robbery in the Second Degree and Burglary in the Second Degree.[FN2]

I am convinced that this was the best verdict that any lawyer, no matter how talented, could have achieved for this defendant. In short, defendant suffered no prejudice from his trial counsel's horrendous representation. So the question that is before me is whether, under New York law, a lawyer who does absolutely nothing can be considered to have given "meaningful representation" when his client suffers no prejudice. I conclude that even though defendant suffered no prejudice, a lawyer who provides essentially no representation cannot be held to have provided "meaningful representation" under New York law.

I further conclude that because defense counsel's ineffectiveness is apparent from a simple reading of the record, there is no reason to grant a hearing. There is nothing outside of the record that a hearing would elucidate. See People v. Bartley, 298 AD2d 160 (1st Dept 2002), lv denied 99 NY2d 580.

THE TRIAL

This case was sent to me for trial on March 15, 2018. Defendant was charged with Robbery in the First Degree and Burglary in the Second Degree, for a robbery that occurred in a laundromat in uptown New York. Prior to the commencement of the trial, defendant moved to relieve his trial counsel. Defendant could not, however, advance any cogent reason as to why I should relieve counsel on the eve of trial, and he was already on his second lawyer. Defendant's problem truly seemed to be his inability to deal with the overwhelming evidence against him.

And the evidence was indeed overwhelming. The entire robbery is shown in high quality video from several different angles. Defendant is seen lingering outside the laundromat, then entering the laundromat with his hand in his pocket simulating a pistol. He can be seen terrorizing the sole employee, Joe Pierre, and a customer, Patricia Buscemi. He hits Mr. Pierre, and forces both victims to the ground and ultimately into a storage area. He is seen on the videotape rummaging through the cash register and leaving with, among other things, Mr. Pierre's metrocard. Defendant kept his hand in his pocket, simulating a weapon during almost the entire incident, and, although there is one point on the video where defendant is seen removing his hand from his pocket, it is not possible to tell whether he had a real weapon in his pocket or not.

Although defendant is wearing a ski mask, he is also wearing an extremely distinctive camouflage jacket with grey sweatpants and equally distinctive sneakers—one of which had a dangling strap. This is significant because minutes before entering the laundromat, defendant is also seen on video entering a hotel across the street to use the bathroom. He was wearing the exact same outfit, down to the sneakers with one dangling strap, this time without the mask. And his face is clearly visible on the video. Moreover, because defendant was a regular visitor to the hotel, he was known to the woman who was working at the desk, Lindell Lewis. Ms. Lewis testified as a witness for the People.

Defendant was arrested when Ms. Lewis saw him a short time later in the neighborhood and notified the police. When defendant was arrested, he had Joe Pierre's MetroCard in his [*3]pocket. The People had additional video that showed Mr. Pierre using the MetroCard at the Chambers Street subway station on the days prior to the robbery. They also had a video of defendant using the MetroCard on a city bus after the robbery.

In short, this was a powerful, overwhelming case, where defendant had no defense to the robbery charges and, at best, a weak defense to the burglary charge. The best he could hope for was that the jury would find that he did not actually have a real gun and convict him only of Robbery in the Second Degree.[FN3]

Still, although the evidence against defendant was strong, there were arguments that could have been made with respect to witness credibility. Lindell Lewis, the hotel clerk and chief identifying witness, was very vague as to the number of times that she had seen the defendant in the past. On direct examination she initially testified that she had seen him "a couple of times" in total. This then got expanded to "four or five times" in total, and then, following a series of leading questions (without objection), to six times a week inside the hotel. On cross-examination, instead of exploiting this, trial counsel simply—as with every witness— repeated the direct examination, re-emphasizing the six times a week version.

Similarly, some of the testimony of the store manager, Shuguo Chen, appeared to be very different from that of Joe Pierre, the employee. According to Mr. Pierre, he was robbed the first day he worked there and went back only one time after the robbery. Mr. Chen's testimony made it seem as if Mr. Pierre had worked there for a long time. Again, this was more than likely a language issue—neither witness being a native English speaker—but the inconsistencies could have at least been brought out.

But nothing was brought out. There was no effort to call into question any of the witnesses' testimony either on cross-examination or summation. The cross-examination simply repeated the direct examination. At times it seemed as if trial counsel believed that his job, along with the prosecutor's was to make what happened as clear as possible to the jury.[FN4]

Counsel conceded virtually every legal point the People raised. And although the People disclosed certain "Garrett"[FN5] and Giglio material, counsel simply stated he wasn't going to use it. [*4]Indeed, with respect to one of the police officers who testified, Police Officer Pagan, the People had disclosed that in 2014, this officer had lied to an assistant district attorney in a prior case about being on vacation to avoid being notified to appear in court. While clearly collateral, and the officer's credibility was not a major issue in the case, this was an officer who lied to the People in a manner that the People thought required a Giglio disclosure. But counsel simply told the prosecutor he would not use it. When the witness was called to the stand and I asked counsel if he was going to use this material on cross-examination, counsel said his client wanted him to, but he had told the prosecutor he wouldn't use it. This colloquy followed:

THE COURT: Why would you not ask about this, sorry?

COUNSEL: His prior conduct? There is no reason why I wouldn't.

THE COURT: He lied to an Assistant in a pending case about something, not terribly substantial.

COUNSEL: Right.

THE COURT: But he told something that wasn't true.

COUNSEL: Yes.

THE COURT: It seems to me you would want to ask about that.

COUNSEL: I do.

THE COURT: You are allowed to ask about that.

But having already told the Assistant District Attorney that he would not ask about it, he was entirely unprepared for the examination that followed—even after a substantial break. He proceeded to botch the examination, first by asking a series of improper questions that appeared to have nothing to do with the inquiry I had permitted him to make:

Q: Now, have you ever been involved in a hearing where you gave a false answer?

ASSISTANT DISTRICT ATTORNEY: Objection.

THE COURT: Sustained.

Q. Did you participate in a disciplinary—

ASSISTANT DISTRICT ATTORNEY: Objection.

THE COURT: Sustained.

Q. Were you involved — you were involved in a lawsuit, were you not?

ASSISTANT DISTRICT ATTORNEY: Objection.

THE COURT: Sustained.

ASSISTANT DISTRICT ATTORNEY: Your honor may we approach?

THE COURT: Yes.

At the sidebar, out of the hearing of the jury, I instructed counsel that the questions were improper. They appeared to go into areas that I had precluded (and that he said he would not go into). But even if I were to permit him to ask about prior hearings, disciplinary matters or lawsuits, he could not bring it out with these types of improper questions. I again told trial counsel that he could ask about the incident in Niagra Falls, but that he had to "ask it in a way that is comprehensible." Defense counsel, apparently confused, said to the assigned assistant, "one year he spent in Niagra Falls?" The assistant, thinking counsel was referring to the year the officer testified he was on military leave, said "he was deployed in Iraq."

The examination resumed, with counsel then asking about the officer's deployment in Iraq, which had nothing to do with the Niagra Falls incident and which, obviously, could not [*5]possibly do anything other than re-emphasize this officer's service to his country. But then it appeared that counsel was completely confused and eventually I had to bring him back up to the bench:

Q. Detective Pagan, was there a time during the course of your career that you had been deployed in Iraq?

A. Yes.

Q. And when was that?

A. That was in 2008.

Q. And when you were deployed, were you also involved—were you involved in an incident that occurred in Niagra Falls.

A. No.

Q. When you were deployed, were you involved in an incident in which — in Iraq where you were questioned —

THE COURT: No, no, Mr. [counsel's name]. I'm sorry. Come up please.

Then at sidebar, outside the presence of the jury:

THE COURT: What are you talking about?

ASSISTANT DISTRICT ATTORNEY: All this involves is —

THE COURT: You have a letter [the Giglio disclosure where it was all set out in detail by the People] right there.

ASSISTANT DISTRICT ATTORNEY: —a case—

THE COURT: It only involves—

ASSISTANT DISTRICT ATTORNEY: [Seeing that trial counsel is looking at the wrong document.] That is not the letter. I gave you the letter. Do you have it? I can give you mine if you want for the purpose of this.

(Pause)

ASSISTANT DISTRICT ATTORNEY: Here. I just need that back.

DEFENSE COUNSEL: Right.

THE COURT: Take your time and read it. If you think it is worth questioning about, you can ask him.

Counsel finally was able to ask the correct questions. This impeachment, basically fed to him by the Court and Assistant District Attorney, was the only cross-examination that remotely resembled advocacy.

But the worst was reserved for closing argument. Counsel took detailed notes of everything each witness said, including exhibit numbers and time references on the video. Then, for his summation, he simply read the jury from his notes. The summation lasted for over an hour and spans 32 pages in the record, yet it was entirely devoid of advocacy. Counsel thanked the jury, told them that the burden of proof was beyond a reasonable doubt, told them what the charges were and then said he would go through the testimony of the witnesses "really quickly." He then proceeded to read verbatim from his notes, page after page, simply recounting what each witness testified to, including the most minute and irrelevant details. Where the testimony was helpful to the prosecution, it was repeated anyway. Where the prosecution structured the testimony to emphasize the dramatic aspects of a robbery where the victims were thrown on the floor and told they would be killed, it was repeated with all the drama and emotional content. [*6]There was not a word of argument. In 40 years of trying cases as a judge and advocate, I have never seen anything like it. Here is an example:

Second witness was Robert Laird who basically was an analyst for the district attorney's office and worked there for approximately nine years.He worked as an assistant to 40 or 50 attorneys as a paralegal before that.People's 1 and 2, the USB, which is the compilation of the video footage, and that video compilation was recorded because the video itself, all the different cameras, would take hours and hours, as you heard, would take too long, and they focused basically on the People who were in this laundromat.People's 10 is the video compilation of People's 1 and 2.After that witness completed their testimony, it was Ms. Lindell Lewis who is witness number three.She testified that she basically worked at the hotel. That there were two hotels right next to each other. One was at 515 called the Caribe Hotel connected to the Casablanca at 511 West 145h Street and Amsterdam.She said she worked at that hotel for 12 years. Ultimately working at the front desk and prior to her working at the front desk, part of her duties was also doing some cleaning.She says that when she worked there, she would work six days a week from 8 p.m to 8 a.m.She also indicated that this particular hotel is located near restaurants, libraries, barber shops, and the hotel has its own video monitor since she indicated approximately how many monitors that hotel maintains to cover the lobby, various angles outside the hotel. At least—I believe she testified there was at least ten cameras that record everything that is in and out of that particular hotel.

And on and on. Neutral words like "indicated" and "testified" and "says" or "said" appear close to a hundred times in the transcript of the summation ("indicated" alone appears 59 times). Argumentative words or phrases like "inconsistent" or "discrepancy" or "unworthy of belief" or "contradiction" or "unclear" or anything remotely resembling argument are completely absent.[FN6] Details that appeared in his notes were included no matter how insignificant or irrelevant or harmful to his client—just because they were there. Where the testimony was indicative of guilt, and almost all of it was, it was repeated as well.

The summation lasted for an hour, but it wasn't long before almost everyone in the courtroom, including the jury, started to shift in their seats. Was this really happening? Was a [*7]defense lawyer really simply reading through his notes telling the jury what the evidence was without making any argument at all? (Yes.) Was it leading somewhere? (No.) Here in full is his discussion of the victim, Joe Pierre's testimony.[FN7] He started, since the prosecution started, by bringing out all of the favorable background of this hardworking immigrant:

He testified through the use of a Creole interpreter. He says that he lived in Brooklyn. He originally came from Haiti. He lived with his stepmother and father and brother. He came to the U.S. in 2016.He says that he currently, recently had been working at an organic food store and he worked there starting in November 2017 and he worked there for approximately six days and does so because he goes to the Borough of Manhattan Community College and he does so because he goes four days a week and that he was studying English because his English was not well (sic) and that he speaks French because we heard testimony that the Haitian—Creole is basically a derivative originally from French.

His ultimate goal was to study math and nursing.

Note the inclusion of everything, including the explanation of the Creole dialect. Continuing:

He stated that on May 2017 he worked at the laundromat that was located at 145th Street and he did many hours there. He also said that he sold change for the machines, cleaning items that people needed, cleaning products. He said that the cash register was closer to the—he referred to the basement, the lower area where a bed was kept for Mr. Chen. Mr. Chen was the only one to use that—a bed that was in the basement.He said he was provided keys to the-provided to the register by Mr. Chen and kept the keys in his pocket. He was also told when he completed his hours he was to return the keys to Mr. Chen who was the owner.Mr. Pierre was then shown People's 7B. Shows that that was the door at the end of the counter. He indicated that that exterior area is a closed door to keep customers from going in. He says the door is kept open when no one is around. It is easier for him when he is by himself. It is easier to go in and to go out.

So here he simply repeats the testimony that the area was an area closed to the general public. He includes my questions at the time pointing out that the door was open, but makes no attempt to argue that this showed that the area was not clearly marked as off limits to customers. The testimony is simply repeated from the notes. Then counsel went to the day in question (that being the order of the prosecution's direct examination):

Approximately on May the 7th, he said he was working at night, the midnight tour from 7 a.m.—started Saturday night into Sunday morning.He indicated that at approximately 3:45 a.m., he was cleaning up the dryers. You saw the video and stills where the dryers are located versus where the washing machines are located. The dryers are in the back. It is easier to get access to the dryers in the back. The motors or whatever it is. It is easier to get to them.He said a customer was inside and he said he saw a woman running. He saw someone come in with a mask. He said that person said to him go down. He said he had a hard time understanding—he didn't understand what he was saying. He said he was using some sort of street language and he took it to mean that he was to basically believe that a robbery was about to happen.He went into the corner. The bathroom was—he said he indicated that the person with the hood on said he wanted everything that was on me or he would kill me. He said on his examination both that he had a watch, wallet, MetroCard and a phone.The alleged perpetrator, the person with the mask on, he said he never saw his face, asked for the keys to the register. He indicated that I guess he didn't do it quickly enough or respond to his yelling at him fast enough and that person who he said he couldn't see his face hit him on the face, and he indicated to you where he hit him on the face on that day.Then he took the key, went to the register and after that, when he went to the register after he emptied out the register and took approximately I believe Mr. Pierre testified—again, it is your recollection—approximately $250 was taken.He says that person had a mask on. He turned. He saw it was a man because he recognized it was a man's voice. He said that person had his hand inside his pocket at all times. Never saw him take it out. And he gave, he being that person, gave him the impression that he had something inside his pocket. Mr. Pierre said he believed that that person had a gun.

So here, not only is there no argument, he marshals the evidence in favor of the prosecution. Although the video in fact shows the defendant briefly taking his hand out of his pocket (with no gun), he simply reiterates for the jury the complainant's testimony that he believed that the defendant had a gun inside his pocket and that he never saw the hand out of the pocket. Continuing:

The female customer, I believe, who was the last witness, testified that they were at that time—they were the only ones in the store. Indicated he saw the perpetrator's neck and indicated that he seemed to be the same coloration as himself, so he believed that that person was black, just like he was.Then he indicated after that person said go down, give me everything you have or I'll kill you, he said he didn't understand everything that that person with the mask and hood on said to him, but he said he did understand he would kill him.And the way the woman was running and that he had his right hand in his pocket, fully inside his pocket, quote, he said I believed he had a gun. Again, he had indicated again that that person had hit him in his face with his hand.He indicated that both he and the female were ushered to go towards the bathroom because the bathroom was locked, and then he indicated that it was at that point when he pushed them down, stood on—took from him his watch, MetroCard and ultimately got the keys for the register.He said he didn't focus. He just wanted that person to leave. The female just says get on the floor and give him whatever he wants. He indicated that the female, who we now know is Ms. Buchinji, said she appeared to be very emotional. She said give it to him, give it to him. She was kneeling too and said no one else was there.The complaining witness, Mr. Pierre, said he had two phones, one on him and one was by the register. That he had a MetroCard in his wallet and had no money.He says that the perpetrator asked for money. He said he had no money.The customer said that she didn't want to lose anything. She said just give him the keys to the register and he gave up the keys and he said that that person always had his hand in his pocket.He said he was afraid he could be killed. He was told that that individual who he could not identify said he was told more than once, and the female, Ms. Buchinji, indicated either one of them not to scream. She was so afraid. She said the entire incident took place maybe five minutes.When the perpetrator left, said he along with the lady was waiting behind the dryers in the small, little room that had a door. You go behind where you fix the dryers. He said he closed the door behind them and they stayed there because they were afraid that that person might come back.He said that there is a lock there, but the lock doesn't work. So they held the door closed with Ms. Buchinji and then they waited approximately he guesstimated ten to 15 minutes. The room was so small and very uncomfortable.

He repeats the complainant's mesmerizing testimony, exactly the way the prosecution laid it out for the jury. Not just the facts, but emotional details of this harrowing incident where the victims truly believed that defendant would kill them—stuck in a "small and very uncomfortable" room afraid to go out for ten to fifteen minutes. The prosecutor could not have done a better job retelling this story.

At this point in the direct examination the prosecutor showed the video, and again took the victim through the incident. And because it was in his notes, defense counsel did it as well:

He was shown the copy of People's 1 which is a copy of the video of the incident and he identified it. He looked at various different camera angles. Camera one which showed him cleaning as well as the washers. And then at various different camera angles.Showed another customer who is not the victim, she came into the store, and you heard Ms. Buchinji say she knew that person not by name but just from the neighborhood.He also indicated that the door to the laundromat was kept open. That outside that laundromat there are taco trucks in front of the laundromat. The door is kept open.Mr. Pierre was again shown a video. Again, he indicated that a perpetrator was in a hood, with a hood on.He was then shown angle, another angle, camera number two as well as the main camera, which is camera one, which basically captured everything that was in front of the main area of the laundromat.Ultimately, another camera angle was shown to Mr. Pierre. It identified—says that was him going down to the basement to tell his boss who was down there what happened and also explained to the female, Ms. Buchinji, what the man had taken.

Again, here simply reading from his notes as to what happened during the trial. All the irrelevant details, down to the taco truck outside, are included. Continuing, counsel read: "Mr. [*8]Pierre indicated money was taken from the register. You heard Ms. Buchinji say nothing was taken from her." And then counsel paused, seemingly lost.

What happened here? Counsel was remembering something that a witness who had just testified prior to the summations had said. He departed from his notes for one sentence. And then he looked befuddled, because he departed from his notes. The transcript indicates: "(Pause.)"

Eventually finding his place, counsel returned to the recitation of camera angles:

Mr. Pierre again was shown various different camera angles from different cameras.One point he was shown a viewpoint of the alleged perpetrator from camera number five at approximately 3:47:47.Also shown a viewpoint from camera seven approximately 3:27 which showed that Mr. Pierre at that time was—and it was now the next day, that he was cleaning the machines and the floor. Showed him mopping and sweeping the floor.Then he shows—the camera shows that the perpetrator then pushed Mr. Pierre. Shows that the perpetrator then left the laundromat after the robbery. After—he said that he only worked there for two days. Ultimately when he got back home, he told his mother what had happened to him and she said don't you go back there to work there again. He did say he did go back for one day as a favor to Mr. Chen.Again, he was shown People's No. 3 which shows the Chambers Street subway.

And that's it. No argument. Laborious repetition of exhibit numbers, video times, camera angles, without any indication as to why they were important or relevant. And the only straightforward recitation of facts a rehashing of the complainant's harrowing, damning testimony exactly the way the prosecution presented it.

And not only were trial counsel's words devoid of any semblance of advocacy, his demeanor and body language were entirely without adversarial affect. An observer arriving in the middle of the trial would have been entirely unable to tell if trial counsel was a prosecutor or defense lawyer.

DISCUSSION

The right to counsel is guaranteed by the Sixth and Fourteenth Amendments of the Constitution. It has been interpreted to mean the right to effective counsel: "It has long been recognized that the right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 US 759, 771, n.14, (1970). "In an adversarial system of justice, the fundamental right to the effective assistance of counsel is essential to a criminal defendant's due process entitlement to a fair trial." People v. Dean, 50 AD3d 1052 (2d Dept 2008), citing People v. Benevento, 91 NY2d 708, 711 (1998). The mandate for effective assistance of counsel generally means "the reasonably competent services of an attorney devoted to the client's best interests." People v. Ortiz, 76 NY2d 652, 655-656 (1990); see also People v. Bennett, 29 NY2d 462, 466 (1972) (the right "means more than just having a person with a law degree nominally represent [defendant] upon a trial and ask questions").

As the Supreme Court noted in Strickland v. Washington, 466 US 668, 686 (1984), "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Under federal law, a defendant claiming ineffective assistance of [*9]counsel must show first that defense counsel's performance was deficient. Second, a defendant must also show that he was prejudiced. Prejudice in this context means "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

Under New York law, the standard for ineffective assistance of counsel is whether defendant received "meaningful representation." People v. Baldi, 54 NY2d 137, 146-147 (1981). While the state standard also has a prejudice component, "'prejudice' is examined more generally in the context of whether defendant received meaningful representation." People v. Benevento, 91 NY2d 708, 713 (1998). This standard thus focuses on "the fairness of the process as a whole rather than its impact on the outcome of the case." Id. at 714.The question is whether "the representation of a defendant by his assigned lawyer was so inadequate and ineffective as to deprive him of a fair trial." People v. Bennett, 29 NY2d 462,464 (1972).

Of course "meaningful" representation does not mean "perfect" representation. See People v. Aiken, 45 NY2d 394, 398 (1978). The Constitution guarantees the defendant a fair trial, not a perfect one. People v. Benevento, supra at 712 citing People v. Flores, 84 NY2d 184, 187 (1994). "counsel's performance should be 'objectively evaluated' to determine whether it was consistent with strategic decisions of a 'reasonably competent attorney.'" People v. Benevento, supra at 712 citing People v. Angelakos, 70 NY2d 670, 673 (1987). "As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance." People v. Benevento, supra at 712.

Because the right to effective assistance of counsel is so fundamental to our system of justice, the harmless error doctrine is not applied to cases of "substantiated claims of ineffective assistance." People v. Benevento, supra at 714 citing People v. LaBree, 4 NY2d 257, 260 (1974). Whether a defendant would have been acquitted of the charges but for counsel's errors is "relevant, but not dispositive" under the state standard of ineffective assistance of counsel. The Court of Appeals has stated that the constitutional safeguards must be applied in all cases to be effective, and therefore the judicial system must be concerned as much with the integrity of the judicial process, as it is with the issue of a defendant's guilt or innocence. People v. Benevento, supra at 714 citing People v. Donovan, 13 NY2d 148, 153-154 (1963).

Under the federal standard it is clear that trial counsel's representation could not be ineffective, because there is no reasonable probability that but for counsel's performance, the result would have been different.

But I cannot find, under the New York State standard, that counsel's representation was "meaningful." It was, effectively, no representation at all. Trial counsel conceded every legal point the People made, marshaled the evidence against his client and repeated almost verbatim the trial testimony. He made no attempt to point out internal inconsistencies in the witnesses' testimony or inconsistencies among witnesses. He did not argue lack of permission or authority to enter the premises alleged to have been entered unlawfully. He did not argue that the available evidence showed that defendant did not have a real gun.

We work in an adversarial system. When a lawyer abdicates his responsibility to zealously defend his client, it is not just his client who suffers, but the whole system. When I introduce myself to my jurors I spend a lot of time talking about the jury system and the [*10]importance of jury service. When trial counsel sat down after his summation, I felt as if I had betrayed the jurors. The jurors looked bewildered. Indeed the entire courtroom looked bewildered. I don't think anyone had seen anything quite like this.

This is not to suggest that effective trial counsel need follow any particular type of script. He need not, as defendant's current counsel suggests, advance an "alternative theory." There are many ways to be effective, and, especially where the evidence of guilt is strong, it might make sense to avoid an "alternative theory" and instead just point out the weaknesses in the prosecution's proof and witnesses' testimony and argue reasonable doubt. Or one might just raise an issue here or there to put a question in the jury's mind. An attorney need not make frivolous arguments, but he or she must be an advocate for the defendant, not another prosecutor.

Had I not sat through this trial and observed every painful minute, I would be reluctant to grant a motion like this without a hearing. I would have wanted, at least, to give the People an opportunity to show that counsel's performance was the result of some strategy or tactic. But unless counsel's strategy was to make the jury feel sorry for his client based on the abysmal quality of his representation, there could be no conceivable strategic reason why a defense lawyer would act like this.[FN8]

Based on the foregoing, I find that defendant received ineffective assistance of counsel. Defendant's motion pursuant to CPL §330.30(1) is granted. The conviction is vacated and a new trial is ordered.

This opinion constitutes the decision and order of the Court.

Dated: September 17, 2018

New York, New York

____________________________________________________

J.S.C. Footnotes

Footnote 1:Following defendant's conviction, I relieved trial counsel and appointed new counsel to determine whether a CPL §330.30(1) motion was appropriate.

Footnote 2:I am reasonably certain, based on past experience and having spoken to the jury following the trial, that the jury decided that since defense counsel wasn't doing his job, they had to do it for him.

Footnote 3:The burglary charge was premised on defendant entering the area behind a table that was not open to the public. A reasonable argument could be made that this area was not marked in a way to exclude the general public. Although trial counsel seems to have entirely missed this argument—the favorable testimony was brought out by the Court—an acquittal on the Burglary charge (which is, like Robbery in the Second Degree, a class C violent felony), would not have benefitted defendant in any significant way.

Footnote 4:Indeed, in beginning his cross-examination of Joe Pierre, trial counsel introduced himself in a manner that implied that he and the assistant district attorney were working together to make things clear to the jury: "Most of the questions were asked on direct examination by ADA Abreu, so I'm not going to — I am going to avoid repetition as best I can."

Footnote 5:People v. Garrett, 23 NY3d 878 (2014). In New York County, it is the People's practice to do a search of all pending or completed litigation involving a testifying officer. This is routinely turned over to the defense prior to trial.

Footnote 6:There is one exception. In discussing the testimony of Officer Pagan (discussed above at p. 5-7), counsel stated that Pagan told a lie when he told the assistant he was on vacation. And "a lie is a lie, whether you do it under oath or not. When someone says a lie to you, you don't say do you swear to tel the truth. When someone says a lie they lie. You can take that as a factor to consider, rely on the testimony of that particular officer and whether his brother officers at the precinct are basically there to support their brother in blue." This is the only comment on the credibility of a witness in the entire summation and the only thing that remotely resembles argument.

Footnote 7:The transcription is verbatim. The reporter's paragraph breaks have been changed for readability.

Footnote 8:Moreover, at the conclusion of the trial I instructed trial counsel to see me in chambers to discuss his performance. He was unable to explain to me any strategic reasons for simply repeating the prosecutor's questions and summing up by reading from his notes verbatim. He said "everything you said is true," but defended himself by saying that "he" had gotten the best possible verdict for the defendant.