82 A.D.3d 63
N.Y. App. Div.2011Background
- Defendant was convicted by jury of rape in the first degree and two counts of second-degree menacing.
- Victim testified to forcible rape with a gun; DNA linked defendant to the vaginal sample.
- Defendant did not call witnesses; record does not show whether he wished to testify.
- Appeal No. 2 arises from a CPL 440.10 motion claiming ineffective assistance for failure to inform that defendant—not counsel—decides whether to testify.
- CPL 440 hearing found defendant told counsel of desire to testify, counsel advised against testifying, but did not advise that the final decision was defendant’s alone.
- Supreme Court held the single error did not by itself render counsel ineffective; appeal No. 1 and order in appeal No. 2 were affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there ineffective assistance for failing to inform final right to testify? | People contends record shows counsel erred by not informing the final decision rested with defendant. | Defendant argues counsel’s failure to inform the final decision to testify violated his rights. | No reversible error; single error not prejudicial under totality. |
| Did the single error by counsel deprive defendant of a fair trial? | People asserts error alone cannot defeat fair trial standard given record evidence. | Defendant claims the error undermined adversarial process and fair result. | Not, given record showed defendant would not have testified or provided different testimony; impact not egregious. |
| Was the Sandoval ruling an abuse of discretion? | People argues cross-examination of prior weapon possession admissible due to related gun use. | Defendant contends prejudicial similarity between prior crime and charged crime. | No abuse; cross-examination allowed under case law. |
| Was the denial of a falsus in uno instruction proper given jury note? | People argues instruction requested was not responsive to the note and improper. | Defendant maintains instruction should have been given to address credibility. | Yes; court’s response was proper and not obligated to provide requested instruction. |
Key Cases Cited
- People v. Baldi, 54 N.Y.2d 137 (N.Y. 1981) (effective assistance standard; totality of representation)
- People v. Henriquez, 3 N.Y.3d 210 (N.Y. 2004) (adversarial process and Strickland framework)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (test for ineffective assistance)
- Brown v. Artuz, 124 F.3d 73 (2d Cir. 1997) (duty to advise regarding exercise of right to testify)
- Teague v. United States, 953 F.2d 1525 (U.S. 1992) (defendant's right to testify; final decision lies with defendant)