40 Misc. 3d 47
N.Y. App. Term.2013Background
- In April 2010, police found defendant asleep in a running car with lights on in a parking lot.
- Defendant was tried and convicted of aggravated DWI per se (Vehicle and Traffic Law § 1192[2-a][a]) and DWI (§ 1192[3]).
- Defendant claimed ineffective assistance of counsel due to numerous trial errors and overall unfairness of the trial.
- Defendant’s counsel presented no evidence and argued lack of proof that defendant operated the vehicle with intent to move it.
- Defense strategy focused on lack of operation; the engine running while defendant slept was challenged as not proving operation.
- Counsel moved to dismiss instruments for lack of operation, and failed to object to prosecutor references to defendant as driver or to officer testimony inconsistent with CPL 710.30 notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was counsel ineffective for lack of meaningful representation? | Baldi standard; errors deprived defendant of fair trial | Counsel’s multiple errors and strategy were ineffective | Yes; reversal for all judgments |
| Did trial strategy, including failing to present evidence of lack of intent, prejudice defendant? | Strategy deprived defendant of defense on operation element | No legitimate strategic purpose for not presenting evidence | Yes; prejudicial and ineffective |
| Did prosecutorial references and officer testimony raise issues requiring objection? | Prosecutor’s references and testimony violated notice and harmed defense | No adequate objection or suppression by counsel | Yes; contributed to ineffective representation |
Key Cases Cited
- People v. Miller, 87 AD3d 1075 (2011) (ineffective assistance standard under NY law)
- People v. Benevento, 91 NY2d 708 (1998) (meaningful representation required under NY Constitution)
- People v. Baldi, 54 NY2d 137 (1981) (prejudice and fair trial focus in ineffective assistance)
- People v. Rivera, 71 NY2d 705 (1988) (defendant must show lack of strategic or legitimate explanations)
- People v. Prescott, 95 NY2d 655 (2001) (circumstantial proof of operation acceptable)
- People v. Alamo, 34 NY2d 453 (1974) (operating a vehicle by sleep with engine running context)
- People v. Caban, 5 NY3d 143 (2005) (face value of trial strategy and effective representation)