People v DiazPeople v Diaz
Third Department, June 14, 2018
APPEARANCES OF COUNSEL
Bruce Evans Knoll, Albany, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Hannah E.C. Moore, New York Prosecutors Training Institute, Inc., Albany, of counsel), for respondent.
Clark, J.
Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered June 4, 2014, upon a verdict convicting defendant of the crimes of assault in the second degree (two counts), criminal possession of a weapon in the third degree and promoting prison contraband in the first degree (two counts).
In June 2013, defendant and several other inmates at the Great Meadow Correctional Facility were being escorted to breakfast when defendant broke from the line and stabbed a correction officer twice with a makeshift weapon. The weapon was ultimately secured during the ensuing struggle between
[1] Defendant argues that the evidence was legally insufficient to establish the element of physical injury required for both of his assault convictions (see
The evidence at trial established that defendant stabbed the unsuspecting victim in the left temple and left abdomen with an “ice pick type weapon” measuring roughly seven inches in length, thereby causing the victim to sustain puncture wounds in both areas, bleed “profusely” and require immediate medical treatment at the prison infirmary, and thereafter at a local hospital. The victim testified that he was “sore,” “upset” and
Defendant‘s next two challenges relate to the division of final decision-making authority between a represented defendant and his or her attorney. With respect to his defense as a whole, defendant contends that County Court impermissibly allowed defense counsel to overrule defendant‘s preference to pursue a psychiatric defense at trial—a decision that he claims is fundamental and ultimately belongs to him. Secondly, defendant argues that, in violation of his Sixth Amendment right to the expert judgment of counsel, defense counsel abdicated strategic decision-making authority to defendant by acceding to his decision to forgo a mistrial following certain prejudicial testimony. We disagree with defendant on both points.
“If defense counsel solely defers to a defendant, without exercising his or her professional judgment, on a decision that is ‘for the attorney, not the accused, to make’ because it is not fundamental, the defendant is deprived of ‘the expert judgment of counsel to which the Sixth Amendment entitles him’ or her” (People v Hogan, 26 NY3d 779, 786 [2016], quoting People v Colville, 20 NY3d 20, 32 [2012]).
[2] We first address defendant‘s contention that defense counsel was required to present, in accordance with defendant‘s preference, a psychiatric defense premised upon the theory that he suffered from Secure Housing Unit Syndrome—also known as Grassian Syndrome—caused by the “considerable” amount of time that he spent in solitary confinement while incarcerated. The record reflects that, prior to trial, defense counsel timely served and filed a written notice of intention to present psychiatric evidence relating to Grassian Syndrome (see
Contrary to defendant‘s assertion, the decision of whether to present psychiatric evidence in furtherance of the affirmative defense of not criminally responsible by reason of mental disease or defect is a strategic decision involving the exercise of professional judgment, over which defense counsel retains ultimate decision-making authority (see People v Rizzo, 301 AD2d 682, 683 [2003], lv denied 99 NY2d 631 [2003]; see generally People v Clark, 28 NY3d 556, 563-564 [2016]; cf. People v Zada, 98 AD2d 733, 733 [1983]). Additionally, the record reflects that defense counsel “fully” investigated a possible psychiatric defense and, having done so, “made ‘a calculated trial strategy’ to fashion a different defense” (People v Rizzo, 301 AD2d at 683, quoting People v Copp, 184 AD2d 859, 861 [1992], lv denied 80 NY2d 974 [1992]; see generally People v Oliveras, 21 NY3d 339, 346 [2013]). Significantly, defense counsel vigorously pursued an alternate defense, which resulted in defendant‘s acquittal on the top count of the indictment—attempted murder in the second degree. Moreover, defense counsel‘s decision to abandon the affirmative defense was reasonable, given his knowledge of defendant‘s violent criminal history and the evidence against him, including defendant‘s statements to police investigators and a letter that he wrote in advance of the attack. The affirmative defense was also inconsistent with defendant‘s trial testimony that he had been formulating a plan to kill a correction officer, in the hopes that he would be killed in retaliation, for “several years” (see People v Rizzo, 301 AD2d at 683). Finally, we cannot agree with defendant that the strategy chosen by defense counsel, in an exercise of professional judgment, rendered counsel‘s representation constitutionally deficient (see People v Clark, 28 NY3d at 564).
[3]
“requires an evaluation of the case, analysis of the evidence, recognition of potential harm to defendant‘s case from any errors or inappropriate remarks which may have occurred, and consideration of whether a more favorable jury is likely at a retrial and whether delay is likely to help or harm the defendant‘s case” (People v Ferguson, 67 NY2d at 390; see People v Hogan, 26 NY3d at 786).
At trial, County Court sustained defense counsel‘s objection to testimony—given in violation of the court‘s Molineux ruling—that defendant stated during a police interview that “he had been arrested for a murder.” Thereafter, outside the presence of the jury, defense counsel moved for a mistrial, and County Court took a short break so that the People “could consider options” and defense counsel could consult with defendant. When the proceedings resumed on the record, County Court indicated that it was “inclined to grant [the] request” for a mistrial. However, defense counsel stated:
“Judge, I conferred with [defendant] about this extensively. He is satisfied with the way his trial is proceeding. Although I do think the comment was prejudicial, he wants to proceed with this trial. So, granting him great deference, as this is his trial, I will withdraw the motion for a mistrial.”
Defense counsel then requested the issuance of a “strong curative instruction.” After County Court confirmed with defendant that he did indeed wish to proceed with the trial, the jury was brought back in and the court instructed it to disregard the testimony that defendant had been arrested for a crime.
Defense counsel‘s statements on the record do not demonstrate, as defendant argues, that he ceded his decision-making authority to defendant. Rather, the record reflects that defense counsel consulted with defendant and received his input on the matter before withdrawing his motion for a mistrial (see People v Pickett, 153 AD3d 940, 940 [2017], lv denied 30 NY3d 1022 [2017]; People v Richardson, 143 AD3d 1252, 1254-1255 [2016], lv denied 28 NY3d 1150 [2017]; People v Butler, 140 AD3d 472, 472 [2016], lv denied 28 NY3d 1026 [2016]). Although defense counsel maintained that the comment was prejudicial, and
[4] We further discern no error in County Court‘s determination to require that defendant be handcuffed throughout the trial.* It is well-settled that, as a matter of federal and state constitutional law, “a defendant may not be physically restrained before the jury unless there is a reasonable basis, articulated on the record, for doing so” (People v Rouse, 79 NY2d 934, 935 [1992]; see People v Best, 19 NY3d 739, 743 [2012]; People v Clyde, 18 NY3d 145, 152 [2011], cert denied 566 US 944 [2012]). Here, County Court stated on the record that defendant had a “clear record of violence both within and outside the prison” and that it was therefore not “comfortable” with the security risks posed by allowing defendant to sit throughout the trial without restraints. Considering defendant‘s violent criminal history, as well as the fact that the present charges arose out of allegations that defendant attacked the victim in the hopes that he would incite retaliatory actions from correction officers that would result in his death, we find that County Court‘s stated security concerns provided a reasonable basis to require that defendant be restrained during the trial (see People v Brunson, 68 AD3d 1551, 1557 [2009], lv denied 15 NY3d 748 [2010]; People v Robinson, 64 AD3d 803, 803-804 [2009]; People v Brown, 176 AD2d 408, 408 [1991], lv denied 79 NY2d 853 [1992]). Nor do we find that defendant was deprived of a fair trial by County Court‘s determination to allow, as a security measure, two correction officers to sit near
As a final matter, we are unpersuaded by defendant‘s assertion that the cumulative effect of various alleged errors—some of which we have rejected above—deprived him of a fair trial. To the extent that we have not expressly discussed any of defendant‘s remaining arguments, such arguments have been reviewed and found to be lacking in merit.
Garry, P.J., Lynch, Aarons and Rumsey, JJ., concur.
Ordered that the judgment is affirmed.