People v. MoorePeople v. Moore
Ordered that the judgment is affirmed.
The defendant’s conviction of assault in the second degree arose from an incident in which his girlfriend, the complainаnt, was injured due to the defendant’s operation of her truck following a heated argument between them. According to the complainant, the defendant attempted to drive away in her truck after pushing her out of the vehicle. This prompted her to
According to the defendant’s account of the incident, he and the complainant had been arguing and then they made a brief stop at a convenience store. When he left the store, he got in the driver’s seat of the truck while the complainant was still outside. He claimed that another man then opened the front passenger door, brandished a gun, and robbed him of $25,000 to $30,000, which he had made selling drugs, as well as a gold and diamond chain he was wearing. Insisting that he feared the robber would shoot him, the defendant testified that he ducked down, put the vehicle into drive, and stepped on the accelerator. He did not see the complainant. However, the truck did not move straight ahead, but instead swerved and аlmost immediately struck a parked car before colliding with a tree. The defendant realized that the complainant had reached in through the driver’s window and had grabbed the steering wheel, thereby causing the accident.
Following the trial court’s submission, in the alternative, of the offense of intentional assault in the first degree and the lesser-included offense of reckless assault in the second degree, the jury convicted the defendant of the latter.
Contrary to the defendant’s contention, the trial court properly submitted the lesser-included offense of reckless assault in the second degree to the jury over his objection, since there was a reasonable view of the evidence which would support a finding that the defendant committed that crime but not the greater offense of assault in the first degree (see
The defendant’s contention that the trial court should have instructed the jury with regard to the defense of justification under
Furthermore, we do not join in our dissenting colleague’s conclusion that the distinct “choice of evils” justification defense set forth in
The defendant’s contention that he was denied the effective assistance of trial counsel is similarly unavailing. Viewing the record of the trial proceedings in its totality, it is clear that the defendant was afforded meaningful representation (see People v Benevento, 91 NY2d 708 [1998]; People v Baldi, 54 NY2d 137 [1981]). Trial counsel engaged in searching cross-examination, presented a viable defense to the charged crimes, made appropriate motions on the defendant’s behalf, and presented a cogent summation argument to the jury. These efforts resulted in the defendant’s acquittal of the two most serious of the three charges against him—assault in the first degree and attempted robbery in the first degree—despite the strength of the prosecution’s proof (see People v Ennis, 11 NY3d 403, 412 [2008]). Additionally, while in a rare case a single omission by counsel may suffice to constitute ineffective assistance (see People v Caban, 5 NY3d 143, 152 [2005]; People v Hobot, 84 NY2d 1021, 1022 [1995]), trial сounsel’s failure to request a justification charge pursuant to
In addition to the foregoing legal explanation for counsel’s decision not to request a
The dissent further finds fault with trial counsel’s summation, determining that it only addressed the intentional crimes with which the defendant was charged, and did not raise any defense to the reckless assault of which he ultimately was convicted. Again, however, this position has not been raised by the defеndant on this appeal. In any event, even if it were properly before us, we would find it to be without merit. To be sure, trial counsel’s summation focused on the intentional offenses of which her client had been accused. This was an exceedingly sound strategy, since they comprised the more serious charges and counsel’s arguments with respect to them were clearly persuasive since she procured acquittals as to both. Accordingly, counsel’s strategic decision to focus on those counts can in no way be characterized as ineffective. However, it is inaccurate to maintain that the summation did not provide any defense to the reckless assault charge. Counsel repeatedly attacked the complainant’s account of the crime, insisting that it was incredible and defied reason for her to have hung on to the arm rest of the driver’s seat through the open door of the truck while the defendant erratically drove the vehicle a distance of 1 1/2 blocks at a high rate of speed. Rather, she urged that the defendant’s version of events—i.e., that the complainant grabbed the steering wheel after he ducked down and began to accelerate, causing the vehicle to immediately swerve and crash—was far more credible and consistent with human experience. Accordingly, counsel urged the jurors to reject the complainant’s testimony as failing to make sense, and to find the defendant not guilty. Had the jury completely credited the defendant’s testimony, as counsel urged during summation, an acquittal of all charges, including the reckless assault, would have resulted. The mere fact that this did not occur, and that counsel “only” succeeded in obtaining acquittals of the two most serious offenses, cannot be equated with ineffective assistance of counsel (see People v Castano, 236 AD2d at 215).
Mastro, J.P., Covello, and Florio, JJ., concur.
Belen, J. (dissenting and voting to reverse the judgment appealed from and remit the matter to the Supreme Court, Kings County, for a new trial, with the follоwing memorandum): I agree that it was proper for the Supreme Court to have submit-
While I agree thаt the defendant failed to preserve for appellate review his argument that the trial court erred in failing to instruct the jury as to justification (see
Both the rules as to when a justification charge is required and the consequences for failing to so charge are clear. The trial court must charge the jury with respect to the defense of justification whenever, viewing the record in the light most favorable to the defendant (see People v Padgett, 60 NY2d 142, 144 [1983]; People v Ogodor, 207 AD2d 461 [1994]), there is any reasonable view of the evidence that would permit the fact-finder to conclude that the defendant’s conduct was justified (see People v Petty, 7 NY3d 277, 284 [2006]; People v Fermin, 36 AD3d 934 [2007]; People v LaPetina, 34 AD3d 836, 840 [2006], affd 9 NY3d 854 [2007]; People v Newman, 26 AD3d 589 [2006]). A failure to give the justification charge under such circumstances cоnstitutes reversible error (see People v Maher, 79 NY2d 978, 982 [1992]; People v Padgett, 60 NY2d at 145; People v Watts, 57 NY2d 299, 301 [1982]; People v Fermin, 36 AD3d at 934).
Both the complainant and the defendant testified at trial. The complainant testified, in essence, that the defendant robbed her of her SUV at knifepoint and then deliberately injured her as he drove away with her holding onto the SUV. In contrast, the defendant testified that he had been driving the SUV with the complainant’s permission and then had to flee when the complainant’s ex-boyfriend suddenly arrived, robbed the defendant and appeared about to shoot him.
The mаjority focuses on one aspect of the defendant’s testimony—that the complainant grabbed the SUV’s steering wheel as the defendant was fleeing the armed robber—to conclude that a justification defense was untenable because the
Notably, in both his direct and cross-examination testimony, the defendant explained that after he initially accelerated the SUV to flee Doc, he realized that the complainant had reached in and grabbed the steering wheel, and because he continued to accelerate, within 20 feet, the SUV veered and hit a parked car, injuring the complainant because she was dangling from the driver’s side, holding onto the steering wheel. Although his tеstimony indicates that he had ducked down to avoid possible gunfire and, thus, did not initially realize that the complainant had grabbed the steering wheel, his testimony, viewed in a light most favorable to him, supports the reasonable conclusion that at some point before the crash, the defendant realized he was not in full control of the SUV because of the complainant’s actions, yet continued to accelerate because of the imminent threat to him posed by Doc. In my view, although the majority’s interpretation of the defendant’s testimony as suggesting that the complainant caused her own injuries may also be reasonable, it is nevertheless improper because it fails to view the evidence in the light most favorable to the defendant, as we are required (see People v Hill, 226 AD2d 309 [1996]).
In sum, viewed in the light most favorable to the defendant (see People v Padgett, 60 NY2d at 144; People v Ogodor, 207 AD2d at 461), the record demonstrates that the Supreme Court committed reversible error in failing to, sua sponte, instruct the jury on the defense of justificаtion since a reasonable view of the evidence would have permitted the jury to conclude that the defendant’s conduct was justified (see
As to which justification charge was warranted, the record supports a finding that a physical force justification сharge was warranted because, according to the defendant’s testimony, he continued to accelerate the SUV to flee an armed robber who the defendant believed was about to shoot him, and when he knew or should have known that the complainant was in imminent harm because she had grabbed onto the steering wheel while standing outside the SUV and while the SUV was in motion (see
In my view, the record also warranted a “choice of evils” justification charge (see
Before the Court of Appeals, the defendant argued that the homicide count required reversal because of legal insufficiency, and since the trial court erred in failing to charge justification based on its conclusion that the “defendant could have left the scene with his car door locked or could have driven at a safe speed to a police or service station” and because of the “defendant’s testimony that he did not see the car following him аfter defendant went through a red light some time prior to the second accident” (People v Maher, 79 NY2d at 981). The Court rejected the legal insufficiency argument (id. at 980). However, the Court found merit to the defendant’s justification argument, noting: “Defendant asserts that he chose to engage in certain conduct (speeding) in avoidance of a perceived attack—intentional conduct on his part that formed the basis for the charge of criminally negligent homicide (see People v Padgett, 60 NY2d 142, 146). Indeed, the trial court charged the jury that it could not find defendant guilty of criminally negligent homicidе unless it concluded that he was speeding at the time of the fatal accident. In these circumstances, we agree with defendant that he was entitled to have the jury consider whether his speeding was justified. If on any reasonable view of the evidence, the jury might have decided that defendant’s actions were justified, the failure to charge the defense constitutes reversible error (see People v Padgett [id. at 145]). It is not for the trial court to hypothesize other reasonable alternatives to the course оf action chosen by the defendant. By giving the charge to the jury on the leaving the scene charge, the Judge concluded that one reasonable view of the evidence justified that conduct. Defendant argues, and we agree, that under these circumstances he was entitled to have the jury determine if the manner in which he fled the scene was also justified. That no weapon was observed does not act to bar the charge, but rather is one element of the circumstancеs that gave rise to the conduct. Finally, there was no testimony that the emergency had ceased. Defendant stated only that he no longer observed the car following him and that he had started to reduce his speed. It was for the jury to determine whether the threat of harm that the defendant perceived had ceased to exist and if so whether defendant had sufficient time to react prior to the crash.” (People v Maher, 79 NY2d at 981-982 [emphasis added].)
Similar to Maher, here, the defendant’s testimony supports a finding that he drove the SUV without the complainant’s
I also find that reversal is warranted on the ground that the defendant was denied the effective assistance of counsel as а result of his trial counsel’s failure to request that the jury be charged with the defense of justification. To prevail on an ineffective assistance of counsel claim, a defendant must demonstrate that under the circumstances of the case, defense counsel failed to provide meaningful representation (see People v Caban, 5 NY3d 143, 152 [2005]; People v Benevento, 91 NY2d 708, 712 [1998]; People v Rivera, 71 NY2d 705, 709 [1988]; People v Urena, 23 AD3d 587 [2005]). To meet this burden, a defendant must do more than merely point out losing tactics, but must “demonstrate the absence of strategic or other legitimate explanations” for counsel’s challenged conduct (People v Rivera, 71 NY2d at 709; see People v Flores, 84 NY2d 184, 186-187 [1994]; People v Georgiou, 38 AD3d 155, 159-160 [2007]). However, even in the absence of a legitimate strategy, “[t]here can be no denial of effective assistance of trial counsel arising from counsel’s failure to ‘make a motion or argument that has little or no chance of success’ ” (People v Caban, 5 NY3d at 152, quoting People v Stultz, 2 NY3d 277, 287 [2004]; see People v Hamm, 57 AD3d 919 [2008]). Notably, a single error in otherwise competent representation may nevertheless constitute ineffective assistance of counsel if such error was so egregious and prejudicial that it deprived the defendant of a fair trial (see People v Caban, 5 NY3d at 152; People v Flores, 84 NY2d at 188-189; see also People v Dean, 50 AD3d 1052 [2008]).
I conclude that defense counsel’s failure to request a justification charge constituted ineffective assistance of counsel. In her summation, defense counsel argued that the defendant had no intent to injure the complainant, which was a defense only to the charge of assault in the first degree (see
Accordingly, I would reverse the defendant’s judgment of conviction as a matter of discretion in the interest of justice and remit the matter to the Supreme Court, Kings County, for a new trial (see