2 No. 163
The People &c.,
Appellant, v. Herman Turner,
Respondent.
2005 NY Int. 135
November 17, 2005
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
Sholom J. Twersky, for appellant. Katherine M. Martone, for respondent.
R. S. SMITH, J.:
Very rarely, a single lapse by otherwise competent
counsel compels the conclusion that a defendant was deprived of
his constitutional right to effective legal representation. This
is such a rare case, in which both defendant's trial and
appellate lawyers failed to perceive that a statute of
limitations defense would have prevented their client's
manslaughter conviction. We conclude that this error requires
setting the conviction aside, and we therefore affirm the
Appellate Division's grant of a writ of error coram nobis.
Facts and Procedural History
In 1982, Donald Holloman was killed by gunshots on a
Brooklyn street corner. According to several witnesses,
defendant fired the fatal shots, then fled. He was not seen
again in the neighborhood for years, and was not arrested until
1998, almost 16 years after the crime. Defendant was indicted for murder in the second degree,
a crime for which there is no statute of limitations (CPL 30.10
[2] [a]). At his trial in 1999, the prosecutor asked the court
to instruct the jury that it could convict defendant of
manslaughter in the first degree, as a lesser included offense.
Defendant's trial counsel opposed the prosecutor's request,
saying that defendant "does not want to give a jury the chance to
compromise," but did not mention any statute of limitations
problem -- though manslaughter, unlike murder, is subject to a
five-year statute (CPL 30.10 [2] [b]). The trial judge instructed the jury that, if it found
defendant not guilty of murder, it should consider whether he was
guilty of manslaughter. The jury acquitted him of murder but
convicted him of manslaughter, and defendant appealed. His
appellate counsel devoted her brief in the Appellate Division to
a single issue: she claimed that a violation of People v Rosario
(9 2 286 [1961], cert denied, 368 US 866) entitled defendant
to a new trial. The argument was a substantial one and the brief
presented it well, though unsuccessfully. The appellate brief was filed in June 2000. Before it
was filed, defendant wrote to his appellate lawyer, mentioning
the possibility that his manslaughter conviction should have been
barred by the statute of limitations. The lawyer replied that
the statute of limitations was "not a strong issue for appeal,"
for two reasons. First, the lawyer said that the defense lacked
merit, because defendant's indictment for murder was not time-
barred and therefore "it was not improper for the jury to have
considered the lesser included offense of manslaughter."
Secondly, she said that, because trial counsel had not raised the
statute of limitations below, the issue was not preserved for
appellate review. She did not mention the possibility of arguing
that trial counsel was ineffective for failing to preserve the
issue. The Appellate Division affirmed defendant's conviction
(281 2 568 [2d Dept 2001]), and a Judge of this Court denied
leave to appeal. Defendant applied to the Appellate Division for
a writ of error coram nobis, asserting that his appellate counsel
had been ineffective because, among other things, she failed to
raise the statute of limitations issue. The Appellate Division
denied relief (285 2 659 [2d Dept 2001]), and defendant filed
a petition for federal habeas corpus. The United States District Court for the Eastern
District of New York denied defendant relief, but suggested that
he might eventually prevail on the claim -- not specifically
raised in his first coram nobis application -- that his appellate
counsel should have argued that his trial counsel was
ineffective. The District Court held that it could not consider
this claim until it had been unsuccessfully presented to the
state courts ( Turner v Sabourin, 217 FRD 136, 146-147 [ED NY
2003]). Taking the hint, defendant returned to the Appellate
Division, and filed a second petition for a writ of error coram
nobis, which the Appellate Division granted. A Judge of this
Court granted the People leave to appeal, and we now affirm.
Discussion
I
The Sixth Amendment to the United States Constitution
provides that a defendant shall "enjoy the right . . . to have
the Assistance of Counsel for his defence." Similarly, Article I
§ 6 of the State Constitution provides that "[i]n any trial in
any court whatever the party accused shall be allowed to appear
and defend in person and with counsel as in civil actions." It
is well established that these constitutional rights are violated
if a defendant's counsel fails to meet a minimum standard of
effectiveness, and defendant suffers prejudice from that failure
( Strickland v Washington, 466 US 668 [1984]; People v Baldi, , 54 NY2d 137 [1981]). In Strickland the United States Supreme Court
adopted a two-pronged test for ineffective assistance, holding
that a defendant must show, first, "that counsel's representation
fell below an objective standard of reasonableness" (466 US at
688) and, secondly, "that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceeding would have been different" ( id. at 694). Strickland
holds that the minimum standard of performance required by the
Sixth Amendment is a very tolerant one:
"Judicial scrutiny of counsel's performance
must be highly deferential. It is all too
tempting for a defendant to second-guess
counsel's assistance after conviction or
adverse sentence, and it is all too easy for
a court, examining counsel's defense after it
has proved unsuccessful, to conclude that a
particular act or omission of counsel was
unreasonable."
(466 US at 689.)
Our ineffective assistance cases have departed from the
second ("but for") prong of Strickland, adopting a rule somewhat
more favorable to defendants ( see People v Caban, 5 NY3d 143,
155-156 [2005]; People v Stulz, 2 NY3d 277, 284 [2004]; People v
Benevento, , 91 NY2d 708, 713-714 [1998]). Our cases, however,
agree with Strickland on the first prong. We have said that
"counsel's efforts should not be second-guessed with the clarity
of hindsight" and that our Constitution "guarantees the accused a
fair trial, not necessarily a perfect one" ( People v Benevento,
91 NY2d at 712). We have also held that, in general, the issue
is whether counsel's performance "viewed in totality" amounts to
"meaningful representation" ( People v Baldi, 54 NY2d at 147).
But our decisions, and the United States Supreme Court's, have
recognized that there may be cases in which a single failing in
an otherwise competent performance is so "egregious and
prejudicial" as to deprive a defendant of his constitutional
right ( People v Caban, 5 NY3d at 152; Murray v Carrier, 477 US 478, 496 [1986]). Such cases are rare -- indeed, this may be the first
one this Court has encountered. Two of our decisions have
rejected ineffective assistance claims despite significant
mistakes by defense counsel ( People v Hobot, , 84 NY2d 1021 1995];
People v Flores, , 84 NY2d 184 [1994]). Those cases hold, and we
reaffirm today, that such errors as overlooking a useful piece of
evidence ( Hobot), or failing to take maximum advantage of a
Rosario violation ( Flores), do not in themselves render counsel
constitutionally ineffective where his or her overall performance
is adequate. But neither Hobot nor Flores involved the failure
to raise a defense as clear-cut and completely dispositive as a
statute of limitations.Such a failure, in the absence of a
reasonable explanation for it, is hard to reconcile with a
defendant's constitutional right to the effective assistance of
counsel.
II
The ultimate issue here is whether appellate counsel
was ineffective for failing to argue that trial counsel was
ineffective. That question depends on whether trial counsel was
clearly ineffective, and that question in turn depends on how
strong defendant's statute of limitations defense was. We
conclude that it was a winning argument; that trial counsel could
not reasonably have thought that the defense was not worth
raising; that appellate counsel could not reasonably have thought
that she should not argue trial counsel's ineffectiveness; and
that therefore an "egregious and prejudicial" error, rising to
the level of ineffective assistance, has occurred. The argument that trial counsel could and should have
made in opposing the submission of the manslaughter count to the
jury was simple: Manslaughter is subject to a five-year statute
of limitations that can be tolled under some circumstances, but
for no more than five additional years (CPL 30.10 [2] [b], [4]
[a]); here, defendant was not prosecuted until 16 years after his
crime; even with the maximum tolling, the prosecution came some
six years too late. While the People did have a possible
counter-argument, it was a weak one -- certainly not one that
could justify a decision by defendant's trial counsel to abandon
the statute of limitations defense. The People could have made the argument that
defendant's appellate counsel later advanced in her letter to
defendant -- that, since the indictment for murder was not time-
barred, submission of the otherwise time-barred count of
manslaughter as a lesser included offense was proper. In her
letter, appellate counsel cited only one case that could have
supported this argument, People v Dowling (1 NY Crim Rep 529
[Oyer & Terminer, Albany County 1884]). Dowling was a 116-year-
old trial court decision; appellate counsel's letter did not
mention a more recent, though still old, Appellate Division
decision going the other way, People v DiPasquale (116 App Div
196 [3d Dept 1914]). A later affirmation by appellate counsel
says that she was aware of DiPasquale, but thought there were
valid reasons, including DiPasquale's failure to mention Dowling
and the existence of an alternative basis for the DiPasquale
result, for rejecting or distinguishing it. Appellate counsel's apparent conclusion that DiPasquale
was not worth citing was not a reasonable one, even by the
undemanding standard we apply in ineffective-assistance cases.
DiPasquale, though old, was still a valid precedent, binding on
all trial-level courts in the State ( see Mountain View Coach
Lines, Inc. v Storms, 102 AD 663, 664-665 [2d Dept 1984]) and
entitled to respect by appellate courts. Neither the failure to
cite an 1884 Oyer and Terminer case nor the existence of an
alternative holding seriously impaired DiPasquale's precedential
force. The DiPasquale court had carefully considered, and
squarely rejected, the only argument that would have been
available to the People in the present case, if the People had
been confronted with a statute of limitations defense to the
manslaughter count. The DiPasquale court explained that the
status of a charge (attempted murder, in that case) as a lesser
included count of murder could not overcome the statute of
limitations: "[U]nder the indictment [for murder] the defendant
could be convicted only of murder, and . . . the lapse of time
prevents a conviction for any other crime in connection with the
death" (161 App Div at 198). More recent authority, though not technically binding,
would have strengthened defendant's statute of limitations
argument. In People v Hughes (220 AD2d 529, 532 [2d Dept 1995]),
the Appellate Division relied on DiPasquale for the proposition
that "an uncharged misdemeanor which could not have been timely
raised in the accusatory instrument may not be charged as a
lesser included offense." While Hughes is distinguishable from
this case, on the ground that in Hughes "the time-barred
misdemeanor charge was not a valid lesser inclusory count" ( id.
at 532), it strongly suggested that DiPasquale was not a dead
letter. There was also non-New York authority approving of and
following DiPasquale ( Padie v State, 557 P2d 1138, 1140 [Alaska
1976]; State v King, 140 WVa 362 368, 84 SE2d 313, 316 1954];
Drott v People, 71 Colo 383, 384, 206 P 797, 798 [1922]; Askins v
United States, 251 F2d 909, 911 [DC Cir 1958]). It is true that there existed some New York lower court
decisions that might have been cited by the People in opposing
defendant's statute of limitations defense ( People v Cuddihy, 170
Misc 2d 592 [Nassau County Ct 1996]; People v Norman, 150 Misc 2d
583 [Crim Ct, Bronx County 1991]). Perhaps the law on this point
was not definitively settled until 2003, when we observed in
People v Mills (1 NY3d 269, 272 n 2): "Of course, the People
could not have requested that the jury be charged with respect to
any of the lesser included offenses, including second degree
manslaughter, because they were time-barred." But, as the
expression "of course" implies, before Mills there were strong
indications that the defense had the better of the argument. A
reasonable defense lawyer at the time of defendant's trial might
have doubted that the statute of limitations argument was a clear
winner -- but no reasonable defense lawyer could have found it so
weak as to be not worth raising. Yet defendant's trial counsel
did not raise it. Trial counsel's error should have been apparent to any
reasonable appellate counsel, and should have prompted that
counsel to make an ineffective assistance argument. It is true
that, as defendant's appellate lawyer pointed out in her letter,
an attempt to argue the statute of limitations issue on appeal
might well have failed because the point had not been raised
below. But that in itself should have suggested to defendant's
appellate lawyer that defendant had been victimized by his trial
lawyer's mistake. Giving due weight to the danger of judging
appellate counsel's decisions by hindsight, we think that it
should have been obvious that an ineffective assistance argument
was called for.
III
The People contend on this appeal that defendant's
trial and appellate counsel could both reasonably have believed
that the statute of limitations defense was so weak that it could
be ignored. We have explained why we think otherwise. But the
People also make two other arguments. They say, first, that
trial counsel was not ineffective because a reasonable trial
attorney might actually have welcomed the submission of the
manslaughter count to the jury; and, secondly, that appellate
counsel was not ineffective because she could reasonably have
thought her Rosario argument was stronger than an argument based
on the ineffective assistance of trial counsel. Both of these
contentions by the People are ill-founded. It is true that whether to object to the submission of
a lesser included offense is often a strategic decision that
could reasonably be made either way. A defendant who thinks his
chances of acquittal are small may welcome giving the jury an
opportunity for a compromise verdict ( see People v Boettcher, , 69 NY2d 174, 182 n 3 [1987] ["the availability of a lesser included
offense may be advantageous to the defendant"]). In this case,
trial counsel could reasonably have advised his client to consent
to the People's request that the jury be allowed to convict
defendant of manslaughter. But if such advice was given, it was
not followed; defendant decided to gamble on acquittal, as his
trial counsel's objection to the submission of the manslaughter
charge shows. Once that decision was made, it could not have
been rational for trial counsel to abandon a statute of
limitations defense that would have prevented the charge from
being submitted. The People rely on our holding in People v Satterfield
(66 2 796, 799 [1985]) that, in ineffective assistance cases,
counsel's "subjective reasons" for a decision are irrelevant, so
long as "[v]iewed objectively," the course counsel pursued was
one "that might well have been pursued by a reasonably competent
attorney." But that holding does not apply here. The course
defendant's trial counsel pursued was to object to submission of
the manslaughter count, without mentioning that the count was
barred by the statute of limitations. No competent attorney
would do this intentionally. Satterfield does not hold, as the
People seem to suggest, that any blunder by counsel may be
ignored if the result of the blunder (in this case, submission of
the manslaughter count to the jury) is one that a reasonably
competent attorney might have sought. In saying that defendant's appellate counsel could
reasonably have preferred her Rosario argument to an argument
based on the ineffective assistance of trial counsel, the People
ignore the obvious: Counsel could have made both arguments. It
is true that, as we said in People v Stulz (2 NY3d at 285),
"[e]ffective appellate representation by no means requires
counsel to brief or argue every issue that may have merit. . . .
[A]ppellate lawyers have latitude in deciding which points to
advance . . . ." But this does not mean that an appellate lawyer
is always justified in omitting an argument that has a good
chance to win the case, solely because he or she may reasonably
think one other argument is even better. This might be a different case if defendant's appellate
counsel had found herself choosing among half a dozen, or even
four or five, substantial arguments, and had decided not to make
them all. Certainly, it is often appropriate for an appellate
attorney to focus his or her efforts, and the appellate court's
attention, on a small number of points, and the attorney's
selection of those points should not be second-guessed in a coram
nobis proceeding. But here, defendant's appellate counsel raised
only one point on appeal. Admittedly, the point was substantial,
and it was a complicated one -- her brief was 31 pages long, and
the length does not seem excessive. But there was no reasonable
basis for concluding that the brief would suffer from having a
second point, where an argument as strong as the one that she
omitted was available.
IV
In short, we agree with the Appellate Division that
appellate counsel's failure to argue that trial counsel had been
ineffective in failing to assert a statute of limitations defense
to the manslaughter charge fell short of an objective standard of
reasonableness, even applying the deferential standard that is
appropriate in considering issues of this kind. We also agree
with the Appellate Division that, if appellate counsel had made
the argument she should have made, defendant's conviction would
have been reversed. It follows that defendant was deprived of
his constitutional right to the effective assistance of appellate
counsel, and that the Appellate Division correctly granted his
petition for a writ of error coram nobis. Accordingly, the order of the Appellate Division should
be affirmed.