Sunday, November 25, 2007

AD4: Decisions issued November 23, 2007

People v Cruz, 2007 NY Slip Op 09282 [Available Here]

At defendant’s first trial, which ended in a mistrial, defense counsel unsuccessfully raised a Bruton violation objection (see Bruton v United States, 391 US 123, 135-137) to the admission of prejudicial statements by a non-testifying co-defendant. At defendant’s second trial these statements were admitted without objection. On appeal the defendant argued that it was error to allow the admission of these statements. The Court agreed and reversed on both Bruton and Crawford grounds, despite the absence of objection, as a matter of discretion in the interest of justice.

A defendant's right of confrontation is violated where the confession of a nontestifying codefendant that facially incriminates the defendant is introduced at their joint trial (see Bruton v United States, 391 US 123, 135-137; see also Richardson v Marsh, 481 US 200, 207). "When an extrajudicial statement by one defendant contains incriminating references to another defendant, admission of that statement upon their joint trial deprives the nonconfessing defendant of his right to confront the witness against him unless that witness also testified at the joint trial" (People v Wheeler, 62 NY2d 867, 869, citing Bruton, 391 US 123). "If the confession, however, can be effectively redacted so that the jury would not interpret its admissions as incriminating the nonconfessing defendant, it may be utilized at the joint trial" (id.). Here, although defendant was implicated by use of a neutral pronoun rather than by name, the evidence before the jury established that both victims saw three robbers and one of the victims identified the robbers by name. Under the circumstances, there is no possibility that the incriminating references "would not necessarily be viewed by the jury as referring to defendant" (id.).....
Defendant further contends that reversal is required based on a Crawford violation. We agree. The out-of-court statements of the codefendant were testimonial in nature, and they therefore were inadmissible because the codefendant was not unavailable and defendant had no prior opportunity to cross-examine him (see Davis v Washington, ___ US ___, ___, 126 S Ct 2266, 2273-2274; People v Kyser, 26 AD3d 839).

People v Johnson, 2007 NY Slip Op 09273 [Available Here]

In an apparent issue of first impression, the Court holds that children depicted in pornographic photographs which were downloaded by the defendant who pled guilty to Attempted Promotion of a Sexual Performance by a Child are victims for purposes of the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.) statute, even where the defendant otherwise has no contact with the children. The SORA statute itself does not define the term victim. Thus, the defendant could be assessed risk assessment points based on the age and his lack of relationship with the children depicted in the photographs.

People v Givans, 2007 NY Slip Op 09281 [Available Here]

First, the Court reversed and ordered a new trial on the conviction on counts of criminal possession of a controlled substance in the second degree and conspiracy in the second degree because of the failure to grant challenges for cause regarding prospective jurors who stated that they would favor law enforcement and did not subsequently give unequivocal assurances that they were able to reach a verdict based entirely upon the court's instructions on the law.

Then, the Court addressed defendant's remaining contentions in the interest of judicial economy, and held that there had been three evidentiary errors at the defendant’s trial

We agree with defendant that the court erred in admitting a text message from a cellular telephone in evidence, inasmuch as the People failed to establish that the text message was ever read by defendant, or even retrieved by him, and they failed to establish the authenticity or reliability of the text message (see People v Johnson, 250 AD2d 922, 928-929, affd 93 NY2d 254; see also Prince, Richardson on Evidence § 4-203 [Farrell 11th ed]).

Further, the court erred in permitting the jury to access the entire contents of the cellular telephone and to view materials that were not admitted in evidence at trial (see People v Vizzini, 183 AD2d 302, 307-308; cf. People v Stanley, 87 NY2d 1000).

Finally, the prejudicial effect of testimony concerning uncharged crimes committed by defendant, i.e., his past drug sales, as well as his alleged familiarity with task force vehicles and his alleged threat to kidnap and feed drugs to the District Attorney's children, far outweighed the probative value of that testimony, and the court therefore erred in admitting that testimony (see generally People v Alvino, 71 NY2d 233, 241-242; People v Ventimiglia, 52 NY2d 350, 359-360; People v Molineux, 168 NY 264, 291-294).

(Congratulations to Linda Campbell who argued this appeal and persuaded the Court to find four errors in one case.)

People v Collins, 2007 NY Slip Op 09289 [Available Here]

County Court advised the defendant that he was precluded from raising the defense of intoxication to a charge of depraved indifference murder. That was true under the existing law at the time of defendant’s guilty plea (see generally People v Register, 60 NY2d 270, 275-276, cert denied 466 US 953; People v Hilligas, 291 AD2d 926, lv denied 98 NY2d 651). However, the law has since changed (see generally People v Feingold, 7 NY3d 288, 294; People v Coon, 34 AD3d 869, 870).

On appeal, defendant contends that he will be deprived of due process if the Court did not apply the current law in reviewing the factual sufficiency of his plea allocution, in view of his presently viable defense of intoxication. Although acknowledging that the defendant is correct that he is entitled to the application of current principles of substantive law upon his direct appeal from the judgment of conviction (see generally Policano v Herbert, 7 NY3d 588, 603-604), the Court rejected that contention.

Nevertheless, even assuming, arguendo, that we agree with the Third Department that intoxication is a defense to depraved indifference murder (see Coon, 34 AD3d at 870), we conclude that reversal is not required. The challenge by defendant to the factual sufficiency of the plea allocution does not survive his valid waiver of the right to appeal (see People v Donahue, 21 AD3d 1359, lv denied 6 NY3d 775; People v Spivey, 9 AD3d 886, lv denied 3 NY3d 712; People v DeJesus, 248 AD2d 1023, lv denied 92 NY2d 878). In any event, defendant failed to preserve that challenge for our review by moving to withdraw his guilty plea or to vacate the judgment of conviction (see People v Emm, 23 AD3d 983, 984, lv denied 6 NY3d 775; People v Perry, 21 AD3d 1352, lv denied 5 NY3d 884; see generally People v Lopez, 71 NY2d 662, 665), and nothing in the plea allocution alerted the court that defendant had a viable defense of intoxication, thereby placing the court under a duty, prior to accepting the plea, of inquiring into whether defendant was fully aware of and voluntarily waiving any such defense (see Lopez, 71 NY2d at 666). Defendant likewise failed to preserve for our review his contention that his plea was not voluntarily, knowingly, and intelligently entered (see DeJesus, 248 AD2d 1023) and, in any event, that contention lacks merit.

Considering that the Court advised the defendant that intoxication is not a defense to the charge, it is hardly surprising that the plea allocution did not alert the court that defendant had a viable defense of intoxication. Rather, the Court's comments effectively dissuaded the making of any such record.

Friday, November 23, 2007

Disorderly Conduct requires more than a mere inconvenience of pedestrians

From Jim Eckert:

The Court of Appeals ruled last week on the sufficiency of an information charging Disorderly Conduct (standing on the sidewalk) and resisting arrest.

In People v Jones, __ NY3d __ [11/20/17] the court reaffirmed that an information has to allege sufficient facts to make out a prima facie case. The allegation which was held to be insufficient was:

he observed defendant along with a number of other individuals standing around at the above location, to wit a public sidewalk, not moving, and that as a result of defendants' [sic] behavior, numerous pedestrians in the area had to walk around defendants [sic] . . . deponent directed defendant to move and defendant refused and as deponent attempted to stop defendant, defendant did run.

The Court explained why these factual allegations in the information do not meethe burden on the People to make out its prima facie case for the offense charged in the text of an Information (CPL 100.15 [3] and CPL 100.40 [1])

Nothing in the information indicates how defendant, when he stood in the middle of a sidewalk at 2:01 a.m., had the intent to or recklessly created a risk of causing "public inconvenience, annoyance or alarm." The conduct sought to be deterred under the statute is "considerably more serious than the apparently innocent" conduct of defendant here (People v Carcel, 3 NY2d 327, 331-332 [1957]). Something more than a mere inconvenience of pedestrians is required to support the charge ( id. at 332). Otherwise, any person who happens to stop on a sidewalk -- whether to greet another, to seek directions or simply to regain one's bearings -- would be subject to prosecution under this statute ( see People v Nixon, 248 NY 182, 185-188 [1928][Those congregating on the street display "atrociously bad manners" by "discommod[ing] some other persons" but such conduct alone does not necessarily give rise to disorderly conduct]). 22 Both Carcel and Nixon involved Penal Law § 722, the predecessor statute to Penal Law § 240.20, which provided in part that "[i]n cities of five hundred thousand inhabitants or over any person who, with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned . . . congregates with others on a public street and refuses to move on when ordered by the police" is guilty of disorderly conduct. Thus, as the information fails to set forth a prima facie case of disorderly conduct under Penal Law § 240.20 (5), the accusatory instrument is jurisdictionally defective and must be dismissed.

Also, since those allegations were insufficient, the charge of Resisting Arrest also had to be dismissed, since without sufficient facts for Disorderly Conduct, the information was also insufficient to show that the arrest was authorized.

As the information failed to allege sufficient facts to support the underlying disorderly conduct charge, those facts could not be deemed sufficient to allege that the arrest was "authorized" as required under Penal Law § 205.30.


Sunday, November 18, 2007

I Think I Just Asked For An Attorney

When a suspect being questioned tells the police that “I think I need an attorney” and the police officer writes in his notes that the suspect “asked for” a lawyer, there is no support for a holding that the request for counsel was equivocal. That apparently non-exceptional statement is the holding of the Court of Appeals in People v Porter, _ NY3d _ [11/15/07]. What makes it worth noting is that a divided Appellate Division, Fourth Department ruled otherwise (Here).

The majority’s description of the facts omitted any mention of the officer’s notes. By contrast, the dissenting opinion of Justice Gorski, not only mentioned the police officer's notes, but explained that they reflect his understanding of what the suspect’s statement - that he had "asked for" an attorney. Justice Gorski’s dissent also pointed out that “.. in advising defendant that his statement did not sufficiently invoke his right to counsel, the officer effectively dissuaded defendant from further efforts to invoke his right to counsel.”

It should be noted that the Court of Appeals did not hold that interrogation must cease every time a suspect being questioned by the police says “I think I need an attorney.” Rather, the Court held that
This is not to say that utterance of the words defendant used would unequivocally invoke the right to counsel in every instance. But on this record, where there were no additional facts upon which a contrary inference could be drawn, further inquiry by the police was not permitted.

Tuesday, November 13, 2007

More decisions from November 9, 2007

People v Adams, 2007 NY Slip Op 08571 [4th Dept 11/09/07] - holding that

the court erred in increasing defendant's sentence from concurrent to consecutive terms after he refused to sign the no-contact order of protection. That "increase cannot be justified under sentencing procedures nor supported under the guise of punishment for contempt of court" (People v Culpepper, 33 NY2d 837, 838, cert denied 417 US 916).

However, this decision is also a reminder that a defendant who received an unlawfully low sentence might want to think twice before appealing:

we conclude that the sentence is illegal because it was not in compliance with Penal Law § 70.06 (4) (b). The court sentenced defendant to terms of 2 to 7 years on the burglary [*2]count and 1 to 4 years on the criminal contempt count but, pursuant to section 70.06 (4) (b), the minimum period of imprisonment for an indeterminate sentence must be one half of the maximum imposed (see generally People v Chappelle, 282 AD2d 834).

People v Huggins, 2007 NY Slip Op 08619 [4th Dept 11/9/07] -- pointing out a limit on waivers of appeal:

Defendant's further contention that the enhanced sentence is unduly harsh and severe also is not encompassed by the waiver of the right to appeal "because the court failed to advise defendant of the potential period of incarceration that could be imposed" for an enhanced sentence (People v Trisvan, 8 AD3d 1067, lv denied 3 NY3d 682; cf. People v Jackson, 34 AD3d 1318, lv denied 8 NY3d 923; see generally People v Lococo, 92 NY2d 825, 827).

People v Mills, 2007 NY Slip Op 08573 [4th Dept 11/09/07] -- reversing for failure to charge justification based on a choice of evils defense:

Defendant testified that he and another passenger in the vehicle were arguing and subsequently engaged in a fistfight outside the vehicle. When a group of men gathered around the fistfight, defendant became fearful that he would be attacked by the group, whereupon he entered the vehicle and drove from the scene. County Court erred in denying defendant's request for a justification charge. Considering the evidence in the light most favorable to defendant, we conclude that there is a reasonable view of the evidence that defendant's conduct was justified "[u]nder the choice of evils' theory of Penal Law § 35.05 (2)" as a means to avoid an imminent attack (People v Maher, 79 NY2d 978, 981; see People v Padgett, 60 NY2d 142, 145-146; People v Newman, 3 Misc 3d 361, 363).

Monday, November 12, 2007

Must IAC Claims Be Preserved?

In People v Jones, (55 NY2d 771 [1981]), the Court of Appeals held that claims of ineffective assistance of counsel (IAC) may be raised for the first time on appeal. A contrary holding would penalize a defendant who received ineffective assistance for the failure of the deficient counsel to preserve the issue of ineffectiveness. Since few ineffective attorneys are likely to preserve the issue of their ineffectiveness, virtually all IAC claims (including those with merit) would be unpreserved and unreviewable. Subsequently, the Court in People v Angelakos (70 NY2d 670 [1987]), cited Jones in reviewing an unpreserved claim of IAC in an appeal from a guilty plea.

Recently, however, the Appellate Divsion, Fourth Department, has held in a series of cases, such as People v Barra (2007 NY Slip Op 08644 [11/9/07]) and People v Fairman (38 AD3d 1346, lv denied 9 NY3d 865 [2007]), that claims of IAC have not been preserved for review where the defendant did not move to withdraw the plea or admission or to vacate the judgments of conviction based on the alleged denial of effective assistance of counsel. These Fourth Deparment decisions do not cite Jones or Angelakos. One wonders whether the Fourth Department is applying this preservation requirement even where the defendant did not have access to different counsel until one was assigned for the appeal.

Sunday, November 11, 2007

Appellate Review of Bargained for Sentences

In its November decisions, the Appellate Division, Fourth Department twice (here and here) held that
Where, as here, a "defendant effects a plea bargain and receives the precise sentence that was promised, he should not later be heard to complain that he received what he bargained for" (People v Chambers, 123 AD2d 270, 270; see People v Dixon, 38 AD3d 1242).

Considering that the Court of Appeals in People v Thompson, 60 NY2d 513 [1983] has expressly held that the Appellate Divisions have the authority to review even bargained for sentences, one might be curious about the holdings in Chambers and Dixon.

In People v Chambers, the First Department actually reduced the bargained for sentence, holding that
Ordinarily, of course, where defendant effects a plea bargain and receives the precise sentence that was promised, he should not later be heard to complain that he received what he bargained for (People v. McCullers, 40 AD2d 796, 797, affd 33 NY2d 806). Here, however, there are special circumstances deserving of recognition.

Dixon is a Fourth Department decision citing Chambers and People v. McCullers, 40 A.D.2d 796 [1972] in which the First Department held that
...the defendant received no greater sentence than it was understood he would receive. He cannot now complain because a promise was kept.

Of course McCullers was rendered more than a decade before the Court of Appeals in Thompson, for the first time clearly held that appellants can raise such claims and that intermediate appellate courts in New York do have the authority to reduce bargained for sentences. The only other case cited in Dixon is People v Northrup, 23 AD3d 1102 [4th Dept 2005], another Fourth Department case which cited only Chambers and McCullers as support for this holding.

These decisions of the Fourth Department neither cite nor distinguish Thompson or People v Delgado, 80 NY2d 780 [1992](in which the Court of Appeals again confirmed the Appellate Divisions' authority to reduce bargained for sentences).

Here is what the Court wrote in Thompson
...the Legislature has adopted procedures at the intermediate appellate level, conferring different authority to reduce sentences on the Appellate Divisions than has been granted to the individual Trial Judges.....
The Legislature has also prescribed the corrective action the Appellate Division must take if it decides that a sentence legally imposed is excessive under the circumstances of a particular case....Thus the Appellate Division was not bound, as it assumed, to afford the People the option of withdrawing their consent to the plea once it concluded in the exercise of its discretion that the sentence imposed was excessive. Its first order, simply reducing the sentence to a lesser term, was in accord with the relevant statute. It was also consistent with the well-established practice. The power of the Appellate Division to reduce a sentence, which it finds unduly harsh or severe, in the interest of justice and impose a lesser one has long been recognized in this State. It was originally exercised as an inherent power (see, e.g., People v. Miles, 173 App.Div. 179, 183-184, 158 N.Y.S. 819) and was later codified in section 543 of the Code of Criminal Procedure. When the Legislature adopted the current CPL in 1971 it again expressly authorized the practice, without substantive change (CPL 470.15, subd. 6, par. [b]; 470.20, subd. 6). The defendant did not, as the People urge, lose his right to seek appellate review of his sentence by pleading guilty....If the exercise of this power frustrates the People's expectations in cases involving negotiated sentences it is not the result of any change in the law. The statute is clear on its face and has been uniformly, albeit rarely, employed in the past. It presents a risk, although a minimal one, which presumably is taken into account or discounted at the time of the plea negotiations.

It appears that the recent jurisprudence of the Appellate Division, Fourth Department is inconsistent with this holding. It further appears that no other Appellate Division has held since Delgado that a defendant may not complain on appeal about the fairness of a bargained for sentence. Thus, these decisions might present an issue meriting the granting of leave to appeal.

Saturday, November 10, 2007

Ed Nowak -- Appellate Superstar

Its been two week since Ed Nowak has announced his plans to retire after serving thirty years as the Monroe County Public Defender. Since then numerous people have expressed to me their appreciation of Ed's impressive accomplishments as Public Defender. Many have referenced Ed's ability to attract and keep highly qualified attorneys and support staff dedicated to providing high quality representation to our clients. Others have focused their comments on Ed's contributions, both on a local and state level, to achieving a just criminal justice system . Still others have mentioned how they have come to depend on Ed and his lectures on the decisions of the Court of Appeals as as a key way of keeping informed of developments in New York law. All of these accolades are obviously well deserved. Yet, I think that there is one aspect of Ed's achievements as a Public Defender that has received insufficient attention -- Ed's remarkable achievements as an appellate advocate.

Ed was 29 years old and already the Monroe County Public Defender when he argued and won Dunaway v New York, 442 US 200 [1979]. To appreciate how big a victory that was, one needs to realize that not only had had the New York Court of Appeals held in People v Morales,42 NY 2d 129 [1977] that only reasonable suspicion was needed to hold someone for questioning , but the Appellate Division, Fourth Department had already held in Dunaway that, even if his detention was unlawful, Mr. Dunaway's statement was attenuated from any such illegality. Ed persuaded the Supreme Court that there is a higher standard to be met before a person can be detained for purposes of questioning. Justice Brennan's decision in Dunaway already been cited more than 6300 times.

At age 33, Ed argued and won People v Parker, 57 NY2d 136 [1982], getting the Court to vacate Ms. Parker's conviction because she had not been told of the consequences of her failure to appear at her trial. Ed had argued for and achieved more than a reversal for Ms. Parker. Instead of simply arguing that she had not knowingly waived her right to be present at trial, Ed sought and obtained a ruling that in order for any defendant's absence from trial to be found to be knowing, intelligent, and voluntary, defendants first must be warned as to what would occur if they fail to appear. On the long drive back from Albany and that oral argument, the young attorney in the car with Ed, having witnessed the tough questioning which Ed had just endured, suggested that perhaps Ed should have taken the more moderate approach and just sought a narrow win. I guess I was wrong.

So by age 33, Ed was responsible for Dunaway hearings and Parker warnings.

By the way, Ed was also the winning attorney in People v Brooks, 75 NY2d 898 [1990], in which the Court held that even when "Parker warnings" are given, it is error to proceed in abstentia without there being a a record and determination establishing that the defendant's absence was deliberate.

Even when Ed failed to obtain reversal of his client's convictions, his work made a huge impact on the development of law. For example, in People v Lipsky, 57 NY2d 560 [1982] the Court of Appeals ruled against Ed and reinstated the murder conviction of his client Leonard Lipsky. this was a case in which there was no body and Mr. Lipsky's statement was the primary, if not exclusive, evidence of death. The Court of Appeals held that Mr. Lipsky's confession was sufficiently corroborated despite the fact that body of victim was never found and there was no direct evidence, other than confession, that defendant caused the victim's death, since there was circumstantial evidence calculated to suggest that victim was dead and implicating defendant as the criminal agency, the key to which was furnished by defendant's confession. After losing at the Court of Appeals Ed got the Appellate Division, Fourth Department, on further appeal, to reverse the conviction of the ground that the corroboration of the confession was insufficient under the instruction given to the jury. (Murder prosecution and convictions when there is no body are still subject to the peril (and embarrassment) that someone might see the supposed decedent alive after the time of the supposed homicide. See last week's headline).

But the loss which bothered Ed the most (other than the many losses by Notre Dame) was the 4-3 decision of the Court in People v Register, 60 NY2d 270 [1983] that "depraved indifference" is neither a mens rea nor an actus rea. For more than twenty years Ed would complain how the Register decision made deprave murder such a standardless, amorphous concept that it violated due process. Of course, our office raised that argument unsuccessfully in People v Johnson, 87 N.Y.2d 357 [1996]. But finally, in 2003, in People v. Feingold, 7 N.Y.3d 288 [2003], the Court recognized that it had erred in Register and that, as Ed had argued, depraved indifference to human life is a culpable mental state. Having that loss corrected and undone, I guess Ed feels he is now free to retire.

I could go on, but I think the point is clear. Ed's contributions as an appellate attorney are as impressive as his many other achievements.

Friday, November 09, 2007

It's ineffective to not raise claims of ineffective assistance of counsel

At a recent CLE on Appellate Ethics the question was raised as to whether it was a good use of appellate counsel’s time to raise claims of ineffective assistance of counsel (IAC), given the small number of reversals on that ground. I resisted the temptation to answer that, using that logic and given the small percentage of reversals on any issue, perhaps it is a waste of time for an attorney to work on all but a few criminal appeals. But I was glad for the question, because it insured that I would give adequate time to addressing why IAC is perhaps the most important issue to raise when there is a non-frivolous basis for believing trial counsel was ineffective.

First, we owe it to our clients. Courts have repeatedly recognized that the right to counsel is the perhaps the most fundamental of all of the rights of a defendant in a criminal case since it is through the right to counsel that other rights are protected. Further, courts recognize that the right to counsel means the right to effective assistance of counsel, since otherwise it is not a meaningful right at all. A defendant who received IAC, not only is deprived of the right to counsel, but of the protection of his other rights, as well. It is the essential function of appellate counsel to point out the deprivation of a client’s rights, particularly a deprivation which transforms the process into one with a veneer of protections though counsel. If you don’t care enough about your clients to point out when they received IAC in the lower court, find other work. Besides, your chance of reversal on other grounds appears to increase when a strong issue of IAC is raised even when that issue is not the basis of reversal (or even mentioned in the decision). Even an unpreserved bolstering issue raised in point 2 can be a basis for reversal when the first point is a strong IAC point (See, e.g. People v McCullough, 38 AD3d 1203 [4th Dept 2007].

Second, we owe it to our profession. If we silently tolerate lawyering that you wouldn’t wish on the guy who burglarized your house, the standards as to what is acceptable for our profession will either drop to or remain (depending on one’s perspective) at the constitutionally required minimum. We should expect more of ourselves than that very low – there might well have been some strategic basis for the action/inaction which severely damaged the client’s case – standard. One key way of pushing defense attorneys to do things as basic as renewing TOD motions (as required by the Court of Appeals since 2001, for legal sufficiency claims to be reviewable as a matter of law, yet this term like almost every term the Fourth Department has refused to review claims of legally insufficiency due to counsel's failure to renew -- see, here and here), is to keep on pointing out how inexcusable it is for attorneys to fail to know the relevant law and to display an understanding of what evidence will help or hurt their clients.

Third, we owe it ourselves. Courts have granted writs of error coram nobis based on the ineffective assistance of appellate counsel who have failed to raise the issue of IAC of trial counsel (See, e.g, People v Johnson, 43 AD3d 1453 [4th Dept 2007]. An easy way to avoid this embarrassment is to raise the issue when presented.

Fourth, we owe it to the appellate courts. If the issue of IAC is not presented with the brief marshaling the facts and arguments in support of the claim, the appellate court cannot be fairly expected to reach out and reverse on the issue. Nor can the court be expected to develop an understanding of the quality of counsel offered by a particular attorney who repeatedly engages in substandard work, unless appellate briefs point out the cases in which counsel provided lousy representation.

Finally, if we don’t raise the issue of IAC we will not experience the satisfaction that Eric, the former author of this blog must be feeling tonight, having won a reversal on IAC grounds in People v Rivera, 2007 NY Slip Op 08488 [4th Dept 11/09/07].

The basis of reversal? A prospective juror told the court that she was "embarrassed to really say it, but [she had] trouble with the intent to sell" and, for defendant's "sake, [she] probably wouldn't be able to go in with an open mind."

In response to a question by County Court whether she "would have difficulty setting aside that feeling," the prospective juror responded "Uh-huh." The court thereafter asked whether either the prosecutor or defense counsel objected to excusing the prospective juror, and defense counsel indicated that he had a problem excusing her at that point. Defense counsel then reminded the prospective juror that the court had instructed the prospective jurors that, if a vote with respect to defendant's guilt were to be taken at that time, the jury would have to find defendant not guilty because no evidence had been presented. When asked whether she would have difficulty "rendering that verdict now if asked to do so," the prospective juror responded "I don't know." Defense counsel stated that, if there was no evidence, "[y]ou can't find him guilty of anything. Is that okay?" The prospective juror then responded "Um-hum."The prosecutor challenged the prospective juror for cause, despite his belief that she would be "beneficial" to his case. Defense counsel stated that there "might be a question" with respect to the prospective juror but he believed that, when questioning her, "she indicated pretty clearly that she would decide the case on the evidence." The court stated to defense counsel, "She seemed to indicate that she has a problem with the intent to sell drugs." The court then asked defense counsel, "[it] doesn't bother you?" and defense counsel responded in the negative.

The Court concluded that
Although defense counsel's decision not to consent to the removal of the prospective juror from the panel for cause may have been one of strategy ... we conclude that any such strategy "fell short of an objective standard of reasonableness" (People v Turner, 5 NY3d 476,485 [2005]), and we thus conclude that defendant was denied a fair trial.