People v. Oliveras , 936 N.Y.2d 12 ( 2011 )

Saxe and Catterson, JJ.,

dissent in a memorandum by Catterson, J., as follows: Because I believe that the defense counsel’s decision not to obtain psychiatric records in this case reflects a reasonable and legitimate trial strategy, the defendant has not met his burden of showing that his counsel’s performance was deficient. Therefore, I must respectfully dissent.

The defendant in this case was convicted of murder in the second degree after a jury trial. On May 8, 2007, the defendant moved to vacate his conviction pursuant to CPL 440.10 on the grounds that his defense counsel (1) failed to obtain his psychiatric, Social Security, and/or educational records demonstrating that he had severe mental and educational deficits in order to challenge the voluntariness of his statements; (2) offered late CPL 250.10 notice; and (3) failed to distinguish the case cited by the People and thereby persuade the court that CPL 250.10 notice was not required to present lay testimony of defendant’s mental and educational history.

At a January 8, 2009 evidentiary hearing on defendant’s CPL 440.10 motion, defendant’s trial counsel testified to the following: As of April 7, 2000, defense counsel’s strategy was to “attack the voluntariness” of defendant’s statements to the police by showing that defendant suffered from mental illnesses all his life. However, shortly after defense counsel indicated his intention to the court and the prosecution that he would seek medical records, his client, the defendant, “shut [him] down” and flatly rejected that strategy.

Defense counsel testified that he agreed with the defendant partly because he was concerned at the time that the records would not be beneficial, but on the contrary might harm the defense by showing that defendant was violent. Defense counsel also asserted that, in his experience, it was often a more effective strategy to “giv[e] the jury a good gut feeling” rather than “getting bogged up in” a battle of expert witnesses. Counsel then developed a new strategy of adducing lay witness testimony from the defendant’s mother “to build in the minds of the jury, in that [defendant] was somebody who had no work history, was on SSI, . . . had a grade school education at the most, and he was in special education], I think, and had . . . some hospitalizations . . . that he’s somebody whose mind could be played with.”

Defense counsel further explained that although he knew that he was required to provide CPL 250.10 notice to present a psychiatric defense, he did not believe that notice was required to establish mental illness through a lay witness. However, not wanting to risk being precluded, he moved to provide late CPL 250.10 notice. Although the motion was denied, at trial, the court permitted defense counsel to establish through the testimony of the defendant’s mother, that defendant “only had an eighth grade education,” that “he was in special education,” that he “received treatment at Bronx Psychiatric clinic[ ],” that he had no work history, and that he “was on disability and received SSI payments.” Defense counsel also pointed to indicia of coercion such as the defendant’s inconsistent statements, and evidence that the police tricked the defendant’s mother into permitting him to be interrogated without an attorney present and played “good cop/bad cop” during the interrogation. Defense counsel explained that if he could get the jury to see that the defendant was “not playing with a full deck” and that the “cops . . . took advantage of it,” then he could secure an acquittal.

By order dated June 4, 2009, the motion court denied defendant’s CPL 440.10 motion in its entirety. The motion court accepted defense counsel’s testimony as “credible, reliable, truthful, and uncontroverted,” and concluded that defendant was not denied effective assistance of counsel. The court further found that counsel “had a reputation as an able and experienced attorney who practiced criminal defense in Bronx County for over forty years.”

1 see no reason to disturb the motion court’s credibility determinations on appeal. In my view, the hearing court correctly found that the defense counsel’s decision not to obtain the defendant’s psychiatric records and his decision to rely on lay testimony to establish the defendant’s mental deficiencies was a reasonable and legitimate defense strategy.

Defense counsel is deemed to have satisfied the constitutional mandate of effective assistance “[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation.” (People v Baldi, 54 NY2d 137, 147 [1981].) So long as counsel’s performance reflects a “reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance.” (People v Benevento, 91 NY2d 708, 713 [1998].) Thus, it is the defendant’s burden to “ ‘demonstrate the absence of strategic or other legitimate explanations’ for counsel’s alleged shortcomings.” (Benevento, 91 NY2d at 712, quoting People v Rivera, 71 NY2d 705, 709 [1988].)

Given the constraints placed on defense counsel by the defendant and the potentially adverse consequences that might have resulted from pursuing a formal psychiatric defense, in my opinion the strategy that counsel adopted was reasonable under the circumstances. The jury heard testimony concerning the defendant’s mental deficiencies, limited educational background, and psychiatric hospitalization. This evidence permitted counsel to advance a persuasive argument that the police exploited the defendant’s deficiencies and that his confession and statements were not voluntary. Thus, in my opinion, neither the failure to request psychiatric records or to consult with a psychiatrist, nor the denial of the defendant’s application to file a late CPL 250.10 notice, could have prejudiced the defendant to the extent that he did not receive a fair trial. (See Benevento, 91 NY2d at 713 [“(t)he question is whether the attorney’s conduct constituted ‘ “ ‘egregious and prejudicial’ ” ’ error such that defendant did not receive a fair trial” (citations omitted)].)