PEOPLE v. JOHNSON (2007)

Appeal from judgment, Supreme Court, Bronx County (Caesar Cirigliano, J.), rendered October 6, 2004, convicting defendant, after a nonjury trial, of robbery in the first degree, and sentencing her to a determinate term of five years, held in abeyance, and the matter remanded for a de novo suppression hearing.

 The Court of Appeals has long applied a “flexible” standard in analyzing claims based upon a violation of a defendant's constitutional right to the effective assistance of counsel (People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  People v. Henry, 95 N.Y.2d 563, 565, 721 N.Y.S.2d 577, 744 N.E.2d 112 [2000] ).  “So 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, the constitutional requirement will have been met” (People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981];  see also People v. Wiggins, 89 N.Y.2d 872, 873, 653 N.Y.S.2d 91, 675 N.E.2d 845 [1996] ), and the reviewing court must not confuse ineffectiveness with losing strategies and tactics (People v. Grey, 34 A.D.3d 832, 833, 824 N.Y.S.2d 678 [2006];  People v. Gil, 285 A.D.2d 7, 12, 729 N.Y.S.2d 121 [2001] ).   Moreover, the burden rests with defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings (People v. Taylor, 1 N.Y.3d 174, 176, 770 N.Y.S.2d 711, 802 N.E.2d 1109 [2003];  People v. Benevento, 91 N.Y.2d at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584), and while a single error may qualify as ineffective assistance, that error must be “sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial” (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005], see also People v. Ramirez, 22 A.D.3d 334, 337, 803 N.Y.S.2d 42 [2005], lv. denied 6 N.Y.3d 779, 811 N.Y.S.2d 346, 844 N.E.2d 801 [2006] ).

 In the matter before us, after the conclusion of testimony at the suppression hearing, the court invited argument, at which point defendant's counsel stated:

“Well, ․ the People have gone forward in the matter and I have the duty to sustain the illegality of the search.   And frankly, Judge, you know, I don't believe in doing vain things and trying to ask a Judge to do something that I would not do.   And I don't believe I have sustained, frankly, my burden to show the unlawful and unconstitutionality of the search.   So, I can't really argue.   You heard all the evidence, and I ask you to rule on the evidence in the case.   I'm not going to say things that I cannot support, I don't think it would be fair to try to do that to any Judge sitting in that spot.   I wouldn't want anybody to do it to me and I won't do it to you, Judge.”

The prosecution, following defense counsel's unequivocal submission, declined the court's invitation to respond.   A review of the hearing transcript, however, reveals several colorable arguments which would have been available to defense counsel and, while we decline to pass on the issue of the ultimate success of those arguments, we can discern no legitimate strategy or tactic which would have led counsel to simply concede all of the points raised.   This is especially so because the victim was the only witness to the robbery;  therefore the suppression of the gun recovered in the apartment, as well as the victim's identification of defendant, were at the core of the prosecution.   Accordingly, we remand the matter for a de novo Mapp/Dunaway/Wade/ Huntley hearing (see generally People v. Vega, 276 A.D.2d 414, 714 N.Y.S.2d 291 [2000] ).