PEOPLE v. WOODARD (2020)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals by permission of this Court from an order denying without a hearing his motion pursuant to CPL article 440 seeking to vacate on, inter alia, the ground of ineffective assistance of counsel the judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[3]) and attempted robbery in the first degree (§§ 110.00, 160.15[2] ).  We previously affirmed that judgment of conviction (People v. Woodard, 96 A.D.3d 1619, 1619, 946 N.Y.S.2d 778 (4th Dept. 2012), lv denied 19 N.Y.3d 1030, 953 N.Y.S.2d 563, 978 N.E.2d 115 [2012]).

Defendant contends that he was denied effective assistance of counsel because defense counsel failed to investigate the circumstances under which defendant provided a written statement to police.  Preliminarily, we agree with defendant that his ineffective assistance of counsel claim is not procedurally barred by CPL 440.10(2)(c).

With respect to the merits, “[a] defendant's right to effective assistance of counsel includes defense counsel's reasonable investigation” (People v. Rossborough, 122 A.D.3d 1244, 1245, 996 N.Y.S.2d 407 (4th Dept. 2014);  see People v. Howard, 175 A.D.3d 1023, 1025, 107 N.Y.S.3d 583 (4th Dept. 2019);  People v. Jenkins, 84 A.D.3d 1403, 1408, 923 N.Y.S.2d 706 (2d Dept. 2011), lv denied 19 N.Y.3d 1026, 953 N.Y.S.2d 560, 978 N.E.2d 112 [2012]).  Although “the failure to investigate may amount to ineffective assistance of counsel” (Rossborough, 122 A.D.3d at 1245, 996 N.Y.S.2d 407;  see People v. Kurkowski, 117 A.D.3d 1442, 1443, 984 N.Y.S.2d 761 (4th Dept. 2014)), the governing standard is “ ‘reasonable competence,’ not perfect representation” (People v. Modica, 64 N.Y.2d 828, 829, 486 N.Y.S.2d 931, 476 N.E.2d 330 [1985];  see People v. Young, 167 A.D.3d 1448, 1449, 89 N.Y.S.3d 800 (4th Dept. 2018), lv. denied 33 N.Y.3d 1036, 102 N.Y.S.3d 499, 126 N.E.3d 149 [2019]).

Here, defendant alleges that he invoked his right to counsel while in police custody prior to giving a written statement to police.  Defendant contends that defense counsel's failure to discover that fact during his investigation of defendant's case amounts to ineffective assistance.  We disagree.  Defense counsel properly requested and received discovery materials and filed an omnibus motion on defendant's behalf seeking, inter alia, suppression of defendant's written statement.  The discovery materials produced gave no indication that defendant requested a lawyer at any time, and the testimony adduced at the ensuing Huntley hearing established that defendant freely and voluntarily waived his right to counsel prior to giving his written statement to police.  Defendant admittedly failed to inform defense counsel that he invoked his right to counsel prior to giving the written statement until after the Huntley hearing, at which point defense counsel moved to reopen the hearing.  Thus, the record establishes that defense counsel sufficiently investigated the facts, and defense counsel's failure to argue or elicit information at the Huntley hearing tending to show that defendant had invoked his right to counsel while in police custody is attributable to defendant's failure to inform him of that alleged fact (see Young, 167 A.D.3d at 1450, 89 N.Y.S.3d 800;  People v. Bradford, 202 A.D.2d 441, 442, 608 N.Y.S.2d 511 (2d Dept. 1994), lv. denied 84 N.Y.2d 823, 617 N.Y.S.2d 143, 641 N.E.2d 164 [1994]).