A defendant has a Sixth Amendment right to effective assistance of counsel. In assessing effective assistance, a series of decisions have noted the effect of changes in the law. The decisions have found that counsel’s level of advocacy is to be measured at the time the representation occurred.
For example in People v. Blake, 24 NY3d 78 (2014), the defendant was charged with murder and raised justification as a defense. The prosecution failed to turn over certain evidence to the defense. The missing evidence was a recording from a surveillance camera; due to an unexplained oversight, the recording was inadvertently recorded over.
At trial in 2009, his attorney pointed out the missing evidence to the jury, but did not request an “adverse inference” jury charge. On appeal, the Appellate Division affirmed, finding that there may have been a strategic justification for counsel not to request the inference. Additionally, the Appellate Division found the trial evidence to overwhelmingly refute the justification defense.
On further appeal, the conviction was again affirmed. The Court of Appeals noted that the right to an adverse inference was not established until the decision in People v. Handy, 20 NY3d 663 (2013), when such a charge was held to be mandatory upon request where a defendant, acting with due diligence, demands evidence reasonably likely to be of material importance.
The court observed that while competent counsel at the time of the 2009 trial would have naturally seized upon the government’s failure to preserve material evidence like this (as did this trial attorney), there was no authority that entitled the adverse inference instruction. “Perhaps it was a mistake not to seek the charge, which likely would have been given as a matter of discretion, but if it was a mistake, it was not one so obvious and unmitigated by the balance of the representation effort as singly to support a claim for ineffective assistance.”
In People v. Sanchez, 76 AD3d 122 (1st Dept 2012), the issue was defense counsel’s effectiveness at the 2003 trial for depraved indifference murder. The First Department held that the law in effect at the time of trial would not have realistically resulted in dismissal of the depraved indifference charge. The Court of Appeals had begun the process of recognizing the issue in 2003, but the new legal standard establishing depraved indifference as a mental state beyond mere recklessness was not established until 2006.
In denying the 440.10 motion in Sanchez, the First Department commented that the defense “motion presumes prescience as the standard of effective assistance of counsel, which far exceeds the constitutional requirement to afford a defendant with meaningful representation ‘viewed in totality and as of the time of the representation,’” quoting People v. Baldi, 54 NY2d 137 (1981).
In People v. Shrock, 99 AD3d 1196 (4th Dept 2012), the issue was failing to object to the use of a “stun belt,” which was barred by the Court of Appeals in People v. Buchanan, 13 NY3d 1 (2009). But because the trial occurred about two years before the Buchanan decision, defendant was not denied effective assistance.
Gary Muldoon is a lawyer and author of “Handling a Criminal Case in New York.” His email address is firstname.lastname@example.org.