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On November 25, 1974 the defendant was sentenced to concurrent terms

A Queens Criminal Lawyer said that, at about 3:30 A.M. on June 17, 1972, a girl of 15, was brutally knifed in the chest while sleeping in her ground floor bedroom. Before expiring, the girl told her parents (who had rushed to the room in response to her scream) that the assailant had stabbed her through an open window. Four days later, defendant was arrested for the crime and allegedly re-enacted the murder three times at the police precinct house and a fourth time at the scene of the crime itself. It was shortly discovered that defendant was being sought in connection with an existing indictment for attempted murder and some lesser crimes, that he had been adjudicated incompetent to stand trial on that indictment, and that following confinement to various mental institutions, he had been released in February of 1972 without the sanction of law enforcement authorities. Two weeks after the arrest for the slaying, the defendant’s appointed attorney agreed to the delivery of his client to the District Attorney’s office for further interrogation. During the course of two examinations at the prosecutor’s office, defendant is said to have re-enacted numerous murders and assaults. More than two years later, after trial by jury, the defendant was convicted on his earlier indictment. At a bench trial which followed, he was convicted of murder.

A Queens Criminal Lawyer said that, the first of the judgments appealed stems from events which occurred in Woodhaven in Queens County during the pre-dawn hours of September 5, 1971. The defendant originally was apprehended when two police officers, searching for a prowler, came upon him walking the street in dark clothes. When asked for identification, he allegedly responded by attempting to shoot one of the officers. The gun having misfired, the policemen wrestled the six-foot and four-inch defendant to the ground, disarmed him, and discovered that he possessed an automobile license, registration, and Social Security card in the name of a certain individual. Awakened by the police, the owner of the Social Security card related that before retiring she placed her purse containing the three documents on the dining room table next to a closed window. Not only was the purse missing, but the window was open and the table cloth had been pulled the length of the table toward it.

A Queens Petit Larceny Lawyer said that, the defendant was indicted for attempted murder, reckless endangerment in the first degree, burglary in the second degree, possession of weapons, etc., as a felony, criminal possession of stolen property in the third degree, and petit larceny, but after being jailed for 10 days and confined at the Kings County State Hospital for six to seven weeks, he was adjudicated incompetent to stand trial. Further successive confinements in two other mental institutions terminated with the defendant’s release by Mental Hygiene officials in February, 1972, without notice to the proper authorities.
A Queens Shoplifting Lawyer said that, in April of 1973, defendant was arraigned on the attempted murder indictment and on the four murder indictments. The psychiatric report rendered pursuant to CPL 730.30 concluded that the defendant was suffering from an unspecified personality disorder but that he did not lack the capacity to understand the trial proceedings or make his defense. These findings were accepted by defense counsel without a hearing and the defendant pleaded not guilty and raised the defense of insanity with reference to all of the indictments. In December of 1973, the defendant was remanded for further psychiatric examinations to determine his sanity at the time of the attempted murder. Although the record is somewhat obscure on this point, it seems to indicate that the resultant findings of sanity, rendered in January, 1974, were accepted solely to the extent that the defendant was found capable of standing trial. No hearing on the issue was demanded or conducted.

A Queens Petit Larceny Lawyer said that, in its charge, the court declared that other crimes committed by the defendant which the jury had heard about could be considered solely on the question of his credibility but not to establish criminal bent. Despite the colloquies which had occurred during the trial, the instructions relative to the insanity defense contained no reference to these other crimes. Nevertheless, upon completion of the charge, defense counsel stated that he had no exceptions or further requests to make. The jury convicted the defendant of attempted murder, burglary in the second degree, and possession of weapons. On November 25, 1974 the defendant was sentenced to concurrent terms of 8 1/3 to 25 years, 0 to 10 years, and 0 to 5 years, respectively.

The issues in this case are whether: (1) defendant’s sanity was not established beyond a reasonable doubt; and (2) that he was deprived of the effective assistance of counsel.
The latter issue not only implicates the standard or standards under which claims of ineffective assistance of counsel must be evaluated in this State, but it also compels us to examine how such claims are affected by considerations of trial strategy. Ultimately, we must decide the relationship between the harmless error doctrine and proof of ineffective assistance of counsel.

Defendant’s attack upon his convictions commences with a challenge to the triers’ conclusions as to his sanity. Whether the defendant knew it was wrong to commit the acts for which he was charged was a question for the respective triers of fact who had the right to accept or reject the opinion of either psychiatrist.

Nothing in either trial warrants departure from this general rule. It is true that the antithetical considerations presented to the triers of fact could have led to verdicts in either direction, but there was sufficient evidence to reject the insanity defense if the triers believed the doctor’s theory that defendant’s apparent retreats into another personality were voluntary. Accordingly, the triers’ verdicts as to both guilt and sanity have factual support in the record. Were we not reversing on constitutional considerations, both verdicts would stand.

We turn, then, to defendant’s plaint that he was deprived of his constitutional right to effective assistance of counsel. The initial assertion in this respect is that counsel’s assumption of a witness role constituted a per se deprivation of assistance of counsel. The issue is scarcely novel since the per se rule had its apparent origin in 1846, but over the years the question of trial lawyer testimony has evolved from an exclusionary rule of evidence to a matter of ethical conduct. The Canons of Professional Ethics adopted by the American Bar Association in 1908 contained Canon 19 to the effect that a criminal lawyer who served a client both as advocate and witness acted with professional impropriety. Canon 19 remained unaltered until the promulgation of the ABA’s Code of Professional Responsibility in 1969, adopted with some modification by the New York State Bar Association. Disciplinary Rule 5-102(A) of the Code provides that if the “lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR5-101(B)(1) through (4)”. Ethical Consideration 5-9 of the Code states that “the roles of an advocate and of a witness are inconsistent”.

The crux of the ineffective assistance issue is whether defense counsel’s conduct of his client’s defenses so transgressed constitutional standards for effective representation as to compel reversal of one or both convictions. The traditional rule, of course, is whether the attorney’s performance, or lack of it, rendered the trial a “‘farce and a mockery of justice. Subsequent analysis, however, transformed the focus to evaluation of the fairness of the trial as a whole as it appeared from the record and whether the trial and the conviction were rendered a farce and a mockery of justice by the performance of counsel.

The due process standard is an inherently subjective one since it can only be applied on a case-by-case weighing of the cumulative effect of a variety of prejudicial circumstances on the totality of the trial. Then, depending upon the visceral balance of the particular judges, the appellate determination may be tipped in favor of reversal on mockery of justice grounds, where both majority and dissenter agreed on the mockery standard but arrived at contradictory conclusions.

Scrutiny of the legal assistance defendant received in connection with the victim case must begin with consideration of his attorney’s agreement that he be produced to help solve other crimes. As the lawyer subsequently acknowledged at the Huntley hearing, his role in bringing about the July 7 and 14 interrogations and his capacity at the sessions was as a “friend of the court.”

The position of the lawyer as a guardian of the accused’s right against self-incrimination is so basic to modern criminal law jurisprudence that it should hardly be necessary for us to observe that participation in an experiment designed solely to elicit incriminating evidence from a client casts a shadow on every subsequent step taken in purported defense of that client. 18 It resulted in a clear surrender of the criminal defendant’s constitutional privilege and it breached defense counsel’s duties to take all necessary steps to preserve his client’s rights.

We begin this portion of our analysis by noting that, under certain circumstances, resort to harmless error analysis may be precluded. According to the Court of Appeals, “If in any instance, an appellate court concludes that there has been such error of a trial court, such misconduct of a prosecutor, such inadequacy of defense counsel, or such other wrong as to have operated to deny any individual defendant his fundamental right to a fair trial, the reviewing court must reverse the conviction on domestic violence and grant a new trial, quite without regard to any evaluation as to whether the errors contributed to the defendant’s conviction.”

The type of flagrant error, misconduct or inadequacy referred to in the quoted language has been illustrated in reversals where the conduct involved precluded a fair trial. We do not believe that the Crimmins dictum was intended to establish a per se rule for claims of ineffective assistance of counsel. Indeed, shortly before Crimmins, the Court of Appeals engaged in harmless error analysis before reversing the conviction on grounds of inadequate assistance of counsel. In our view, the Crimmins dictum refers to such a total ineptness of counsel as would result in total destruction of the fairness of the trial and thus relieve the defendant of the necessity to show precisely how he was affected.

Since we recognize prejudice as a requisite ingredient of proof of ineffective assistance, we also note that the People’s burden in harmless error analysis is a heavy one. It is in the face of a defendant’s demonstration that counsel’s performance probably prejudiced his case that the burden shifts to the prosecution to prove beyond a reasonable doubt that the error was harmless.

Applying this methodology both to the case and the earlier trial, the defendant clearly has shown that his lawyer’s performances were seriously deficient and that his defenses were prejudiced by them, but the People have been unable to bear their burden of establishing beyond a reasonable doubt that the outcome of the trials was not affected by the manner in which the defenses were conducted. Thus, the assistance defendant received in each case was ineffective within the meaning of the Constitution and harmless error analysis fails to salvage either conviction.

The judgments must be reversed and the defendant given new trials. The unfortunate circumstances detailed here compel us to reiterate to bench, bar and law enforcement authorities alike that, no matter what the apparent degree of defendant’s depravity or the likelihood of his guilt, the right to the constitutional shelter of effective assistance of counsel and a fair trial are to remain inviolate.

Accordingly, both judgments of conviction are reversed and the matters are remanded for new trials.

If you have denied of an effective assistance of a counsel in a criminal case, seek the help of a Queens Criminal Attorney and Queens Petit Larceny Attorney at Stephen Bilkis and Associates.

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