On August 24, 2010, after a jury trial, defendants, AR and HT, were convicted of Grand Larceny in the Fourth Degree (PL § 155.30) and Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40).
Defendant, AR, moves, pursuant to CPL § 440.10, to vacate the conviction, on the ground that he was deprived of his constitutional right to effective assistance of counsel.
On December 7, 2009, the Grand Jury indicted defendant, HT and KJ, upon the theory that defendant and HT served as accomplices to KJ, the principal actor in a subway pickpocketing. The prosecution alleges that as KJ removed an iPhone from the knapsack of an undercover police officer, defendant and HT used their bodies to conceal KJ’s actions.
On March 25, 2010, Supreme Court Justice dismissed the indictment against KJ, for the People’s failure to afford him the opportunity to testify before the Grand Jury.
A month later, the prosecution re-presented the charges against KJ to the Grand Jury. The People called two witnesses: NYPD Officers IR and MD. Both had been assigned to subway anti-crime duty on December 2, 2009. IR testified that he witnessed the theft. MD described his role as the decoy, the officer who wore the backpack that contained the iPhone.
KJ also testified, denying the charges and offering a different version of the events. According to KJ, on December 2, 2009, he was in Far Rockaway, Queens, visiting his mother. That morning, he boarded a westbound “A” train and ran into his friend HT. KJ and HT got off at the Broadway/Nassau stop and were transferring to the Lexington Avenue line when, by happenstance, they bumped into defendant. After KJ, HT and defendant got on a northbound express train, KJ noticed a bag near a chair located in the corner of the subway car. He examined the bag and touched the iPhone to see if it worked. KJ then set down both items on the chair. He told the Grand Jury that defendant and HT didn’t do anything. They didn’t go in the bag.
Apparently, the grand jurors believed KJ. His indictment was not resurrected. This had no impact on defendant and HT, because in a prosecution based on accessorial liability it is not a defense that a co-actor has not been prosecuted for or convicted of any criminal offense based upon the conduct in question. PL § 20.00.
Before the trial commenced, defendant’s attorney made repeated phone calls to KJ, imploring him to testify on defendant’s behalf. KJ refused. He had moved to California and could not be located.
The People allege that on the morning of December 2, 2009, Officers IR and MD, both wearing plain clothes, were participating in a five-man decoy operation on the Lexington Avenue subway line. At about 10:00 a.m., they were standing in Grand Central Station, on the northbound platform of the 4/5/6 trains. MD, the decoy, was dressed as a tourist, sporting patent leather shoes, a green blazer and an I Love New York cap. The knapsack on his back contained an iPhone in an exterior mesh pouch. Officer RM, Lieutenant KC and Sergeant AR were the other members of the team.
IR testified that as an express train was pulling in, he observed, at a distance of 10 feet away, three men in conversation on the platform: KJ, HT and defendant. A few passengers exited the train. The trio boarded the second subway car and stood near a door. MD followed. IR and RM entered the same car and sat directly behind KJ, HT and defendant. The other officers were located in the rear portion of the first car.
KJ positioned himself behind MD. HT stood on MD’s right side and criminal defendant flanked MD on the left. As the train took off, HT, while looking in the direction of Lieutenant KC and Sergeant AR, said to KJ and defendant, those guys are cops. KJ stated, fuck it I’m going to take it. HT replied, go ahead we got you, we will cover for you. Then, HT and defendant shifted their bodies. KJ moved close to the decoy officer, bumped him, removed the iPhone from the backpack and placed it on his person. KJ, HT and criminal defendant sat down. They were arrested at the next station, the 59th Street stop.
MD testified that on December 2, 2009, the decoy team was working the Lexington Avenue subway line patrolling back and forth. MD did not state where he had boarded the train. Nor did he did mention observing KJ, HT and defendant chatting on the 42nd Street platform. MD testified: when I entered the train I noticed both defendants in front of me. A third person was with them. MD testified that he was facing the third individual and observed him with his own two eyes. The third person repositioned himself behind MD. As the subway car moved between stations, MD heard speech in back of him but was not sure who was talking or what was said. MD felt a bump. IR then pulled on his collar, signaling to MD that the iPod had just been stolen. MD exited the train at 59th Street and saw the two defendants being placed on the wall.
MD made no in-court identification of defendant as one of the three assailants. Nor did MD state that defendant was one of the two men placed on the wall. Aside from gender, MD offered no description of the perpetrators.
Defense counsel did not cross examine MD. I held a hearing on December 7, 2010. The motion was marked submitted on February 4, 2011. Defendant testified on his own behalf. The People called defendant’s trial lawyer. I find both men credible, except in one respect. I adopt defense counsel’s claim that he advised defendant that it was his call as to whether he would testify. I reject defendant’s allegation that his attorney never informed defendant that he was the ultimate decision maker.
Defendant is an independent daycare provider, pursuant to a program run by the New York City Administration for Children’s Services. The agency pays him to care for minors eligible for ACS subsidized child care services.
On the morning of December 2, 2009, defendant visited the ACS office at 151 William Street in Manhattan. He had planned to travel from there to a program on 125th Street. After concluding business at ACS, defendant walked to the nearby Broadway/Nassau subway stop. In the station, he ran into KJ and HT, whom he had not seen in 16 years. According to defendant, the three boarded a northbound Lexington Avenue line express train and did not exit at the 42nd Street stop. They had been on the train for about 10 minutes when it pulled into Grand Central Station.
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