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They were arrested at the next station


On August 24, 2010, after a jury trial, defendants, AR and HT, were convicted of Grand Larceny in the Fourth Degree (PL § 155.30[5]) and Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40).

Defendant, AR, moves, pursuant to CPL § 440.10, to vacate the criminal 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 robbery 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 felony. 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 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 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 criminal 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 in the robbery.

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.

Defense counsel admitted that before the commencement of the trial, criminal defendant had informed him that on the morning of December 2, 2009, defendant went to an ACS office downtown. The trial attorney could not, however, remember seeing an ACS document memorializing the visit. A payment voucher, which defendant had shown his attorney before trial, was presented to this court for the first time as an attachment to defendant’s motion papers. Printed on the document is defendant’s name, ACS provider number and address. It covers the November 2009 pay period. The stamped form identifies by name three children in defendant’s care. On the bottom are three hand-written initials LME and the date 12/2/09.

Criminal Defendant’s lawyer testified that he did not investigate defendant’s claim that he was not present on the 42nd Street platform, the location where IR said he spotted defendant in conversation with his two accomplices, KJ and HT, seconds before they committed the crime. Counsel made no effort to contact ACS officials to investigate whether they could corroborate defendant’s visit. The attorney did not attempt to obtain a printout of defendant’s Metrocard transaction record which would indicate defendant’s point of entry into the subway system and the time that the card was swiped. The lawyer did not inquire about the existence of subway station surveillance tapes that may have captured defendant at the Broadway/Nassau stop. Nor did defense counsel reach out to the program on 125th Street to determine whether defendant was expected that morning.

In determining whether to hold a person criminally liable for the acts of another, the ultimate question for the jury is whether the defendant, acting with the state of mind required for the commission of the sex crimes, intentionally aided another person as an accomplice. Proof of an accomplice’s mental state may be inferred from his actions and the circumstances surrounding the commission of the offense.

In the context of subway crime, conduct held to be probative of an accomplice’s culpable state of mind has included: associating with a group of other juveniles minutes before boarding a subway car, surrounding and threatening the victim and then dispersing together at the sight of a police officer; conversing with the main actor and lookout behavior on a deserted subway platform before the principal culprit robbed the victims as the accomplice stood in a stairwell and holding the subway door open while checking the platform, consulting with the main actor right before he threatened the victim and exchanging high fives as they fled the scene.

The Federal and State constitutions ensure those accused of a crime the right to assistance of counsel. Unlike the Federal standard which requires a showing that there is a reasonable probability that the attorney’s errors affected the outcome of the case, the core of the inquiry in New York is whether criminal defendant received meaningful representation. More specifically, the question is whether counsel’s mistakes were so prejudicial that they deprived defendant of a fair trial. A criminal defendant claiming ineffective assistance must demonstrate the absence of strategic or other legitimate explanations’ for counsel’s allegedly deficient conduct.

A defendant’s right to representation entitles him to an attorney who conducts appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself time for reflection and preparation for trial. A complete abdication of the duty to investigate, for no strategic reason, renders counsel ineffective. The failure to seek an adjournment of the proceedings to arrange to interview witnesses proposed by a defendant in order to determine the relevance, materiality and potential impact of the testimony effectively denies meaningful representation’ as guaranteed under the New York Constitution.

Defendant argues that he was denied effective assistance of counsel, because his attorney failed to investigate evidence that would have undermined the People’s case and created reasonable doubt as to his complicity in the theft. Defendant alleges the existence of potential witnesses, documentary evidence and physical evidence that would tend to support his claim that he boarded the Lexington Avenue express train at the Broadway/Nassau stop, not at the 42nd Street station, where Officer IR testified that he saw defendant on the platform seconds before he got on the train with KJ and HT.

Because IR is the only eye witness, the jury relied on his observations to establish defendant’s ties to KJ and HT and to draw the inference that the three were acting in concert. It behooved defense counsel, therefore, to consider bringing forth evidence that would cast doubt on IR’s testimony. This is where defendant’s lawyer failed. Reckless Endangerment could have been charged.

Counsel had a duty to search for evidence potentially favorable to the defense which could have been utilized at trial. At a minimum, he should have visited or sent an investigator to visit the ACS office, obtained a printout of defendant’s Metrocard and inquired about subway surveillance tapes. An adequate investigation would have provided defendant’s attorney with enough information to make an informed, deliberate decision about whether such evidence existed and whether to introduce it.

On the eve of trial, defense counsel learned that KJ, his only witness, refused to testify and could not be located. KJ was, therefore, unavailable as a matter of law. At that critical juncture, the attorney had everything to gain and nothing to lose from undertaking an investigation that would likely have revealed a creditable source of reasonable doubt. By failing to seek an adjournment for that purpose, counsel left unpursued the only remaining defense.

Defendant’s attorney offered no sound reason for his derogation of duty. His failure to investigate was not part of a legitimate strategy, it was the result of neglect. Because defendant was denied meaningful representation, he is entitled to a new trial without arraignment.

The defendant’s remaining arguments and find them to be without merit. Defendant’s motion is granted, the judgment of conviction is vacated and the matter is adjourned to Part 51 for a new trial on April 14, 2011.

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