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A woman convicted of sexual abuse received ineffective assistance from an attorney who improperly pledged during his opening statement to prove her innocence, a Brooklyn appeals court ruled last week. In an unsigned opinion, the Appellate Division, Second Department, granted a new trial before a different judge to Joetta Dean, 53, of Syosset who was convicted in Nassau County Court and sentenced to 21 years in prison. She has been free on bail awaiting her appeal. The panel, in People v. Dean, 2006-05415, faulted her trial attorney, Mineola solo practitioner Ronald Schoenberg, for ineffective assistance that began during his opening statement when he argued to the jury, “[W]e’re going to prove to you that she’s innocent,” and continued throughout the four-week trial. The decision appears on page 32 of the print edition of today’s Law Journal. In a criminal trial, the prosecution has the burden of proving beyond a reasonable doubt the defendant’s guilt. The court said that with his opening sally “defense counsel erroneously assumed the burden of proof . . . It is impossible to reconcile defense counsel’s assumption of the burden of proof with the defendant’s constitutional presumption of innocence.” The erroneous comment, combined with the attorney’s failure to object to “unduly prejudicial testimony,” his “badgering of the complaining witnesses and flouting of the judge’s rulings,” and the combative dynamic between defense counsel and Judge Meryl Berkowitz ( See Profile), who conducted the trial, some of which the jury witnessed, “compromised” the fairness of the trial process, the appeals court held. Mr. Schoenberg, said in an interview Friday that he was “totally thankful that for whatever reasons the appellate division decided to reverse” Ms. Dean’s “unjust conviction.” Mr. Schoenberg said he is a former Nassau County assistant district attorney with more than 37 years of experience litigating “both criminal and civil” cases. While he “chose not” to discuss “the multiple errors” made by Judge Berkowitz that “denied my client a fair trial,” he welcomed the appellate court’s statement that the fairness of the entire trial “was compromised by the combination of defense counsel’s conduct and the response of the trial court.” Mr. Schoenberg added that the panel’s decision to have Ms. Dean retried before a new judge “speaks for itself.” He no longer represents Ms. Dean. Kevin Keating of Garden City, who handled her appeal, said Ms. Dean was accused of sexually abusing two of her children over the course of several years. He said the allegations arose following “a prolonged and acrimonious divorce and custody battle.” In March 2006, after less than a day of deliberations, a jury found Ms. Dean guilty of three class D felony counts of second-degree sexual conduct against a child and one count of sexual abuse in the second degree, a class A misdemeanor, according to a press release from the Nassau County District Attorney’s Office. Ms. Dean was subsequently sentenced to three consecutive terms of seven years. In reversing the conviction, the Appellate Division said that the “fundamental right to the effective assistance of counsel is essential to a criminal defendant’s due process entitlement to a fair trial.” Citing People v. Baldi, 54 NY2d 137, 146, the court noted that it must distinguish “true ineffectiveness” from “mere losing tactics” when reviewing the totality of the record. An Accumulation of Errors The court said Mr. Schoenberg’s comment in his opening statement was “so egregious and prejudicial that it contributed to the deprivation of the defendant’s right to a fair trial.” But the court said it was not basing its decision on a single incident. The defense also “inexplicably failed to object” to the prosecutor’s opening statement that the children’s father had been granted sole custody in a previous family court proceeding, the panel said. And despite the “lower standard of proof in the custody proceeding, the lack of the identity of the issues, and the absence of the same rights of confrontation,” Ms. Dean’s attorney compounded the prosecution’s mistake by acknowledging that it was the family court’s “prerogative” to award custody, the court wrote. Defense counsel “further exacerbated” his “deficient representation” by neglecting to object to “unduly prejudicial testimony” concerning Ms. Dean’s “questionable sleeping arrangements” with her children. While the mother’s admission about these arrangements might have been “relevant background information,” defense counsel’s failure to object to the “irrelevant” custody determination amounted to “a failure to properly comprehend the tactical process necessary to set the stage for the defense,” the panel wrote. Further, Mr. Schoenberg’s “badgering” of witnesses, “flouting of the judge’s rulings,” and the “pitched battles” between him and the judge, which sometimes took place before the jury, aggravated his other “highly prejudicial errors,” the panel said. And “while the trial court’s response” to Mr. Schoenberg was “in many respects, understandable and excusable,” the overall tenor of the exchanges between the defense counsel and the judge compromised Ms. Dean’s right to a fair trial. The court concluded that while no particular “example of deficient representation” constituted ineffective counsel, the totality of errors warranted a reversal of Ms. Dean’s conviction. Justices Reinaldo E. Rivera ( See Profile), Peter B. Skelos ( See Profile), Robert A. Lifson ( See Profile) and Ruth C. Balkin ( See Profile) made up the panel. Assistant District Attorneys Arlene VanLoan and Steven Schwartz handled the trial for the Nassau County District Attorney. Nassau County Assistant District Attorneys Peter A. Weinstein and Judith R. Sternberg handled the case on appeal and Stephen Antignani, deputy bureau chief of the Special Victims Bureau, is currently assigned to the case. In a statement, District Attorney Kathleen Rice said the appellate court’s reversal “was rare in Nassau County and her office would move to retry Dean on the charges as soon as possible.” Mr. Schoenberg said he spent 32 years in the Nassau County District Attorney’s Office, where he was deputy chief of the district court bureau and a senior assistant district attorney in the major offense bureau. He left before Ms. Rice took office and has been in private practice since 2002. Ms. Dean is currently free on bail, according to her current lawyer, Mr. Keating. - Noeleen G. Walder can be reached at [email protected].

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