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The New York Court of Appeals left no question Tuesday about its continuing preference for the state’s standard for establishing ineffective assistance of counsel over that used in federal courts. “Our state standard … offers greater protection than the federal test,” Chief Judge Judith S. Kaye wrote for the unanimous court in People v. Caban, 98. The court’s proclamation on effective representation standards came at the tail end of a decision that dealt primarily with the admissibility of hearsay statements of co-conspirators. But its comment was especially timely in the light of recent federal court action. On May 24, the 2nd U.S. Circuit Court of Appeals in Henry v. Poole, 03-CV-884, ordered a new trial for a defendant whose conviction the state Court of Appeals had affirmed. The federal court concluded that the state court’s application of its representation standard to the facts of that case was contrary to constitutional standards established by the U.S. Supreme Court. However, Eastern District of New York Judge Jack B. Weinstein, in Barclay v. Spitzer, 02-CV-2184, recently articulated a continuing preference for the New York standard, as opposed to the federal standard, when a defense attorney admits negligence. Tuesday, the Court of Appeals began its analysis with Strickland v. Washington, 466 US 668, the 1984 case where the U.S. Supreme Court established a two-part test for a defendant to prevail on a federal claim of ineffective assistance. Under that standard, the defendant must show that the attorney’s performance was deficient and that the defendant was prejudiced by poor lawyering. Kaye said that New York’s standard does not require a showing of prejudice, although such a showing would be significant. “Thus, under our State Constitution, even in the absence of a reasonable probability of a different outcome, inadequacy of counsel will still warrant reversal whenever a defendant is deprived of a fair trial,” Kaye wrote. She made clear that since New York has a higher standard, when that standard is met — as it was in People v. Caban — the federal standard is also met. The case involved a man, Carlos Caban, who was found guilty of conspiracy to commit the murder of a rival drug dealer. Caban was convicted largely on the testimony of George Castro, who worked for the defendant dealing drugs. Castro testified that he was packaging cocaine at Caban’s house when the defendant announced that a rival “needed … to be killed” and offered a $5,000 reward. The witness said that Caban’s brother accepted the challenge while another man offered to provide the gun. Caban was convicted of second-degree conspiracy and sentenced to 8-1/3 to 25 years in prison. On appeal, he challenged the admissibility of the hearsay evidence and argued that the jury should have been charged that Castro was an accomplice. The Appellate Division, 1st Department, affirmed the conviction in a 3-2 decision with four separate opinions. One of the dissenters, Justice Richard T. Andrias, granted leave, and the Court of Appeals yesterday affirmed. “Defendant argues that hearsay statements of co-conspirators are admissible only when a prima facie case of conspiracy is established independent of the statements, and maintains that the People failed to establish such a case here,” Kaye wrote. “We reject that claim.” STANDARD NOT MET The ineffective assistance argument stemmed from the fact that Caban’s trial attorney successfully requested an instruction that if the jury found that Castro was an accomplice, then his statement would require corroboration. However, the attorney did not ask the court to charge that Castro, as a matter of law, was an accomplice. That, Caban argued on appeal, constituted ineffective assistance. The Court of Appeals unanimously disagreed. “Because the evidence adduced at trial did not establish that Castro was an accomplice as a matter of law, counsel’s failure to request that the jury be charged that he was did not constitute ineffective assistance,” Kaye wrote. The court, without making new law, reiterated that in New York to prevail on an ineffective assistance claim a defendant must show that the attorney failed to provide “meaningful representation”; that a single error can constitute ineffective assistance, but only when the error “is sufficiently egregious and prejudicial as to compromise a defendant’s right to a fair trial”; demonstrate the absence of any strategic explanation for the attorney’s performance; prove, when citing ineffective assistance for failure to make a motion, that the motion had a reasonable chance of succeeding. Caban had sought relief on the ineffective assistance claim under both the federal and state constitutions. But in finding that the state Constitution is more protective, and that Caban could not meet the higher state criteria, the court reasoned that the defendant necessarily could not meet the lower federal standard. Chief Appellate Attorney Peter D. Coddington of the Bronx District Attorney’s Office argued for the prosecution. Robert J. Boyle of Manhattan appeared for the defendant.

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