New York’s higher expectations for defense counsel led a Brooklyn appellate panel to reverse a conviction on ineffective assistance grounds even though the lawyer’s performance did not fall below federal standards.

People v. Canales, 2013 NY Slip Op 06376, is a case where the trial court reversed a murder conviction for ineffective assistance but, relying on federal law, upheld a conviction on a weapon possession charge. The Appellate Division, Second Department, said Brooklyn Supreme Court Justice Joel Goldberg (See Profile) should have applied the higher New York standard and reversed the gun conviction as well.

The panel noted that federal law, as outlined in Strickland v. Washington, 466 U.S. 668 (1984), requires a showing that the defendant was prejudiced by his or her attorney’s ineffectiveness, and but for the lawyer’s error would likely have been acquitted. But under a line of New York cases, a defendant need not establish that the outcome would have been different had the attorney performed competently.

Here, the defendant, Tony Canales, was convicted of murder and criminal possession of a weapon largely on the strength of a video showing him, gun in hand, pursuing someone after an altercation that occurred between rival gangs on a Brooklyn street corner.

Throughout the trial, then Brooklyn Assistant District Attorney Lawrence Fredella claimed that the person Canales was pursuing in the video was Antonio Bruce, the victim. Court-assigned defense attorney Alan Stutman of Brooklyn conceded during summation that the video depicted his client chasing Bruce, according to court records.

Stutman’s defense relied on the assertion that Canales did not know the gun was loaded when he attempted to chase off his rivals, and that it accidentally discharged when someone bumped or grabbed the defendant’s arm. However, Canales claimed he never saw the video until trial.

During deliberations, the jury asked to review the “video footage of the victim and [defendant],” prompting Canales to personally address the court and insist that the man he was pursuing was not the victim.

Canales, however, declined an offer to reopen his case and testify about the videotape and was convicted on both charges, resulting in a post-judgment motion under CPL 440.10. Canales said that he had met Stutman only briefly in the back of the courtroom during various appearances and that his attorney never showed him the videotape. The defendant said it was not until summations that he realized the importance of the tape.

At the 440 hearing, the parties stipulated that the individual being pursued by Canales in the videotape was not the victim.

In a decision nearly two years ago, Goldberg described Fredella’s conduct as “grossly negligent” and characterized Stutman’s case as “feeble,” concluding that the two “experienced and well-regarded” attorneys completely dropped the ball and allowed Canales to be convicted on demonstrably wrong evidence” (NYLJ, Nov. 14, 2011).

Goldberg vacated the murder conviction, but upheld the conviction for criminal possession of a weapon, finding that the “deficiencies in the performance of the prosecutor and defense counsel had no effect” on the gun charge conviction and stating that vacating that charge, “in the absence of prejudice,” was not warranted. That left Canales, who had been serving a 20-year-to-life sentence for murder and weapons possession, with a 15-year term for the gun count.

In a decision Oct. 2, the Second Department said Goldberg wrongly applied the federal standard on ineffective assistance.

“Here the litany of failures by defense counsel…established that the defendant was denied ‘meaningful representation’ by his trial attorney,” the court said in an unsigned decision by justices Peter Skelos (See Profile), Daniel Angiolillo (See Profile), Sheri Roman (See Profile) and Sylvia Hinds-Radix (See Profile). “Notwithstanding the fact that there was strong evidence that the defendant possessed a loaded firearm during the incident in question, the New York State constitutional standard for the ineffective assistance of counsel ‘is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case’” (quoting People v. Benevento, 91 NY2d 708, 1998).

Stutman, in an interview Thursday, said he could not recall at the time of the 440 hearing whether he had shown the tape to Canales. However, Stutman said “it bothered the hell out of me, because I know if there is a video I would have shown it to my client.” The attorney said he subsequently discovered records indicating he had shown the tape to the defendant.

“I went down to the video conference room and I had a conference with him,” Stutman said, adding that the video conference center had a record of him meeting with Canales. “I had to borrow a laptop and bring it into the conference room to show the video to the defendant. I showed him that video. But what’s done is done.”

Richard Ware Levitt of Levitt & Kaizer in Manhattan, who represented Canales along with David Cooper of Brooklyn, said he finds it unlikely that Canales saw the videotape before trial. He said the victim, Bruce, a fellow member of the same gang, was a friend of the defendant.

“Canales did not have meaningful representation,” Levitt said. “It is inconceivable to me that Canales was shown the video because he obviously knew what the deceased looked like. The deceased was a friend of his, so if he saw the video he would have known immediately it was not the deceased depicted in the video.”

Fredella, now a defense attorney, has insisted he did not intentionally mislead the jury and, in his summation, “merely followed up on defense counsel’s concession that the defendant was chasing the deceased and finally shot and killed him” (NYLJ, Nov. 14, 2011).

Assistant district attorneys Leonard Joblove and Diane Eisner appeared for the prosecution. It is unclear whether the district attorney’s office will retry Canales on the gun count.

Reasonable Search

In another criminal appeal decided Oct. 2, the Second Department split 3-1 in deciding that police appropriately searched a 15-year-old suspect, recovering a weapon allegedly used in a robbery.

Matter of Jakwon R., 2013 NY Slip Op 06368, was a Family Court matter in which Judge Wavny Toussaint had suppressed evidence seized from a suspect.

Records show that police received a complaint of a robbery and, about 10 minutes later, encountered Jakwon R. and two other individuals who generally matched the description of the perpetrators. Since the complaint indicated that one of the robbers brandished a firearm, police frisked the suspects.

When police did not find any weapons on the individuals, they put Jakwon’s backpack on the ground and heard a “clanking sound.” A subsequent search yielded what authorities at first thought was a nine millimeter pistol, but turned out to be a BB gun.

Toussaint suppressed the BB gun as the fruit of an illegal search. But the Second Department reversed in a divided opinion.

The majority, consisting of justices Angiolillo, Thomas Dickerson (See Profile) and Sandra Sgroi (See Profile), said police were justified in stopping and detaining the trio “based on similarities between them and the individuals described” in a radio transmission. They also said authorities had a reasonable suspicion that one of the suspects was armed and were justified “on grounds of safety and precaution” in frisking the individuals and then searching the backpack.

Hinds-Radix dissented.

She said Jakwon was several years younger and dressed differently than the thief described in the radio transmission, and said a police officer’s testimony “was embellished or tailored to comport with the actual appearance of the respondent and his companions.”

The appeal was argued June 3 by Etta Ibok of Brooklyn for Jakwon and Francis Caputo and Susan Paulson of the corporation counsel’s office.