An attorney’s belated assertion that a death threat hindered his defense of a murder suspect 22 years ago “was embellished and tailored” and cannot support his client’s ineffective assistance claim, nor is it sufficient to topple the conviction, a judge in Queens has held.
Supreme Court Justice Stephen Knopf (See Profile) said the testimony of Thomas Ognibene—who was a criminal defense attorney, real estate lawyer and city councilman while defending a 16-year-old murder defendant in 1992—was simply not credible.
Although Knopf does not dispute Ognibene’s claim that he was indirectly threatened by a man who may have been the actual killer, the judge found no evidence that it impacted his performance at trial.
“Mr. Ognibene’s testimony reveals a man who regrets in hindsight that he did not use additional pressure to convince [a] reluctant witness to come forward but not a man particularly concerned about his safety,” Knopf wrote in People v. Lou, 894/91. “This regret, with benefit of hindsight, is insufficient as a matter of law to conclude that the threat operated on counsel.”
The case centers on a now 38-year-old man, David Lou, who migrated to the United States from Shanghai, China when he was 14 and had just completed ninth grade when he was arrested for the murder of a cab driver.
Records show that Lou fled an abusive mother and was living with another teenager, Ferdinand “Bong” Topino, in a Long Island City apartment. The pair apparently made their living shaking down Chinese restaurants for “protection money.”
On Dec. 24, 1990, Lou and Topino hired a cab to take them to a party. Topino directed the driver to stop at a Chinese restaurant and went inside to shake down the proprietor. Lou remained in the cab.
When the cabbie grew impatient for his fare, he grabbed Lou and hauled him inside the restaurant, demanding payment. According to Lou, Topino pointed a gun at the cab driver and shot him in the forehead.
At trial, Ognibene informed now retired Supreme Court Justice Stanley Katz that he was having difficulty getting witnesses because they were afraid of Topino.
But Ognibene did not inform the court, the prosecutor, his secretary or even his client that he had learned indirectly that Topino threatened him if he continued looking for witnesses to confirm that Topino, not Lou, was the shooter, according to Knopf’s decision. However, he was able to present a vigorous defense, with witnesses who implicated Topino, the judge said.
Lou was convicted at trial and is currently serving a 25-year-to-life sentence for second-degree murder. Murder charges against Topino were dismissed and he pleaded guilty to a misdemeanor in exchange for a three-year probationary sentence. Topino died four years ago.
Lou’s current attorneys, Joel Rudin and Terri Rosenblatt, brought a motion to vacate the conviction under CPL §440.10, claiming that Ognibene was conflicted, that their client was denied effective assistance and that newly discovered evidence establishes Lou’s innocence.
Knopf’s May 27 decision echoed one four years earlier when he rejected similar claims without a hearing (NYLJ, May 10, 2012). The Appellate Division, Second Department, said Lou was entitled to a hearing and sent the matter back to Knopf.
At the hearing, Ognibene testified that he was intimidated by the threat and largely stopped looking for witness who would finger Topino. Additionally, a man who had been roommates with Topino and Lou came forward and said he heard Topino confess to the shooting.
Knopf disregarded the testimony of both witnesses, largely because the lengthy delay in coming forward raised questions about their credibility and motives.
“This court finds that in this case counsel’s overall performance after he became aware of the threat, in presenting a formidable defense case, and delivering a summation that both challenged the credibility of the people’s witnesses and advanced the defendant’s theory, all demonstrate that counsel continued to be the zealous advocate he had been since the very beginning of the trial,” the judge wrote.
“[T]he failure of Mr. Ognibene, an experienced attorney for approximately 17 years at the time of the trial, to notify the courts of this threat demonstrates to this court that Mr. Ognibene was neither affected nor concerned about it,” he continued. “Never once in 18 years did he consider this threat to be important information to disclose to anyone, including the defendant or his attorneys throughout numerous appeals.”
Lou also argued that Ognibene was ineffective in failing to object when Katz instructed the jury that it could hold the defendant liable for the murder even if it found that he was only 1 percent responsible and someone else was 99 percent responsible. But Knopf said Ognibene had apparently decided as a matter of strategy to let the remark stand and not highlight the assertion that his client was “acting in concert” with Topino.
“Whether or not counsel’s decision not to object to this charge was foolish in hindsight does not in and of itself make an otherwise meaningful representation ineffective,” Knopf said. “Although the trial court chose unconventional language in charging the jury as to ‘acting in concert,’ this court finds that this language, and counsel’s failure to object to it, did not prejudice the defendant or deprive him of a fair trial.”
Executive Assistant District Attorney Charles Testagrossa, Deputy Assistant District Attorney John Castellano and Assistant District Attorney Jennifer Hagan appeared for the prosecution. District Attorney Richard Brown called the decision “thorough and well reasoned.”
Rudin said he will review the decision with his client.
“I am disappointed with it and I disagreed with it, but I am not the judge,” Rudin said. “I will discuss with my client whether to seek further review by the Appellate Division.”
Ognibene could not be reached for comment.