On October 1, 2009, defendant was convicted upon a non-jury trial of attempted assault in the third degree (PL 110/120.00 [1]), menacing in the third degree (PL 120.15), attempted criminal trespass in the second degree (PL 110/145.15) and attempted possession of burglar's tools (PL 110/140.35).^[FN1] That conviction stemmed from events occurring on May 9, 2009, at 1536 Jesup Avenue in Bronx County, where defendant was arrested after violently banging on the complainant's apartment door while threatening to break it down. Unsuccessful, defendant attempted to entered complainant's apartment by placing a ladder against a window containing a window-box air conditioner. Defendant began pushing the air conditioner unit attempting to dislodge it while the complainant resisted by pushing back. Eventually overpowering the complainant, defendant pushed the unit inside causing it to fall on the complainant's chest. Defendant then climbed inside and prevented the complainant from leaving the apartment by pulling her away from the door and holding her by the neck. At that point, Sergeant Caraballo entered the apartment pursuant to complainant's earlier 911 call, witnessed the defendant with [*2]both hands around the complainant's neck, and placed him under arrest.

By motion submitted March 17, 2010, defendant moves pro se to vacate his conviction pursuant to CPL 330.30(1) based on ineffective assistance of counsel. Defendant argues that trial counsel, Noel Akinsola, was ineffective in that he: (a) failed to inform and advise him of plea opportunities; (b) failed to properly prepare and present his case prior to and during trial; (c) failed to properly object to prejudicial evidence; (d) opened the door to prejudicial testimony that this court previously held inadmissible; and (e) failed to object or otherwise oppose the People's request for remand status pending sentence.

Success of an ineffective assistance of counsel claim under Article I, § 6, of the New York State Constitution depends on whether counsel's performance "viewed in totality and at the time of representation, reveal[s] that the attorney provided meaningful representation. . ." People v Baldi, 54 NY2d 137, 147 [1981]; see also People v Henry, 95 NY2d 563, 565 [2000]). Generally, trial counsel is presumed to have provided competent representation unless defendant demonstrates the absence of a "strategic or other legitimate explanation" for the allegedly deficient conduct (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Rivera, 71 NY2d 705, 709 [1988]). An attorney's performance "will not be considered ineffective, even if unsuccessful, as long as it reflects an objectively reasonable and legitimate trial strategy under the circumstances and evidence presented" (People v Berroa, 99 NY2d 134, 138 [2002]). "It is not for this court to "second-guess whether a course chosen by counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation" (People v Satterfield, 66 NY2d 796, 799-800 [1985]). Thus, "the claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole" (Benevento at 714).

In addition to demonstrating that counsel's performance fell below an objective standard of reasonableness, a claim for ineffective assistance of counsel under the Sixth Amendment of the United States Constitution requires the defendant to also establish that he was prejudiced by such deficient performance (Strickland v Washington, 466 US 668, 687 [1984]). Prejudice is established when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" (Strickland at 694). A reasonable probability exists where the ineffective performance rendered the proceeding fundamentally unfair or produced an unreliable result (Lockhart v Fretwell, 506 US 364, 370-372 [1993]).

In New York then, the only "question is whether the attorney's conduct constituted egregious and prejudicial error such that defendant did not receive a fair trial" (Benevento at 713). Indeed, a defendant need not prove that the outcome of the case would have been different but for such errors, rather only that he was deprived of a fair trial overall (People v Caban, 5 NY3d 143, 155-56 [2005]).

Notwithstanding the absence of a specific prejudice requirement, New York's "meaningful representation" in totality standard is not contrary to the Strickland standard (Rosario v Ercole, 601 F3d 118 [2d Cir 2010]; Eze v Senkowski, 321 F3d 110 [2d Cir 2003]); Lindstadt v Keane, 239 F3d 191 [2d Cir 2001]). This is particularly true since any analysis of an ineffective assistance of counsel under the New York standard inherently considers whether trial counsel engaged in "an inexplicably prejudicial course" (People v Zaborski, 59 NY2d 863, 865 [1983]; see also Benevento at 713). The New York Court of Appeals has observed that the State constitutional standard is indeed satisfied when " prejudice' is examined more generally in the [*3]context of whether defendant received meaningful representation" (Benevento at 713).

Accordingly, because New York's concept of prejudice focuses on the quality of representation provided and not simply the "but for" causation chain, the distinction between Baldi and Strickland is that New York "refuse[s] to apply the harmless error doctrine in cases involving substantiated claims of ineffective assistance" (id. at 714). As a practical matter then, New York has " adopt[ed] a rule somewhat more favorable to defendants' (People v Ozuna, 7 NY3d 913, 915 [2006], quoting People v Turner, 5 NY3d 476, 480 [2005]) because its prejudice component focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case'" (Ozuna at 915 quoting Caban at 156).

Commenting on this ostensible dichotomy, the Second Circuit noted:

[I]t is hard to envision a scenario where an error that meets the prejudice prong of Strickland would not also affect the fundamental fairness of the proceeding. The very opinion from which the troublesome phrase was drawn- Benevento- affirmatively stated that even a "harmless error" could undermine the fairness of the process in such a way that violates the state's constitutional guarantee of effective assistance. [Citation omitted] What case, then, could present the converse, an error so egregious that it most likely influenced the outcome of the trial, but did not cripple the fundamental fairness of the proceedings? We can think of none. Fundamental fairness analysis by its nature must always encompass prejudice (Rosario at 125).

Apparently, neither can the New York Court of Appeals, as they explain:

From time to time, we have referred to the Strickland standard and measured counsel's performance under it, but have never applied it with such stringency as to require a defendant to show that, but for counsel's ineffectiveness, the outcome would probably have been different. Under our Baldi standard, we are not indifferent to whether the defendant was or was not prejudiced by trial counsel's ineffectiveness. We would, indeed, be skeptical of an ineffective assistance of counsel claim absent any showing of prejudice. But under our Baldi jurisprudence, a defendant need not fully satisfy the prejudice test of Strickland. We continue to regard a defendant's showing of prejudice as a significant but not indispensible element in assessing meaningful representation. Our focus is on the fairness of the proceedings as a whole (People v Stultz, 2 NY3d 277, 283-284 [2004]).

Consequently, though not required, this court believes it appropriate and wise to consider defendant's claim in accordance with both Baldi-Benevento and Strickland (>I/I< at 125). In so doing, "[t]he performance and prejudice prongs of Strickland may be addressed in either order, and if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed'" (Green v Portuondo, 2003 US Dist LEXIS 24342 [2003], quoting Strickland at 668).

i. Communication of Plea Offers

Defendant's initial claim, that trial counsel, Noel Akinsola, failed to communicate and advise him of plea opportunities is entirely without merit. To prevail on such a claim, a defendant must demonstrate "that a plea offer was made, that defense counsel failed to inform him of that offer, and that he would have been willing to accept the offer" (People v Fernandez, 5 NY3d 813 [2005]; People v Goldberg, 33 AD3d 1018 [2d Dept 2006]). The burden of establishing this rests with the defendant (see Fernandez at 814; People v Howard, 12 AD2d 1127 [4th Dept 2004]; People v Rosenthal, 304 AD2d 418 [1st Dept 2003]) and must be established by "objective evidence" (see Fernandez at 814). Defendant failed to do so. [*4]

Immediately prior to the commencement of trial, the assistant district attorney (ADA Ellsworth) and counsel engaged in the following colloquy, which occurred on the record in the presence of the defendant:

THE COURT:And has there been any discussion regarding a disposition?

MS. ELLSWORTH:There has, your Honor.

MR. AKINSOLA:Yes, there has, your Honor.

THE COURT:Anything in the realm of possibility?

MR. AKINSOLA:I've put all the scenarios to him that have been offered and he's not interested.

THE COURT:And what has the offer been?

MS. ELLSWORTH:Your honor, the people have always had a recommendation to a plea to the A misdemeanor of assault in the third degree with a recommended sentence of probation and a full permanent Order of Protection. I believe, in Part T6 this morning, the disposition of a conditional discharge was also presented to Mr. Akinsola.

MR. AKINSOLA:That's correct, your Honor.

THE COURT:And your client is, in fact, rejecting that?

MR. AKINSOLA:Yes. He is rejecting that.

DEFENDANT:I reject.

MR. AKINSOLA:Yes, he did (R: 3-4).

Clearly, defendant's claim is belied by the record, which makes it patently obvious that not only was the defendant aware of both plea scenarios, as evidenced by him having heard the prosecutor disclose them to this court, but personally and explicitly rejected them.

ii. Remand Status

Additionally, as for defendant's claim that Akinsola failed to object or otherwise oppose the People's request for remand status pending sentence, the People correctly note that such failure has no bearing on defendant's conviction. As indicated above, the New York standard for ineffective assistance of counsel focuses on whether counsel's performance was an "objectively reasonable and legitimate trial strategy (Berroa, 99 NY2d at 138; see also Satterfield, 66 NY2d at 799). The federal standard, for its part, also focuses on counsel's trial performance and whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" (Strickland, 466 US at 694). As such, an analysis of the cumulative effect of counsel's performance is based upon the relevant evidence and circumstances upon which defendant was convicted, not counsel's subsequent conduct.

It is difficult to comprehend how counsel's post-conviction errors or omissions would have any effect on that conviction much less be likely to have averted it. Thus, once a conviction is rendered, any further errors are largely irrelevant in evaluating counsel's trial performance, although such errors may provide the basis for a further ineffective assistance claim (see People v Session, 34 NY2d 254 [1974][Baldi ineffective assistance of counsel standard applied to appellate counsel). That said, what this court finds particularly troubling about defendant's abject failure to utter so much as a one-word objection to the People's application is that it solidified this court's view that Akinsola was thoroughly unprepared, entirely unfamiliar with the most basic of trial techniques, and demonstrated a woefully deficient knowledge of criminal defense practice.

[*5]iii. Inexplicably Prejudicial Course of Performance

As noted above, assessing trial counsel's performance as it related to a motion for ineffective assistance of counsel hinges on whether "the evidence, the law and the circumstances of a particular case, viewed in totality and at the time of representation reveal that the attorney provided meaningful representation" (Baldi, 54 NY2d at 147). Here, the record is replete with instances illustrating that Akinsola was "unprepared and unversed in both the law and the facts" (People v Rojas, 213 AD2d 56 [1st Dept], appeal denied 87 NY2d 907 [1995][effective assistance of counsel denied "where defendant's trial counsel made no effort to investigate . . . other exculpatory evidence and committed numerous errors during the course of the trial which tended to implicate defendant rather than to prove his innocence"). Upon objective review, this court cannot conclude that counsel's general unpreparedness, omission of significant and meaningful cross examination, permission of improper questioning and elicitation of prejudicial testimony was either an "objectively reasonable and legitimate trial strategy" or a misguided strategic calculations (People v Berroa, 99 NY2d 134, 138 [2002]; People v Bell, 48 NY2d 933, 935 [1979]).

Regarding Akinsola's lack of preparation, this court need look no further than his response to the People's pretrial Molineux application, in which they sought to introduce several prior bad acts involving domestic disputes with the complainant. Articulating only the most perfunctory response, Ankinsola stated, "I don't know what happened with any prior incidents, your Honor. He hasn't said anything regarding those things to me, and I ask for them not to be deemed admissible" (R: 12). While this court ultimately denied the People's application with regard to any alleged incident that did not result in an arrest, this court permitted the introduction of an incident occurring on April 24, 2008, for which the defendant was arrested. This court did so, however, in spite of counsel's tepid and ostensibly dumbfounded response. Inexplicably, Akinsola elicited damaging testimony thus opening the door to the very prior domestic disputes that this court precluded the People from introducing (R: 68).

Such unpreparedness was further demonstrated during Akinsola's opening statement, when he presented several unrelated tangents, including that the complainant was using him to attain United States citizenship, that he was attempting to retrieve a bag of cash and documents he claims she stole from him, and that the complainant "staged . . . [the] events that led to my client's arrest." Nothing contained in his opening statement, however, remotely addressed the factual allegations of the complainant or the observations by Sergeant Caraballo (R: 16-18). In a grossly conclusory manner, Akinsola concluded his opening statement with:

Your Honor, my client owned the apartment where the alleged incident occurred. He had no intent to harm or kill the complaining witness. He had no intent to steal anything from her or the house, nor did he intend to be involved in an altercation or issue that would end up in his arrest (R: 19).

Defendant alleges that counsel failed to meet with or otherwise discuss his case with him prior to trial, and neglected to prepare him to testify. Specifically, he states that the only interaction he had with Akinsola was the several dates on which he appeared in court prior to the commencement of trial. Regarding the defendant being unprepared to testify, it was apparent to this court that indeed he was not, as evidenced by counsel repeatedly interrupting his testimony. While such allegations are hardly dispositive to a claim of ineffective assistance of counsel, here they are supported by the record.

Akinsola's errors did not end there. In fact, they only scratch the surface. In addition to [*6]being thoroughly unprepared, his knowledge of trial practice and criminal procedure was fundamentally deficient. He failed to object to any of the complainant's testimony on direct or cross examination including hearsay, which impermissibly bolstered the most crucial aspects of such testimony. Akinsola's cross examination of the People's witnesses was virtually non-existent, let alone vigorous. For example, Sergeant Caraballo, the sole independent witness who observed the defendant with both hands around the complainant's neck, testified on direct examination that the defendant "attempted to explain something to me, but by this time I was telling him to get down on the ground" (R: 61). Akinsola, however, neglected to pursue any meaningful inquiry into this or any other issue concerning Sergeant Caraballo's testimony. Counsel's dearth cross examination aside, the seven questions he posed to Sergeant Caraballo puzzlingly elicited detrimental testimony

MR. AKINSOLA:When you entered the building, you said you saw the defendant choke the witness?

SGT. CARABALLO:I saw his hands around her throat, yes.

MR. AKINSOLA:Was she in any distress?

SGT. CARABALLO:Yes.

MR. AKINSOLA:Describe the distress, please.

SGT. CARABALLO:Well, she was crying and screaming for help, so that was my - - what I would call that under distress.

MR. AKINSOLA:Did you seek medical attention for her?

SGT. CARABALLO:No. I offered her medical attention and she refused.

MR. AKINSOLA:Were there any bruises on her neck?

SGT. CARABALLO:I don't recall.

MR. AKINSOLA:When you first came in, were you let in or was the door already open?

SGT. CARABALLO:Both doors were open.

MR. AKINSOLA:So you just walked in?

SGT. CARABALLO:Yes.

MR. AKINSOLA:No further questions (R: 62-63).

Counsel further demonstrated his incompetence by repeatedly failing to move eight of the nine exhibits he marked for identification into evidence, even after this court and the ADA reminded him that such items could not be discussed before doing so (R: 75, 77, 79, 82).^[FN2] Upon the People's objections that such items were not entered into evidence, counsel elected to abandon his inquiry rather than attempt to properly enter them into evidence. Consequently, those eight defense exhibits were never considered by this court in its deliberations.

Among Akinsola's other errors was his failure to move for a trial order of dismissal at the end of the People's case and upon the conclusion of the defense case, even after having been prompted to do so by this court. While failing "to make a particular pretrial motion generally does not, by itself, establish ineffective assistance of counsel," here counsel failed to make any motions (Rivera, 71 NY2d at 709). Nor did counsel ever object to, or move to preclude, the admission of the 911 call recording. [*7]

Overall, counsel demonstrated a fundamental failure to properly comprehend the tactical process necessary to set the stage for a meaningful defense (People v Echavarria, 167 AD2d 138, 140 [1990]). Such neglect established "an inexplicably prejudicial course" of conduct throughout the trial, as opposed to merely misguided tactical errors, the cumulative effect of which was to deprive the defendant of the effective assistance of counsel and his right to a fair trial (People v Clarke, 66 AD3d 694 [2009], quoting People v Zaborski, 59 NY2d 863, 865 [1983]; see People v Dean, 50 AD3d at 1053; People v Cortez, 296 AD2d 465, 466 [2002]). Akinsola's meager and unsuccessful attempts to cross-examine witnesses, failure to object to inadmissible evidence, admission of improper testimony, and utter lack of a consistent and cogent defense precluded the defendant from receiving meaningful representation, prejudicing him as a result and constraining this court to grant the relief sought.

Defendant's motion to vacate his conviction pursuant to CPL 330.30(1) based upon ineffective assistance of counsel is therefore granted.

This constitutes the decision and order of this court.

Dated:September 15, 2010

E N T E R

_________________________

Richard Lee Price, J.S.C.