At issue before the Court is whether Defendant Rohan Brown ("Defendant") was denied effective assistance of counsel at his November 2003 trial at which the jury acquitted Defendant of intentional murder but convicted him of depraved indifference murder when Defendant's trial counsel (hereinafter "Trial Counsel") did not object to the submission of those "dual counts" to the jury and did not specifically object to the verdict.

As set forth in this Court's Decision Upon Motion, dated January 13, 2011 [*2]("January 2011 Decision"),^[FN1] in light of the prevailing law as to depraved indifference murder at the time of Defendant's trial on this issue, the Court set and held a hearing on June 20, 2011, pursuant to CPL § 440.30(5)(hereinafter "2011 Hearing"), as to whether to vacate Defendant's conviction on the grounds of ineffective assistance of counsel.

At that hearing, Trial Counsel testified about the strategy that he had during the 2003 trial.

Pursuant to the credible testimony, as set forth further herein, the Court finds that Trial Counsel credibly testified to having a sound strategic trial plan, to wit, to discredit the testimony of the sole eyewitness to the event at issue. As discussed herein, the Court finds that, although Trial Counsel's trial plan - as it was - was reasonable, there was no strategic or sound reason for Trial Counsel not to also specifically object to the depraved indifference charge and verdict. In this case, in light of the existing law at the time of the trial in 2003 as to depraved indifference murder, such an objection was appropriate and would not have clashed or been inconsistent with Trial Counsel's strategy.

Thus, the case before the Court presents a close question whether, despite his trial strategy, Trial Counsel's failure to specifically object to the charge of depraved indifference murder and to the verdict when the law of depraved indifference murder at the time of the trial was evolving and had changed since People v. Register, 60 NY2d 270, cert. denied, 466 U.S. 953 (1984), rises to the level of ineffective assistance of counsel under New York law.

As the Court noted in its January 2011 Decision, based on existing precedent at the time of the 2003 trial - a Court of Appeals case, entitled People v. Hafeez, 100 NY2d 253 (2003), as well as an appellate court case from the Fourth Department, People v. Gonzalez, 302 AD2d 870 (4th Dept. 2003)^[FN2] - absent a strategic reason not to specifically object, Trial Counsel's not doing so constituted error.

Accordingly, the Court finds that Trial Counsel's failure to specifically object constituted error. Nonetheless, for the reasons set forth herein, the Court finds that Defendant has failed to prove that such error falls within the category of rare cases where a single error in an otherwise competent defense is so egregious and prejudicial that it deprived Defendant of a fair trial. Thus, Defendant's motion is denied.

I.PROCEDURAL HISTORY ^[FN3]

On or about July 12, 2010,^[FN4] Defendant filed a CPL § 440.10 motion to vacate his [*3]conviction of Murder in the Second Degree, PL 125.25(2), on the grounds of ineffective assistance of counsel.

In its January 2011 Decision, this Court granted Defendant's motion to the extent that the Court ordered a hearing, pursuant to CPL § 440.30(5), finding that Defendant's motion papers "tend to substantiate all of the essential facts" necessary to support his claim of ineffective assistance of counsel.^[FN5] People v. Sherk, 269 AD2d 755, 704 N.Y.S.2d 401, 401-02 (4th Dept.), app. denied, 95 NY2d 804 (2000); see also CPL § 440.30(5).

On June 20, 2011, the Court held the hearing. Benjamin Heinrich, Esq., Defendant's counsel at the 2003 trial (hereinafter "Trial Counsel"), testified. Thereafter, the People submitted an Affirmation and Response to Motion to Vacate and a Memorandum of Law, dated July 25, 2011 (hereafter "People's Second Mem."); Defendant's counsel, Center for Appellate Litigation, submitted a written response, dated July 21, 2011. Both documents were received by the Court on July 25, 2011.

II.THE CPL 440 HEARING

At the 2011 Hearing, Trial Counsel testified about his legal credentials and extensive experience in criminal law: He graduated from Drake University School of Law in 1970; he had practiced criminal law for forty years, starting with the Legal Aid Society, handling criminal appeals, and, later, trials as a senior trial attorney. Transcript of June 20, 2011 Hearing (hereafter "Tr.") at 30-31. Trial Counsel further testified that he has been in private practice since 1980, and has tried hundreds of cases, including several dozen homicides. Tr. at 31.

Although Trial Counsel testified that he had little or no independent recollection of the trial of this case, he also testified that, upon review of the trial transcript, the Appellate Division decision on the appeal, and other case materials, and discussion with representatives of the District Attorney's Office and with Defendant's current defense counsel, he was able to refresh his recollection. Tr. at 4. Trial Counsel testified that his own file related to this case already has been destroyed. Tr. at 4.

With respect to trial strategy, Trial Counsel testified that in this case his trial strategy was centered upon the fact that the Defendant had not committed the crime. Tr. at 14. According to Trial Counsel, "The defense had an "all or nothing strategy," (Tr. at 19, 41), and the goal was to discredit the one eyewitness in the case. Tr. at 14, 38-39. Trial Counsel described the sole eyewitness as a "drunk junkie with a long criminal history, probably every criminal defense lawyer dream eyewitness, because it's just incredible that anybody would accept that person's testimony." Tr. at 14.

With respect to motions during the trial, upon Trial Counsel's review of certain pages of the trial transcript, he testified that, although he had made a motion to dismiss [*4]the charges in the case,^[FN6] he had made only a general motion because, in order to make a specific motion to dismiss, a good reason must be provided as to why a particular charge should be dismissed.^[FN7] Tr. at 6. Trial Counsel testified that his practice as a defense attorney is that, in circumstances where he has a specific reason to make a specific objection, he makes that objection. According to Trial Counsel, in this case, he had no specific reason and therefore made only a general motion to dismiss. Tr. at 6-7.Trial Counsel also made a motion at the end of the trial, he testified, in which he renewed all motions.^[FN8] Tr. at 7. This, too, was a general, not a specific, motion. 2003 Trial Tr. at 495.

Trial Counsel also did not object to the charge to the jury, in which the charges of intentional murder and depraved indifference murder were submitted in the alternative.^[FN9] [*5]Tr. at 13.

At the 2011 Hearing, Trial Counsel contended that he did not object to the submission of the charge of depraved indifference murder because it would not have affected the length of Defendant's sentence if he were to be convicted on a charge less than those top counts. Tr. at 17-18. According to Trial Counsel, "Even if we knocked out the depraved indifference [murder charge], and [Defendant] was acquitted on the murder [charge], if [Defendant] was convicted of the Assault 1, he still would have gotten 18 years."^[FN10] Tr. at 17-18. According to Trial Counsel, there was no need to object to submission of one of the top counts versus another because Defendant still faced the same sentence on another count, if convicted: "It's not a question of what you call a crime, it's what you call a time." Tr. at 17.

Trial Counsel also testified that, at the time of the trial in 2003, submission of alternative counts of intentional murder and depraved indifference murder to a jury was permissible. Tr. at 28. Trial Counsel further testified that, after reviewing the transcript, it is his belief that the conduct which the stabber engaged in, "even under today's laws amounted to depraved indifference," and would suffice as legally sufficient evidence on the issue of depraved indifference murder. Tr. at 9, 27. According to Trial Counsel, this was a case of "who did it, not what happened." Tr. at 9.

Trial Counsel also testified that mental state was not an issue relevant to the charges in the case because Defendant did not commit the crime. Tr. at 42.

III.RELEVANT LEGAL PRECEDENT

A.Standards Governing Claims of Ineffective Assistance of Counsel

In order to succeed on his claim of ineffective assistance of counsel, Defendant must prove that he was deprived of a fair trial by less than meaningful representation. People v. Turner, 5 NY3d 476, 480 (2005); People v Baldi, 54 NY2d 137, 147 (1981).

In determining whether Trial Counsel's representation of Defendant was meaningful, this Court must determine whether counsel's performance "viewed in totality" amounts to "meaningful representation."^[FN11] Baldi, 54 NY2d at 147; Turner, 5 NY3d at 480. "Whether defendant would have been acquitted of the charges but for counsel's errors is relevant, but not dispositive under the State constitutional guarantee of effective assistance of counsel," because "our legal system is concerned as much with integrity of the judicial process as with the issue of guilt or innocence." People v. [*6]Benevento, 91 NY2d 708, 714 (1998), quoting People v. Donovan, 13 NY2d 148, 153-54 (1963). The focus instead is on the fairness of the proceedings as a whole. People v. Stultz, 2 NY3d 277, 284 (2004).

The effectiveness of counsel is evaluated in the context of his actions with respect to the state of the law at the time of trial - in this case, November 2003. People v. Steven Sanchez, 76 AD3d 122, 128 (1st Dept.), app. denied, 15 NY3d 855 (2010).

In addition, in a case such as this one where Trial Counsel now has credibly testified that he presented a sound legal strategy but still failed to specifically object to the depraved indifference charge and to the verdict, in order to prevail on a motion to vacate on the grounds of ineffective assistance of counsel, the Defendant must show that his case falls within that rare category of cases where, despite otherwise competent representation, his attorney committed an egregious and prejudicial error such that Defendant did not receive a fair trial. Benevento, 91 NY2d at 713.

In June of this year, after this Court already had issued its January Decision in this case, in People v. Jazzmone Brown, 2011 NY Slip Op. 4721, *2, 2011 NY Lexis 1385, **2 (June 7, 2011), the Court of Appeals reiterated the stringent standard of proof that must be met in order for such error to fall within the category of these rare cases where a single error in an otherwise competent representation of a party is so egregious and prejudicial that it deprives a defendant of a fair trial. In Jazzmone Brown, the Court of Appeals cited to its 2005 decision in People v. Turner, 5 NY3d at 480, for the elements that defendant needed to prove to prevail on his ineffective assistance of counsel claim.

In evaluating whether an issue is so clear-cut and dispositive such that failure to raise it deprives a defendant of a fair trial, the Court of Appeals held in Turner that such an issue is one that a defense lawyer, at the time of trial, might have doubted was a clear winner, but "no reasonable defense lawyer could have found it so weak as to be not worth raising." Turner, 5 NY3d at 481-83.

Moreover, the Court of Appeals has held that in order for a single error to constitute ineffective assistance of counsel in an otherwise competent representation, the argument which defense counsel allegedly failed to make must be on a "clear-cut and completely dispositive" issue. Turner at 481; People v. Borrell, 12 NY3d 365, 369 (2009).

Where the argument at issue depends upon a complex analysis, it will not be considered so "clear-cut." Borrell, at 369; see also People v. Calderon, 66 AD3d 314, 320 (1st Dept.), app. denied, 13 NY3d 858 (2009). In Borrell, the Court of Appeals held that appellate counsel's failure to raise an issue regarding the legality of defendant's consecutive sentencing did not constitute ineffective assistance of counsel where the argument to be made depended upon a complex analysis, which was by no means clear-cut. 12 NY3d at 369. The Court noted that the fact that the issue was "far from clear" was demonstrated by the facts that it had so far been considered twice by the Appellate Division, with differing outcomes, and was argued unsuccessfully on a CPL § 440.20 motion. Id.

Similarly, in People v. Feliciano, 17 NY3d 14 (2011), rearg. denied, 2011 NY Lexis 2179 (2011), the Court of Appeals held that defense counsel, and appellate counsel, could not be considered ineffective for failing to raise an objection to the [*7]jurisdiction of the court at a parole violation hearing due to the delay in bringing the proceeding, where the argument relied upon a complex analysis of the relevant statutes and cases. Id. at 28. The argument was not so strong that no reasonable defense lawyer could have found it to be not worth raising. Id.

As set forth further herein, the Court finds that, in this case, Defendant has not established that Trial Counsel's single error, where he provided otherwise competent representation, was so egregious and prejudicial so as to constitute ineffective assistance of counsel.

B.Law of Depraved Indifference Murder at Time of the November 2003 Trial

The standard for depraved indifference murder was articulated by the Court of Appeals in 1983 in Register, 60 NY2d at 270. There, the Court held that the requisite mens rea for depraved indifference murder was recklessness and the focus was upon an objective assessment of the degree of risk presented by the defendant's reckless conduct. 60 NY2d at 276-78. At the time that the law of depraved indifference murder was governed by Register, a jury could be charged with both intentional murder and depraved indifference murder so long as there was any reasonable view of the evidence which would have permitted the jury to find that the defendant's actions were either intentional or depraved. See, e.g., People v. Gallagher, 69 NY2d 525, 530 (1987)(it is function of jury to determine whether defendant acted recklessly or negligently); People v. Sanchez, 98 NY2d 373, 376, 384-85 (2002).

However, in the nine months immediately preceding Defendant's November 2003 trial, two cases were decided that specifically limited the circumstances under which it would be appropriate to charge depraved indifference murder — Hafeez by the Court of Appeals in June 2003 and Gonzalez by the Fourth Department in February 2003.^[FN12] Both of these cases limited the situations in which it would be appropriate to present a jury with a count of depraved indifference murder.

In Hafeez, decided by the Court of Appeals five months before Defendant's trial, the Court held that a defendant's acts must have been "imminently dangerous and presented a very high risk of death to others" to support a conviction for depraved indifference murder. There, the Court of Appeals reversed a depraved indifference murder conviction for legally insufficient evidence and held that the grave risk of death presented by the defendant's conduct must extend to someone other than the victim - an important limiting constraint on the recklessness standard applicable to depraved indifference murder. Id.

In 2003, in Gonzalez, 302 AD2d 870 (4th Dept. 2003), aff'd, 1 NY3d 464 (2004), the Fourth Department reversed a depraved indifference murder conviction when the dual charges - intentional murder and depraved indifference murder - were given to the jury. In that case, where defendant had entered a barber shop and shot the victim ten [*8]times with one other person present, and the defendant's counsel specifically objected to the depraved indifference murder charge, the objection was denied by the trial court, but the Fourth Department reversed on the grounds of legally insufficient evidence. Id. at 871.

The appellate court held that the evidence demonstrated an intentional shooting, and the jury could not reasonably have found defendant's state of mind to be recklessness.^[FN13] Id. at 871-72.

IV.CONCLUSIONS OF LAW

A.The Appellate Division's Determination of the Appeal in this

Case is Not Dispositive of the Issue in Defendant's Motion

As an initial matter, contrary to the People' s contention, the Court notes that the decision by the Appellate Division, First Department, on Defendant's appeal is not dispositive of this claim of ineffectiveness of counsel. See People's Second Mem. at 6-8.

The First Department expressly declined to review Defendant's ineffectiveness of counsel claim because it "involve[d] a matter outside the record, concerning counsel's strategy" and limited its review to determine whether the verdict was against the weight of the evidence because Trial Counsel had only made a general trial order of dismissal. 41 AD3d at 262-64. See People v Hammon, 2008 NY Slip Op. 31076U, *4 (Sup. Ct., Kings Co. 2008)(CPL 440 not barred by appellate determination that claims involved matters outside the record involving trial strategy; those claims are reviewable in 440 proceeding)^[FN14]; People v. Steven Sanchez, 76 AD3d at 125-130 (claim of ineffective assistance of counsel not [*9]barred despite earlier appellate decision, on a prior appeal by defendant, which determined that the legal sufficiency claim had not been preserved but that if such claim were to have been reviewed, the verdict would have been upheld based on legally sufficient evidence, based on the court's charge as given without exception)."^[FN15]

Moreover, contrary to the People's contention, the Appellate Division did not conduct a legal sufficiency review of Defendant's case; indeed, the appellate court expressly declined to do so because the objection had not been preserved at trial. See January 2011 Decision at 4-5.

Thus, as the First Department reached its determination on appeal via a weight of the evidence review that this case "passes muster" under the standards enunciated in People v. Suarez, 6 NY3d 202, 212-213 (2005), the legal sufficiency of the depraved indifference charge remains open.^[FN16] People v. Brown, 41 AD3d 261, 264 (1st Dept. 2007). The appellate determination that this case fits within the second fact pattern identified by the Court of Appeals in Suarez was based upon its weight of the evidence analysis to which the First Department had expressly confined its review.

B.Trial Counsel's Trial Strategy Was Reasonable

Trial Counsel credibly testified that his trial strategy was to discredit the People's sole eyewitness because Defendant was not the perpetrator of the crimes charged. Tr. at 14. Trial Counsel also testified that state of mind was not relevant to his strategy; his strategy centered upon the fact that Defendant was not the person who committed the [*10]crime. Tr. at 42.

At the hearing, Trial Counsel testified that his strategy at trial was an "all or nothing strategy" in which the theory was that Defendant had not committed the acts and the only witness to the acts was a "drunk junkie with a long criminal history" whom no one presumably would believe. Tr. at 14. Trial Counsel's primary focus at trial was to attack the reliability of this one eyewitness through his cross-examination of the eyewitness, as well as in his opening statement and summation at trial. See 2003 Trial Tr. at 347-391, 25-32, 507-546.

There is no question that a strategy to raise reasonable doubt as to whether a defendant actually is the perpetrator of the crimes charged by discrediting a sole eyewitness is a sound legal strategy. People v. Satterfield, 66 NY2d 796, 799 (1985)(trial strategy to argue that incident occurred but that witness was mistaken as to identifying defendant as one of the perpetrators was a valid strategy); People v. Radcliffe, 2009 NY Slip Op. 52593U, *8-9, 25 Misc 3d 12A (Sup. Ct., Bronx Co. 2009)(defense counsel strategy of misidentification valid where based on weak, one-witness identification case, no scientific evidence, and "the vagaries of eyewitness identifications"); People v. Melendez, 2010 NY Slip Op. 33617U, *7, 2010 NY Misc. Lexis 6521, **9 (Sup. Ct. Kings Co. 2010)(where defendant said he was not perpetrator, valid strategy to pursue misidentification defense and not call witnesses irrelevant to that strategy); People v. Rodriguez, 2006 NY Slip Op. 50409U, *9, 11 Misc 3d 1067A (Sup. Ct., Bronx Co. 2006), aff'd, 36 AD3d 437 (1st Dept. 2007), habeas denied, Rodriguez v. McCoy, 2009 U.S. Dist. Lexis 96524 (S.D.NY 2009).

Nonetheless, despite this sound legal strategy, as set forth below, Trial Counsel had no sound basis as to why he did not specifically object to the depraved indifference charge to the jury or to the verdict.

C.Despite His Trial Strategy, Trial Counsel Erred

By Not Specifically Objecting to the Depraved

Indifference Charge and to the Verdict

In the context of Defendant's trial, despite Trial Counsel's sound legal strategy, there was no reason to not object to the charge of depraved indifference murder or to the jury verdict. As set forth below, the state of the law at the time of trial provided a basis for an argument that the depraved indifference murder count should have been dismissed.

Moreover, the Court notes that an objection to the charge of depraved indifference murder and to the verdict would not have clashed or been inconsistent with Trial Counsel's legitimate strategy to raise reasonable doubt as to whether Defendant was the perpetrator of the crimes charged. See People v. Flores, 84 NY2d 184, 192 (1994)(dissent) ("defendant had nothing to lose and everything to gain by objecting") habeas granted, 215 F.3d 293 (2nd Cir. 2000); People v. Gil, 285 AD2d 7, 13 (1st Dept. 2001)(defendant had "everything to gain and nothing to lose by moving for suppression").

1.The State of the Law as to Depraved Indifference Murder

At the Time of Defendant's Trial Provided A Basis For A

Specific Objection to the Charge and the Verdict [*11]

In light of Hafeez and Gonzalez, under the facts of this case, the Court finds that there was a basis for dismissal of the depraved indifference murder count against the Defendant at the time of the trial; Trial Counsel's failure to move to dismiss the depraved indifference charge or to object to the jury verdict was error.

The First Department's analysis of the ineffective assistance of counsel claim in Steven Sanchez, 76 AD3d 122, is instructive.^[FN17]

In that case, the First Department addressed a claim of ineffective assistance of counsel against the backdrop of a trial, like this one, that occurred during the time in which the law on depraved indifference murder was evolving. In Steven Sanchez, the

First Department set forth its analysis of the state of the law of depraved indifference murder at the time of the trial in that case — March/April 2004. Id. For all intents and purposes, that same law was governing precedent at the time of Defendant's November 2003 trial.^[FN18]

The First Department examined the claim of ineffective assistance of counsel within the context of what it has identified as the limiting constraints which had been placed on the Register standard of recklessness required for depraved indifference murder at the time of that defendant's trial. 76 AD3d at 126-28. There, the First Department found that, at the time of that March/April 2004 trial, two limiting constraints had been imposed by the Court of Appeals with respect to the Register standard of depraved indifference murder: (1) the defendant's acts had to be imminently dangerous and present a very high risk of death to others, and (2) if the intent to take the victim's life was apparent, then the depraved indifference count was unsupportable and the count should not be submitted to the jury. 76 AD3d at 128.

With respect to the first limit, the First Department pointed to the Court of Appeals decision in Hafeez; with respect to the second limit, the First Department pointed to the Court of Appeals affirmation of the Fourth Department's reversal of the conviction in Gonzalez. 76 AD3d at 128.

Unlike the facts here, pursuant to the facts in Steven Sanchez , the First Department found that the case fell squarely within the elements of depraved indifference murder that were articulated in Hafeez and Gonzalez such that a depraved indifference charge to the jury was appropriate and would have withstood any objection, [*12]if one had been made. In that case, the defendant had testified that he had not intended to stab the victim, and that, as he was being hit by two people, he waved a knife around, and the victim was stabbed as he swung at the defendant. 76 AD3d at 124.

In that case, since others were endangered by defendant's waving the knife around, and intent to kill was in controversy — as apparent from the facts as testified to by the defendant, the First Department determined that the defendant could not articulate any argument that his trial counsel could have made to receive a favorable ruling on a motion to set aside the verdict. Thus, the First Department found that counsel's lack of a specific objection as to the jury verdict of depraved indifference murder in that case was not ineffective assistance of counsel. Id. at 130.

At the time of Defendant's trial in November 2003, a cogent argument was available to Trial Counsel, pursuant to Hafeez, that a charge of depraved indifference murder was inappropriate in this case because, under the facts presented by the People in the trial, there was just a single victim and there was no risk of death to others. 2003 Trial Tr. at 332-334.

The sole eyewitness in this case testified that he saw the Defendant, and a group of others, chase down and beat the victim and that he saw the Defendant step back, take out a folding knife, open it and stab the victim repeatedly. 2003 Trial Tr. at 332-34. This witness also testified that, as the Defendant did this, the others "slacked off on beating [the victim]." 2003 Trial Tr. at 334. The perpetrator's actions in this case, based upon eyewitness testimony, did not pose a grave risk of death to anyone other than the victim.^[FN19]

Here, there is no evidence in this case that the knife at issue was aimed at any one other than the victim, or that others at the scene somehow were in danger. 2003 Trial Tr. at 333-37. There simply was no evidence that there was any danger to others.

The Fourth Department's Gonzalez decision in 2003, holding that intent to kill negates a charge of depraved indifference murder, also provided a sound basis upon which Trial Counsel could have moved to set aside the verdict or to object to the charge to the jury of depraved indifference murder. The uncontroverted testimony at trial described an intentional, rather than a depraved indifference, murder. 2003 Trial Tr. at 322- 337.

The only evidence testified to by the eyewitness established that the Defendant undertook the deliberate acts of stepping back, pulling out a knife, unfolding that knife, then stabbing the victim numerous times. 2003 Trial Tr. at 332. These facts evidence an intent to kill under circumstances in which only one person was endangered.

Such facts, based upon the state of the law in November 2003, indicate that an objection to the charge of depraved indifference murder, and an objection to the verdict [*13]would have been sound.

Thus, Trial Counsel's failure to make a motion to dismiss the depraved indifference murder count, based upon the holdings of Hafeez and Gonzalez, and to object to the jury's verdict on that basis, constituted error.

2.There Was No Strategic Reason for Trial

Counsel to Not to Make These Objections

Even if Trial Counsel's prime strategy was to discredit the sole eyewitness in this case, such that the jury would be dissuaded that Defendant was the perpetrator, moving to dismiss the depraved indifference murder charge would not have undermined such a strategy.^[FN20] Any objection to the charge of depraved indifference murder, if granted, would have given the jury less to consider when it came to the highest, and most important counts, both of which carried the same minimum sentence upon a conviction. The jury would have been left with intentional murder, gang assault and manslaughter. As Trial Counsel acknowledged at the hearing, he would have preferred to have the depraved indifference murder charge dismissed from the case, so that the jury would have less to consider. Tr. at 16-17.

Trial Counsel's testimony at the 2011 Hearing established that he did not specifically object to the charge of depraved indifference or to the verdict because he saw no reason to object. Although Trial Counsel testified that it is his practice to articulate a particular basis for a motion when one exists (Tr. at 6), and that he would have preferred to have the depraved indifference murder charge dismissed from this case, so that the jury would have less to consider (Tr. at 16-17), he made no specific motion and did not object to the charge.

It appears that Defendant's case with respect to the depraved indifference [*14]charge was not evaluated in the context of the law prevailing at the time of Defendant's November 2003 trial — Hafeez and Gonzalez — and the limitations those cases placed on depraved indifference murder charges. Nonetheless, according to Trial Counsel, even if he were to review the case today, he would not see any grounds for such an objection back in 2003. Tr. at 26. Trial Counsel appears to believe that, because of the gang assault,^[FN21] the facts at trial could constitute depraved indifference murder, even under today's laws.^[FN22] Tr. at 9, 27.

In addition, Trial Counsel's present day contention that an objection to the depraved indifference murder charge and verdict would not have made a difference as to the outcome of the trial (as Defendant was facing the same time on other counts as he was facing on that count) is without merit. Tr. at 17-18.

Intentional murder and depraved indifference murder carried the same minimum sentence of 15 years. Dismissal of one charge would have meant that there was only one chance, rather than two, for a jury to find Defendant guilty of murder with a concomitant reduced risk that the 15 year minimum sentence would be imposed.

Trial Counsel also articulated an erroneous belief — that it was unimportant to seek a dismissal of the depraved indifference murder charge as it would not have affected the outcome of the trial on the grounds that, according to Trial Counsel, "the top three charges all carried the same exposure to his client, "18 years" — with respect to why he had not specifically objected to the charge or verdict at trial. Tr. at 17-18.

In fact, the top two charges — intentional murder and depraved indifference murder — carried the same risk of a minimum 15 year sentence. The next two counts — Gang Assault in the First Degree, PL 120.07, and Manslaughter in the First Degree, PL 125.20(1) — both carried a significantly lower period of incarceration of 5 to 25 years upon a conviction.^[FN23]

Had Trial Counsel successfully argued that the depraved indifference murder [*15]charge should be dismissed, since the jury had acquitted Defendant of intentional murder, the period of incarceration that Defendant would have been facing upon a conviction is significantly different than the 18 years to life sentence he received.

D.Defendant Has Not Proven That Trial Counsel's Error Meets the

Standard for the Rare Category of Cases Where a Single Error is so

Egregious and Prejudicial as to Deprive Defendant of a Fair Trial

Notwithstanding the Court's determination that Trial Counsel's failure to object to the depraved indifference charge and to the verdict constitutes error, the Court finds that Defendant has failed to meet the substantial burden required to prove that, where his counsel provided otherwise competent representation, the error falls within the rare category of cases where such error is so prejudicial and egregious so as to deprive Defendant of his constitutional right to a fair trial. Turner, 5 NY3d at 480.

Here, Trial Counsel now has articulated a sound legal strategy. As noted by the Court of Appeals in Turner, despite significant mistakes by defense counsel, ineffective assistance of counsel claims fail where counsel's overall performance is adequate unless the error is so "egregious" and "prejudicial" as to rise to the level of ineffective assistance. 5 NY3d at 480, citing People v. Hobot, 84 NY2d 1021 (1995) and People v. Flores, 84 NY2d 184 (1994), habeas granted, 215 F.3d 293 (2nd Cir. 2000); see also Jazzmone Brown, 2011 NY Slip Op. 4721, *2, 2011 NY Lexis 1385, **2 .

With respect to this "egregious and prejudicial" standard set by the Court of Appeals in determining ineffective assistance of counsel in a single error case where counsel's representation was otherwise competent, the Court finds that Defendant has failed to prove that Trial Counsel's failure to object to the charge and verdict of depraved indifference murder meets this requirement.

The fact that a cogent argument exists that the depraved indifference murder count should have been dismissed is not, by itself, a sufficient basis to find that this error was sufficiently egregious and prejudicial as to be the rare case where a single error will constitute ineffective assistance of counsel. Turner at 481; People v. Borrell, 12 NY3d at 369; People v. Baker, 14 NY3d 266, 270 (2010). For a single error to constitute ineffective assistance of counsel, it must be on a "clear-cut and completely dispositive" issue. Turner at 481.

In this case, Defendant has failed to prove that the error — Trial Counsel's unuttered objections — is a clear-cut, not complex issue.

The complexity of the issue is borne out by the case's long history in which at least four courts - - the First Department, the Southern District, the Second Circuit and this Court - - have examined, albeit in different contexts, the merits of the objection at issue and have expressed different views on the issue. The significant disparity in the conclusions reached by the courts that have looked at the case in and of itself suggests that the issue is not so "clear-cut and dispositive" as to fall within the category of egregious error. Borrell, 12 NY3d at 369; Turner, at 481; Jazzmone Brown, 2011 NY Slip Op. 4721, at *2.

Indeed, the respective decisions issued by the First Department, the Southern District, the Second Circuit and this Court differ with respect to the analysis of the facts and the application of the prevailing law at the time of the trial to those facts. See [*16]People v. Brown, 41 AD2d 261, 263-64; Brown v. Ercole, 2009 WL 857625, *4-6 (S.D.NY 2009); Ercole v. Brown, 353 Fed. Appx. 518, 520 (2nd Cir. 2009). For example, although this Court finds that the gang aspect of the incident at issue is not a factor supporting a depraved indifference charge pursuant to Hafeez and Suarez, in 2007, the First Department noted that the gang aspect of the attack at issue contributed to an objective assessment of depravity by Defendant. In addition, although the Southern District determined that it would have been futile for Trial Counsel to have made the objection to the charge of depraved indifference murder and the verdict in light of the law at the time, the Second Circuit disagreed.

The error in this case is more like that in People v. Baker, 14 NY3d 266 (2010), where defense counsel had failed to object to a charge of manslaughter in the second degree as a lesser included crime to depraved indifference murder of a child. The Court of Appeals upheld the Appellate Division's determination that there was no ineffective assistance of counsel in that case, holding that it was not unreasonable for trial counsel to have believed that a jury could consider both crimes, and that they did not have to be charged in the alternative. Id. at 272.

Notably, the Appellate Division decision in Baker held that defense counsel's failure to preserve the issue in that case for appeal did not "elevate[ it] to the level of one of those rare cases where a single lapse can constitute ineffective assistance of counsel." 58 AD3d 1069, 1072 (3rd Dept. 2009). Relevant to the court's analysis was the fact that the case "implicated an area of law that has recently changed, with courts struggling over the effects of such changes," and that all the relevant statutes had an aspect of reckless conduct. Id. at 1072. The Third Department held that trial counsel's alleged error was not a "clear-cut and completely dispositive defense" to his client's entire criminal conduct. Id. at 1073.

In light of the disparity of views by courts that already have examined this case in the context of the law of depraved indifference murder at the time of Defendant's trial, this Court finds that Defendant has not proved that this issue was so clear-cut and dispositive that Trial Counsel's error was egregious.^[FN24]

2.Defendant Has Not Shown That the Error in this Case

Falls Within the Rare Category of Cases Where a

Single Error is Egregious

Defendant also has not shown how this case falls into that rare category of cases where a single error, in an otherwise competent representation, has been found to be [*17]ineffective assistance of counsel. In such cases, the failure of trial counsel was as to an obvious mistake or misunderstanding of the law at the time which, in each case, the reviewing court found was quite plain on its face. People v. Turner, 5 NY3d at 482-83; People v. Charlotten, 51 AD3d 1063, 1064 (3rd Dept. 2008).

As an initial matter, the cases that fall within this rare category — where a single error is so egregious and prejudicial despite otherwise competent counsel — are few. Indeed, People v. Turner, 5 NY3d at 482-83, appears to be the only Court of Appeals case in which a single such error proved to constitute ineffective assistance of counsel. Id. There, the defense counsel had failed to make a completely dispositive statute of limitations defense. Id. The Court of Appeals found that trial counsel was "clearly ineffective" in failing to object to a manslaughter charge, which has a five year statute of limitations, as a lesser included crime to second degree murder, which has no statute of limitations, in a case where the defendant was not tried until more than 16 years after the crime. Id. at 481-82.

Second, Defendant has failed to prove that this case fits within that rare category of such cases. Indeed, this case is unlike those few rare cases where a single error, in an otherwise competent representation has been found to be ineffective assistance of counsel. See People v. Charlotten, 51 AD3d at 1064 (counsel was ineffective for allowing defendant to plead guilty to a violation of a court order which was a nullity; counsel's failure to recognize that the order was invalid a "amounted to an error on a clear-cut and completely dispositive' issue")(citations omitted); People v. Fredericks, 48 AD3d 827, 828 (1st Dept. 2008) (defense counsel's failure to move for dismissal of a first degree robbery charge, in which possession of a loaded weapon was an element of the crime, and where the evidence showed that defendant had not possessed a loaded weapon, constituted ineffective assistance of counsel); People v. Hoyte, 185 Misc 2d 587, 592 (Sup. Ct., Bronx Co. 2000), aff'd, 294 AD2d 263 (1st Dept. 2002) (defense counsel erred in failing to object and request an appropriate charge where the prosecution had not established defendant's knowledge of the weight of drugs, an element of the crime charged)

In each of these single error cases, the objection that defense counsel failed to make, and which each court held to constitute ineffective assistance of counsel, was far more clear-cut than the objection at issue in this case.

For these reasons, Defendant has failed to prove that the error made by his Trial Counsel was so egregious and prejudicial that the error fits within that rare category of cases where otherwise competent representation can be considered ineffective due to one error.

V.CONCLUSION

This is an extremely close case, in which the Court has struggled to evaluate whether a single important error by counsel, in otherwise meaningful representation, can be considered ineffective assistance of counsel. The record reflects that Trial Counsel provided adequate representation in many ways, as evidenced by his strategy targeting the veracity and trustworthiness of the prosecution's sole eyewitness. The [*18]Court concludes that, notwithstanding Trial Counsel's error, Defendant has failed to prove that such error falls within that rare category of cases where a single error in an otherwise competent representation results in an unfair trial. Accordingly, the Court denies Defendant's motion.

The Court considered the following in addressing the motion: Notice of Motion, dated June 2010, and Affidavit of Defendant in Support of Motion, sworn to July 13, 2010; Affirmation of Thomas R. Villecco, Esq., Assistant District Attorney, in Opposition to Motion, and Memorandum of Law, filed on November 30, 2010, and exhibits thereto; Letter of David J. Klem, Esq., Center for Appellate Litigation, dated July 21, 2011, in support of motion; Affirmation of Thomas R. Villecco, Esq., Assistant District Attorney, in Opposition to Motion, and Memorandum of Law, filed on July 25, 2011, and exhibits thereto; Trial Transcript, November 13-24, 2003; Decision of Appellate Division - First Department (People v. Brown, 41 AD3d 261 (1st Dept. 2007)); Decision of United States District Court, Southern District of New York (Brown v. Ercole, 2009 WL 857625 (S.D.NY 2009)); and Decision of United States Court of Appeals for the Second Circuit (Ercole v. Brown, 353 Fed. Appx. 518 (2nd Cir. 2009)).

This constitutes the Decision and Order of this Court.

Dated: Bronx, New York

September 23, 2011

E N T E R:

_________________________

Colleen D. Duffy

Justice of the Supreme Court

Distribution:

Thomas R. Villecco, Esq.

Assistant District Attorney

Criminal Court Bureau

198 East 161st Street

Bronx, New York 10451

David J. Klem, Esq.

Center for Appellate Litigation

74 Trinity Place - 11th Floor

New York, New York 10006