People v. Berroa

OPINION OF THE COURT Friedman, J. On this appeal, we are required to address the appropriateness of a defense attorney’s response to the perjured testimony of defense witnesses. Specifically, we must determine if defendant was deprived of the effective assistance of counsel when his attorney stipulated that a portion of the witnesses’ perjurious testimony be removed from the jury’s consideration. Examination of authorities from other jurisdictions that have considered situations akin to the one presented here (see, People v Beals, 162 Ill 2d 497, 643 NE2d 789; State v Crespo, 246 Conn 665, 718 A2d 925, cert denied 525 US 1125), as well as the seminal decision of our own Court of Appeals in People v Baldi (54 NY2d 137), reveals that the conduct of defense counsel did not deprive defendant of the effective assistance of counsel. We, therefore, affirm the judgment of Supreme Court convicting defendant of murder in the second degree. Defendant was indicted for the murder of Weber Lewis. At the trial of this action, Lourdes Rodriguez testified for the People that she was walking to the corner of Hunts Point and Garrison Avenues in the Bronx on the afternoon of June 22, 1994 when she saw defendant point a gun at the decedent’s head and fire the gun at point-blank range into the decedent’s face. Rodriguez was only six feet away from defendant at the time he fired the weapon and described him as having black hair and unique yellow-green eyes. The People also called James Lopez, who had seen defendant daily for several months dealing drugs in the area. He testified that, on the day of the murder, he was standing near the — 90 — decedent when he saw defendant walk up and fire a shot into the decedent’s face at point-blank range. Concerning a motive for the shooting, both Lopez and Wailly Lewis, the decedent’s brother, suggested that the murder was the result of a dispute over turf between defendant and the decedent, who had been selling drugs in the area. Lewis, in describing defendant, also testified that he had dark hair and unique “greenish” eyes. In the face of this overwhelming evidence, defendant sought to establish a defense of misidentification, presenting the testimony of Vivian Rivera, Iris Santiago, and Anna Torres, as well as his own testimony. Their testimony sought to establish that, at the time of the crime, defendant did not have dark hair as described by the witnesses to the murder, but had his hair dyed an orange-yellow color. As to this defense, Rivera testified that she met defendant in 1992. Thereafter, whenever she saw him he always had his hair dyed a yellow-orange color. Additionally, Rivera claimed that defendant and his girlfriend, Iris Santiago, had been at her home in the Bronx on June 19, 1994, just days before the murder, and that his hair was dyed a yellow-orange color at that time. Santiago similarly testified that she and defendant had come to New York in June 1994 and that defendant’s hair had been dyed a yellow-orange color at that time and prior thereto. However, as her testimony progressed during direct and cross-examination it became apparent that she was constructing an alibi for defendant, claiming that she and defendant came to New York around June 20, 1994, spent an hour or so at Rivera’s home, and then left that day for Philadelphia to stay with defendant’s sister, Anna Torres. It further became evident that she was claiming that she and defendant did not leave Philadelphia until after June 24, 1994, the date they celebrated the birthday of Torres. This turn of events generated several conferences out of the presence of the jury in which the court pointed out that defendant had not served an alibi notice as required by GPL 250.20. Defense counsel stated that it was never her intention to present an alibi, but merely to establish that defendant’s hair was dyed orange in June 1994. In fact, defense counsel represented that she had spoken with both Santiago and Torres, asking them if they could pinpoint defendant’s whereabouts on June 22, 1994, and they stated they could not. The next day, when the court reconvened, defendant was present almost from the inception of the parties’ discussion but — 91 — was not initially accompanied by his Spanish interpreter. In view of this, the court advised defense counsel that, while they could begin their discussions on the topic of the alibi, it would make no ruling until defense counsel had an opportunity to consult with her client with the assistance of the interpreter. Concerning Santiago’s testimony, the People agreed that they would not seek to strike her testimony, choosing to deal with the unexpected testimony on cross-examination. The People did, however, seek to preclude Torres’s expected testimony insofar as it would establish an alibi for defendant, namely, that defendant stayed with her from June 20 through June 24. After further discussion, however, it became evident that the expected testimony of Torres concerning defendant’s hair color would be inextricably interwoven with defendant’s alibi. In view of this, the People waived their right to seek preclusion of Torres’s testimony. Recognizing that the People would likely seek to impeach Santiago and Torres on their failure to come forward to law enforcement authorities (or to anyone for that matter) and disclose the exculpatory information they possessed, the court conducted an inquiry pursuant to People v Dawson (50 NY2d 311). As part of that inquiry, the court asked defense counsel if she had advised the witnesses to refrain from speaking to law enforcement about their exculpatory information. Defense counsel responded that the witnesses told her that they could not pinpoint defendant’s whereabouts on June 22, 1994, and that accordingly she did not instruct them to refrain from speaking to law enforcement authorities about the alibi. Anticipating the possibility of contrary testimony, the court broached the topic of possible remedies should the witnesses testify that they had told defense counsel of the alibi, stating: “Obviously, it is not desirable that you be called as a witness to impeach one of the defense witnesses. Not that you could not be, but I mean if you are now acknowledging that the witnesses had not told you of this alibi prior to yesterday, then what I would ask is would you be willing if it becomes necessary to agree to a stipulation that the witness did not tell you of this alibi.” Defense counsel agreed to this as a possible remedy, subject to any objections she might have concerning the particular wording of the stipulation. On cross-examination, Santiago was asked whether she ever told anyone that defendant was with her on June 22, 1994. — 92 — Santiago responded that she specifically told defense counsel that defendant was with her on that day. Since Santiago had testified that defendant’s hair had been dyed orange at the time of the murder and suggested that she specifically recalled his hair being orange in January 1994, and for several years prior thereto, the prosecutor then proceeded to impeach this aspect of her testimony. To do so, the prosecutor first advised the court that defendant had been arrested for an unrelated robbery in the Hunts Point Avenue area (one block away from the scene of the murder) in January 1994, just five months before the murder. The arrest photo plainly showed defendant with dark hair, not the orange hair that Santiago and Rivera claimed he had. After redacting those parts of the photograph that would reveal that it was an arrest photograph, Santiago was confronted with the photograph and forced to backtrack on her testimony, stating that she could not remember defendant’s appearance in January. Torres was the next defense witness to testify. Like Santiago, Torres testified that defendant was at her home from June 20, 1994 through June 25, 1994 and that his hair was a yellow color. When questioned on cross-examination as to whether she told anyone about her exculpatory information prior to trial, Torres testified that she told defense counsel that defendant was at her home on June 22, 1994. Defendant was the final witness to take the stand, testifying that his hair was dyed in June 1994. At the conclusion of this testimony, the defense rested. The next day, the proceedings commenced with a discussion of the previously mentioned stipulation concerning the witnesses’ testimony. After the discussion, the court, the prosecutor, and defense counsel agreed that the following stipulation would be read to the jury: “It is stipulated and agreed by [defense counsel] that prior to their appearing in New York to testify in this case, Miss Santiago and Miss Torres had spoken with her and that neither Miss Santiago or [sic] Miss Torres specifically told [defense counsel] the defendant, Dario Berroa, had been in Philadelphia specifically on June 22nd, 1994.” Subsequently, defense counsel delivered her summation, beginning with some introductory remarks. Then defense counsel pointed out that from “day one” she told the jury that the pivot point of the case was misidentification. As to the alibi — 93 — evidence, she stated that the court would instruct the jury concerning alibi testimony and that “you can take it for what you want, you can disregard it, you can look at it. You heard my stipulation.” From that point on, defense counsel focused her argument on the defense of misidentification and, contrary to the contention of the dissent, defense counsel made no further references to the stipulation. As for the prosecutor, she made no reference in her summation to the stipulation, other than to comment upon Santiago’s failure to tell anyone about the exculpatory information she possessed for the 2V2 years of defendant’s incarceration. Actually, her summation focused on the multitude of inconsistencies in the testimony of defendant and his witnesses, and juxtaposed those inconsistencies with the certainty of the eyewitnesses’ identification. At the conclusion of deliberations, the jury convicted defendant of murder in the second degree. This appeal followed. In seeking a reversal of his conviction, defendant argues that he was denied the effective assistance of counsel because his attorney stipulated that Santiago and Torres had not told her about the alibi. Counsel’s decision to stipulate, it is alleged, was improperly motivated by her desire to protect her reputation for integrity, thereby creating a conflict, and depriving him of the effective assistance of counsel. These contentions lack merit. In order to establish an ineffective assistance of counsel claim, “the defendant has the burden of demonstrating the absence of strategic or other legitimate explanations for counsel’s alleged shortcomings” (People v Gil, 285 AD2d 7, 12; see also, People v Benevento, 91 NY2d 708, 712; People v Rivera, 71 NY2d 705, 709). In the absence of such a demonstration, it will be presumed that defense counsel acted in a competent manner (People Rivera, supra). Considered in other terms, “Counsel’s performance should be ‘objectively evaluated’ * * * to determine whether it was consistent with strategic decisions of a ‘reasonably competent attorney’ ” (People v Benevento, supra, at 712 [citations omitted]). Assessed against these standards, defendant was not denied the effective assistance of counsel. Initially, we do not agree with the conclusion reached by the dissent that defense counsel’s motivation in agreeing to the subject stipulation was to protect her reputation. It is well settled that an attorney’s duty to advance the interests of her client is circumscribed by an “ ‘equally solemn duty * * * to — 94 — prevent and disclose frauds upon the court’ ” (People v DePallo, 96 NY2d 437, 441, quoting Nix v Whiteside, 475 US 157, 168-169). As conceded by the dissent, this solemn duty mandated that defense counsel in this case reveal the potential for witness perjury to the court (see, People v DePallo, supra; Matter of Friedman, 196 AD2d 280, appeal dismissed 83 NY2d 888, cert denied 513 US 820; Code of Professional Responsibility DR 1-102 [a] [4], [5]; DR 7-102 [a] [3], [6] [22 NYCRR 1200.3 (a) (4), (5); 1200.33 (a) (3), (6)]). Defense counsel’s revelation, therefore, was not the result of a desire to protect her reputation, but was the result of her obligation to comply with the ethical standards governing her conduct. This being so, it is logically incoherent to believe, as the dissent asserts, that defense counsel was properly guided by her ethical obligations when she revealed the potential for perjury to the court, but that she labored under improper motivations when she subsequently agreed to enter into the stipulation. Viewed otherwise, if in fact defense counsel sought to protect her reputation, she successfully accomplished that goal when she revealed the potential for perjury to the court and nothing that occurred thereafter could have conceivably been motivated by any reputational concerns. Apparently recognizing the deficiency in his position, defendant argues that defense counsel, by entering into the stipulation, effectively became an adverse witness against him, thereby depriving him of the effective assistance of counsel. The dissent agrees with this proposition, asserting that defense counsel violated the advocate-witness rule (see, DR 5-102 [b] [22 NYCRR 1200.21 (b)]), which precludes an attorney from representing a client if she will be called to testify as a witness against her client. This violation of the advocate-witness rule, it is alleged, injected defense counsel’s credibility into the case and destroyed the credibility of defendant’s primary witnesses. Contrary to the position of defendant and the dissent, there was no violation of the advocate-witness rule under the circumstances presented and certainly no basis for a finding of ineffective assistance of counsel. In reaching this conclusion, we begin our analysis with the decision of the Supreme Court of Illinois in People v Beals (162 Ill 2d 497, 643 NE2d 789). In Beals, the defendant was convicted of murder and aggravated battery in connection with a drive-by shooting. Shortly before the shooting, the six-year-old deceased victim and his mother (who was also shot) were walking on the street when they encountered the defendant — 95 — and another man, Steven Johnson, arguing on the sidewalk. The argument apparently related to a territorial dispute over who could sell drugs in the neighborhood. The defendant returned briefly to his apartment and then drove past the location, firing his weapon from the car. The gunman (defendant) was described by the decedent’s mother and an eyewitness as being between five feet, nine inches and six feet tall, and wearing a red and white jacket both at the time of the argument and at the time of the shooting. The defendant’s theory at trial was that the victims were shot by an unidentified gunman. In support of this theory, defendant offered the testimony of two friends, Sidney Cobb and Norman Yancy. Cobb testified that he was in the defendant’s apartment shortly before the shooting. The defendant, according to Cobb, left the apartment to speak to Johnson and then returned for his red and white Adidas jacket. When defendant left again, he was not armed. Cobb testified that he then left the apartment and saw a man wearing a blue jogging suit fire shots towards defendant, who was in his car, and then run into an alley. Yancy testified that he saw two men arguing from his house across the street. Shortly thereafter, he saw a light-skinned man wearing a blue and black outfit shooting a gun. The shooter, it was alleged, then escaped in a car that drove into the alley to pick him up. On cross-examination, Yancy denied that he previously described the shooter as a 20-to-30-year-old man, six feet, five inches tall and light-skinned. Both Cobb and Yancy testified that they had previously told the defendant’s attorney what they had seen. On the People’s rebuttal case, “[t]he parties first stipulated that Yancy told defense counsel during a meeting in defense counsel’s office in April 1989, at which defendant’s sister was present, that the driver of the car that picked up the shooter was light-skinned, thin, 20 to 30 years old and approximately 6 feet 5 inches tall. The State and defense counsel also stipulated that Cobb told defense counsel that the defendant wore his red and white Adidas jacket during his argument with Johnson. In surrebuttal, defendant testified that he did not wear the jacket during his argument with Johnson” (id. at 503, at 792-793). Reversing the defendant’s conviction, the intermediate appellate court enunciated the identical argument made by defendant and the dissent in this case, stating: — 96 — “The stipulation entered into in the instant case * * * cannot be considered trial strategy since it destroyed the credibility of the defense. Trial counsel personally testified by way of stipulation against his own client. Counsel testified to critical information impeaching two key defense witnesses, Norman Yancy and Sidney Cobb, thereby destroying the credibility of the only witnesses to corroborate defendant’s version of events” (248 Ill App 3d 19, 24-25, 618 NE2d 273, 277). The Illinois Supreme Court reversed the intermediate appellate court and reinstated the conviction, concluding that: “defense counsel’s decision to stipulate to Cobb’s and Yancy’s prior inconsistent statements was clearly a strategic move aimed at minimizing the prejudicial effect of those statements. Had counsel not entered into the disputed stipulations, the State could have introduced Cobb’s and Yancy’s prior statements in another manner * * * In sum, the defendant has failed to overcome the ‘strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance.’ [citation omitted]” (162 Ill 2d 497, 505-506, 643 NE2d 789, 794). Similarly, the Supreme Court of Connecticut in State v Crespo (246 Conn 665, 691, 718 A2d 925, 939, cert denied 525 US 1125) stated that “[t]he use of a stipulation rather than an attorney’s testimony has been accepted as a legitimate trial strategy when the information in the stipulation otherwise could have been presented by the prosecution, but the use of the stipulation was strategically preferable.” Consistent with Beals and Crespo, our own Court of Appeals, in People v Baldi (54 NY2d 137), has also indicated that a defense counsel’s testimony, even if facially adverse to his client, does not necessarily give rise to a claim of ineffective assistance of counsel or a violation of the advocate-witness rule. In Baldi, the defendant was convicted in separate trials of the attempted murder of a police officer and an unrelated stabbing murder. At his trial concerning the police officer, the defendant took the stand and denied the events testified to by the arresting officer. His attorney, however, took the witness stand and testified to two police interviews at which he was present. Seeking to establish an insanity defense, defense counsel contradicted his client and then recounted, inter alia, how defendant had previously confessed, in a trance-like state, to the murder — 97 — of four women and the assault of 10 other women. On appeal, the defendant asserted that he was denied the effective assistance of counsel when his attorney failed to pursue his claim of innocence and testified against him at his own trial. Finding that the defendant’s claim lacked merit, the Court of Appeals stated: “[Defense counsel] taking the stand was consistent with and strengthened the insanity defense * * * True, [defense counsel] contradicted his client, but did so for a proper purpose — the establishment of the insanity defense. Nor was there impropriety in [defense counsel’s] remarks in summation, during which he understandably declined to vouch for bis client’s credibility, but argued the weaknesses in the State’s case and emphasized defendant’s insanity” (id. at 148-149 [emphasis added]). The Court also pointed out that, although defense counsel testified at his client’s trial, this did not, under the circumstances presented, constitute a violation of the advocate-witness rule (id. at 149 n 1; see also, DR 5-101, 5-102 [22 NYCRR 1200.20, 1200.21]). What emerges from Beals, Crespo, and Baldi is that a defense attorney’s stipulation (or even testimony) to facts facially adverse to his client does not ipso facto constitute ineffective assistance of counsel or a violation of the advocate-witness rule. Rather, the determinative consideration is whether counsel’s decision to stipulate to certain facts could be viewed as part of a legitimate defense strategy — a strategy that a “reasonably competent attorney” might have pursued under similar circumstances (see, People v Satterfield, 66 NY2d 796, 799). Judged against this standard, defense counsel’s decision to enter into the stipulation in this case cannot be viewed as a basis for reversal. Here, the central flaw alleged by the dissent was defense counsel’s failure to withdraw from her representation of defendant.1 Contrary to the dissent’s contention, however, this was hardly a desirable outcome from defendant’s perspective. If defense counsel withdrew, and another attorney was — 98 — substituted in her place, there was a distinct possibility that she would be called by the People to rebut the testimony of Santiago and Torres either in the trial at hand, or, in the more likely event of a mistrial, at the retrial of the criminal action (see, People v Knight, 80 NY2d 845; see also, People v Tillman, 179 AD2d 886). If this scenario had in fact occurred, defense counsel’s testimony would have been far more damaging than her limited stipulation, which only indicated that the witnesses had not told her about the alibi before trial. As noted, during colloquy with the court, defense counsel represented that she interviewed Santiago and Torres and asked them whether they could pinpoint defendant’s whereabouts on the date of the murder. They specifically told her that they could not. If called as a witness, this testimony, which would surely have been elicited by the People, would have undermined far more of the witnesses’ testimony than the limited portion addressed by the stipulation. What therefore evolves is that defense counsel’s decision to stipulate appears to have been a legitimate tactic designed to minimize the potential damage to defendant’s case, and may very well have been the preferred method to deal with the witnesses’ perjury under the circumstances. It follows that defendant has failed to meet his burden of demonstrating the absence of strategic or other legitimate explanations for counsel’s conduct. Turning to defendant’s claim that Supreme Court was required to obtain his consent before the stipulation was read into evidence, this claim is likewise without merit. “[A] defendant who has a lawyer relegates control of much of the case to the lawyer except as to certain fundamental decisions reserved to the client,” such as deciding whether to plead guilty, whether to waive a jury trial, whether to testify at trial, and whether to take an appeal (People v Ferguson, 67 NY2d 383, 390). Here, the determination as to how to deal best with the witnesses’ perjury did not fall into the limited class of fundamental decisions requiring defendant’s consent (see, People v Ferguson, supra; People v Barnes, 249 AD2d 227, lv denied 92 NY2d 893; People v McCaskell, 217 AD2d 527, lv denied 87 NY2d 848; see also, People v Rodriguez, 95 NY2d 497, 502 [a defense counsel, “by reason of training and experience, is entrusted with sifting out weak arguments, charting strategy and making day-to-day — 99 — decisions over the course of the proceedings”]).2 In any event, even if the court should have sought defendant’s consent to the use of the stipulation (because of an alleged conflict of interest between himself and his counsel), reversal of his conviction would still not be required. “[D]efendant overlooks the well-established principle that the mere existence of a conflict or potential conflict * * * does not automatically result in the reversal of a conviction * * * Rather, in order to establish that reversible error occurred, defendant must show that ‘ “the conduct of his defense was in fact affected by the operation of the conflict of interest” ’ ” (People v Allen, 88 NY2d 831, 832 [citations omitted]). Defendant cannot show such an effect because he never had a right to have the jury consider the perjured testimony in the first instance (see, Nix v Whiteside, 475 US 157). Finally, defendant has failed to demonstrate that he suffered any prejudice, as that term is defined under either the Federal or State Constitution (see generally, People v Benevento, 91 NY2d 708, 713-714 [discussing the differing standards]), for purposes of sustaining an ineffective counsel claim. The evidence against defendant was overwhelming. Not only did two witnesses see defendant commit the crime in broad daylight, but one of them, Lopez, knew defendant well, having seen him daily for several months. Additionally, the description given by these witnesses accurately matched defendant, who had unique yellow-green eyes. While the defense witnesses sought to establish that defendant had orange hair at the time of the murder and for several years prior thereto, the credibility of that testimony was destroyed by the photograph of defendant taken just months before the crime, which plainly showed that he had dark hair. — 100 — As to defense counsel’s failure to pursue or argue an alibi defense, this did not result, as the dissent contends, from a conflict of interest, incompetence of counsel, or from an imprudent decision to enter into the subject stipulation. From the inception of trial, defense counsel stated that she was presenting a defense of mistaken identification, not an alibi. It is apparent that this decision was the result of her pretrial interviews with defendant and the witnesses, none of whom could state where defendant was on the date of the murder. While the witnesses testified to the contrary at trial, defense counsel may very well have felt bound by her ethical obligation to avoid using perjured testimony, which belief, on this record, was well-founded. In sum, it was defendant’s burden to establish the absence of a strategic or legitimate explanation for defense counsel’s decision to enter into the subject stipulation. Since there is at least one very legitimate explanation supporting counsel’s decision, defendant has failed to meet his burden. We have examined defendant’s remaining contentions and find them to be without merit. Accordingly, the judgment of the Supreme Court, Bronx County (Peter Benitez, J.), rendered August 1, 1997, convicting defendant, after a jury trial, of murder in the second degree, should be affirmed. Footnotes [1] Although the dissent asserts that the possibility of withdrawal was not considered by the court or counsel, this is belied by the record. The court specifically broached the topic when it indicated that the stipulation could avoid the undesirable possibility of counsel becoming a witness for the People. Thus, it is apparent that everyone recognized the difficulty that the witnesses’ perjury was creating from an ethical and procedural standpoint. [2] We also note that, contrary to the dissent’s contention, defendant’s very brief absence from the courtroom during some of the colloquy between counsel and the court regarding the perjurious testimony does not support reversal of his conviction (see, People v Keen, 94 NY2d 533, 539; see also, People v DePallo, supra [defendant’s presence for discussion concerning anticipated perjury not required]). In any event, at the time of defendant’s absence, the court specifically stated that it would make no ruling on the issues before it until defense counsel had an opportunity to speak with defendant in the presence of the interpreter. We can therefore presume that defense counsel did consult her client. To the extent that defendant contends to the contrary, such a contention is dehors the record and can only be established by developing the record in post-conviction proceedings, not on direct appeal (People v Gil, 285 AD2d 7).