People v. Baldi

76 A.D.2d 259, 429 N.Y.S.2d 677, 1980 N.Y. App. Div. LEXIS 11754

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 16, 1980
• Status: Published

Opinions

OPINION OF THE COURT

Lazer, J.

At about 3:30 a.m. on June 17, 1972, Deborah Januszko, a girl of 15, was brutally knifed in the chest while sleeping in her ground floor bedroom. Before expiring, the girl told her parents (who had rushed to the room in response to her scream) that the assailant had stabbed her through an open window. Four days later, Joseph Baldi was arrested for the crime and allegedly re-enacted the murder three times at the police precinct house and a fourth time at the scene of the crime itself. It was shortly discovered that Baldi was being sought in connection with an existing indictment for attempted murder and some lesser crimes, that he had been adjudicated incompetent to stand trial on that indictment, and that following confinement to various mental institutions, he had been released in February of 1972 without the sanction of law enforcement authorities. Two weeks after the arrest for the Januszko slaying, the defendant’s appointed attorney agreed to the delivery of his client to the District Attorney’s office for further interrogation. During the course of two examinations at the prosecutor’s office, Baldi is said to have re-enacted numerous murders and assaults. More than two years later, after trial by jury, the defendant was convicted on his earlier indictment. At a bench trial which followed, he was convicted of murder.

On this consolidated appeal from both judgments of conviction, defendant raises two issues: (1) that his sanity was not established beyond a reasonable doubt; and (2) that he was deprived of the effective assistance of counsel. The latter issue not only implicates the standard or standards under which claims of ineffective assistance of counsel must be evaluated in this State, but it also compels us to examine how such claims are affected by considerations of trial strategy. Ultimately, we must decide the relationship between the harmless error doctrine and proof of ineffective assistance of counsel.

I

The first of the judgments appealed stems from events which occurred in Woodhaven in Queens County during the predawn hours of September 5, 1971. The defendant originally was apprehended when two police officers, searching for a prowler, came upon him walking the street in dark clothes. When asked for identification, Baldi allegedly responded by attempting to shoot one of the officers. The gun having misfired, the policemen wrestled the six-foot four-inch defendant to the ground, disarmed him, and discovered that he possessed an automobile license, registration, and Social Security card in the name of Anna Heeseman. Awakened by the police, Mrs. Heeseman related that before retiring she placed her purse containing the three documents on the dining room table next to a closed window. Not only was the purse missing, but the window was open and the table cloth had been pulled the length of the table toward it.

The defendant was indicted for attempted murder, reckless endangerment in the first degree, burglary in the second degree, possession of weapons, etc., as a felony, criminal possession of stolen property in the third degree, and petit larceny, but after being jailed for 10 days and confined at the Kings County State Hospital for six to seven weeks, he was adjudicated incompetent to stand trial. Further successive confinements in two other mental institutions terminated with the defendant’s release by Mental Hygiene officials in February, 1972, without notice to the proper authorities.¹

Upon Baldi’s arrest for the Januszko murder in June, 1972, he was questioned at the 16th District Precinct house by Detective Angelo Lamardo in the presence of two other detectives. According to testimony adduced at the ensuing trials, after telling the detectives that he had "cut” a girl and upon receiving assurances that he would not be harmed, the defendant picked up an imaginary object which appeared to be a square box on the floor in front of a mirror, made a climbing motion as though he were stepping up on it, raised his hands to the mirror and started feeling it with his hands. He then drew a second imaginary object from his pocket, raised his hand in the air, made a sudden stabbing motion, and, after wiping the object with his fingers, returned it to his pocket. The performance concluded with the defendant’s collapse to the floor, but after a brief respite, he re-enacted the crime twice more. On the last occasion (which was tape-recorded) the defendant described the specifics of Deborah Januszko’s room and what she was wearing when stabbed. Driven to the area of the crime, the defendant picked up and carried an imaginary box to the Januszko house, placed it next to a window in the alleyway, and appeared to re-enact the details of the crime.

The next day, while at Kings County State Hospital, Baldi received his first visit from the attorney appointed to represent him in connection with the Januszko charge and who subsequently defended him against the earlier indictment as well. Following this meeting, the attorney consented to the entry of a court order directing that his client be delivered to the District Attorney’s office "for the purpose of cooperating with District Attorney’s Office in connection with pending investigations.” On July 7, 1972 the defendant was transported to the District Attorney’s office where his counsel, Detective Lamardo, a number of other detectives, and a psychiatrist from Creedmoor State Hospital were present. When the attorney introduced himself to Baldi, the latter denied ever meeting him and had no recollection of their brief encounter at Kings County State Hospital. During the next several hours—which were tape-recorded—the defendant gave a detailed re-enactment of at least four murders, including that of Deborah Januszko. On July 14, 1972, the defendant again was taken to the District Attorney’s office and, in the presence of his lawyer, Detective Lamardo, and Dr. Daniel Schwartz, director of forensic psychiatry at Kings County Hospital, gave further statements concerning the murders. Indictments for the four killings quickly followed.

II

In April of 1973, Baldi was arraigned on the attempted murder indictment and on the four murder indictments. The psychiatric report rendered pursuant to CPL 730.30 concluded that the defendant was suffering from an unspecified personality disorder but that he did not lack the capacity to understand the trial proceedings or make his defense. These findings were accepted by defense counsel without a hearing and the defendant pleaded not guilty and raised the defense of insanity with reference to all of the indictments. In December of 1973, the defendant was remanded for further psychiatric examinations to determine his sanity at the time of the attempted murder. Although the record is somewhat obscure on this point, it seems to indicate that the resultant findings of sanity, rendered in January, 1974, were accepted solely to the extent that the defendant was found capable of standing trial. No hearing on the issue was demanded or conducted.

Prior to the onset of the defendant’s trial in October, 1974 on the charge of attempted murder, another psychiatric examination was ordered and again the conclusion that the defendant was competent to stand trial was accepted by defense counsel without a hearing. The evidence presented by the prosecution included the police officers’ description of their street encounter with the defendant and Mrs. Heeseman’s description of her conduct before retiring for bed and her discovery when she awoke.

Testifying in his own defense, Baldi first described his own extensive history of mental illness, including commitment to Creedmoor State Hospital from 1962 to 1966. He denied pointing a gun at the policeman, however, asserting that he was wrestled down from the rear and that the only weapon in his possession was a "22 starting pistol” capable of firing "caps”. Although the defendant acknowledged the presence of the Heeseman documents in his pocket, he explained that he had found them on the curb about a half block from where he was subsequently stopped and that he had intended to put them in a mailbox for return to the owner. The following questions were then put to the defendant by his own attorney:

"Q Did you on September 20, 1970, a year before you were arrested in this case, stab and kill Areti Koularmanis at 144-06 88th Avenue?

"A No. * * *

"Q Would it help you remember that you did it if I tell you that you told us you did it?

"A No.

"Q Would it help you remember if I told you that you showed us and moved about and re-did it again in front of our eyes? Would that help bring it to your mind?

"mr. gaudelli [Assistant District Attorney]: Object to this, Your Honor.

"the court: No; let him answer it.

"Q Did you, on January 10, 1970, almost two years before this case, stab Angela Córtese at 107-40 132nd Street?

"mr. gaudelli: Objection; asked and answered.

"the court: No; overruled.

"Q Would it help you to remember if I told you that you told the police that you had done that?

"Q Did you on January 16, 1970, only six days later, stab Sheila Plaks in her neck at 139-18 48th Drive? Did you do that?

"Q If I told you that you told the police that you did that—

"Q — would you remember it then?

"Q Did you on February 6, 1971, at 101-51 118th Street shoot Margie Sailer with a pellet gun, in the face?

"Q If I told you that you told that to the police, would that help„you remember that you did it?

"Q Did you on June 3, 1971, at 107-41 120th Street shoot Marie Fraga with pellets in her face?

"Q If I told you that you also told that to the police, would that help you remember?

"A No.”

At this point the prosecutor’s objection to the line of questioning was overruled on the ground that the defendant was entitled to leeway because of the insanity defense and because psychiatrists were to be called to testify as to these "admissions” by the defendant. The interrogation was resumed with counsel asking his client whether he had wounded Rose Conway with a knife in her apartment on June 9, 1971; shot Joan Meinick in the chest on June 16, 1971; hacked Fusako Watanado across her face and hands on July 26, 1971; stabbed Christine Mroz in the throat and hit her in the head with a cement block on August 23, 1971; stabbed and killed Camile Perniola on March 19, 1972; stabbed Clara Torriello four times in her neck and chest killing her on April 13, 1972; stabbed Elena Farnandez in the throat on June 13, 1972; stabbed Wilma Jung in her bed on June 15, 1972; and, finally, stabbed Deborah Januszko in her chest and killed her on June 17, 1972. In each case, the question included the address of the crime and was followed by a further inquiry as to whether it would assist the defendant in remembering if counsel told him that defendant had either stated that he committed the crime or had re-enacted it. Each inquiry received a negative response from the defendant.

The total number of persons mentioned in this direct examination as murdered or maimed was 14.

At the end of Baldi’s testimony, defense counsel told the court (out of the jury’s presence) that he intended to testify as a witness himself both because his other witnesses, Dr. Harry A. La Burt and Detective Lamardo, were not available, and on account of his concern that the jury might have been prejudiced by the prosecutor’s challenge to him to testify to his client’s behavior on certain occasions. Despite the court’s statement that time was not a factor, defense counsel assumed the stand and described what had occurred at the July 7, 1972 meeting at the District Attorney’s office. There is no indication in the record that the defendant consented to this testimony.

The attorney commenced by recounting the details of his initial meeting with Baldi, including the latter’s lack of response—except for grunts—to efforts to make conversation. After relating the arrangement he had made with the District Attorney "to seek to ascertain whether the defendant, Baldi, had been involved in any of the homicides which were being investigated in the area in which he had been arrested,” the witness embarked upon a lengthy and graphic description of what had taken place in a room at the prosecutor’s office when the defendant was brought there and Detective Lamardo volunteered to put the defendant back in a "catatonic state.” Lamardo showed the defendant a photograph of a young murder victim lying nude on her back wearing a yellow hair dryer hood on her head and made a lewd suggestion to him. The defendant’s reaction was to enter a trance-like state, his body sagging and his eyes becoming glassy. After touching an upper portion of the girl’s anatomy in the picture, the defendant began licking his lips and mumbling, making apparent reference to her breasts. He walked to a window and explained that he saw a woman wearing a yellow dress and a brassiere whose hair he could not see because it was covered with a yellow object. Placing an imaginary object, which he said was a chair, below the window, he stepped up to the sill, raised the blind and secured it with the same type of knot which had secured the window shade in the girl’s bedroom. The defendant then removed an imaginary knife from his pocket, pretended to cut the brassiere from the girl’s body, made caressing motions and suddenly—as the lawyer described it—he lashed out with the knife, making four stabbing gestures and grunting, following which he attempted to climb into the girl’s room where he again drew the knife. At this point, the defendant apparently cut the apparel away from the lower portion of the girl’s body, made some other gestures, closed the knife and put it away. The defendant then rummaged through the drawers of two file cabinets ("dressers”), found an imaginary pocketbook and removed from it what he said was some money. When Detective Lamardo showed the defendant pictures of other murdered girls, he proceeded to reenact more attacks while in an apparently trance-like state. Defense counsel declared that his client’s performance lasted five hours. Counsel’s description of it covers 25 pages of record.

After this testimony, the defense called Dr. La Burt, a psychiatrist, who informed the court that he had been present in the courtroom during counsel’s testimony and that the defendant was a schizophrenic mental retardee with elements of dual personality superimposed. The witness concluded that on the day of the alleged attempted murder the defendant was a schizophrenic undifferentiated type and would not have the substantial capacity to know and appreciate the nature and quality of his acts. In order to provide a basis for an opinion question concerning a possible remission in the defendant’s mental state, defense counsel recounted the numerous other crimes about which he had asked the defendant. La Burt’s response to the question was that if those were the facts it would indicate a "regression” in defendant.

In response to La Burt’s testimony, the prosecution produced another psychiatrist, Dr. Daniel Schwartz, who asserted that the defendant did not lack the substantial capacity to know or appreciate either the nature and quality of his acts or their wrongfulness. According to Schwartz, Baldi was not suffering from schizophrenia, but rather from an "adjustment reaction” to the shock of having been arrested. He further stated that the "withdrawal” exhibited by the defendant was a selective, partially voluntary one, which would be overcome within a relatively short span of time. Schwartz revealed that his diagnosis differed from that of two doctors on his staff.

During his summation, defense counsel briefly reviewed the evidence supportive of his client’s denials concerning the acts charged in the indictment. Then, he added: "Well, of course the defendant, and you heard at the outset, is under no obligation to put in a defense as to the charges, but he took the witness stand and he told you his version of that morning. I don’t take either side or vouch for his position either way. You will have to decide what the facts were of that morning.”

Counsel then added, "for whatever value you see in it,” that no fingerprints had been lifted from the gun introduced into evidence as belonging to defendant, that no notation of the incident appeared in the police officers’ memorandum books and that the officers had not mentioned any conversation as having taken place in the police car after the defendant’s arrest.

The remainder of the summation dealt with the insanity defense. Regarding the criminal behavior attributed to defendant, counsel remarked:

"[counsel]: There was testimony about action on the part of this defendant at times other than [the date of the charged attempted murder]. You have a right to consider them.

"mr. gaudelli: Objection.

"the court: The only way they could be considered would be on the question of credibility. That’s all.

"[counsel]: I take exception to that, sir. I am about to suggest to them that they have a right to consider these acts on the question of his mental condition.

"mr. gaudelli: Withdrawn.

"the court: All right.”

Referring to his own testimony, counsel said:

"Do you remember [I] testified on the witness stand objectively concerning that which was seen and heard by [me] on July 7th, 1972 in the District Attorney’s office? * * *

"We learned that this defendant has said that he did kill people. We learned that this defendant said that he stabbed other people who did not die. We learned that this defendant said that he shot people, that he hacked somebody across the face and hands, that he stabbed someone in the throat, that he hit somebody in the head with a cement block, that at least four times he killed and yet the defendant, when told that he said these things, after he had been asked, 'Did you do it?’ said 'No’ * * * but, unfortunately, he did it to someone else without knowing it”.

In its charge, the court declared that other crimes committed by the defendant which the jury had heard about could be considered solely on the question of his credibility but not to establish criminal bent. Despite the colloquys which had occurred during the trial, the instructions relative to the insanity defense contained no reference to these other crimes. Nevertheless, upon completion of the charge, defense counsel stated that he had no exceptions or further requests to make.

The jury convicted the defendant of attempted murder, burglary in the second degree, and possession of weapons. On November 25, 1974 the defendant was sentenced to concurrent terms of 8V3 to 25 years, 0 to 10 years, and 0 to 5 years, respectively.

Ill

Defendant’s bench trial for the Januszko murder followed shortly. At a Huntley hearing conducted by a Justice other than the one who was to try the case, defense counsel challenged the admissibility of statements made on the night of his arrest on June 21, 1972 and the further statements made on July 7 and 14. Counsel asserted that none of the statements were voluntary because his client was not competent when he made them and that his client had been produced on July 7 and 14 on the basis of an agreement with the District Attorney that anything said or done by the defendant at the meetings would not serve as the basis for criminal charges.

To support their position at the hearing, the People produced Detective Lamardo who testified to the June 21 and July 7 re-enactments and the July 14 statements. During his testimony, the relevant tape recordings were admitted into evidence by offer of the District Attorney joined by defense counsel and played in open court.

The People then called Dr. Schwartz, who testified that it was his opinion, based on his knowledge of the circumstances of the case and personal examination, that the defendant’s statements and re-enactments while in a trance-like state were voluntary. He further testified that on July 14, 1972, when he examined the defendant while in a state of trance, there was no evidence of psychosis or mental illness that would have prevented him from understanding and appreciating what he was doing.

In cross-examining Schwartz, defense counsel sought to establish that the defendant was suffering from some type of mental imbalance, denominated as either schizophrenia or hysterical personality. Counsel explained to the court that his questioning was designed to prove that the defendant, when he went into a trance, "was no longer the same person who had gone into it” and that the defendant no longer had voluntary control over his thinking.

Nevertheless, despite the fact that only a short time before the Huntley hearing—at the attempted murder trial—Dr. La Burt had testified that any statements made by Baldi at the District Attorney’s office were suspect because he was not in full possession of his faculties, the defense offered no expert testimony at the Huntley hearing to refute Schwartz’ conclusions or to establish that the confessions at the precinct house or elsewhere were not knowingly made. Instead, defense counsel took the stand and posited that from his knowledge of Baldi up to July 7 he believed that the man had not made a conscious or intelligent statement to the detectives at the time of his arrest. Defense counsel declared that he believed, as did the Assistant District Attorney in charge of the homicide bureau, that if the defendant could be induced to enter a trance-like state again what transpired might assist in solving numerous homicides which were similar to the one re-enacted at the station house on June 21. Therefore, he and the Assistant District Attorney had agreed that the defendant was so insane that he would never be tried and that they would attempt to have him committed to a mental institution for the rest of his life.

On cross-examination, defense counsel responded to a question concerning his consent to Baldi’s July 7 production as follows: "A. I did not even look at the applications to the Court. I did look at—when Mr. Nicolosi brought it to me in the corridor of this building on July 5th—this single paragraph consent, wherein I signed a consent to an order of the Supreme Court to bring Baldi on Friday, July 7th, for the purpose of cooperating with the District Attorney’s office in connection with pending investigations. That was the only paper I saw. It set forth what I was willing to do after my agreement with Mr. Nicolosi and I signed it.”

Later in the course of cross-examination the following colloquy occurred:

"the court: At that time you represented the defendant in only one matter; is that right?

"[counsel]: That was the only one I knew of, the Januszko case, in which he had allegedly spoken to Detective Lamardo. * * *

"the court: The other matters, the other three—there was no discussion—you were not representing him, rather, at the time?

"[counsel]: No, no. They first came into being after the July 7th incident.

"the court: You were not appointed by the Court or retained by the defendant?

"[counsel]: No, sir.

"the court: At most we could say you were acting as a friend of the court?

"[counsel]: That’s right, and by agreement with the D.A.

"the court: Or were you there to prevent anything being said by this defendant involving him—

"[counsel]: No, and that wasn’t it. * * *

"the court: Did you—did you ever speak to this defendant and inform him of the nature of the interrogation that was contemplated?

"[counsel]: No; we did not know what was contemplated except that we anticipated he might be put into a trance. * * *

"the court: [Counsel], at that time did you not know that the District Attorney’s Office and the Homicide Bureau—the detectives were trying to resolve the deaths of three women where they believed the defendant may have been involved?

"[counsel]: Yes.”

In a colloquy at the end of the hearing, the court made it clear that the sole issue for determination was the factual one concerning the prosecutor’s alleged agreement to refrain from using the defendant’s admissions if he was produced for interrogation. The claim that defendant’s statements were involuntary because of his incompetence to make them quite obviously was rejected for lack of proof:

"the court: * * * [N]ever mind about the hypnotic state; never mind about the claim of insanity because a competent doctor testified as to the sanity of the defendant. * * *

"the court [in response to the prosecutor’s argument]: And that the insanity issue is not before the Court, the Court will agree with you”.

In a written decision which followed, the Huntley court again relied upon the psychiatric testimony adduced by the People that the defendant knew and understood what he was doing and was not mentally ill while interrogated in a trance. Although the court concluded that "the statements and admissions were voluntarily made, and the defendant was competent at the time they were made,” it resorted to other constitutional criteria to suppress the re-enactments and statements about the additional three murders. The Huntley court carefully avoided making any determination as to whether the prosecutor actually had made the alleged promise not to prosecute. After reviewing the totally contradictory contentions relative to the existence of such a promise, the court declared:

"It is the opinion of this Court, with respect to indictment numbers [those referring to the three other murders], that the defendant’s attorney relied upon his understanding of the arrangement made with the Assistant District Attorney and allowed his client to be subjected to interrogation. The attorney, an expert in criminal matters, did not consult with the defendant as to the risks involved in this procedure as he was convinced of the defendant’s insanity.

"Under the circumstances it would be a breach and violation of defendant’s constitutional rights and privileges to permit these statements and admissions in evidence. The Court grants the motion to suppress as to the statements and admissions made by the defendant in connection with [the] indictments [relating to the three other murders].” (Emphasis supplied.)

Thus, while the invasion of defendant’s constitutional right to remain silent resulted in suppression of the statements concerning three of the four murders, his statements about the Januszko murder were not suppressed at all.

The formal trial of the Januszko case began with a description of the events of the morning of June 17, 1972 by the deceased’s mother and the testimony of neighbors and policemen who saw a metal mailbox in the Januszko alleyway beneath the opened window after the murder. Detective Lamardo detailed the unsuppressed re-enactments at the precinct house, and a tape recording of one of those re-enactments was introduced in evidence.

After the prosecution rested, the defendant again took the stand in his own behalf and recounted his four-year commitment to Creedmoor State Hospital from 1962 to 1966. As to the crime itself, he denied that he killed Deborah Januszko, re-enacted her murder, or recognized the voice on the tape recording. On redirect examination, his attorney asked, inter alia, the following questions:

"Q Do you remember me telling you that you had gone through a lot of actions, motions, did things showing that you entered buildings, stabbed girls? Remember me telling you about that?

"A Yes. * * *

"Q Now, there were several times when I discussed with you and told you that you had either relived or reenacted, as I put it to you, some of these killings while you were in what I called a trance-like state? Do you remember me telling you about that?

"Q Do you recall having a conversation with me on more than one occasion in which I spoke to you about the fact that you had in these trance-like states, as I put it to you, indicated that you killed somebody even in 1971 by stabbing? You remember me telling you that?

"A Yes.

"Q And that was even before you were sent away to Mid-Hudson from Kings County; do you recall that?

"Q Well, did you at any time while you were up in Mid-Hudson or when you came down from Mid-Hudson to Creed-moor—did you at that time while in custody say anything to anybody about having killed somebody before that?

"Q Did you know that you had killed somebody?

When Baldi had finished, defense counsel took the stand, but on this occasion, the court inquired as to whether he had discussed with his client what he was about to do. After answering in the affirmative, the attorney proceeded to describe the events of the July 7 meeting, telling the court that the defendant went into a trance when he saw a picture of a naked woman and that he had re-enacted "stabbings of different girls in different areas”. On being cross-examined, the defense counsel declared that his client "had shown us instances of at least three or four killings that he had done by stabbing on different times.”

The defense then called Dr. La Burt who testified that the defendant suffered from an hysterical personality of the dissociative type and that under extreme pressure such a person experiences a personality change and becomes in effect someone else. According to Dr. La Burt, Baldi’s intense concentration on the female breast might trigger such a personality change. The witness concluded-that on the day of the alleged murder the defendant was in a dissociative state and would not have the substantial capacity to know and appreciate the nature and quality of his acts.

In rebuttal of La Burt’s testimony, the prosecution called Dr. Schwartz, who asserted that while it was clear the defendant was suffering from a mental illness, he did not suffer from the personality disorder associated with classic hysterical neurosis. According to Schwartz, Baldi had shown some tendencies to retreat into another personality under times of great stress, but the retreat was voluntary as opposed to involuntary retreat of an hysterical neurotic. To support this hypothesis, the witness explained that the defendant had the ability to move back and forth at will from a normal to abnormal state, and that such a condition is not characteristic of a true dual personality. Moreover, while in the abnormal state the defendant was never truly reliving past events but merely remembering them. Schwartz believed that Baldi did not lack substantial capacity to know or appreciate either the nature and quality of his acts or their wrongfulness. On this cross-examination, however, it was revealed not only that he had contradicted the diagnosis of other members of his staff, but that he had himself once diagnosed the defendant as "probably hysterical personality dissociative type”.

The trial court found that the People had sustained their burden of establishing beyond a reasonable doubt that the defendant was sane at the time of the crime and that the defendant was guilty of the murder of Deborah Januszko (see People v Baldi, 80 Mise 2d 118). His sentence, imposed on January 16, 1975, was 25 years to life imprisonment.

IV

Baldi’s attack upon his convictions commences with a challenge to the triers’ conclusions as to his sanity. Whether the defendant knew it was wrong to commit the acts for which he was charged was a question for the respective triers of fact who had the right to accept or reject the opinion of either psychiatrist (People v Wood, 12 NY2d 69; People v Sherwood, 271 NY 427; People v Whitted, 67 AD2d 736; People v Buthy, 38 AD2d 10). Both in People v Wood (supra, at p 77) and in People v Horton (308 NY 1, 12), the Court of Appeals declared that: "if the record in its entirety presents a fair conflict in the evidence, or if conflicting inferences can properly be drawn from it, '* * * the determination of the jury will not be interfered with, unless it is clearly against the weight of evidence, or appears to have been influenced by passion, prejudice, mistake or corruption.’ (People v. Taylor, 138 N. Y. 398, 405.)”

Nothing in either trial warrants departure from this general rule. It is true that the antithetical considerations presented to the triers of fact could have led to verdicts in either direction, but there was sufficient evidence to reject the insanity defense if the triers believed Dr. Schwartz’ theory that Baldi’s apparent retreats into another personality were voluntary. Accordingly, the triers’ verdicts as to both guilt and sanity have factual support in the record. Were we not reversing on constitutional considerations, both verdicts would stand.

V

We turn, then, to defendant’s plaint that he was deprived of his constitutional right to effective assistance of counsel. The initial assertion in this respect is that counsel’s assumption of a witness role constituted a per se deprivation of assistance of counsel. The issue is scarcely novel since the per se rule had its apparent origin in 1846,² but over the years the question of trial lawyer testimony has evolved from an exclusionary rule of evidence to a matter of ethical conduct. The Canons of Professional Ethics adopted by the American Bar Association in 1908 contained canon 19 to the effect that a lawyer who served a client both as advocate and witness acted with professional impropriety. Canon 19 remained unaltered until the promulgation of the ABA’s Code of Professional Responsibility in 1969, adopted with some modification by the New York State Bar Association. Disciplinary Rule 5-102(A) of the code provides that if the "lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101 (B) (1) through (4)” (See North Shore Neurosurgical Group v Leivy, 72 AD2d 598; Gasoline Expwy v Sun Oil Co. of Pa., 64 AD2d 647; Tru-Bite Labs v Ashman, 54 AD2d 345). Ethical Consideration 5-9 of the code states that "the roles of an advocate and of a witness are inconsistent”.

The code’s ethical strictures do not have the status of decisional or statutory law (Matter of Weinstock, 40 NY2d 1, 6; see People v La Carruba, 46 NY2d 658), however, nor do they constitute rules of evidence. Indeed, according to Informal Opinion No. 339 (Nov. 16, 1974) of the Committee on Professional Ethics of the ABA, DR 5-101(B) and 5-102(A) are not per se rules which require a literal reading, and their application necessarily depends "upon the attending facts” in each case.

The cases cited by the defendant (see People v Kennedy, 22 NY2d 280; People v Rozzell, 20 NY2d 712; People v McGrath, 31 AD2d 944) involved defendants seeking to withdraw guilty pleas because their defense lawyers were required by the court to assume positions antagonistic to their clients. In each case, reversal was compelled not by the per se assumption of the witness role but by the content of the testimony which pitted the attorney against his client.

The weight of authority here and elsewhere establishes that a lawyer trying a case is not incompetent to testify during it and the admission of his testimony is not reversible error per se (see, e.g., People v Tait, 234 App Div 433, affd 259 NY 599; Hughes v Sullivan Co., 261 App Div 39; Renault, Inc. v Auto Imports, 39 Misc 2d 25, affd 19 AD2d 814; Wolk v Wolk, 70 Misc 2d 620; United States v Fiorillo, 376 F2d 180; United States v Buckhanon, 505 F2d 1079; Lau Ah Yew v Dulles, 257 F2d 744; State v Blake, 157 Con 99; Commonwealth v Rondeau, — Mass —, 392 NE2d 1001; State v Sullivan, 60 Wn 2d 214; Defense Attorney As Witness For His Client in State Criminal Case, Ann. 52 ALR3d 887; Fisch, New York Evidence [2d ed], § 307; 2 Wharton’s Criminal Evidence [13th ed], § 364). Thus, instant counsel did not per se deprive his client of the effective assistance of counsel when he ascended to the witness chair.

VI

The crux of the ineffective assistance issue is whether defense counsel’s conduct of his client’s defenses so transgressed constitutional standards for effective representation as to compel reversal of one or both convictions. The traditional rule, of course, is whether the attorney’s performance, or lack of it, rendered the trial a " 'farce and a mockery of justice’ ” (People v Bennett, 29 NY2d 462, 467; People v Tomaselli, 7 NY2d 350; People v Brown, 7 NY2d 359, cert den 365 US 821). The farce and mockery standard, with its genesis in the Federal system (see United States v Wight, 176 F2d 376, cert den 338 US 950; Diggs v Welch, 148 F2d 667, cert den 325 US 889)³ is derived from the due process clause of the Fifth and Fourteenth Amendments and tests the fundamental fairness of the trial as a whole (see Diggs v Welch, supra; Gideon v Wainwright, 372 US 335, overruling Betts v Brady, 316 US ; Cooper v Fitzharris, 586 F2d 1325, 1328, cert den 440 US 974; Marzullo v State of Maryland, 561 F2d 540, 542, cert den 435 US 1011; People v Pope, 23 Cal 3d 412, 422). At its origin as a constitutional issue, assistance of counsel required an effective appointment (see Powell v Alabama, 287 US 45, 71) rather than an effective defense (see, e.g., Reece v Georgia, 350 US 85; Glasser v United States, 315 US 60). Subsequent analysis, however, transformed the focus to evaluation of the fairness of the trial as a whole as it appeared from the record and whether the trial and the conviction were rendered a farce and a mockery of justice by the performance of counsel (see, e.g., Cooper v Fitzharris, supra, pp 1328-1329; People v Pope, supra, p 423; see, generally, Tague, The Attempt to Improve Criminal Defense Representation, 15 Am Crim L Rev 109, 113-115).

The due process standard is an inherently subjective one since it can only be applied on a case-by-case weighing of the cumulative effect of a variety of prejudicial circumstances on the totality of the trial. Then, depending upon the visceral balance of the particular Judges, the appellate determination may be tipped in favor of reversal on mockery of justice grounds (see, e.g., United States ex rel. Marcelin v Mancusi, 462 F2d 36, cert den 410 US 917, where both majority and dissenter agreed on the mockery standard but arrived at contradictory conclusions; see, generally, Note, Ineffective Representation as a Basis for Relief from Conviction: Principles for Appellate Review, 13 Col JL & Soc Prob 1, 32-37). As stated by the Sixth Circuit in Beasley v United States (491 F2d 687, 692): "The phrase 'farce and mockery’ has no obvious intrinsic meaning. What may appear a 'farce’ to one court may seem a humdrum proceeding to another. The meaning of the Sixth Amendment does not, of course, vary with the sensibilities and subjective judgments of various courts. The law demands objective explanation, so as to ensure the even dispensation of justice.”

VII

The emergent rule—"reasonable competence”—had its apparent origin in 1970 in a dictum in McMann v Richardson (397 US 759, 771), where the United States Supreme Court noted that the initial inquiry as to the competence of counsel’s advice to plead guilty should focus upon whether it was "within the range of competence demanded of attorneys in criminal cases.”⁴ McMann was perceived as a rejection of the farce and mockery standard because it shifted the emphasis to the defendant’s rights under the Sixth Amendment where the assistance—and therefore the performance—of counsel is the criterion. The analysis was thus extended beyond the fundamental fairness of the trial as a whole and the issue was converted to the conduct of counsel at all relevant phases of the criminal process, whether at trial or at pre- or posttrial proceedings (see Cooper v Fitzharris, 586 F2d, at p 1329; People v Pope, 23 Cal 3d, at p 423; see, also, Note, Ineffective Representation, 13 Col JL & Soc Prob 1, 41-45). Under the Sixth Amendment, "[o]ne may receive ineffective assistance of counsel even though the proceedings have not been a farce or mockery” (Herring v Estelle, 491 F2d 125, 128, reh den 493 F2d 664).

The reasonable competence standard has been said to demand the reasonably competent assistance of an attorney acting as a diligent conscientious advocate,⁵ counsel who is likely to render and does render reasonably effective assistance⁶ or whose performance is within the range of competence demanded of attorneys in criminal cases.⁷

Despite disavowal by the ABA of any intent to dictate criteria for the effective assistance of counsel (see ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function [Approved Draft, 1971], § 1.1, subd [f], p 154), the ABA Standards have been drawn upon by various courts seeking to create more specific guidelines.⁸ In a number of other jurisdictions the standards have, at least, warranted discussion in the course of the decisional process.⁹ And, in De Coster III, reliance upon a categorical list was one of the issues which divided the court.¹⁰

In any event, since McMann v Richardson (supra), farce and mockery has been abandoned by 9 of the 11 Federal appeals circuits,¹¹ as well as numerous States¹² and the District of Columbia.¹³

VIII

In this State it is apparent that the farce and mockery formulation has been supplanted by a more exacting—but undefined—test recently characterized in People v Aiken (45 NY2d 394, 398) as a "flexible framework.” Retrospective analysis makes it apparent that the shift originated in People v Bennett (29 NY2d 462, 466, supra) decided two years after the McMann decision. In Bennett, scrutiny was no longer focused upon the preventive action of the trial court (see, e.g., People v Tomaselli, 7 NY2d 350, supra; see, also, People v Lampkins, 21 NY2d 138) but rather on defense counsel’s failings in the general conduct of the defense. Bennett thus recognized that the ineffective assistance issue transcended the limits of the trial itself because the right to representation entitled a defendant "to have counsel 'conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself time for reflection and preparation for trial’ ” (People v Bennett, at p 466, quoting Coles v Peyton, 389 F2d 224, 226, cert den 393 US 849; see, also, People v La Bree, 34 NY2d 257, 260).

People v Droz (39 NY2d 457, 462) was a clearer herald of change because the issue of ineffective assistance was decided by reliance upon recognizable reasonable competence criteria without resort to "farce and mockery” terminology: "[I]t is elementary that the right to effective representation includes the right to assistance by an attorney who has taken the time to review and prepare both the law and the facts relevant to the defense (People v Bennett, supra) and who is familiar with, and able to employ at trial basic principles of criminal law and procedure (People v LaBree, 34 NY2d 257; cf. People v Jones, 25 NY2d 637). Whether counsel has adequately performed these functions is necessarily a question of degree, in which cumulative errors particularly on basic points essential to the defense, are often found to be determinative (see, e.g., People v Bennett, supra; People v LaBree, supra). ”

Finally, in People v Aiken (supra, p 398), the Court of Appeals proclaimed a lack of adherence to either competing standard: "In recent years * * * we have displayed a greater desire to avoid the confining strictures of a standard presumptively applicable to all cases. In People v Droz * * * for example, rather than measuring the quality of counsel’s representation of the defendant in terms of the 'mockery of justice’ standard, we concluded only that upon the facts of that case counsel’s omissions and errors precluded us from finding that his representation of the defendant 'was adequate or effective in any meaningful sense of the words.’ ” (See, also, People v Bell, 48 NY2d 933; People v Gonzalez, 47 NY2d 606.)

Aiken's significance transcends its dicta, however, since the court applied both standards before concluding that counsel’s performance was satisfactory. This double analysis makes it apparent that the State’s turn to Sixth Amendment criteria in the measurement of ineffectiveness of counsel has not resulted in the extinction of Fifth Amendment factors. Lest Aiken be simply read to indicate a side-by-side existence of the two competing standards, however, the obvious must be noted— the more taxing reasonable competence criterion diminishes the importance of the traditional one.¹⁴ Nevertheless, we are constrained to differ somewhat with the conclusion of our brethren in the Fourth Department that Aiken and Droz have sapped the remaining Vitality from the mockery of justice standard (see People v Wise, 64 AD2d 272; see, also, People v Smith, 61 AD2d 91, 100 [Cardamone, J., dissenting]). While we are in accord that the traditional semantic characterization is obsolete, the Fifth Amendment right to a fair trial remains a significant factor in ineffective assistance anslysis.

An inherent feature of the "flexible framework” rule enunciated in Aiken is its patent rejection of the route taken by California and other jurisdictions¹⁵ in adopting fixed lists of defense counsel duties. Although the Court of Appeals has in the past made references to the ABA Standards,¹⁶ and in People v Bell (48 NY2d 933, supra), People v Gonzalez (47 , supra), and People v Droz (39 NY2d 457, supra) mentioned several responsibilities appropriate to any gamut of lawyer duties, the declaration that the court would avoid "the confining strictures of a standard presumptively applicable to all cases” (People v Aiken, 45 NY2d, at p 398) makes it unlikely that New York will indulge a categorical inventory of lawyer obligations in the near future. More importantly, perhaps, the avoidance of fixed standards implies that mere proof of breach of duty does not suffice to establish ineffectiveness of counsel.

IX

Our review of the actual assistance rendered Baldi in connection with both sets of charges against him discloses a particular curiosity. At the Huntley hearing in the Januszko trial, defense counsel related his belief, formulated prior to the July 7 meeting at the District Attorney’s office, that his client was so insane that he never would be tried. While it may be that counsel changed his mind in the interim, it remains remarkable that the fitness findings contained in the CPL 730.30 psychiatric reports were accepted on three separate occasions without challenge and hearings were waived.

At the defendant’s first trial, defense counsel’s prejudicial examination of his client constituted nothing less than testimony from the lectern that the defendant had admitted killing or maiming 14 women. In his formal testimony from the witness box, counsel proceeded to contradict his client’s persistent denials of the commission of re-enactments of these charged and uncharged crimes and vividly described the man’s simulation of various murders and burglaries. In his summation, counsel declared that he did not vouch for his client’s version of the facts and again referred to the defendant’s other criminal acts. Although an attorney should not vouch for his client’s version of the facts (see Code of Professional Responsibility, DR 7-106[C] [4]), when the instant disclaimer and the contradiction of the client are joined, the consequence is akin to disavowal of the defendant’s personal assertions of innocent behavior.

Furthermore, during defense counsel’s description of his client’s horrifying re-enactments, no one was available to object or cross-examine him on defendant’s behalf. Such action by an attorney, who leaves his client alone at the counsel table, is given substantial weight in determinations that a defendant was deprived of his constitutional right to counsel (see, e.g., United States v Fiorillo, 376 F2d 180, 185, supra; see, also, Rice v Baron, 456 F Supp 1361; Freeman v Kuliecke & Soffa Inds., 449 F Supp 974). The long-established general rule concerning the prejudicial effect of evidence which raises the inference that a defendant is of a criminal disposition (People v Vails, 43 NY2d 364, 368; People v Fiore, 34 NY2d 81, 84; People v Dales, 309 NY 97, 101; People v Molineux, 168 NY 264) always has been concerned with prosecutorial efforts to adduce such proof. Here, the prosecutor refrained from any such effort, the defendant himself denied committing any of the crimes, but defense counsel placed the information before the jury.

We believe that the evidence of defendant’s murderous disposition was highly damaging to his defense. In People v Santarelli (49 NY2d 241, 250), the Court of Appeals forcefully referred to the prejudicial potential involved in prosecution proof of criminal conduct where the defendant’s sanity is in issue: "In deciding whether to admit evidence of prior criminal or immoral conduct in rebuttal to an insanity claim, the trial court must take special care to ensure not only that the evidence bears some articulable relation to the issue, but also that its probative value in fact warrants its admission despite the potential for prejudice. As we noted in People v Allweiss (48 NY2d 40, 47, supra): 'If the evidence is actually of slight value when compared to the possible prejudice to the accused, it should not be admitted, even though it might technically relate to some fact to be proven’ (accord McCormick, Evidence, § 190). This observation is particularly apt in cases involving the insanity defense, where virtually every fact in the accused’s life may in some sense be said to have a bearing upon the issue of his mental state. Indeed, in insanity cases such as this, the danger is particularly great that the jury will become confused by the mass of evidence presented and will decide to convict the defendant not because they find he was legally sane at the time of the act, but rather because they are convinced that he is a person of general criminal bent.”

Here, Dr. La Burt’s testimony at the first trial created no articulable relationship between the uncharged crimes and defendant’s sanity. Indeed, the defendant’s alleged admissions of these crimes were not even accepted at "face value” by La Burt, who asserted that he suspected their authenticity. If the statements were true, he declared, they represented a "regression.” At the murder trial, La Burt made no reference at all to the crimes. The lawyer’s revelations thus served primarily to establish his client’s dreadfully murderous bent.

Finally, counsel’s failure to object to the court’s charge that the evidence of the uncharged crimes related solely to credibility is mystifying since it is totally inconsistent with the proposition that the proof was submitted in order to enhance the insanity defense. Patently, the court should have been requested to charge that the defendant’s alleged admissions of other criminal conduct could be considered only on the question of his sanity at the time of the commission of the crimes charged in the indictment.¹⁷

Measuring defendant’s representation at his first trial by the requisite “flexible framework” standard, the conclusion that he was deprived of the effective assistance of counsel is inescapable.

X

Scrutiny of the legal assistance Baldi received in connection with the Januszko case must begin with consideration of his attorney’s agreement that he be produced to help solve other crimes. As the lawyer subsequently acknowledged at the Huntley hearing, his role in bringing about the July 7 and 14 interrogations and his capacity at the sessions was as a “friend of the court.”

The position of the lawyer as a guardian of the accused’s right against self incrimination is so basic to modern criminal law jurisprudence (see, e.g., Miranda v Arizona, 384 US 436; Escobedo v Illinois, 378 US 478; People v Garofolo, 46 NY2d 592; People v Grant, 45 NY2d 366; People v Singer, 44 NY2d 241; People v Hobson, 39 NY2d 479; People v Arthur, 22 NY2d 325; People v Donovan, 13 NY2d 148) that it should hardly be necessary for us to observe that participation in an experiment designed solely to elicit incriminating evidence from a client casts a shadow on every subsequent step taken in purported defense of that client.¹⁸ It resulted in a clear surrender of the defendant’s constitutional privilege and it breached defense counsel’s duties to take all necessary steps to preserve his client’s rights (see People v Pope, 23 Cal 3d, at pp 424-425; see, generally, Erickson, Standards of Competency for Defense Counsel in a Criminal Case, 17 Am Crim L Rev 233, 245).¹⁹

Highly significant, and directly relevant to the ultimate determination of guilt, was counsel’s inexplicable failure to produce a psychiatrist at the Huntley hearing. Manifestly, the People’s case rested almost entirely on Baldi’s confessions, and —just as clearly—his prime hope of escaping conviction depended on his ability to suppress them as involuntary based on his lack of competence to make them (see CPL 60.45, subd 1; Blackburn v Alabama, 361 US 199). Once suppression on the ground of incompetence failed, the defense of insanity— which had failed at the earlier trial—deteriorated to little more than a last line of defense in the face of overpowering inculpatory proof. Thus, defendant’s chances for acquittal were utterly vitiated by the failure to adduce psychiatric testimony which would have tested the prosecution’s ability to establish beyond a reasonable doubt that the defendant was competent during the trances in which he re-enacted the Januszko murder. Yet, defense counsel’s efforts were so unavailing at the suppression hearing as to prompt the Huntley court to characterize the competence question as nonexistent.²⁰

The crucial opportunity to suppress the Januszko confessions having evaporated, counsel proceeded to introduce at the trial evidence of the admissions of multiple killings which had been suppressed. The client was asked whether he remembered discussing with counsel the various killings and burglaries that he had re-enacted. When he responded by declaring that he remembered the discussions but denying that he had killed anyone, defense counsel took the witness stand and, in the course of his testimony, stated that his client had reenacted four murders. The lack of any specific connection between these revelations and legal insanity or to Dr. La Burt’s testimony at the murder trial already has been discussed.

XI

In response to the defendant’s claim of ineffective assistance of counsel, the People argue that counsel’s performance constituted a daring tactic intended to bolster the insanity defense. At worst, argues the prosecution, the effort to demonstrate the defendant’s insanity by proof of a murderous disposition was a mistake in strategy.

Obviously, "[t]he right to counsel was not intended to afford a defendant, aided by the wisdom of hindsight, to second guess matters of trial strategy employed by counsel” (People v Aiken, 45 NY2d 394, 399, supra; see, also, People v De Mauro, 48 NY2d 892; People v De Renzzio, 19 NY2d 45). And, of course, we recognize that the defense of a criminal prosecution involves a host of judgments, some strategic and some tactical, concerning the type of defense to pursue, the witnesses to call, the direct questions to be put, the extent of cross-examination if any, plus a myriad of other determinations which frequently have a decisive impact on the outcome of the trial (see, generally, ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function, [Approved Draft, 1971], § 5.2, and comments). A disappointed defendant may have difficulty in discerning between a daring but unsuccessful defense and lawyer ineptitude: "If [counsel] decides to flail around and raise a considerable amount of dust, with the inevitable risk that some may settle on his client, the defendant will blame him if the tactic fails, although in the rare event of success the client will rank him with leaders of the bar who have used such methods in some celebrated trials of the past” (United States v Katz, 425 F2d 928, 930).

Under farce and mockery analysis, erroneous trial strategy is the basis for reversal on ineffective assistance grounds only where the strategy is so devoid of reason or shows such a lack of familiarity with basic legal principles so as to be the sole or at least a contributing factor in the conclusion that the trial was a mockery of justice.²¹ The reversal standard has been cast in terms of whether counsel’s actions withdrew a crucial defense from the case,²² or whether there has been a deliberate abdication, by conscious conduct, of the lawyer’s ethical duty to fairly represent his client.²³ The New York decisions support the proposition that trial strategy will be scrutinized only where it was a factor in the conclusion that the defendant’s trial was a mockery of justice (see People v Lampkins, 21 NY2d 138, supra; People v Brown, 7 NY2d 359, 361, supra).

In reasonable competency jurisdictions, the question is what a reasonably competent lawyer would have done under the circumstances. In Beasley v United States (491 F2d 687, supra) where counsel called as the sole defense witness an extremely hostile FBI agent, the trial court characterized the ploy as a "bizarre defense strategy” to prove that a skilled criminal such as the defendant would not have undertaken so amateurish a robbery as the one charged. Holding that the defendant had been denied the effective assistance of counsel, the court wrote (p 696): "Defense strategy and tactics which lawyers of ordinary training and skill in the criminal law would not consider competent deny a criminal defendant the effectice assistance of counsel, if some other action would have better protected a defendant and was reasonably foreseeable as such before trial * * * If, however, action that appears erroneous from hindsight was taken for reasons that would appear sound to a competent criminal attorney, the assistance of counsel had not been constitutionally defective.”

In California, effective assistance of counsel will be deemed denied where the lawyer has made "a critical tactical decision which would not be made by diligent, ordinarily prudent lawyers in criminal cases. This is true even if the decision was not made from ignorance of the law or a fact.” (See People v Pope, 23 Cal 3d 412, 424, supra; accord State v Adams, 91 Wn 2d 86; People v Garcia, 398 Mich 250; State ex rel. Wine v Bordenkircher, 230 SE2d 747 [W Va]; Hussick v State, 19 Ore App 915; State v Anonymous, 34 Conn Sup 656.) Adopting the Beasley standard, the Supreme Judicial Court of Massachusetts has stated: "Although most cases involving a claim of ineffective counsel concern counsel’s lack of preparation, there may be instances where the judgment of fully informed counsel may be manifestly unreasonable as to be unprotected by the labels of 'trial strategy’ or 'trial tactics.’ ” (Commonwealth v Adams, — Mass —, —, 375 NE2d 681, 685; see, also, Commonwealth v Williams, — Mass —, 391 NE2d 1202.)

Here, the prosecution possessed strong evidence that the defendant had committed the principal acts charged— eyewitnesses in the first case and re-enactments in the other.²⁴ Absent the prejudicial embellishment provided by proof which tended to establish that the defendant was a vicious killer, the sanity issue was a close one. Dr. Schwartz was alone in his belief that the defendant was able to comprehend the nature and consequence of his acts at the time of the crimes and even Schwartz had previously diagnosed the defendant as being a chronic schizophrenic of an undifferentiated type. In our view, the gross reliance upon the proposition that the defendant’s chances of acquittal would be improved by emphasizing to the trier of fact the defendant’s morbid background and disposition to murder and mutilate when on the street (see People v Duke, 58 AD2d 31) and the omission of any real effort to suppress the defendant’s confessions are difficult to accept as trial strategy.²⁵ As it relates to the first trial, the entire contention seems premised on the hypothesis that the jury might be more willing to acquit the defendant of attempted murder on the ground of insanity if they were shown that he murdered and maimed 14 other persons. As to the murder trial, we discern no special strategy—only a defense of insanity supplemented by proof of murderous bent.

In any event, when there is added to the recited litany of ineffective performance the yielding up of defendant’s Fifth Amendment privilege against self incrimination, it becomes impossible to conjure a rational foundation to support the concept that the assistance the defendant received comported with constitutional standards. Plainly, it did not.

XII

Finally, there is the matter of harmless error analysis. In Chapman v California (386 US 18, 24, reh den 386 US 987), the Supreme Court fashioned the rule that errors of a constitutional dimension may be deemed harmless where it can be shown beyond a reasonable doubt that the error "did not contribute to the verdict obtained” (see, also, Fahy v Connecticut, 375 US 85, 86; see, generally, Ineffective Assistance of Counsel and the Harmless Error Rule: The Eighth Circuit Abandons Chapman, 43 Geo Wash L Rev 1384).

In People v Crimmins (36 NY2d 230, 237), the Court of Appeals adhered to the Chapman-Fahy harmless error rule declaring that errors of constitutional magnitude can be considered nonprejudicial only where proof of guilt is overwhelming and where "there is no reasonable possibility that the error might have contributed to defendant’s conviction and that it was thus harmless beyond a reasonable doubt” (see, also, People v Almestica, 42 NY2d 222).

The Chapman court noted that there are some constitutional rights—the right to counsel being one—so fundamental to ' fair trial that they may never be treated as harmless (386 US, at pp 23-24, n 8). Indeed, in People v Felder (47 NY2d 287), the Court of Appeals declined to consider the matter of harmless error where the defendants had been represented by an individual never licensed as an attorney. Although the right to the assistance of counsel continues to be a focus of current jurisprudence (see, e.g., Cuyler v Sullivan, 446 US 335; Holloway v Arkansas, 435 US 475, 489; Geders v United States, 425 US 80; Herring v New York, 422 US 853), the issue here is a broader one encompassing the quality of the assistance rendered and whether any deficiency in such quality compromised constitutional standards to the degree that reversal is required.

We begin this portion of our analysis by noting that, under certain circumstances, resort to harmless error analysis may be precluded. According to the Court of Appeals, "[I]f in any instance, an appellate court concludes that there has been such error of a trial court, such misconduct of a prosecutor, such inadequacy of defense counsel, or such other wrong as to have operated to deny any individual defendant his fundamental right to a fair trial, the reviewing court must reverse the conviction and grant a new trial, quite without regard to any evaluation as to whether the errors contributed to the defendant’s conviction.” (People v Crimmins, 36 NY2d, at p 238; emphasis supplied.)

The type of flagrant error, misconduct or inadequacy referred to in the quoted language has been illustrated in reversals where the conduct involved precluded a fair trial (see, e.g., People v De Jesus, 42 NY2d 519 [misconduct by court]; People v Alicea, 37 NY2d 601 [prosecutorial misconduct]; People v Savvides, 1 NY2d 554 [prosecutorial misconduct]; see, also, People v Williams, 46 NY2d 1070; cf. People v Cook, 42 NY2d 204, 209 [Cooke, J., dissenting]). We do not believe that the Crimmins dictum was intended to establish a per se rule for claims of ineffective assistance of counsel. Indeed, in People v La Bree (34 NY2d 257, supra), shortly before Crimmins, the Court of Appeals engaged in harmless error analysis before reversing the conviction on grounds of inadequate assistance of counsel. In our view, the Crimmins dictum refers to such a total ineptness of counsel as would result in total destruction of the fairness of the trial and thus relieve the defendant of the necessity to show precisely how he was affected.

No examination of the relationship between the harmless error doctrine and ineffective assistance of counsel can be meaningful without analysis of the components of ineffective assistance itself. In United States v De Coster III (Dist Ct, DC, July 10, 1979, the late Judge Leventhal, writing for the en banc court plurality, outlined the two basic principles involved in establishing ineffective assistance of counsel: (1) "the claimed inadequacy must be a serious incompetency that falls measurably below the performance expected of fallible lawyers”; and (2) "the accused must bear the initial burden of demonstrating a likelihood that counsel’s inadequacy affected the outcome of the trial” (see, also, Erickson, Standards of Competency for Defense Counsel in a Criminal Case, 17 Am Crim L Rev 233). Thus, the conclusion that a defendant was deprived of the effective assistance of counsel necessarily embraces not only a serious incompetency, inefficiency or inattentiveness of counsel (Commonwealth v Saferian, 366 Mass 89, 96), but also a determination of likelihood of damage to the defendant as well (see, e.g., Cooper v Fitzharris, 586 F2d 1325, 1331-1333, supra; United States ex rel. Green v Rundle, 434 F2d 1112, 1114; Cheely v United States, 535 F2d 934; United States v Pinkney, 543 F2d 908; United States v Ingram, 477 F2d 236, 240; United States v Easter, 539 F2d 663, 666; United States v Moore, 554 F2d 1086, 1089; see, also, Chambers v Maroney, 399 US 42, 53-54; contra Beasley v United States, 491 F2d 687, 696-697, supra). We are in accord with the view that in evaluating claims of ineffective assistance of counsel mere proof of breach of duty will not suffice to establish a constitutional violation.

Since we recognize prejudice as a requisite ingredient of proof of ineffective assistance, we also note that the People’s burden in harmless error analysis is a heavy one. It is in the face of a defendant’s demonstration that counsel’s performance probably prejudiced his case that the burden shifts to the prosecution to prove beyond a reasonable doubt that the error was harmless.²⁶

Applying this methodology both to the Januszko case and the earlier trial, the defendant clearly has shown that his lawyer’s performances were seriously deficient and that his defenses were prejudiced by them, but the People have been unable to bear their burden of establishing beyond a reasonable doubt that the outcome of the trials was not affected by the manner in which the defenses were conducted. Thus, the assistance Baldi received in each case was ineffective within the meaning of the Constitution and harmless error analysis fails to salvage either conviction.

The judgments must be reversed and the defendant given new trials. The unfortunate circumstances detailed here compel us to reiterate to bench, bar and law enforcement authorities alike that, no matter what the apparent degree of defendant’s depravity or the likelihood of his guilt, the right to the constitutional shelter of effective assistance of counsel and a fair trial are to remain inviolate.

Accordingly, both judgments of conviction should be reversed and the matters remanded for new trials.

1 . The circumstances of Baldi’s release subsequently became the focus of a civil suit by Deborah Januszko’s parents (see Januszko v State of New York, 93 Misc 2d 1041, affd 61 AD2d 1077, affd 47 NY2d 774).

2 . That year a British nisi prius court granted a new trial on the ground that the lawyer’s testimony had been improperly received in evidence (see Stones v Byron, 4 Dowl & L 393); it was shortly repudiated by a court sitting en banc (see Cobbett v Hudson, 1 E & B 11 [QB, 1852]).

3 . United States v Wight (176 F2d 376, 379) contains what appears to be the classic statement: "The proof of the efficiency of such assistance lies in the character of the resultant proceedings, and unless the purported representation by counsel was such as to make the trial a farce and a mockery of justice, mere allegations of incompetency or inefficiency of counsel will not ordinarily suffice”.

4 . The court observed (p 771) that the matter of effective assistance in felony cases: "should be left to the good sense and discretion of the trial courts with the admonition that if the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and that judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts.”

5 . See, e.g., Cooper v Fitzharris, 586 F2d 1325, 1330, cert den 440 US 974; United States v De Coster, 487 F2d 1197, 1202, referred to as De Coster I, after remand No. 72-1283 [DC Cir, Oct. 19, 1976]; 624 F2d 196, referred to as Decoster III, cert den 444 US 944; People v Pope, 23 Cal 3d 412, 427.

6 . See, e.g., Beasley v United States, 491 F2d 687, 696; Herring v Estelle, 491 F2d 125, 127, reh den 493 F2d 664.

7 . See, e.g., Cooper v Fitzharris, 586 F2d 1325, 1330, cert den 440 US 974; United States v Bosch, 584 F2d 1113; Marzullo v State of Maryland, 561 F2d 540, 544; United States v Easter, 539 F2d 663, 666; United States ex rel. Johnson v Johnson, 531 F2d 169, 174, cert den 425 US 997; Moore v United States, 432 F2d 730, 736; State v Clark, 170 Conn 273, 283, cert den 425 US 962; Zacek v Brewer, 241 NW2d 41, 50-51 [Iowa]; People v Garcia, 398 Mich 250; White v State, 248 NW2d 281, 285 [Minn]; State v Nokes, 192 Neb 844, 850-851; Heath v Vitek, 115 NH 200, 201; State ex rel. Wine v Bordenkircher, 230 SE2d 747, 750 [W Va]; Risher v State, 523 P2d 421, 424 [Alaska].

8 . See DeCoster I, supra; State v Tucker, 97 Idaho 4; State v Harper, 57 Wis 2d 543; State v Hester, 45 Ohio St 2d 71; Baxter v Rose, 523 SW2d 930 [Tenn].

In People v Pope (23 Cal 3d 412, 424-425), the California Supreme Court relied on the ABA Standards in setting forth the following "basic duties” of defense counsel under the Constitution:

(1) Counsel must diligently and actively participate in the full and effective preparation of the case;

(2) Counsel has a duty to investigate carefully all defenses of fact and law that may be available to the defendant;

(3) Counsel must confer with his client without undue delay and as often as necessary to elicit matters pertinent to his defense;

(4) Counsel should promptly advise his client of his rights and take all actions necessary to preserve them; and

(5) Counsel should be concerned with the accused’s right to be released from custody pending trial and be prepared when appropriate to make motions for pretrial psychiatric examination for the suppression of evidence.

9 . See, also, Thomas v Wyrick, 535 F2d 407, 413, n 6, cert den 429 US 868 [adequate preparation]; United States ex rel. Robinson v Housewright, 525 F2d 988, 993 [conflict of interest]; McQueen v Swenson, 498 F2d 207, 216-217 [duty to investigate]; Steward v People, 179 Col 31, 34 [control of litigation]; State v Simmons, 57 Wis 2d 285, 298 [challenge to the effectiveness of counsel].

10 . See United States v De Coster, No. 72-1283 [DC Cir, July 10, 1979], cert den 444 US 944. An excellent discussion of the standards and the controversy over their use is contained in Justice William Erickson’s article, Standards of Competency for Defense Counsel in a Criminal Case, 17 Am Crim L Rev 233.

11 . See United States v De Coster I, supra; United States v Bosch, 584 F2d 1113; Moore v United States, 432 F2d 730; Marzullo v State of Maryland, 561 F2d 540, cert den 435 US 1011; Herring v Estelle, 491 F2d 125, reh den 493 F2d 664; Beasley v United States, 491 F2d 687; United States ex rel. Williams v Twomey, 510 F2d 634, cert den sub nom. Sielaff v Williams, 423 US 876; United States v Easter, 539 F2d 663; Cooper v Fitzharris, 586 F2d 1325, cert den 440 US 974.

12 . Alaska: Green v State, 579 P2d 14; California: People v Pope, 23 Cal 3d 412; Colorado: People v Shook, 186 Col 339; Connecticut: State v Clark, 170 Conn 273, cert den 425 US 962; Georgia: Tamplin v State, 235 Ga 20, vacated in part 235 Ga 774; Hawaii: State v Kahalewai, 54 Hawaii 28; Idaho: State v Tucker, 97 Idaho 4; Iowa: Cleesen v State, 258 NW2d 330; Massachusetts: Commonwealth v Saferian, 366 Mass 89; Michigan: People v Garcia, 398 Mich 250; Minnesota: White v State, 309 Minn 476; Missouri: State v Lumsden, 589 SW2d 226; Nebraska: State v Mackey, 200 Neb 549; New Hampshire: State v West, 117 NH 340; Pennsylvania: Commonwealth v Bartlett, 486 Pa 396; Rhode Island: State v Desroches, 110 RI 497; Tennessee: Baxter v Rose, 523 SW2d 930; Vermont: Matter of Cronin, 133 Vt 234; Washington: State v Adams, 91 Wn 2d 86; West Virginia: Cannellas v McKenzie, 236 SE2d 327; Wisconsin: State v Harper, 57 Wis 2d 543.

13 . District of Columbia: Farrell v United States, 391 A2d 755.

14 . In People v Jackson (74 AD2d 585), this court rejected a challenge based on a claim of ineffective assistance because the appellant failed to establish a lack of reasonable competence by his trial counsel.

15 . See, e.g., People v Pope, supra; United States v De Coster, supra.

16 . ABA Standard 4.1 (ABA Project on Standards for Criminal Justice, the Prosecution Function and the Defense Function [Approved Draft, 1971]), has been referred to as a guideline for counsel’s duties during the investigatory stages of the criminal process (see People v Droz, 39 NY2d 457, 462, supra; People v Bennett, 29 NY2d 462, 466-467, supra).

17 . Our dissenting brother, Martuscello, J., states, (p 314) that nothing in the court’s charge precluded the jury from considering the prior criminal acts on the insanity issue. This overlooks the fact that the court directed that: “[Y]ou will limit yourselves to considering such evidence on the question of credibility only * * * The fact that he may have been guilty of such prior conduct does not necessarily mean that he is not to be believed at this time by you.” Remarkably, these instructions would have been given had the evidence of the other crimes been introduced by the prosecution, rather than, as here, by the defense. Counsel’s failure to request that the acts be considered on the issue of insanity—his avowed purpose for introducing the evidence in the first instance—remains incomprehensible in the face of the court’s direct mandate that the evidence was to be deemed to relate only to credibility.

18 . The controversy over the extent of a lawyer’s obligations where he becomes aware that his client has committed uncharged crimes was fueled by an article by Dean Monroe Freedman (see Freedman, Where the Bodies are Buried: The Adversary System and the Obligation of Confidentiality, 10 Crim L Bull 979). See, also, People v Beige, 83 Misc 2d 186, affd 50 AD2d 1088, affd 41 NY2d 60; New York State Bar Association Ethics Opinion 479 (1978).

19 . Although our dissenting brother, Martuscello, J., writes that defendant’s July 7 and 14 admissions of three other murders were suppressed because the Huntley court believed defense counsel’s contention that an agreement for nonuse existed with the District Attorney, it is plain from that court’s written decision that the suppression was based on violation of defendant’s constitutional rights and not on the court’s belief that a promise had been made. Furthermore, constitutional rights or not and promise or not, the crucial statements and re-enactments concerning the Januszko murder were not suppressed at all.

20 . We disagree with Justice Martuscello’s reference to our treatment of this aspect of counsel’s performance as "taken out of context.” Counsel’s performance at the Huntley hearing may have saved his client from the consequences of the waiver of his Fifth Amendment rights with reference to three murders allegedly admitted on July 7 and 14, but it made a nonissue out of his client’s opportunity to suppress the only real evidence of guilt the People possessed relative to the Januszko murder—his own inculpatory statements and re-enactments.

21 . See, e.g., United States ex rel. Walker v Henderson, 492 F2d 1311, cert den 417 US 972; Opie v Meacham, 419 F2d 465, cert den 399 US 927; Michaud v Robbins, 263 F Supp 535, affd 424 F2d 971; State v Jones, 110 Ariz 546, cert den 419 US 1004; see, also, ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function [Approved Draft, 1971] § 5.2, p 240).

22 . See, e.g., People v Mattson, 51 Cal 2d 777; Bruce v United States, 379 F2d 113; Glass v United States, 395 A2d 796 [DC App].

23 . See, e.g., Brown v Swenson, 487 F2d 1236, cert den 416 US 944; Robinson v United States, 448 F2d 1255 [CCA 8th, 1971].

24 . Despite statements in Justice Martuscello’s dissent, the murder charge against Baldi rested almost entirely on his own admissions. The knives referred to in the dissent were never offered in evidence and it is difficult to see how they could have been tied to the murder in question.

25 . We are aware that in People v Garrow (51 AD2d 814), where the defendant made a claim of ineffective assistance of counsel after testifying to two uncharged murders to support his insanity defense, the Third Department observed that "the strategy of putting defendant on the stand might be questioned by some [but], we cannot say that it was unreasonable to expect that he would buttress his defense of insanity by his testimony as to his past crimes and bizarre behavior.” Ultimately, Garrow differs significantly from the instant case. Once the Third Department rejected Garrow’s contention that the advice that he testify as to the uncharged crimes was improperly motivated, the ineffectiveness issue was determined under farce and mockery criteria and was confined to the boundaries of the trial itself. Since there was strong independent evidence against Garrow by three survivors of the abduction and killing involved, it is apparent that the Third Department believed that the gamble involved in admitting uncharged crimes did not render the trial farcical. In the Januszko case, it is impossible to discern an acceptable strategy in the failure to attempt suppression of confessions on insanity grounds and the subsequent reliance on insanity as a defense to the crime charged after the confessions were before the trier. In the attempted murder case, the defendant never admitted the crimes and the ones his lawyer posited were so numerous and heinous as to eliminate any reasonable possibility that the insanity claim would be sufficiently enhanced to overcome the palpable prejudice involved in making the jury aware that the defendant’s street potential was so terrifying.

26 . Whether a distinction exists between prejudice at a bench trial as compared to a jury trial is not directly material in the instant case because of our conclusion that the ineffectiveness of counsel in the defense of the murder charge commenced almost from the time of assignment. Nevertheless, it is worthwhile to observe that the Court of Appeals has recognized that a Judge’s contact with material that a jury would not have been permitted to hear or see is not necessarily fatal to a bench trial (see People v Brown, 24 NY2d 168), although prior to Brown the First Department (see People v Horie, 258 App Div 246) and the Third Department (see People v Kozer, 33 AD2d 617; People v Guernsey, 24 AD2d 811) disagreed sharply as to the ultimate prejudice involved in the receipt of illegal evidence at a bench trial. The presumption that a Judge as a trier of facts is not prejudiced by improper evidence seems to have been adopted by this department (see People v Lombardi, 76 AD2d 891 [decided herewith]), and by numerous Federal and State appellate tribunals (see, e.g., United States v Reeves, 348 F2d 469; Teate v United States, 297 F2d 120; United States v McCarthy, 470 F2d 222; Schenck v State, 128 Ga App 270; People v Harris, 57 Ill 2d 228; State v Gordon, 219 Kan 643; Matter of Appeal No. 977 from Circuit Ct. of Baltimore City, 22 Md App 511; People v Payne, 37 Mich App 442; State v White, 15 Ohio St 2d 146; State v Cafarelli, 254 Ore 73).

In some jurisdictions, however, the presumption is limited to situations where there has been a refusal to admit the questionable evidence (see, e.g., People v Mascarenas, 181 Col 268), where there has been an initial admission and a subsequent disclaimer of reliance (see, e.g., United States v Dillon, 436 F2d 1093; Webb v State, 253 Ark 448; People v Talley, 65 Cal 2d 830; State v Gleason, 359 A2d 308 [Me]; Matter of Appeal No. 977 from Circuit Court of Baltimore City, 22 Md App 511; Rodriquez v State, 509 SW2d 319 [Tex]; Galbraith v State, 503 P2d 1192 [Wyo]), or where the improper material has been subsequently excluded (see, e.g., United States v Miles, 401 F2d 65; United States v Weldon, 384 F2d 772; Oates v United States, 233 F 201, cert den 242 US 633; Commonwealth v Wright, 234 Pa Super 83; State v Bruns, 522 SW2d 54 [Mo]). But even in the jurisdictions where no curative device need support the presumption, if reliance on the improper matter can be shown, reversal is mandated.