The People v. Davon Harris

43 N.E.3d 750, 26 N.Y.3d 321, 22 N.Y.S.3d 393
CourtNew York Court of Appeals
DecidedNovember 23, 2015
Docket164
StatusPublished
Cited by10 cases

This text of 43 N.E.3d 750 (The People v. Davon Harris) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
The People v. Davon Harris, 43 N.E.3d 750, 26 N.Y.3d 321, 22 N.Y.S.3d 393 (N.Y. 2015).

Opinions

OPINION OF THE COURT

Chief Judge Lippman.

On the night of August 4, 2002, the complainant awoke in the dwelling where she was passing the night, to the sight of a man standing over her. She screamed and the man fled, but, as it turned out, not without leaving markers of his intrusion. In December 2010, DNA recovered from the complainant’s pajama shirt directly after the 2002 incident was matched to defendant’s DNA profile, and that match was confirmed using a buccal swab obtained from defendant in 2011. On the strength of those findings and the complainant’s report that a pair of earrings was missing from the apartment in the near aftermath of the 2002 intrusion, defendant was in February 2011 indicted for burglary in the second degree (Penal Law § 140.25) and petit larceny (Penal Law § 155.25). The former charge was timely interposed,1 but the latter was not, the applicable statu[324]*324tory period having run some IV2 years before the filing of the accusatory instrument.2 This last circumstance notwithstanding, defendant’s trial counsel never obtained the time-barred count’s dismissal. The jury consequently considered the two counts in tandem; indeed, the case was prosecuted upon the theory that defendant entered the dwelling where the complainant was sleeping with the intent to commit a theft, namely, the charged petit larceny.

On his appeal from the judgment convicting him of both indicted offenses, defendant argued that the trial court’s denial of his for-cause challenge to a prospective juror, a gentleman referred to as Mr. O, operated to deprive him of his right to a fair and impartial jury, and that his trial counsel’s failure to have the time-barred petit larceny count dismissed constituted ineffective assistance. The Appellate Division, however, affirmed the judgment of conviction, characterizing defendant’s for-cause challenge to the empaneling of Mr. O as unfounded, and noting without elaboration that defendant had not “demonstrat [ed] the absence of strategic or other legitimate explanations for counsel’s alleged shortcoming” (115 AD3d 872, 872 [2d Dept 2014] [internal quotation marks and citation omitted]). A Judge of this Court granted defendant permission to appeal (23 NY3d 1062 [2014]), and we now modify to the extent of granting defendant relief upon his ineffective assistance claim.

Defendant’s contention that the court erred in denying his for-cause challenge to Mr. O arises out of portions of the voir dire in which Mr. O advanced innocent explanations for untruthfulness — he offered that a witness might testify untruthfully by reason of forgetfulness or might simply be unintentionally mistaken. This prompted the court to inquire whether Mr. O agreed that “[s]ometimes people can lie knowing they are lying,” to which Mr. O responded “[r]ight.” Defendant’s argument, that Mr. O’s responses raised a substantial, unsatisfactorily resolved question as to whether he understood that a witness, even though under oath, could give knowingly false testimony, is, we think, premised on a strained interpreta[325]*325tion of Mr. O’s responses that the court was not obliged to adopt. Mr. O’s natural willingness to entertain ethically benign explanations for untruthfulness did not bespeak utter credulity in the face of sworn averment; it did not reasonably raise a red flag that he possessed “a state of mind that [was] likely to preclude him from rendering an impartial verdict” (CPL 270.20 [1] [b]). We have in this connection recognized that

“most if not all jurors bring some predispositions, of varying intensity, when they enter the jury box. It is only when it is shown that there is a substantial risk that such predispositions will affect the ability of the particular juror to discharge his responsibilities (a determination committed largely to judgment of the Trial Judge with his peculiar opportunities to make a fair evaluation) that his excuse is warranted” (People v Williams, 63 NY2d 882, 885 [1984]; accord People v Johnson, 94 NY2d 600, 613 [2000]).

It is plain that this “substantial risk” threshold was not crossed by Mr. O’s statements. Nothing said by Mr. O cast significant doubt on his ability to follow the standard jury instructions respecting a juror’s obligation to judge whether a witness is telling the truth, and whether any falsehood is deliberate.

Turning now to defendant’s ineffective assistance claim, we have held in People v Turner (5 NY3d 476 [2005]) that such a claim may be premised on a singular omission by counsel to secure the dismissal of a time-barred count. Our conclusion that Turner had been deprived of effective assistance rested on the circumstance that the failure of his attorney to raise the statute of limitations to prevent the submission of manslaughter as a lesser included offense of murder could not be reconciled with the attorney’s trial strategy; counsel had announced that he was pursuing an all-or-nothing defense of the murder count and had actively opposed the prosecutor’s request to charge manslaughter as a lesser included offense because he did “ ‘not want to give a jury the chance to compromise’ ” (id. at 478; cf. People v Evans, 16 NY3d 571, 576 [2011], cert denied 565 US —, 132 S Ct 325 [2011]; People v Ambers, 26 NY3d 313 [2015] [decided herewith]3). Counsel’s failure to raise the statute of limitations — the most certainly efficacious means of [326]*326achieving his announced purpose of preventing a compromise manslaughter verdict — admitted of no rational explanation, and it was thus clear that counsel’s representation had not met the relevant standard of objective reasonableness set forth in Strickland v Washington (466 US 668, 688-689 [1984]) (see Turner, 5 NY3d at 479-480, 484 [“(o)nce that decision (to gamble on an outright acquittal) was made, it could not have been rational for trial counsel to abandon a statute of limitations defense that would have prevented the (lesser) charge from being submitted”]). It was also evident that Turner had in consequence of this representational lapse been prejudiced, having been saddled with a completely avoidable conviction.

Here, there could have been no strategic purpose for failing to raise the statute of limitations as against the time-barred charge. This is evident not by reason of an announced election to seek an outright acquittal, as in Turner, but because the charge’s submission was in the context of this prosecution objectively incapable of enabling any compromise verdict, much less the particular compromise verdict sought by trial counsel. In light of the DNA evidence all but irrefutably proving the trespass component of the charged burglary, a finding of guilt on the petit larceny count would as a practical matter have dictated a finding of guilt on the burglary count as well. Accordingly, the defense strategy was not, and could not reasonably have been, to contend that defendant had merely committed petit larceny, but that he had done no more than trespass, and in that connection to point out that what he indisputably did within the residence, i.e., ejaculate on the complainant, was not in 2002 a crime. Counsel’s argument was that his client’s intent to engage in unsavory, but not at the time criminal conduct, could not be used to elevate his trespass to burglary. It was completely inconsistent with this line of defense to allow the petit larceny count to remain in the indictment, since, as noted, proof of the alleged petit larceny also [327]

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Cite This Page — Counsel Stack

Bluebook (online)
43 N.E.3d 750, 26 N.Y.3d 321, 22 N.Y.S.3d 393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-people-v-davon-harris-ny-2015.