The People v. Davon Harris

This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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The People &c.,
Respondent,
v.
Davon Harris,
Appellant.

Alexis A. Ascher, for appellant.
Christine DiSalvo, for respondent.

LIPPMAN, Chief Judge:
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

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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 statutory period having
run some 1 1/2 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

1
Burglary in the second degree, a class C felony is subject
to a five-year statutory period, which can be tolled for up to
five years (CPL 30.10 [2] [b], [4] [a]). Here, the burglary
prosecution commenced some 8 1/2 years after the charged offense
was timely by reason of the applicability of the toll.
2
Petit larceny, a class A misdemeanor is subject to a two-
year statutory period (CPL 30.10 [2] [c]), so that even with the
applicable five-year toll (CPL 30.10 [4] [a]), it was not, in
2011 timely charged based upon conduct dating back to 2002.

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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 [2d Dept 2014]
[internal citation and quotation marks 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

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interpretation 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

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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 sub nom.
Evans v New York, 132 S Ct 325 [2011]; People v Ambers, __ NY3d
__ [decided herewith] [2015]3). Counsel's failure to raise the
statute of limitations -- the most certainly efficacious means of
achieving 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

3
The possibility that Ambers's counsel chose to allow the
jury to consider certain time-barred misdemeanors in order to
permit a compromise verdict convicting defendant of the
misdemeanors but not the factually related felonies with which
his client had been timely charged, was not possible to discount
on the basis of the trial record (see People v Ambers, __ NY3d __
[2015] [slip opinion at 8-9]). While Ambers's trial counsel
urged the jury to acquit on all counts and did not affirmatively
seek a compromise verdict, that did not demonstrate a defense
strategy to avoid a compromise verdict, as in Turner, and
accordingly did not prove the absence of a reasonable strategic
rationale for permitting the submission of the misdemeanor
counts.

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Strickland v Washington (466 US 668, 668-669 [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

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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 proved the charged burglary and in so
doing operated to preclude the compromise verdict counsel sought
convicting defendant only of trespass.
The irreducible fact is that defendant was avoidably
convicted of a crime by reason of his attorney's rationally
inexplicable failure to have a time-barred count dismissed. It
is true that counsel's lapse in not raising the time-bar defense
was not "completely dispositive" of the case, but neither was it
in Turner, where counsel's lapse was only completely dispositive
of the time-barred manslaughter count; Turner was acquitted on
the top, murder count -- a circumstance certainly not traceable
to the cited lapse, and not indicative of the sort of pervasive
representational failure ordinarily necessary to support an
ineffective assistance claim. We nonetheless granted relief on
an ineffective assistance theory with respect to the
representation on the manslaughter count because the error in
failing to raise the statute of limitations was "clear-cut" and
the unraised defense would have been "completely dispositive,"
albeit only of the manslaughter count (Turner, 5 NY3d at 481).
Recognizing that this was a most unusual application of the
ineffective assistance doctrine, we took care to

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"reaffirm . . . that such errors as
overlooking a useful piece of evidence, or
failing to take maximum advantage of a
Rosario violation, do not in themselves
render counsel constitutionally ineffective
where his or her overall performance is
adequate. But neither [of those failings]
involve[s] the failure to raise a defense as
clear-cut and completely dispositive as a
statute of limitations. Such a failure, in
the absence of a reasonable explanation for
it, is hard to reconcile with a defendant's
constitutional right to the effective
assistance of counsel"

id. at 480-481 [emphasis supplied] [internal citations omitted]).
What we recognized in Turner, even if only implicitly,
was that an unreasonable omission to raise a clear-cut defense
completely dispositive of a charge for which the defendant was
ultimately convicted, should not be subsumed within the
"totality" of the representation for purposes of determining the
availability of relief for ineffective assistance. The reason
for this is not difficult to discern -- we would otherwise
countenance time-barred prosecutions enabled solely by
objectively unreasonable lapses on the part of defense counsel.
This unseemly coincidence, on the one hand of prosecutorial over-
reaching and the other of representational neglect, incompatible
in its outcome with the legislatively expressed public policy
against stale prosecutions (see Toussie v United States, 397 US
112, 114-115 [1970]; People v Seda, 93 NY2d 307, 311-312 [1999]),
is not, when it results in an entirely gratuitous, strategically
inexplicable conviction, one appropriately shielded from address

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under the ineffective assistance rubric by the competent balance
of an attorney's representational effort, particularly where, as
here, the only relief sought is from the time-barred conviction.
Claims such as defendant's, presenting a clear-cut, objectively
unreasonable failure by counsel to obtain the dismissal of a
time-barred count, instance precisely the sort of breakdown in
the adversary process understood in Strickland to be the
quintessential ground for and target of an ineffective assistance
claim (Strickland v Washington, 466 US at 696). And, under
Strickland, it is irrelevant that the omission is not "completely
dispositive" of the entire case. All a defendant must show is
"that there is" a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different" (id. at 694 [emphasis added]). It is obvious
that this standard is met where an attorney unaccountably allows
the submission of a time-barred count for which his client is
convicted. Turner, of course, did not articulate a more
demanding standard.
The freestanding claim we have recognized, predicated
upon a single representational error, is, as we observed in
Turner, by its nature extremely limited -- solitary lapses as
egregious and demonstrably prejudicial as an attorney's failure
to avoid a conviction on a time-barred count are rare, and can be
made rarer still by responsible charging practices. Our
decisions today and in Turner, then, signal no broad departure

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from the ordinarily applicable rule that it is the entire
representational effort that should be weighed in judging whether
counsel provided constitutionally effective representation.
Accordingly, the order of the Appellate Division should
be modified by vacating defendant's conviction on the charge of
petit larceny and dismissing that charge in the indictment and,
as so modified, affirmed.

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People v Davon Harris
No. 164

ABDUS-SALAAM, J.(dissenting):
This Court has made clear on numerous occasions that an
attorney may not be found to have rendered ineffective assistance
where a reasonable strategy exists to support his or her
performance (see People v Barboni, 21 NY3d 393, 406 [2013];
People v Evans, 16 NY3d 571, 575-576 [2011]; People v
Satterfield, 66 NY2d 796, 798-799 [1985]). A claim of
ineffective assistance of counsel is not an opportunity for
courts to "second-guess whether a course chosen by defendant's
counsel was the best trial strategy, or even a good one, so long
as defendant was afforded meaningful representation"
(Satterfield, 66 NY2d at 799-800). "A reviewing court must avoid
confusing 'true ineffectiveness with mere losing tactics and
according undue significance to retrospective analysis'" (People
v Benevento, 91 NY2d 708, 715 [1998], quoting People v Baldi, 54
NY2d 137, 146 [1981]). Thus, in view of the totality of defense
counsel's representation, the strategies he or she employs need
only be reasonable or plausible; we do not require that the
strategy be a winning approach. Because in my opinion
defendant's trial counsel had a reasonable strategy, I dissent.
In People v Evans, this Court determined that the

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defense counsel's decision not to seek dismissal of a time-barred
lesser charge in order to provide the jury an opportunity to make
a compromise verdict was a reasonable strategy (see 16 NY3d at
576). The facts of this case also present a circumstance where
defendant's trial counsel may have strategically intended to give
the jury an opportunity to compromise. Defendant was facing a
misdemeanor charge of petit larceny (see Penal Law § 155.25) and
a felony burglary charge (see Penal Law § 140.25 [2]). Seeking
dismissal of the petit larceny charge would likely ensure that
defendant, if he were to be convicted at all, would be convicted
of a felony. Although the burglary charge was premised upon
petit larceny, dismissal of the petit larceny charge would not
have ensured that defendant would be acquitted of burglary
because evidence of the predicate offense for the burglary,
namely the theft, would have been admitted at trial (see People v
Ventimiglia, 52 NY2d 350, 359 [1981]; see also United States v
Cook, 84 US 168 [1872]). Surely, given the fact that defendant's
DNA was recovered at the crime scene, it is quite possible that
he would have been convicted of a crime. Facing the significant
possibility of defendant's conviction, trial counsel attempted to
give the jurors the opportunity to convict defendant of a
misdemeanor rather than a felony, which would certainly be a more
favorable outcome for defendant, and, thus, I disagree with the
majority's assessment that the submission of the petit larceny
charge to the jury was "objectively incapable of enabling any

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compromise verdict, much less the particular compromise verdict
sought by trial counsel" (majority op. at 6).1 Furthermore, that
counsel's strategy here was not successful should not render him
ineffective, especially since he provided defendant with overall
meaningful representation (see Benevento, 91 NY2d at 712-713).
Additionally, the majority's remedy undercuts the
conclusion that defendant's counsel was ineffective. Where an
attorney is held to have provided ineffective assistance, it is
as if the defendant had no representation at all. Therefore, in
cases where we have determined that counsel is ineffective,
defendant's conviction has been reversed and a new trial ordered
(see People v Wright, 25 NY3d 769 [2015]; People v Oathout, 21
NY3d 127 [2013]; People v Oliveras, 21 BT3d 339 [2013]; People v
Zaborski, 59 NY2d 863 [1983]; Baldi, 54 NY2d at 153 [1981]).
This is so because counsel's performance must be viewed in its
totality to determine whether he or she was ineffective (see
Baldi, 54 NY2d at 147). Thus, counsel's effectiveness or
ineffectiveness permeates throughout the entire proceeding and
affects every charge against the defendant. It is, therefore,
inconsistent to conclude that counsel here was ineffective in
failing to seek dismissal of the petit larceny charge but

1
I see little distinction between the possible strategy
employed in People v Ambers (__ NY3d __ [2015]) and the facts
presented here. In both cases, the strategy employed provided
the jury the opportunity to convict the defendant of a
misdemeanor rather than a felony.

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nonetheless hold that defendant's conviction for burglary may
stand, as such a conclusion indicates, that overall, counsel
provided defendant meaningful representation. Contrary to the
majority's contention, in People v Turner (5 NY3d 476 [2005]),
this Court did not implicitly recognize such a charge by charge
analysis and dismissal of the totality standard. Turner does not
reject the application of our totality of the representation test
to determine ineffective assistance of counsel; for in Turner we
specifically stated that counsel's representation is "viewed in
totality" (see id. at 480). Turner presents a rare expansion of
our ineffective assistance of counsel jurisprudence to hold that
a single error may support a determination that counsel's overall
performance was ineffective. The majority has expanded Turner by
reading into the decision a standard whereby counsel's
ineffectiveness may be determined charge by charge, which is
wholly inconsistent with our long-standing application of the
totality test in these cases.
Despite the majority's implementation of such a
peculiar remedy, I believe that on this record defendant was
provided overall meaningful representation and there exists
grounds to support a plausible and reasonable strategy for
counsel's decision not to seek dismissal of the petit larceny
charge. For these reasons, I cannot say that counsel was
ineffective.

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* * * * * * * * * * * * * * * * *
Order modified by vacating defendant's conviction on the charge
of petit larceny and dismissing that charge in the indictment
and, as so modified, affirmed. Opinion by Chief Judge Lippman.
Judges Rivera, Stein and Fahey concur. Judge Abdus-Salaam
dissents in an opinion in which Judge Pigott concurs.

Decided November 23, 2015

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