On October 28, 2018, the defendant was convicted after a jury trial in Supreme Court, Bronx County, of Criminal Possession of a Weapon in the Second Degree (Penal Law §256.03[3]) and sentenced to ten years in prison. He was acquitted of the top charges in the indictment, two counts of Attempted Murder in the Second Degree and one count of Assault in the First Degree. The defendant’s conviction stems from the shooting of a five-year old boy, a bystander to an altercation between the defendant and other individuals. Trial counsel successfully advanced a justification defense, arguing that the other individuals, among them Christian Foster and Herman Sanders, had previously assaulted and shot at the defendant, that the defendant reasonably feared for his life, and that on the date of the incident, Foster, Sanders and others had approached and surrounded him with weapons. Through present counsel the defendant has filed a CPL §440.10 motion alleging that his trial attorneys were ineffective for conceding his guilt of the weapon possession charge and for failing to request that the jury be instructed to consider the justification defense of necessity, Penal Law §35.05(2), as to that charge. The People oppose the defendant’s motion, arguing that trial counsel did not concede the defendant’s guilt, that even if they did, the concession did not constitute ineffective assistance of counsel, and that defense counsel’s failure to request the necessity defense also did not render their assistance ineffective. When a defendant raises the issue of ineffective assistance of counsel, the court must first “determine on [the] written submissions whether the motion can be decided without a hearing,” and the defendant is required to show that the facts he seeks to establish are “material and would entitle him to relief.” People v. Satterfield, 66 NY2d 796, 799 (1985). Under New York law, to prevail on a claim of ineffective assistance, a defendant must demonstrate that his attorney(s) failed to provide meaningful representation. People v. Benevento, 91 NY2d 708, 713 (1998). Under federal law, a defendant must show, first, “that counsel’s representation fell below an objective standard of reasonableness,” and, second, that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). While in New York the Strickland prejudice prong is not “applied [ ] with [ ] stringency,” it is “a significant but not indispensable element in addressing meaningful representation.” People v. Stultz, 2 NY3d 277, 283-84 (2004). Defendant’s Right to Autonomy Over the Objectives of the Defense It had long been held in this state that trial counsel may concede guilt to a lesser offense without the defendant’s consent in furtherance of a strategy seeking an acquittal on more serious charges. See People v. Garrick, 11 AD3d 395 (1st Dept. 2004); People v. Jenkins, 90 AD3d 1326 (3d Dept. 2011); People v. Washington, 19 AD3d 1180 (4th Dept. 2005). After those cases were decided, the Supreme Court rendered its decision in McCoy v. Louisiana, 138 S.Ct 1500 (2018), in which the defendant was charged with three murders, and defense counsel, over the defendant’s objection, conceded the defendant’s guilt of the murders, hoping that the concession would lead the jury to reject the death penalty. Finding counsel’s concession ineffective, the Court held that “[a]utonomy to decide that the objective of the defense is to assert innocence” is among the Sixth Amendment rights guaranteed to a defendant, even where “[c]ounsel may reasonably assess a concession of guilt as best suited to avoiding the death penalty.” Id. at 1508. In this case, the defendant maintains — and both his trial attorneys acknowledge in affirmations appended to the defendant’s motion — that he did not want to concede guilt of the weapon possession count and communicated that to his attorneys. Nonetheless, in the opening statement, defense counsel admitted that at some point the defendant in fact possessed a weapon. The People argue that defense counsel’s admission did not constitute a concession that the defendant was guilty of Criminal Possession of a Weapon in the Second Degree and was instead made in furtherance of a strategy seeking the defendant’s acquittal on all the charges against him. In the opening statement, defense counsel asserted that “Michael Quiles didn’t intend to shoot anybody,” “never intended even to have a gun in his hand,” and “didn’t bring one” to the scene. However, faced with the People’s powerful evidence establishing that the defendant possessed a weapon, defense counsel admitted in the opening that he “ended up with a gun in his hand that night.” Nonetheless, during the trial, defense counsel sought to establish the defendant’s temporary and lawful possession of the weapon and vigorously challenged the credibility of the People’s witnesses. In the charge conference, the defense requested a charge on temporary and lawful possession. On summation, defense counsel suggested that Foster or Sanders could have brought the gun to the scene, argued that Foster and Sanders were the aggressors and that the defendant acted in self-defense, and insisted that the People’s witnesses were not credible. Although the Court denied the request for a temporary and lawful possession instruction, defense counsel nonetheless asked the jury to find the defendant not guilty of all the charges. The defense approach was clearly an attempt to incorporate the gun possession into their overall justification strategy. Although in their affirmations, both trial attorneys state that their “strategy was to seek acquittal on the attempted murder and assault charges on the ground that Mr. Quiles was justified,” and they “hoped that the jury would nullify and acquit on the weapon possession count,” neither attorney explicitly asked the jury to engage in nullification. And they certainly did not, as trial counsel in McCoy did, invite the jury to find him guilty. To the contrary, defense counsel argued to the jury that it should acquit the defendant on the weapon possession charge, as well as on the other charges to which the justification charge applied. Thus, counsel’s statement that the defendant “ended up with a gun in his hand that night,” while an admission of the fact that the defendant possessed a gun, was not a concession of guilt. Hence, McCoy has no application here. See People v. Murphy, 168 AD3d 632, 633 (1st Dept. 2019). That the temporary and lawful possession charge request was denied, and that the defense was unsuccessful in obtaining an acquittal of Criminal Possession of a Weapon in the Second Degree, does not render their representation deficient. See People v. Baldi, 54 NY2d 137, 147 (1981) (“trial tactics which terminate unsuccessfully do not automatically indicate ineffectiveness” and courts must avoid “confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis”). Even assuming that the factual concession was tantamount to a concession of guilt, the defendant’s ineffectiveness claim still fails. The defendant argues that under McCoy a concession to any charge in the face of a defendant’s objection is ineffective assistance of counsel. The People, relying on People v. Strong, 165 AD3d 1589 (4th Dept. 2018), insist that McCoy is inapplicable because counsel did not concede guilt of the most serious charges against him. In Strong, 165 AD3d at 1590, the Fourth Department held that the defendant’s trial attorney was not ineffective for “failing to raise a justification defense that would have been weak, at best, and which might have undermined [the] stronger defense that counsel did pursue.” (Internal citation and quotation marks omitted). In so holding, the Court found the “[d]efendant’s reliance on McCoy…is misplaced because defense counsel did not concede the defendant’s guilt on the most serious charges.” Id. While the defendant asserts that Strong was wrongly decided, as the only appellate decision on this issue, it is binding on this Court. See Tzolis v. Wolff, 39 AD3d 138, 142 (1st Dept. 2007), affd. on other grounds, 10 NY3d 100 (2008) (“Absent any authority from this Court, the motion court was bound to follow the applicable ruling of another department”) (citation omitted); Mountain View Coach Lines, Inc. v. Storms, 102 AD2d 663 (2d Dept. 1984). Under Strong, defense counsel’s concession that the defendant possessed a gun does not render their representation ineffective. Failure to Seek the “Necessity” Defense Penal Law §35.05(2) provides that use of physical force is justified when: [s]uch conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweighs the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. Relying on People v. Pons, 68 NY2d 264 (1986) and People v. Perry, 19 NY3d 70 (2012), the defendant maintains that the Court of Appeals has recognized that the necessity defense applies to weapon possession charges and that his attorneys were ineffective for not seeking this jury charge. The People argue that the necessity defense does not apply to Penal Law 265.03(3), pointing to People v. Hughes, 124 AD3d 1380 (4th Dept. 2015), amended on reargument, 126 AD3d 1430 (4th Dept. 2015). In both Pons and Perry, the defendants were charged with and convicted of Criminal Possession of a Weapon in the Second Degree under Penal Law §265.03(1), which requires possession of a weapon “with intent to use the same unlawfully against another.” In Perry, 19 NY3d at 73, while the Court of Appeals noted that “[f]rightening a man with a gun…would be justified in defense of one’s own life,” the Court did so in considering whether there was any “reasonable view of the evidence on which defendant possessed the weapon without any intention to use it unlawfully.” Id at 72. To the extent that such dicta is authority at all, it would be so only as it relates to Penal Law §265.03(1) (possession with intent to use), not possession under Penal Law §265.03(3) (possession not in the home or place of business), the crime the defendant was convicted of here. In Pons, 68 NY2d at 264, the defendant argued that the possession was justified in self-defense pursuant to Penal Law §35.15. That the Court of Appeals noted that the “[d]efendant did not request, and the record would not support, a charge under Penal Law §35.05″ does not amount to a recognition that the necessity defense applies to Penal Law §265.03(1), let alone Penal Law §265.03(3). In Hughes, the defendant was convicted, like the defendant here, of possessing a weapon not in his home or place of business. The Fourth Department held that the trial court “properly refused to charge the defense of justification inasmuch as that defense does not apply to criminal possession of a weapon.” Hughes, 124 AD3d at 1381. While the decision itself does not specify whether the defendant had sought a justification defense instruction pursuant to Penal Law §35.15 or Penal Law §35.05, in his appellate brief the defendant explicitly argued that the trial court should have charged the jury with respect to the necessity defense. See Brief for Appellant, 2014 WL 9964133. Hughes is not the only case that dictates rejection of the defendant’s claim. In People v. Almodovar, 62 NY2d 126, 130 (1984), the Court of Appeals held that while temporary and lawful possession is a possible defense to both criminal possession of a weapon with intent to use and not in the home or place of business, the justification defense set forth in Penal Law §35.15 is not, since “a person either possesses a weapon lawfully or he does not and he may not avoid the criminal charge by claiming that he possessed the weapon for his protection.”1 People v. Abdul-Hakeem, 172 AD2d 177 (1st Dept. 1991), extended the holding in Almodovar to a case in which the defendant claimed that the necessity defense set forth in Penal Law §35.05(2) applied to the two counts of second and three counts of third-degree criminal possession of a weapon of which he was convicted.2 Finding the claim “without merit,” the First Department reasoned that, “[a]s stated in People v. Almodovar, [62 NY2d] at 130, the extent to which possession of an unlicensed or proscribed weapon is deemed innocent in this State is limited to circumstances in which the possession is ‘temporary and lawful.’” Thus, just as the necessity defense was not available to the defendants in Abdul-Hakeem and Hughes, so, too, it was not available to the defendant here. Even if the necessity defense were available to a weapon possession charge, the evidence did not support the defense in this case. As this Court pointed out in denying the defendant’s request for the temporary and lawful possession charge, “there [was] no evidence that when he ran away, clearly possessing the gun when he did, that he was possessing it at that point for any lawful purpose.” Trial transcript, pp. 578-79. Here, once the defendant ran away with the gun, his possession of the weapon was clearly not “necessary as an emergency measure to avoid imminent public or private injury which is about to occur,” Penal Law §35.05(2), since any private injury was no longer imminent, and the emergency was over. See People v. Banks, 76 NY2d 799, 801 (1990) (defense of temporary and lawful possession rejected where, after initially taking weapon from another with arguable justification, “defendant concealed the weapon on his person and determined to transport it through the streets and on the subway into Queens where he proposed to ‘throw it down a sewer’”); People v. Snyder, 73 NY2d 900 (1989); People v. Fermin, 36 AD3d 934, 936-37 (2d Dept. 2007). Because an attorney will not be deemed ineffective for failing “to make a motion or argument that has little or no chance of success,” defense counsel’s failure to request the necessity charge did not render them ineffective. People v. Caban, 5 NY3d 143, 152 (2005) (citation and internal quotation marks omitted). The Defendant Failed to Establish Trial Counsel Were Ineffective The defendant’s trial counsel advocated zealously on his behalf and were familiar with the facts and relevant legal principals. Their opening and closing statements succinctly presented to the jury their theory of the case and they effectively cross-examined the People’s witnesses. Despite video footage showing the defendant running from the scene of the shooting holding a gun and putting it in his pocket, his attorneys mounted a powerful, and ultimately successful, justification defense that led to acquittal on the three top charges. Had he been convicted of all charges, the defendant faced a potential sentence of twenty-five years, and possibly fifty. See Penal Law §§70.02(3)(a); 70.25(1); People v. McKnight, 16 NY3d 43, 48 (2010). And, for the reasons set forth above, the defendant’s attorneys were not ineffective for conceding possession of the weapon or for not seeking a jury charge on the necessity defense. Since the defendant has not met his burden of showing that his attorneys did not provide meaningful representation, that their representation fell below an objective standard of reasonableness or that he was prejudiced, his ineffective assistance of counsel claim fails under both the state and federal standards. Benevento, 91 NY2d at 713; Strickland, 466 U.S. at 688, 694. Accordingly, the defendant’s motion is summarily denied in its entirety. Dated: March 1, 2022
