Relevant Facts: Blake was convicted in 2009 of attempted murder and other counts for shooting three men with a handgun that police later recovered secreted in an apartment in Delaware to which Blake had fled. Blake raised a justification defense, and defense counsel argued that a surveillance videotape, unavailable to the defense because it had been recorded-over, would have objectively verified that the victims had been armed with razor blades and were the aggressors.  Defense counsel aggressively urged this theory in summation but did not request an adverse inference charge – that the jury could infer that the missing tape would not have been favorable to the People. 

 

Issue before the Court: Was defense counsel ineffective for failing to request an adverse inference charge that, under People v. Handy, 20 N.Y.3d 663 (2013), would have been mandatory upon request if the evidence was “reasonably likely to be of material importance.”

 

Held: Although Handy applied to this non-final case on direct appeal, and while the Court did not  exclude the possibility that, post-Handy, the failure to request an adverse inference charge for lost or destroyed evidence could support an IAC claim, counsel was not ineffective here.  The unanimous decision opinion authored by Judge Lippman set forth several reasons: (1) this was a lone error case, and the error was not sufficiently egregious given that Handy had not yet been decided.  At the time of trial, the charge was purely discretionary, so defense counsel’s mistake, in the context of otherwise competent representation, did not “singly support a claim for ineffective assistance; (2) the defendant was not prejudiced because the Handy charge would not have availed the defendant.  The jurors rejected the inference urged by defense counsel, no doubt because the available video inference refuted that the victims were the aggressors; plus, the defendant fled and secreted evidence and tried to bribe a police officer to destroy the video evidence that he now complained was missing. 

 

CAL Observes: This case presents the not-so-uncommon scenario facing post-conviction counsel -- when later developments in the law suggest defense counsel’s ineffectiveness.  The Court here declined to find counsel ineffective in part because Handy was decided after the defendant’s trial.  Yet in People v. Akieme Nesbitt, 20 N.Y.3d 1080 (2013) and People v. Herman Turner, 5 N.Y.3d 476 (2005), counsel (and appellate counsel in Turner) were found ineffective, though the law was not definitively settled at the time of trial.  In Nesbitt, the Court found ineffectiveness because the standard for whether the victim’s type of  injuries constituted serious physical injury was an “open issue” at the time of trial. In Turner, the Court noted the “strong indications that the defense had the better of the argument” based on a 1914 case that had never been overruled and some lower court and out-of-state supporting authority.   Appellate counsel wanting to raise an ineffectiveness issue based on post-trial legal developments should be mindful of these guideposts.  Note that “lone error” cases will always present a challenge, unless the error is virtually dispositive.    

 

Also interesting is the prejudice standard the Court applies in this context — are there facts making the adverse inference “at least reasonably plausible.” This standard is more favorable  than whether the outcome of the case would have been different had the charge been given.  As framed by the Court, the question is limited to whether the jury “if offered the opportunity, would have elected to draw an inference adverse to the prosecution as to what the missing video would have shown.”