AD2 order dated July 2, 2014, affirming judgment of conviction. Decision below: 119 AD3d 610, 988 NYS2d 693. Lippman, Ch. J., granted leave June 19, 2015.

ISSUES PRESENTED: (1) The sufficiency of the evidence of grand larceny of real property based upon executing and filing a “forged” deed. (2) The sufficiency of the evidence of value. (3) IAC of trial counsel. (Assigned counsel: Seymour W. James, Jr., The Legal Aid Society Criminal Appeals Bureau, 199 Water Street, NYC 10038.)

People v. Maldonado, 28 N.Y.3d 1173 (Decided February 16, 2017)

 

Issue Before the Court

 

Whether the evidence was sufficient to establish grand larceny of real property by false pretenses and possession of a forged instrument, based on Mr. Maldonado’s execution and filing of a deed to a building that he did not own and attempted first-degree grand larceny, based on his pursuit of a loan secured by a mortgage on the same building.  The Appellate Division, Second Department held that proof of possession of a forged instrument was sufficient, even though Mr. Maldonado used his own name, because he signed the deed “as the owner of the corporation, thereby falsely assuming the identity of the owner and ostensible maker of the deed.” People v. Maldonado, 119 A.D.3d 610 (2d Dep’t 2014). Most of the other sufficiency arguments were rejected as unpreserved. The Second Department stated, “the evidence . . . was legally sufficient . . . in light of the elements of the crime as charged without objection by the defendant.” Id.  

 

The Second Department rejected appellant’s allegation of ineffective assistance of trial counsel. Id.  Review of the Court of Appeals’ briefs reveals that trial counsel made a C.P.L. §330.30 motion and asserted that he had been ineffective for not recognizing that the People had failed to prove an element of grand larceny by false representations: that the actual owner of the property relied on Mr. Maldonado’s false representations. See Penal Law § 155.42; People v. Churchill, 47 N.Y.2d 151 (1979). See Appellant’s Court of Appeals Brief, pp. 48-49. The trial court, however,  refused to appoint new counsel and denied the motion to set aside the verdict.

 

In the Court of Appeals, but not in the Appellate Division, Respondent also argued that the defense failed to preserve the argument, discussed above, that the deed was not forged. See Appellant’s Court of Appeals’ Brief, p. 57; Respondent’s Court of Appeals’ brief, pp.  79-80.

 

Mr. Maldonado re-asserted the sufficiency arguments in the Court of Appeals and tried arguing that the C.P.L. § 330.30 motion was sufficient to preserve the argument. In the alternative, he argued that counsel was ineffective.

 

Holding

 

Without any explanation, the Court of Appeals held that “to the extent preserved, defendant’s legal sufficiency challenges to this trial record lack merit.”  Equally terse was the Court’s grounds for reversal: “However, we hold that counsel’s overall performance fell below the ‘meaningful representation’ standard and defendant is entitled to a new trial (see People v. Berroa, 99 NY3d 134 [2002]; see also People v. Baldi, 54 NY2d 134, 147 [1981]).”

 

CAL Observes

 

Apparently, the Court of Appeals did not want to advertise the reasons for this reversal. Maybe that’s because it’s become almost de riguer to argue that counsel’s failure to object amounts to ineffective assistance. Equally rare is the reversal on direct appeal – without requiring a C.P.L. 440 motion to explore possible reasons for counsel’s inaction.  While it does not appear that the C.P.L. § 330.30 motion preserved the sufficiency claim, it may be that trial counsel’s mea culpa made the 440 motion unnecessary.  It will be interesting to see how future litigation reconciles this holding with People v. Giles, 24 N.Y.3d 1066 (2014), where the Court held that ineffective-assistance-of-counsel facts alleged in a C.P.L. § 330.30 motion were not part of the record for purposes of a direct appeal.