People v. Hilbert Stanley


AD1 order dated January 12, 2012, affirming judgment of conviction with dissents. Decision below: 92 AD3d 176, 939 NYS2d 4. Smith, J., granted leave May 11, 2012. To be argued October 10, 2013. (Taken off SSM.)

ISSUE PRESENTED: Whether trial counsel was ineffective for failing to pursue the affirmative defense to first-degree robbery, where the only weapon recovered was a BB gun (P.L. § 160.15[4]). (Assigned counsel: Steven Banks, Legal Aid Society, Criminal Appeals Bureau, 199 Water Street, NYC 10038.) (Leave was also granted to co-defendant Malik Howard.)

People v. Malik Howard

People v. Hilbert Stanley


Issues before the Court: Whether the trial defense lawyers, at this joint trial, were ineffective for failing to raise the affirmative defense to first-degree robbery (PL Sec. 160.15[4]) on the theory that the weapon was a BB gun, the only weapon recovered; whether the showup was unduly suggestive given that it took place two hours after the crime and five miles away from the crime scene.


Held: Counsel were not ineffective, as the evidence suggested the use of a second object displayed as a weapon, and the lawyers may have had a reasonable strategy in not raising the affirmative defense–“going for broke” with an ID defense.  Additionally, whether a showup is suggestive is a “mixed question of law and fact” beyond the review of the Court of Appeals unless there is no record support for the lower court’s finding, and here there was record support.


CAL Observes: Judges Lippman, Rivera and Abdus-Salaam dissented on the “on-the-scene” showup issue, noting that the facts in this case were indistinguishable from People v. Johnson (81 NY2d 828 [1993]), where the Court held the showup suggestive.  Judge Lippman wrote: “The mixed question doctrine is abused when employed, as it is here, transparently, to shield from judicial scrutiny police conduct that is simply illegal.”  Well, he said it, we didn’t.

On the IAC issue, only Judges Lippman and Rivera dissented.  They noted that the second “displayed” weapon– a poke in the back–was also subject to the affirmative defense, and the ID defense would not have been undercut simply by having the jury charged on the affirmative defense.  We observe that the IAC issue was raised on direct appeal, where the odds of prevailing on IAC are generally very bad.  The majority suggested that these defendants can go by 440.