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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 158
The People &c.,
            Respondent,
        v.
Andrew Blake,
            Appellant.




          Alexandra Keeling, for appellant.
          Vincent Rivellese, for respondent.




LIPPMAN, Chief Judge:
          After a jury trial, defendant was convicted of three
counts of attempted second degree murder, two counts of first
degree assault, assault in the second degree, two counts of
criminal possession of a weapon in the second degree, reckless
endangerment in the first degree and bribery in the second

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degree.   The trial evidence established that, during an
altercation in a New York City housing project, defendant shot
three men with a handgun recovered several days later from the
water tank of a toilet in the Wilmington, Delaware apartment to
which defendant fled in the shooting's aftermath.    Defendant
raises no challenge to his weapon possession convictions.    Nor
does he now challenge his conviction for bribery, premised on
proof that, following his arrest, he offered police detectives
substantial sums to destroy video tapes purportedly implicating
him in the New York shootings.    Defendant seeks relief only from
those portions of the underlying judgment convicting him of
attempted murder, assault and reckless endangerment.
             At trial, defendant sought to portray his resort to
deadly force as justified; he maintained that he fired at his
four adversaries because they had surrounded him and were about
to set upon him with razors.1    This claim, his attorney argued,
would have been objectively verified had the tape from a video
surveillance camera periodically trained upon the location of the
altercation been timely retrieved instead of having been left in
the recording device and recorded over due to an unexplained
oversight.    Indeed, defendant's attorney was permitted to urge
over the prosecutor's objection that the missing tape would have



     1
      Defendant did not testify. He raised the claim that he had
acted in self-defense during a video-recorded portion of his
post-arrest interview entered in evidence by the prosecution.

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shown "a terrified [defendant]" attempting to escape his
aggressors, and to express astonishment that "the one video that
would show what happened"2 had been lost by "the most powerful
law enforcement agency in this country."    Counsel, however, did
not request, as she could have, a charge permitting, but not
requiring, the jury to infer that the content of the missing tape
would not have been favorable to the prosecution. Defendant's
sole appellate contention is that the failure to ask for the
charge rendered counsel's representation constitutionally
ineffective.
          In the decision and order we now review pursuant to
leave granted by a Judge of this Court (21 NY3d 1013 [2013]), the
Appellate Division declined to afford defendant relief, both
because the appellate record was, in its view, insufficient to
exclude a strategic justification for a decision by counsel not
to request a charge merely permitting an adverse inference, and
in light of what the court understood to be the overwhelming
evidence refuting defendant's claim that his conduct had been
justified (105 AD3d 431, 431-432 [2013]).   We now affirm.
          While it is not utterly implausible that defense
counsel reasonably elected not to seek a permissive adverse
inference charge after having been permitted, over the People's



     2
      Tapes were recovered from other surveillance cameras, but
although they captured surrounding events they did not capture
what transpired at the moment of the shootings.

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                               - 4 -                         No. 158

objection, forcefully to argue that the missing evidence would
certainly have substantiated her client's contention that his
conduct had been justified, defendant's contention that he was
ineffectively represented may for other reasons be more
conclusively laid to rest.
          It is well-established that the effectiveness of a
representational effort is ordinarily assessed on the basis of
the representation as a whole (see Strickland v Washington, 466
US 668, 687-688 [1984]; People v Turner, 5 NY3d 476, 480 [2005];
People v Baldi, 54 NY2d 137, 146-147 [1981]).   One error -- and
only one is identified here -- in the context of an otherwise
creditable performance by counsel generally will not suffice in
support of the conclusion that the representation was not
"meaningful" (see Baldi, 54 NY2d at 147) or fell below the
objective standard of reasonableness required by the Federal
Constitution (Strickland, 466 US at 688).   There are, of course,
exceptional cases in which an error is so clear-cut, egregious
and decisive that it will overshadow and taint the whole of the
representation (see People v Turner, 5 NY3d at 480-481; and see
People v Caban, 5 NY3d 143, 152 [2005]), but this is not that
rare sort of case.   Allowing for argument's sake that counsel
erred in omitting to request the charge, that lone error was not
in the context of this prosecution sufficiently egregious and
prejudicial to constitute a predicate for the relief now sought.
          The entitlement to an adverse inference charge, such as


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the one defendant's attorney allegedly neglected to seek, was not
conclusively established until 2013 when we decided People v
Handy (20 NY3d 663 [2013]). It was in Handy that we first held
such a charge to be mandatory upon request "when a defendant in a
criminal case, acting with due diligence, demand[ed] evidence . .
. reasonably likely to be of material importance, and that
evidence ha[d] been destroyed by the State" (id. at 665).     Before
Handy, the availability of the charge was discretionary.     At the
time of defendant's trial, in 2009, competent counsel would
naturally have seized upon the government's unexplained failure
to preserve probably material evidence to encourage an inference
adverse to the prosecution and favorable to her client, precisely
as defendant's trial counsel did, but there was then no legal
authority absolutely entitling her client to the judicial
instruction she is now faulted for not having sought (see Handy,
20 NY3d at 669-670).   Perhaps it was a mistake not to seek the
charge, which likely would have been given as a matter of
discretion, but if it was a mistake, it was not one so obvious
and unmitigated by the balance of the representational effort as
singly to support a claim for ineffective assistance.
          More importantly, there is no reason to suppose that a
Handy-type charge would have availed defendant.   The jury was
well aware that, as defense counsel had emphasized, the police
had failed to preserve "the one video that would show what
happened," but nonetheless rejected the argument specifically


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allowed by the trial court over the People's protest, that the
tape would have proved that defendant only fired his gun to avoid
being shred by his assailants' razors.   The reasons for this
rejection are clear and, contrary to defendant's argument, bear
no discernible relation to the prosecutor's summation remarks
briefly urging the jury not to speculate, as it would have if, in
accordance with a Handy charge, it had elected to draw an
inference adverse to the prosecution, not from evidence but from
its absence (see Handy, 20 NY3d at 669).
          Although defendant claimed that his antagonists were
armed, the video evidence that was presented at trial depicted
one of defendant's adversaries a moment before the shootings with
his arms extended at his sides and his palms open, and there was
no proof that razors or other weapons were found on or near the
victims when they were attended soon after being shot.   There
was, in addition, forensic evidence that one of defendant's
victims had been shot in the back while fleeing, a circumstance
dramatically at odds with defendant's contention that he fired in
self-defense.   And, there was the evidence of defendant's conduct
following the altercation -- fleeing the jurisdiction and
attempting to secrete evidence linking him to the shootings --
which must have seriously undermined his claim of justification.
Yet, perhaps most damaging to defendant's contention that the
missing video would have borne out his assertion that he acted to
defend himself, was the proof that he attempted to bribe the


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arresting officers to destroy videotapes the officers said they
had of the altercation.    Surely it was not lost upon the jury
that defendant would not have sought the destruction of tapes of
the incident -- the very evidence he later complained was missing
-- if there had been reason to suppose that such evidence would
substantiate his justification claim.
            We do not exclude the possibility that, post-Handy,
the failure to request a Handy charge could support an
ineffective assistance claim.     But the viability of such a claim,
conditioned upon a demonstration of prejudice attributable to
counsel's inadequacy (see Strickland, 466 US at 694; People v
Caban, 5 NY3d at 155-156), would depend, in crucial part, upon
facts making the adverse inference Handy merely makes available
at least reasonably plausible.     The present facts do not meet
that condition. On this record, it cannot be said that there was
even a reasonable possibility, much less a reasonable probability
(see Strickland, 466 US at 694) that 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.
            Accordingly, the order of the Appellate Division should
be affirmed.
*   *   *    *   *   *    *   *    *      *   *   *   *   *   *    *   *
Order affirmed. Opinion by Chief Judge Lippman. Judges Graffeo,
Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

Decided October 21, 2014


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