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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 18
The People &c.,
            Respondent,
        v.
Marcus D. Hogan,
            Appellant.




             Shirley A. Gorman, for appellant.
             Robert J. Shoemaker, for respondent.




STEIN, J.:
             Under the circumstances of this case, we conclude that
the drug factory presumption of Penal Law § 220.25 was properly
considered by the factfinder.    In addition, defendant argues that
the decision regarding whether to testify before the grand jury
is fundamental and, therefore, reserved to defendants, rather

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than a matter of strategy that rests with defense counsel.    We
reject that argument and hold that the decision is a strategic
one, requiring the expert judgment of counsel.   Thus, we adhere
to our prior decisions establishing that the refusal to timely
facilitate defendant's appearance before the grand jury does not,
per se, amount to ineffective assistance of counsel.
           Defendant was arrested on felony drug possession
charges after police executing a search warrant at his former
girlfriend's apartment observed him running to the bathroom from
the kitchen, where packaged and loose cocaine, baggies, and a
razor blade were found in open view directly across from the
entrance door.   At approximately 4:00 p.m. on the Friday before a
long holiday weekend, the People sent notice to defense counsel,
by fax, indicating that the case would be presented to a grand
jury on the next business day, a Tuesday, at 1:45 p.m.   Defense
counsel had already left the office and did not receive the
notice until Tuesday morning.   He then contacted the district
attorney's office and indicated that he would not have defendant
testify because he "didn't see the benefit to it, only the harm."
It is undisputed that counsel did not speak with defendant about
testifying before the grand jury, which ultimately voted to
indict defendant, charging him with, among other things, criminal
possession of a controlled substance in the third and fifth
degrees.   Defendant later moved to dismiss the indictment on the
ground that he was denied an opportunity to testify before the


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grand jury due to insufficient notice.   Supreme Court denied the
motion as untimely.
           At the ensuing nonjury trial, police officers testified
that, upon entering the apartment, they found six "dime bags" of
packaged crack cocaine and 50 unused baggies in plain view on the
kitchen counter.   There was also testimony that the baggies were
of the sort that "are commonly used for the unlawful packaging,
sale and distribution of illegal narcotics such as crack cocaine"
-- i.e., sale-related items associated with the drug trade.    They
also found loose cocaine and a razor blade on the floor, a few
feet in front of the counter.   One of the officers testified that
defendant was initially observed "a couple of feet" away from the
cocaine.   Defendant's former girlfriend, who pleaded guilty to
attempted criminal possession of a controlled substance in the
third degree, testified that she had purchased the cocaine and
was "in the process of moving it" when the police arrived, but it
"flew everywhere" out of her hands when she heard the police
banging on the door.   She admitted that the cocaine -- including
the loose cocaine that had been in her hands -- and the unused
baggies were in plain view when the police entered.    She further
testified that she was not sure what she was going to do with the
drugs, but acknowledged that she would "[p]robably sell some."
           Defendant was convicted of criminal possession of a
controlled substance in the third and fifth degrees.   In handing
down its verdict, the court indicated that there was insufficient


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proof under a constructive possession theory without the
presumption set forth in Penal Law § 220.25 (2), commonly known
as the drug factory presumption.   Defendant was sentenced, as a
second felony offender, to an aggregate term of nine years in
prison, to be followed by three years of postrelease supervision.
His subsequent motion to set aside the verdict was denied.
          Upon defendant's appeal, the Appellate Division
unanimously affirmed, rejecting his arguments that the drug
factory presumption did not apply and that he was denied the
effective assistance of counsel (118 AD3d 1263, 1263-1264 [4th
Dept 2014]).   A Judge of this Court granted defendant leave to
appeal (24 NY3d 1219 [2014]).
                                 II.
          Initially, we reject defendant's argument that the drug
factory presumption contained in Penal Law § 220.25 (2) was
inapplicable because, he maintains, there was evidence only of
possession with intent to sell, but no evidence of intent to
package or otherwise prepare drugs for sale.   As relevant here,
section 220.25 (2) provides:
          "The presence of a narcotic drug . . . in
          open view in a room, other than a public
          place, under circumstances evincing an intent
          to unlawfully mix, compound, package or
          otherwise prepare for sale such controlled
          substance is presumptive evidence of knowing
          possession thereof by each and every person
          in close proximity to such controlled
          substance at the time such controlled
          substance was found" (emphasis added).
This Court recently addressed this provision in People v Kims,

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explaining that the statute allows the court to charge the fact-
finder "with a permissible presumption, under which the fact-
finder may assume the requisite criminal possession simply
because the defendant, while not in actual physical possession,
is within a proximate degree of closeness to drugs found in plain
view, under circumstances that evince the existence of a drug
sale operation" (24 NY3d 422, 432 [2014]).
          The intention of Penal Law § 220.25 (2) is "to allow
police in the field to identify potentially culpable individuals
involved in a drug business, under circumstances that demonstrate
those individuals' participation in a drug operation" (id. at
432-433, citing Mem of St Commn of Investigation, Bill Jacket, L
1971, ch 1044).   That is, "the presumption was intended to
address the issue of proof of knowing possession by those who
were supervising or participating in the preparation of drugs for
resale but who did not have personal physical possession of the
drugs when the police lawfully entered the premises[;] . . . a
'dealership quantity' of the drug is not a requirement," however
(William C. Donnino, Practice Commentaries, McKinney's Cons Laws
of NY, Book 39, Penal Law § 220.25 [emphasis added]).   In
accordance with the statutory purpose -- and as is evident from
the language of the statute -- "a specific intent on the part of
the defendant to 'unlawfully mix, compound, package or otherwise
prepare for sale' a controlled substance [need not] be shown[;]
[a]ll that is required is that the 'circumstances evinc[e]' such


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an intent" (People v Nelson, 147 AD2d 774, 776 [3d Dept 1989], lv
denied 74 NY2d 794 [1989], quoting Penal Law § 220.25 [2]).
           This Court has found circumstances present evincing the
existence of a drug factory for purposes of the presumption where
cocaine was found in a bathrobe that was under a pile of clothes,
along with, "in plain view, . . . recognized adulterants and drug
paraphernalia" (People v Tirado, 47 AD2d 193, 195-196 [1st Dept
1975], affd on op below 38 NY2d 955 [1976]).   Similarly, we
concluded that the presumption was properly applied where an
"apartment contain[ed] a large cache of drugs, money and weapons
in plain view" (People v Bundy, 90 NY2d 918, 920 [1997]), as well
as where police found a small residue of cocaine on a dish,
grains of rice on the floor, a plastic bag containing over one-
half ounce of cocaine in a closed drawer, and 10 ounces of
cocaine hidden in a bag of rice in a refrigerator (see People v
Tejeda, 73 NY2d 958, 960 [1989]).   In contrast, there was
insufficient evidence to charge the presumption where, upon
entering an apartment in which an undercover officer had recently
made a controlled buy, police found only "a tinfoil packet of
cocaine on the floor in the four-to-five-inch space between a
couch and the wall," as well as a large amount of cash (People v
Martinez, 83 NY2d 26, 30, 34 n 3 [1993], cert denied 511 US 1137
[1994]).
           Under the circumstances here, the court properly
granted the People's request that it consider the presumption.


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Defendant's former girlfriend admitted that the bagged crack,
loose cocaine and baggies were in plain view, and that she was in
the process of "moving" the cocaine that she was "[p]robably"
going to sell.1   The police further testified that defendant was
found in close proximity to the cocaine and that the drugs,
baggies and razor blade were in open view.   Despite the fact that
the loose cocaine was in the carpet -- where it fell from the
former girlfriend's hands when she was startled by the police
battering ram -- it was in the open and not concealed by any
furniture or other object (cf. Martinez, 83 NY2d at 36-37).
While there was not a vast quantity of cocaine found, the
evidence presented at trial supported an inference of more than
mere intent to use or sell.   Specifically, the evidence of
packaged and loose drugs, paraphernalia and a razor blade in
plain view was sufficient to establish that drugs were being
"package[d] or otherwise prepare[d] for sale" in the apartment,
permitting the conclusion that defendant, who was in close
proximity to the drugs, knowingly possessed them (Penal Law §
220.25 [2]; see People v Elhadi, 304 AD2d 982, 982-984 [3d Dept
2003], lv denied 100 NY2d 580 [2003]; People v Jiminez, 292 AD2d
196, 197 [1st Dept 2002], lv denied 98 NY2d 698 [2002]; People v
James, 266 AD2d 236 [2d Dept 1999]; People v Westbrook, 177 AD2d


     1
       Contrary to the dissent's contention, the former
girlfriend's indecisiveness over "possibly" consuming some of the
drugs, herself, does not defeat the sufficiency of the evidence
in support of charging the presumption.

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1039 [4th Dept 1991], lv denied 79 NY2d 866 [1992]).
                                III.
          Defendant's claim that he was deprived of the effective
assistance of counsel is also meritless.     Specifically, defendant
faults his counsel for both deciding that defendant would not
testify before the grand jury without consulting him and failing
to timely move to dismiss the indictment for insufficient notice
of the grand jury proceeding.   A defendant advancing an
ineffective assistance claim must "demonstrate the absence of
strategic or other legitimate explanations for counsel's alleged
shortcomings" (People v Benevento, 91 NY2d 708, 712 [1998]
[internal quotation marks and citation omitted]), and defendant
cannot do so here because counsel stated "his thinking in plain
language on the record" (People v Nesbitt, 20 NY3d 1080, 1082
[2013]) regarding why, as a matter of strategy, he decided that
defendant would not testify before the grand jury.    In an attempt
to overcome this hurdle, defendant argues that counsel had no
authority to decide whether he would testify before the grand
jury because that choice is fundamental and, therefore, reserved
exclusively for defendants.   We disagree.
          "It is well established that a defendant, having
accepted the assistance of counsel, retains authority only over
certain fundamental decisions regarding the case" (People v
Colon, 90 NY2d 824, 825 [1997] [internal quotation marks and
citation omitted]; see People v Colville, 20 NY3d 20, 28 [2012];


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People v Ferguson, 67 NY2d 383, 390 [1986]).   Fundamental
decisions belonging to a defendant are those "such as whether to
plead guilty, waive a jury trial, testify in his or her own
behalf or take an appeal" (Colon, 90 NY2d at 825-826 [internal
quotation marks and citation omitted]).   In contrast, strategic
decisions regarding the conduct of trial, which remain in the
purview of counsel, include those such as whether to seek a jury
charge on lesser-included offenses (see Colville, 20 NY3d at 32),
the selection of particular jurors (see Colon, 90 NY2d at 826),
and whether to consent to a mistrial (see Ferguson, 67 NY2d at
390).   If defense counsel solely defers to a defendant, without
exercising his or her professional judgment, on a decision that
is "for the attorney, not the accused, to make" because it is not
fundamental, the defendant is deprived of "the expert judgment of
counsel to which the Sixth Amendment entitles him" or her
(Colville, 20 NY3d at 32).
           While the right to testify before a grand jury is
significant and "must be scrupulously protected" (People v
Brumfield, 24 NY3d 1126, 1128 [2015] [internal quotation marks
and citations omitted]), "a prospective defendant has no
constitutional right to testify before the [g]rand [j]ury"
(People v Smith, 87 NY2d 715, 719 [1996] [emphasis added]).     In
contrast to the "constitutional nature of the right to testify at
trial" (id. at 720), the right to testify before the grand jury
is a limited statutory right (see CPL 190.50 [5]; Smith, 87 NY2d


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at 719).   Whether to exercise that right is a decision that
requires "the expert judgment of counsel" (Colville, 20 NY3d at
32) because it "involves weighing the possibility of a dismissal,
which, in counsel's judgment may be remote, against the potential
disadvantages of providing the prosecution with discovery and
impeachment material, making damaging admissions, and prematurely
narrowing the scope of possible defenses" -- quintessential
matters of strategy (People v Brown, 116 AD3d 568, 569 [1st Dept
2014], lv denied 24 NY3d 1001 [2014]).   The various risks and
benefits that must be considered render the decision of whether
to exercise this statutory right "an appropriate one for the
lawyer, not the client" (Ferguson, 67 NY2d at 390; see Brown, 116
AD3d at 569; People v Lasher, 74 AD3d 1474, 1476 [3d Dept 2010],
lv denied 15 NY3d 894 [2010]).
           In any event, this Court has repeatedly and
consistently held that -- even when it is due to attorney error -
- a "defense counsel's failure to timely facilitate defendant's
intention to testify before the [g]rand [j]ury does not, per se,
amount to a denial of effective assistance of counsel" (People v
Wiggins, 89 NY2d 872, 873 [1996]; see People v Simmons, 10 NY3d
946, 949 [2008]; People v Helm, 51 NY2d 853, 854-855 [1980]).
That is, even where no strategy is involved, a defendant must
show prejudice -- for example, that if he or she "had . . .
testified in the grand jury, the outcome would have been
different" -- in order to succeed on an ineffective assistance of


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                               - 11 -                        No. 18

counsel claim in this regard (Simmons, 10 NY3d at 949).2   We see
no reason to overrule our long-standing precedent in this regard.
Here, defendant's claim that the result would have been different
if he and his former girlfriend had testified before the grand
jury is not convincing.   Indeed, they did testify at trial and he
was nevertheless found guilty.
          In short, the decision of whether to have a defendant
testify before a grand jury is a strategic decision within
counsel's authority to make.   Here, counsel stated his strategy
on the record and, even if counsel had not done so, defendant has
shown no prejudice.   Therefore, while the better practice may be
for counsel to consult with his or her client, defendant cannot
establish ineffective assistance of counsel based on counsel's
decision that defendant would not testify before the grand jury.
Regarding the untimely motion for dismissal of the indictment



     2
       As noted by one court, our holdings that a defendant must
show prejudice in order to prevail on an ineffective assistance
of counsel claim when he or she has lost the right to testify
before the grand jury based upon an attorney's calendaring
mistake (see People v Simmons, 10 NY3d 946, 949 [2008]; People v
Wiggins, 89 NY2d 872, 873 [1996]) "strongly support[] the
conclusion that . . . [the] strategic and tactical decision[]
[of] testifying before the grand jury . . . [is] deemed to
repose" in defense counsel (People v Lasher, 74 AD3d 1474, 1476
[3d Dept 2010], lv denied 15 NY3d 894 [2010] [internal quotation
marks and citation omitted]; see also Peter Preiser, Practice
Commentaries, McKinney's Cons Laws of NY, Book 11A, Criminal
Procedure Law § 190.50 [noting the general rule that the target
of a grand jury investigation is not entitled to notice of the
proceeding against him or her and that federal defendants have no
right to testify before a grand jury]).

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based upon inadequate notice, we need only note that ineffective
assistance is not established by a defendant's allegations that
counsel failed to make a meritless motion (see People v Stultz, 2
NY3d 277, 287 [2004]).
          Accordingly, the order of the Appellate Division should
be affirmed.




                             - 12 -
People v Marcus D. Hogan
No. 18




RIVERA, J.(dissenting):
          The statutory presumption contained in Penal law §
220.25 (2) was appropriately dubbed the "drug factory
presumption," because it "was intended to allow police in the
field to identify potentially culpable individuals involved in a
drug business, under circumstances that demonstrate those
individuals' participation in a drug operation" (People v Kims,
24 NY3d 422, 433 [2014] citing Mem. of St. Comm'n of
Investigation, Bill Jacket, L. 1971, ch. 1044).   Recognizing the
"fairly common situation" where "the occupants of such
'factories' who moments before were diluting or packaging the
drugs, usually proclaim their innocence and disclaim ownership
of, or any connection with, the materials spread before them"
(id. citing Mem. of St. Comm'n of Investigation, Bill Jacket, L.
1971, ch. 1044 at 4), "the drafters of the statute also sought to
address the difficulty of prosecuting persons other than the
owner or lessee of the premises," by equating an individual's
close proximity to drugs in a drug sale operation with that
person's actual possession of a controlled substance (id.).
Nevertheless, the majority ignores the intention of Penal Law §
220.25 (2) and construes the statute broadly to apply where the


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                                - 2 -                            No. 18

evidence of a drug business is tenuous and defendant's
participation in a drug sale operation is lacking.
          "We have long recognized that statutory presumptions
are without validity unless the probabilities based on experience
and proof justify them" (Kims, 24 NY3d at 435 [internal
quotations and citations omitted].      Where facts "lead to a
conclusion counterintuitive to the probabilities to be drawn from
common experience, the [drug factory] presumption has no place"
(id. [internal quotations and citations omitted]).      According to
the statute, the presumption applies if there exist
"circumstances evincing an intent to unlawfully mix, compound,
package or otherwise prepare that substance for sale" (Penal Law
§ 220.25 [2]).   Those circumstances are lacking here.
          When the police entered the apartment they failed to
discover sale-related items associated with the drug trade.
Unlike other cases where the drug factory presumption has been
applied, here, for example, there were no guns or other weapons,
no cache of money, no drug mixing agents, and no scale to weigh
drugs for packaging, typical of a drug sale enterprise (see
People v Faulk, 126 AD3d 564, 564 [1st Dept 2014] lv denied 25
NY3d 1071 [2015] [drug factory presumption applied where
defendant had close proximity to "cocaine, crack pipes and a
scale with cocaine residue"];   People v Hyde, 302 AD2d 101, 103
[1st Dept 2003] lv denied 99 NY2d 655 [2003] [drug factory
presumption applied where there were drugs, drug paraphernalia


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and "a loaded gun in an open bag"]; People v Bundy, 235 AD2d 334,
337 [1st Dept 1997] affd, 90 NY2d 918 [1997][drug factory
presumption applied where defendant was in close proximity to a
"loaded Glock gun, the 20 clear bags containing 1,968
crack-filled vials, the brown bag containing a rock of crack and
59 vials with crack in them, the plastic bags containing empty
vials and vial tops, and a scale used to weigh narcotics"];
People v James, 151 AD2d 606, 606-07 [2d Dept 1989] [drug factory
presumption applied where there were "scales, two heat sealers,
numerous empty vials and a large amount of cash"]).
          The items the police found in this case -- six dime
bags of crack cocaine and 50 unused empty ziplock baggies on the
kitchen counter, and a razorblade and loose cocaine on the floor
-- are insufficient to support the conclusion that the defendant
was a participant in a drug sale enterprise because the items
found may also be evidence of personal drug use.   In fact, the
apartment tenant and defendant's former companion testified at
defendant's trial that the drugs were hers alone, she was hiding
them from defendant, and, at the time the police entered, she was
"indecisive" about what she would do with the drugs in the
future, but that she would possibly consume some of the cocaine.
This is not to say that a claim of personal use forecloses the
People's reliance on the drug factory presumption, because where
"probabilities based on experience and proof justify" the
presumption, the presumption applies (Kims, 24 NY3d at 435).


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           However, this Court may not expand the reach of the
drug factory presumption beyond its intended legislative purpose
(see McKinney's Cons. Laws Of N.Y., Book 1, Statutes, § 94 ["A
statute should not be extended by construction beyond its express
terms or reasonable implications of its language"]).    To ensure
proper adherence to the statutory goal, there should be a
sufficient nexus between the legislatively identified problem and
those persons subjected to the statutory presumption.    No such
nexus exists on the facts presented here where the common indicia
of a drug factory operation is lacking, and where the facts do
not discount intended personal use of the drugs.    Thus, the
People were required to carry their usual burden of establishing
beyond a reasonable doubt that the defendant was in possession of
the contraband.   They failed to do so and, therefore, the trial
court should not have relied on the statutory presumption.
           Defendant also presents a meritorious claim of
ineffective assistance of counsel.     In my opinion the majority's
rejection of this claim is based on a flawed analysis for two
reasons.   First, the majority relies on an overly burdensome
standard in assessing whether counsel was ineffective.    Under our
state constitution a defendant must demonstrate that counsel
failed to provide meaningful representation based on the totality
of the representation (People v Baldi, 54 NY2d 137, 147 [1981]).
A defendant does not have to establish prejudice, as is required
under the federal standard (see People v Caban, 5 NY3d 143, 155


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                                 - 5 -                        No. 18

[2005] ["Our state standard of meaningful representation, by
contrast, does not require a defendant to fully satisfy the
prejudice test of Strickland"]).    Therefore, the proper standard
in deciding defendant's case is not whether he was prejudiced by
the failure to testify before the grand jury, as the majority
asserts (maj. opn. at 10), but rather did defense counsel's
failure to facilitate defendant's intention to testify constitute
less than meaningful representation.
             The majority applies prior cases of this Court which
impose a prejudice requirement on an ineffectiveness claim
involving a defendant's right to testify before a grand jury
(maj. opn. at 10-11).    However, there is no legal or practical
basis to reject our well-established ineffectiveness standard for
one class of deficient representation claims.    There is nothing
insignificant about these claims that warrants differential, and
more burdensome, treatment than any other ineffective assistance
of counsel claim.    This Court has stated repeatedly that the
right to testify before a grand jury is critical to the
defendant.    Although not a constitutional right, we have
explained that the defendant, via statute, still has the right
"to appear at this critical accusatory stage to offer testimony
that may affect the Grand Jury's consideration of the otherwise
exclusive, ex parte presentment of evidence by the prosecution"
(People v Evans, 79 NY2d 407, 413-414 [1992].     A defendant's
ability to testify at a grand jury proceeding is that


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individual's "singular incursion on the prosecutor's otherwise
exclusive stronghold" (id., at 414).       Recently the Court has
reaffirmed the significance of a defendant's opportunity to
testify at grand jury proceedings and held that this right "must
be scrupulously protected" (People v Brumfield, 24 NY3d 1126,
1128 [2015] quoting People v Smith, 87 NY2d 715, 721 [1996]).
Apparently, according to the majority such protection does not
extend to one's own lawyer.
          Given these considerations we should not follow cases
that deviate from our constitutional standard.      Stare decisis is
not meant to fit the Court like a straightjacket and to prevent
mistakes from being rectified.    While "a court should be slow to
overrule its precedents, there is little reason to avoid doing so
when persuaded by the 'lessons of experience and the force of
better reasoning'" (People v Bing, 76 NY2d 331, 338 [1990]
quoting Burnet v Coronado Oil & Gas Co., 285 US 393, 407-408
[1932][Brandeis, J., dissenting]).       A defendant's grand jury
claim should be subject to the same standard as other ineffective
assistance of counsel claims, such as those based on a lawyer's
failure to investigate and adequately prepare a defense (People v
Oliveras, 21 NY3d 339, 348 [2013]), failure to object to
prosecutorial misconduct and inflammatory summation remarks
(People v Wright, 25 NY3d 769 [2015]), failure to assert a
statute of limitations defense to a charge (People v Turner, 5
NY3d 476 [2005]), failure to consider proper criminal procedure


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                               - 7 -                           No. 18

and evidentiary law (People v Oathout, 21 NY3d 127 [2013]), or
failure to ensure that in counsel's absence defendant had
adequate, and non-conflicted, representation (People v Allah, 80
NY2d 396 [1992])
           The second reason that the majority's analysis fails
is that, assuming, arguendo, a determination whether to have a
defendant testify before the grand jury is a matter solely within
the professional discretion of a defense attorney, here
defendant's lawyer never discussed the matter with defendant.
Thus, counsel could not have made an informed choice regarding
this critical question.   Indeed, counsel cannot define a strategy
regarding whether a defendant should testify without reviewing
the potential testimony with the client (cf. Oliveras, 21 NY3d at
348 ["This is not simply a case of a failed trial strategy.
Rather, this is a case of a lawyer's failure to pursue the
minimal investigation required under the circumstances."]
[internal citations and quotations omitted]).   Without such
minimal effort defendant's counsel could not consider, or even
know, the facts and risks associated with defendant's testimony,
nor fully assess the advantages and disadvantages of whether it
was in defendant's interest to appear before the grand jury.
Under these circumstances counsel did not provide meaningful
representation.
          For the reasons stated above, I dissent.




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*   *   *   *   *   *   *   *    *      *   *   *   *   *   *   *   *
Order affirmed. Opinion by Judge Stein. Judges Pigott, Abdus-
Salaam and Fahey concur. Judge Rivera dissents in an opinion.
Chief Judge DiFiore and Judge Garcia took no part.

Decided February 18, 2016




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