        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1491
KA 06-03311
PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                   OPINION AND ORDER

PIERRE D. COSBY, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered August 21, 2006. The judgment
convicted defendant, upon a jury verdict, of rape in the first degree
and menacing in the second degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Opinion by CENTRA, J.P.:

                                  I

     In appeal No. 1, defendant appeals from a judgment convicting him
upon a jury verdict of rape in the first degree (Penal Law § 130.35
[1]) and two counts of menacing in the second degree (§ 120.14 [1]).
In appeal No. 2, defendant appeals with permission of a Justice of
this Court from an order denying his CPL 440.10 motion to vacate the
judgment of conviction in appeal No. 1. The primary issue on appeal
is whether defendant was denied effective assistance of counsel based
on defense counsel’s failure to advise defendant that defendant,
rather than defense counsel, had the final decision whether to testify
on his own behalf at trial. We agree with Supreme Court that
defendant was not denied effective assistance of counsel, and we
therefore conclude that the judgment in appeal No. 1 and the order in
appeal No. 2 should be affirmed.

                                  II

     Defendant was charged with, inter alia, rape in the first degree
based on his allegedly having had forcible sexual intercourse with the
victim. At trial, the victim testified that she was staying overnight
at her cousin’s apartment when defendant came over. The victim
                                 -2-                          1491
                                                         KA 06-03311

testified that defendant punched her and then raped her while pointing
a gun at her. The People also presented evidence that DNA from a
vaginal swab taken from the victim matched defendant’s DNA. Defendant
did not call any witnesses, and the record is devoid of any indication
whether defendant wished to testify. As noted, the jury convicted him
of, inter alia, rape in the first degree.

     Appellate counsel was assigned to perfect defendant’s appeal and
moved pursuant to CPL 440.10 to vacate the judgment of conviction on
the ground that defendant was denied effective assistance of counsel
based on, inter alia, defense counsel’s failure to advise defendant
that it was his decision whether or not to testify at trial. Supreme
Court held a hearing at which defendant’s trial attorney, defendant,
and several members of defendant’s family testified. Defendant
testified that he explained to his trial attorney what had occurred on
the night in question, i.e., that he received a telephone call from
the victim and told her that he would come see her. Upon arriving at
the apartment, defendant had consensual sexual intercourse with the
victim, and they again had sexual intercourse in a park after taking a
walk outside, whereupon defendant walked the victim back to the
apartment and left. According to defendant, he and the victim
previously had consensual sexual intercourse on numerous occasions.

     At the conclusion of the hearing, the court found that the
evidence established that defendant told his trial attorney of his
desire to testify and that his trial attorney advised him not to do
so, but that the trial attorney failed to advise defendant that the
decision to testify was his alone. The court denied the motion,
however, relying on its additional finding that defendant failed to
establish that he would have testified at trial to his version of the
events on the night in question.

                                 III

     Addressing first appeal No. 2, we note that defendant contends
that the testimony elicited at the CPL article 440 hearing establishes
that he was denied effective assistance of counsel. We reject that
contention.

     As previously noted, the court found at the conclusion of the CPL
article 440 hearing that defendant established that he had informed
his trial attorney that he wished to testify and that his trial
attorney advised him not to do so. In addition, the court found that
the trial attorney did not advise defendant that he, not she, had the
final say in that regard. We afford deference to the court’s findings
of fact, which are supported by the record (see People v Whitfield, 72
AD3d 1610, lv denied 15 NY3d 811; People v Johnson, 17 AD3d 932, 933,
lv denied 5 NY3d 790).

     It is well settled that, in New York, a defendant receives
effective assistance of counsel “[s]o long as the evidence, the law,
and the circumstances of a particular case, viewed in totality and as
of the time of the representation, reveal that the attorney provided
meaningful representation” (People v Baldi, 54 NY2d 137, 147). In
                                 -3-                          1491
                                                         KA 06-03311

determining whether a defendant received effective assistance of
counsel, we must consider “ ‘whether counsel’s conduct so undermined
the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result’ ” (People v
Henriquez, 3 NY3d 210, 229 [G.B. Smith, J., dissenting], quoting
Strickland v Washington, 466 US 668, 686, reh denied 467 US 1267).

     Regarding a defendant’s right to testify, it is beyond cavil that
“a criminal defendant has a constitutional right to testify in his [or
her] own behalf at trial” (United States v Teague, 953 F2d 1525, 1530,
cert denied 506 US 842; see United States v Dunnigan, 507 US 87, 96;
Rock v Arkansas, 483 US 44, 51-52). The fundamental decision whether
to testify at trial is reserved to the defendant, not defense counsel
(see Jones v Barnes, 463 US 745, 751; People v Ferguson, 67 NY2d 383,
390). The trial court has no obligation to inform a defendant of his
or her right to testify or to ascertain if the failure to testify was
a voluntary and intelligent waiver of his or her right to do so (see
People v Fratta, 83 NY2d 771, 772; People v Dolan, 2 AD3d 745, 746, lv
denied 2 NY3d 798). The issue here, however, is whether a defendant’s
attorney has a duty to advise the defendant of his or her right to
testify, even against the advice of the attorney. We conclude that
the attorney does have that duty.

     “[T]rial counsel’s duty of effective assistance includes the
responsibility to advise the defendant concerning the exercise of
[the] constitutional right” to testify at trial (Brown v Artuz, 124
F3d 73, 74, cert denied 522 US 1128; see People v Carpenter, 52 AD3d
729, lv denied 11 NY3d 830; People v Perry, 266 AD2d 151, 152, lv
denied 95 NY2d 856). In addition to informing the defendant that he
or she has the right to testify at trial, in the event that the
attorney advises the defendant not to testify, the attorney must also
inform the defendant that the ultimate decision whether to testify is
the defendant’s alone (see Brown, 124 F3d at 79; Teague, 953 F2d at
1533). Without receiving such advice, a defendant may erroneously
believe that the decision whether to testify is one of the many
decisions over which the defendant’s attorney has control (see
generally Ferguson, 67 NY2d at 390).

     The People contend that “the law should not, as a matter of sound
public policy, place the burden of affirmatively telling a client that
the client can ignore defense counsel’s advice upon a defense
attorney.” We reject that contention. Rather, we conclude that it is
indeed sound public policy for defense counsel to notify a defendant
that he or she has a fundamental right to testify on his or her own
behalf and that the decision whether to testify rests with defendant,
not counsel. Of course, defense counsel should still render advice to
defendant concerning whether a good trial strategy would warrant
testifying on his or her own behalf. But we cannot stress enough that
defense counsel should make it clear to the defendant that it is the
defendant, not counsel, who has the final word on the matter. The
imposition of such a duty on defense counsel is consistent with the
Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.2 (a), which
provides in relevant part that, “[i]n a criminal case, the lawyer
shall abide by the client’s decision, after consultation with the
                                 -4-                          1491
                                                         KA 06-03311

lawyer, as to . . . whether the client will testify.” We thus agree
with the court that defense counsel erred in this case by failing to
advise defendant that the final decision whether to testify was
defendant’s to make.

     We further agree with the court, however, that this single error
by defense counsel did not deprive defendant of effective assistance
of counsel. A single error by defense counsel may constitute
ineffective assistance, but a court must examine defense counsel’s
entire representation of the defendant (see People v Flores, 84 NY2d
184, 188). Although rare, “there may be cases in which a single
failing in an otherwise competent performance [may be] so ‘egregious
and prejudicial’ as to deprive a defendant of his [or her]
constitutional right” to effective assistance of counsel (People v
Turner, 5 NY3d 476, 480; see People v Caban, 5 NY3d 143, 152). Stated
differently, “[w]here a single, substantial error by counsel so
seriously compromises a defendant’s right to a fair trial, it will
qualify as ineffective representation” (People v Hobot, 84 NY2d 1021,
1022).

     We conclude under the circumstances of this case that defense
counsel’s failure to advise defendant that the decision whether to
testify was his alone to make was not so egregious and prejudicial as
to deprive defendant of his constitutional right to effective
assistance of counsel (see generally Turner, 5 NY3d at 480). Upon our
review of the transcript of the CPL article 440 hearing, we agree with
the court that defendant failed to prove that he would have given
relevant testimony at trial. The record supports the court’s finding
that the account given by defendant at the CPL article 440 hearing
regarding his activities on the night in question was never given to
his counsel during the trial. Indeed, the record establishes that
defense counsel testified that defendant would not tell her what
happened on the evening in question. If he had, then it is only
logical to assume that the trial strategy would have varied greatly.
Trial counsel would have argued from the outset of the trial that the
sex between the victim and defendant was consensual and that the
victim and defendant in fact had a prior sexual relationship. Again,
it is only logical to assume that trial counsel would have mentioned
it during her opening statement; she would have cross-examined the
victim about it; and she would have made more mention of the finding
of vegetation in the victim’s underwear, inasmuch as the vegetation
would have supported the theory that defendant and the victim had sex
in the park. Instead, however, the record establishes that defendant
would not give his counsel any explanation for what occurred that
evening, and that trial counsel did the best she could by formulating
a defense theory that attacked the credibility of the witnesses.
Thus, even though the record supports the court’s finding that
defendant asked his attorney whether he could testify, the record
further establishes that defendant either would not have testified or
would not have given the testimony that he gave at the CPL article 440
hearing. We therefore conclude that defense counsel’s error did not
seriously compromise the right of defendant to a fair trial (see
generally Hobot, 84 NY2d at 1022).
                                 -5-                          1491
                                                         KA 06-03311

                                  IV

     Turning next to appeal No. 1, we conclude that none of
defendant’s contentions with respect thereto have merit. Defendant
contends that the court’s Sandoval ruling constituted an abuse of
discretion inasmuch as the ruling allowed the People to cross-examine
defendant with respect to a prior conviction of criminal possession of
a weapon in the third degree and the facts underlying that conviction.
Defendant contends that the ruling was unduly prejudicial because that
conviction and the crime for which he was on trial both involved the
use of a gun. We reject that contention. Cross-examination of a
defendant concerning a prior crime is not prohibited solely because of
the similarity between that crime and the crime charged (see People v
Hayes, 97 NY2d 203, 208).

     Defendant next contends that he was deprived of a fair trial when
the court refused to supplement its response to a note from the jury
during its deliberations by giving the falsus in uno instruction (see
CJI2d[NY] Credibility of Witnesses - Accept in Whole or in Part
[Falsus in Uno]). We agree with the court that the requested
instruction was not responsive to the jury’s note, and we conclude
that the court properly exercised its discretion in formulating a
meaningful response to the jury’s note (see People v Santi, 3 NY3d
234, 248; People v Smith, 21 AD3d 1277, 1277-1278, lv denied 7 NY3d
763). The court was not obligated to go beyond the jury’s request for
information (see People v Barreto, 70 AD3d 574, 575, lv denied 15 NY3d
772). The sentence is not unduly harsh or severe. We have examined
defendant’s remaining contentions and conclude that they are without
merit.

                                  V

     Accordingly, we conclude that the judgment in appeal No. 1 should
be affirmed, as should the order in appeal No. 2.




Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
