State of New York                                                         OPINION
Court of Appeals                                           This opinion is uncorrected and subject to revision
                                                             before publication in the New York Reports.




 No. 42
 The People &c.,
         Respondent,
      v.
 David Mendoza,
         Appellant.




 Caitlin Halpern, for appellant.
 Gamaliel Marrero, for respondent.




 DiFIORE, Chief Judge:

        This appeal presents the issue of whether defense counsel is ineffective for

 advancing a jury nullification defense at trial. Although jury nullification “is not a legally

 sanctioned function of the jury” (People v Goetz, 73 NY2d 751, 752 [1988]), we hold that

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counsel’s representation, when viewed as a whole on this record, does not constitute

ineffective assistance of counsel.

       On two separate occasions, defendant unlawfully entered a multi-residential

apartment building and stole the contents of packages from the mailbox area in the lobby.

The items stolen were dog training pads and two pairs of pants. On both occasions,

defendant’s identity as the thief of the property was captured with clarity on the building’s

surveillance video. Defendant admitted to the police that he was the thief captured twice

on the surveillance video and stated to his mother, on a recorded telephone call from Rikers

Island, that he had been arrested for the “package thing.” By indictment, defendant was

charged with two counts each of burglary in the second degree, burglary in the third degree,

petit larceny, and trespass. Defendant pled not guilty and proceeded to trial.

       At the outset of the trial, defense counsel declared in his opening statement that there

was “no great mystery” to the case and that this was a “rock-solid” case because the crimes

were captured on video. However, counsel argued that the burglary charges do not fit the

facts because the evidence would show that defendant took only mail packages of pairs of

pants and “doggy pee pads.” Counsel also stated that defendant did not break any locks,

did not enter into anyone’s apartment, and did not possess any burglar’s tools during the

incident. He told the jury that he had been “fighting for” defendant for over a year and

implored the jurors to “join that fight when [they] listen to the evidence,” a comment for

which a People’s objection was sustained.




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       The People’s case included the surveillance video; defendant’s admissions to the

police; the telephone call recording; and photographs of the premises. The two victims,

residents of the dwelling, also testified. Defense counsel cross-examined each of the

witnesses called by the People. The defense rested after the close of the People’s case.

       In summation, defense counsel again commented on the sheer strength of the

evidence against his client, repeatedly stating that there was no “great mystery” to the case

and that he was not asking the jury to find defendant “not guilty” of the burglary charges

but only to be fair. Counsel challenged the evidence of the unlawful entry into the building.

He reiterated that the facts did not fit the crime because no locks were broken, no individual

apartments were damaged, and defendant was armed with a sandwich (defendant can be

seen eating a sandwich during the second crime) rather than any burglar’s tools. Invoking

Jean Valjean of Les Misérables and his theft of bread, counsel argued that stealing “doggy

diapers and a pair of pants” is not “the crime of the century” and thus could not be

considered burglary. Counsel pressed for leniency for defendant along the following lines:

              “This case, I submit to you, ladies and gentlemen, is
              overcharged. We’re talking about packages laid out in the
              open, not going to anyone’s apartment, packages laid out in the
              open on a ledge . . . The man took doggy diapers and pants.”

Counsel concluded by describing the case as an “overexaggerate[d] reality” based on the

government deciding to “trump up” charges.

       In response, the People emphasized the surveillance video and argued the

sufficiency of the evidence presented, including that defendant had no right to be in the

building, the lobby of the apartment building was a dwelling and a home to the residents,

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and that defendant targeted the lobby because it was a home. The prosecutor also pointed

out that neither damage to any property nor forcible entry into the building were elements

of the crimes charged.

       In its legal instructions, the court charged the jury “to apply the law to the facts, and

in that way decide the case” and “not be governed or influenced by sympathy or prejudice

for or against any party.” It instructed the jury as to the elements of burglary in the second

degree, including the definitions of an unlawful entry and a dwelling. The court also made

clear that any crime committed during the burglary is “separate and distinct” from the crime

of burglary itself. The jury returned a verdict convicting defendant of both second-degree

burglary and petit larceny.

       On appeal, the Appellate Division rejected defendant’s claim of ineffective

assistance of counsel and affirmed the conviction, holding that “defense counsel pursued a

reasonable strategy and provided meaningful representation” (155 AD3d 652, 652-653 [2d

Dept 2017]). A Judge of this Court granted defendant leave to appeal (31 NY3d 1084

[2018]) and we now affirm.

       Defendant argues that his trial counsel was ineffective because he “deliberately

conceded appellant’s guilt on all counts” and exclusively pursued a jury nullification

defense to the exclusion of other viable defenses. The People contend that trial counsel

“provided meaningful representation by developing and consistently advancing the defense

theory that, while defendant was guilty of petit larceny, the People had overcharged

defendant with respect to the burglary counts.”


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       A defendant’s right to the effective assistance of counsel is guaranteed by the

Federal and State Constitutions (see US Const, 6th Amend; NY Const, art I, § 6). “To

prevail on a claim of ineffective assistance, defendants must demonstrate that they were

deprived of a fair trial by less than meaningful representation” (People v Flores, 84 NY2d

184, 187 [1994]). “Meaningful representation” is determined by an examination of “the

evidence, the law, and the circumstances of a particular case, viewed in totality and as of

the time of the representation” (People v Oliveras, 21 NY3d 339, 346 [2013], quoting

People v Baldi, 54 NY2d 137, 147 [1981]). It is defendant’s burden “to demonstrate the

absence of strategic or other legitimate explanations” for alleged shortcomings (People v

Rivera, 71 NY2d 705, 709 [1988]), and counsel’s performance is “objectively evaluated to

determine whether it was consistent with strategic decisions of a reasonably competent

attorney” (People v Benevento, 91 NY2d 708, 712 [1998] [internal quotation marks and

citations omitted]).   In this case, we must determine whether the pursuit of a jury

nullification defense, without much interference from the court or prosecutor, rises to the

level of ineffective assistance of counsel.

       The societal roles of both the court and the jury are not new. “Upon the court rests

the responsibility of declaring the law; upon the jury, the responsibility of applying the law

so declared to the facts as they, upon their conscience, believe them to be” (Sparf v United

States, 156 US 51, 102 [1895]; see Duffy v People, 26 NY 588, 591 [1863]). “[W]hile the

jury has the power to refuse to find any fact regardless of how clearly it may appear to a

judge to have been proved, the jury does not, so to speak, have the right to find a fact and


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then refuse to render the verdict which such a finding necessarily requires” (People v

Mussenden, 308 NY 558, 563 [1955]). However, jury nullification is “an inevitable

consequence of the jury system” (id. at 562) and the system’s “several features” designed

“to protect the jury’s power to acquit” (United States v Thomas, 116 F3d 606, 615 [2d Cir

1997]).

       In People v Goetz, we held that “[t]he trial court did not err in instructing the jury

that, if it found that the People had proved each of the elements of the crime beyond a

reasonable doubt, it ‘must’ find defendant guilty” because “the jury’s function is to apply

the legal definition of the crime to the evidence and to convict if it is satisfied that each of

the elements of the crime has been established beyond a reasonable doubt” (73 NY2d at

752). “While there is nothing to prevent a petit jury from acquitting although finding that

the prosecution has proven its case, this so-called ‘mercy-dispensing power,’ . . . is not a

legally sanctioned function of the jury and should not be encouraged by the court” (id.).

       Subsequently, in People v Weinberg, we concluded that defendant’s argument that

“he should have been permitted by the trial court to present the concept of jury nullification

during summation is foreclosed by our holding in People v Goetz” (83 NY2d 262, 268

[1994]). Relying on Goetz, we explained that “[p]ermitting defense counsel instead [to

en]courage the jury to abdicate its primary function would directly contravene the trial

court’s authority, recognized [in] Goetz, to instruct the jury that they must follow and

properly apply the law” (id.).




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       We cannot say that, on this record when viewed in totality, defendant was provided

with less than meaningful representation. Here, defense counsel was eminently familiar

with the facts of the case and the evidence elicited, including the details of the surveillance

video and the photographic exhibits. Given the truly overwhelming evidence against his

client on all the charges, and constrained by the limited legitimate defense strategies

available, counsel raised what he reasonably perceived could be factual issues in the case,

such as the method of defendant’s entry into the building. Counsel’s performance included

cogent opening and closing arguments, a motion to dismiss after the People’s case-in-chief,

and thorough cross-examinations of the People’s witnesses. Moreover, the trial court did

not curb counsel’s jury nullification summation arguments. As a result, the whole record

of counsel’s performance demonstrates that defendant has failed to sustain his burden that

he was deprived of meaningful representation (see People v Sanchez, 21 NY3d 216, 224

[2013]).*

       Accordingly, the Appellate Division order should be affirmed.




*
 On this record on direct appeal, we reject defendant’s ineffectiveness challenge to his trial
counsel’s defense strategy. However, a claim of ineffective assistance of counsel based on
allegedly deficient trial strategy often is raised by a collateral or postconviction proceeding
under CPL 440.10 (see People v Brown, 45 NY2d 852, 853-854 [1978]), and defendant is
not precluded from commencing a proceeding “based on matters outside the [current]
record and beyond review on this appeal” (People v Henderson, 28 NY3d 63, 66 [2016]).


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*    *    *    *    *    *     *    *    *    *    *    *     *    *    *    *    *

Order affirmed. Opinion by Chief Judge DiFiore. Judges Rivera, Stein, Fahey, Garcia,
Wilson and Feinman concur.


Decided June 13, 2019




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