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