By Daniel Wiessner
ALBANY, N.Y., Nov 27 (Reuters) - The New York Court of
Appeals on Tuesday rejected claims by a man convicted of murder
that he was denied effective counsel after the prosecution
suggested that his trial lawyers had fabricated his defense.
Tayden Townsley, 37, was sentenced to 37-1/2 years to life
for the 1994 shooting of two rival gang members, one of whom
died. Last year he moved to vacate his conviction, arguing that
his trial attorneys were presented with a conflict when the
prosecutor suggested they had fabricated Townsley's defense,
which was that a fellow gang member committed the shooting.
He claimed his appellate lawyer's failure to raise this
issue on appeal amounted to ineffective assistance of counsel.
In a 4-2 decision, the Court of Appeals found that while
some of the Sullivan County prosecutor's statements during trial
were "entirely inappropriate" and "objectionable," including a
suggestion that Townsley's trial lawyers urged a fellow gang
member to fabricate an account of the shooting, the defense's
failure to object was reasonable.
"Trial counsel, and a reasonable appellate counsel reviewing
the record, could well have taken (the prosecutor's statements)
as nothing more than an obnoxious, but essentially
irrelevant, way of describing a defense lawyer's legitimate
activity," Judge Robert Smith wrote for the court.
In 1994, Townsley allegedly shot the two victims during a
botched drug deal and was charged with murder, attempted murder,
assault and weapons offenses. While awaiting trial, he was
incarcerated with Simeon Nelson, the alleged leader of
Townsley's gang, who was facing charges in an unrelated case.
On the morning of the first day of trial, the court said,
Townsley's attorneys met with Nelson, who was present during the
shooting, but he declined to testify in Townsley's case. At
trial, the defense lawyers, Tim Havas and Stephan Schick, argued
that Nelson had shot the victims.
During summation, the prosecutor, former Sullivan County
district attorney Stephen Lungen, said that during what he
called the "secret meeting," the defense lawyers asked Nelson to
"help them save (Townsley), say it wasn't him, say it was
somebody else," the court said.
Lungen said that in order to prove the theory that Nelson
committed the murder, Townsley's attorneys would have had to
testify at trial about their meeting with Nelson, the court
Townsley's attorneys did not object to the comments.
At the time, the state Code of Professional Responsibility
required an attorney to withdraw from representation when it was
"obvious that the lawyer ought to be called as a witness on
behalf of the client." In 2009 the code was replaced with the
Rules of Professional Conduct, which contains a similar
WRIT OF ERROR
Townsley was convicted and sentenced. His appellate
attorney, Bruce Androphy, appealed the conviction on several
grounds, but did not argue that Townsley had received
ineffective assistance of counsel. The Appellate Division, Third
Department, in 1997 denied the appeal.
In 2009, Townsley moved to vacate the conviction under
Criminal Practice Law Section 440, arguing that his trial
attorneys were presented with a conflict when Lungen suggested
they had fabricated the defense.
A Sullivan County Court judge denied the motion.
Last year, Townsley petitioned the Third Department for a
writ of error coram nobis, which is an order issued by a court
to correct a previous error when no other remedies are
available. The Third Department denied the petition. Townsley
appealed, and the Court of Appeals on Tuesday affirmed. Smith
was joined by Judges Victoria Graffeo, Eugene Pigott and Susan
In dissent, Judge Carmen Ciparick said that Androphy would
have had "a winning argument" on appeal if he had raised the
issue of the trial lawyer's conflict.
"Given that the court failed to obtain (Townsley's) knowing,
voluntary waiver of the conflict, (Androphy) would only have had
to demonstrate that the conflict operated on the defense in
order to obtain a reversal of defendant's conviction," Ciparick
wrote. She was joined by Chief Judge Jonathan Lippman.
Townsley's attorney, Joel Rudin, said he was disappointed
with the decision.
"There's no question that an attorney can't be both his
client's witness and his client's attorney," Rudin said. "It's a
choice the client has to make, but this was never explained (to
The Sullivan County district attorney's office did not
return calls seeking comment.
Androphy, who is currently with the National Institute of
Environmental Health Sciences in North Carolina, also did not
return a request for comment.
The case is the People v. Tayden Townsley, New York State
Court of Appeals, No. 209.
For the prosecution: Sullivan County Assistant District
Attorney Bonnie Mitzner.
For Townsley: Joel Rudin.
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