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 said.

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 provision.

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 Read.

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 Townsley)."

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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