Deconstructing McDaniel - Ineffective Assistance and Failure to Make A Specific Motion for a Trial Order of Dismissal

In People v McDaniel (54 AD3d 577 [1st Dept 2008]) the First Department divided 3-2 as to whether there was sufficient proof of the display of a weapon to constitute Robbery in the First Degree.

Apparently, the issue which divided the Appellate Division was not clearly preserved in a motion for a trial order of dismissal. Consequently, the issue before the Court of Appeals was whether it was ineffective assistance of counsel to fail to preserve the issue. In affirming the conviction, at People v McDaniel (_ NY3d_, 2009 NY Slip Op 06369 [9/1/09]), the Court of Appeals held that

Because defense counsel's decision not to seek dismissal of the robbery in the first degree charge for insufficient evidence would not have resulted in a dismissal of that charge (see People v Lopez, 73 NY2d 214, 219-220 [1989]; People v Baskerville, 60 NY2d 374, 380-381 [1983]), defendant's claim of ineffective assistance of counsel is meritless. Furthermore, the attorney's conduct did not consist of "egregious and prejudicial error such that defendant did not receive a fair trial" (People v Benevento, 91 NY2d 708, 713 [1998], citing People v Flores, 84 NY2d 184, 188-189 [1994]), but rather "viewed in totality and as of the time of the representation, reveal[s] that the attorney provided meaningful representation" (People v Baldi, 54 NY2d 137, 147 [1981]).

What does that mean? It would seem that the first sentence refers to the fact that. pursuant to CPL 290.10, a motion for a trial order of dismissal should not be granted if the evidence is legally sufficient to establish a lesser included offense. Since Lopez and Baskerville make clear that if the element of display was not proved the defendant would still be guilty of Robbery in the Third Degree.

So the motion would not have been granted on appeal. But since “CPL 470.15(2)(a) authorizes an appellate court to modify a judgment by reducing a conviction to a lesser included offense if it determines the evidence is insufficient to support a conviction for the greater offense but sufficient to establish defendant's guilt of the lesser “ (People v Hawkins, 99 NY2d 592 [2003]) and the prerequisite for doing that is preservation of the issue by an appropriate motion for a trial order of dismissal why is a claim of ineffective assistance which focuses on the failure to preserve the that evidence does not support the B Felony of Robbery in the First Degree meritless? What strategy can possibly justify such a failure?

And is the Court of Appeals unaware of the irony in its citation to People v Flores, 84 NY2d 184, 188-189 [1994]) for the holding that attorney provided meaningful representation when, subsequent to that Court’s holding in Flores, the Second Circuit Court of Appeal, in Flores v Demskie (215 F3d 293 [2d Cir 2000]) granted Mr. Flores habeas corpus relief on the ground, rejected by the New York Court of Appeals, that Mr. Flores had been denied the effective assistance of counsel?