Summary
In People v. Bussey, 6 AD3d 621 (2d Dept 2004), trial counsel never obtained a report from an investigator he hired to interview two alibi witnesses, failed to conduct an investigation into defendant's alibi and failed to call seven potential alibi witnesses because he did not want to risk having the prosecution elicit potentially damaging testimony on cross-examination of these witnesses.
Summary of this case from People v. LouOpinion
2003-03509.
Decided April 19, 2004.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Spires, J.), rendered April 11, 2003, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
Hochheiser Hochheiser, LLP, New York, N.Y. (Lawrence Hochheiser, Daniel A. Hochheiser, and Noah Teitelbaum of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Roni C. Piplani of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., NANCY E. SMITH, SONDRA MILLER, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the judgment is reversed, on the law, and a new trial is ordered.
The defendant was indicted, tried, and convicted for the murder of Roderick Padgett. After the jury returned a verdict of guilty, the defendant's newly-retained counsel sought to set aside the verdict pursuant to CPL 330.30 on the ground, inter alia, that the defendant was denied the effective assistance of counsel.
"To prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's failure[s]" ( People v. Rivera, 71 N.Y.2d 705, 709; see People v. Taylor, 1 N.Y.3d 174, 177; People v. Benevento, 91 N.Y.2d 708, 712). "[T]rial tactics which terminate unsuccessfully do not automatically indicate ineffectiveness. So 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, the constitutional requirement will have been met" ( People v. Baldi, 54 N.Y.2d 137, 146-147).
The testimony elicited at the hearing conducted pursuant to CPL 330.30 revealed that the defense counsel did not conduct an investigation into the defendant's alibi, and failed to obtain any report from the investigator he hired to interview the two alibi witnesses whose names were provided to the prosecution pursuant to CPL 250.20. Moreover, the defense counsel visited the defendant in prison to discuss the charges for the first time only two days before the commencement of trial, when he learned that there were as many as seven potential alibi witnesses. The defense counsel testified at the hearing that he did not investigate the claims of any of the alibi witnesses or call them at trial because he did not want to risk having the prosecution elicit potentially damaging testimony on cross-examination of those witnesses indicating that the shooting was in retaliation for an earlier killing of a member of a local rap group. However, the defense counsel acknowledged that prior to trial, the Supreme Court granted his motion in limine pursuant to People v. Molineux ( 168 N.Y. 264) precluding the prosecution from introducing testimony concerning the defendant's connection with any rap group or a previous shooting involving members of rap groups. At trial, the defense counsel limited the defense to attacking the credibility of the prosecution's two eyewitnesses.
While "the emphasis of some defenses over others is a matter of trial strategy that will not be second-guessed on appeal" ( People v. Rodriguez, 132 A.D.2d 682), "the defendant's right to representation does entitle him to have counsel `conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself time for reflection and preparation for trial'" ( People v. Bennett, 29 N.Y.2d 462, 466 quoting Coles v. Peyton, 389 F.2d 224, 226; see People v. Fogle, 307 A.D.2d 299, 301).
Under the circumstances, the defendant was denied the effective assistance of counsel as the testimony elicited at the hearing did not reveal any sound reason for the defense counsel's failure to investigate the defendant's alibi or to call any of the alibi witnesses to testify at trial ( see People v. Maldonado, 278 A.D.2d 513, 514; People v. Baba-Ali, 179 A.D.2d 725, 729; People v. Detling, 73 A.D.2d 937; see also People v. Droz, 39 N.Y.2d 457, 462-463; People v. Bennett, supra; People v. Rojas, 213 A.D.2d 56, 67; People v. Simmons, 110 A.D.2d 666).
In view of our determination, it is unnecessary to reach the defendant's remaining contention.
ALTMAN, J.P., SMITH, S. MILLER and CRANE, JJ., concur.