Opinion
2017–05897 Ind. No. 1251/06
11-14-2018
The PEOPLE, etc., Respondent, v. Alma CALDAVADO, Appellant.
Mark M. Baker, New York, NY, for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Robert J. Masters, Joseph N. Ferdenzi, and John M. Castellano of counsel), for respondent. Dana M. Delger and M. Chris Fabricant (Fried, Frank, Harris, Shriver & Jacobson LLP, New York, N.Y. [Douglas W. Baruch and Michael P. Sternheim ], of counsel), for amicus curiae The Innocence Network.
Mark M. Baker, New York, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Robert J. Masters, Joseph N. Ferdenzi, and John M. Castellano of counsel), for respondent.
Dana M. Delger and M. Chris Fabricant (Fried, Frank, Harris, Shriver & Jacobson LLP, New York, N.Y. [Douglas W. Baruch and Michael P. Sternheim ], of counsel), for amicus curiae The Innocence Network.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, COLLEEN D. DUFFY, JJ.
DECISION & ORDER
ORDERED that the order is affirmed.
In the early afternoon of January 11, 2006, a seven-month-old infant was left at the defendant's home while the infant's parents went to work. At approximately 5:00 p.m., the infant was transported to St. John's Hospital in Queens and diagnosed as suffering from shaken baby syndrome. The defendant was charged with assault in the first degree and endangering the welfare of a child. At trial, the People called 13 medical professionals in support of their case, 9 of whom testified as expert witnesses. Trial counsel for the defendant did not call a medical expert. Instead, trial counsel obtained the written report of a medical expert before the trial and retained a pediatric neurologist as a consulting expert, whom he consulted as issues arose during trial. During cross-examination of the People's witnesses, trial counsel elicited testimony that supported the defendant's theory of the case that the infant sustained injuries prior to being left at the defendant's home. The jury found the defendant guilty of both charges, and this Court affirmed the judgment of conviction (see People v. Caldavado , 78 A.D.3d 962, 910 N.Y.S.2d 673 ). Thereafter, the defendant moved pursuant to CPL 440.10(1) to vacate the judgment, as is relevant here, on the ground of ineffective assistance of trial counsel. The Supreme Court denied the motion to vacate, without conducting an evidentiary hearing, and this Court affirmed (see People v. Caldavado , 116 A.D.3d 877, 983 N.Y.S.2d 410 ). The Court of Appeals reversed, determining that a hearing was necessary to resolve the defendant's claim that she received ineffective assistance of counsel (see People v. Caldavado , 26 N.Y.3d 1034, 1036–1037, 22 N.Y.S.3d 159, 43 N.E.3d 369 ).
After the hearing, the Supreme Court denied the defendant's motion, determining that trial counsel's decision not to call an expert was a strategic one and that trial counsel was not ineffective. The defendant appeals, and we affirm.
In Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, the United States Supreme Court adopted a two-part test for evaluating claims of ineffective assistance of counsel. A "defendant must show that counsel's performance was deficient," and "that the deficient performance prejudiced the defense" ( id. at 687, 104 S.Ct. 2052 ). "The first prong of the Strickland test is essentially a restatement of attorney competence, which requires a showing that counsel's representation fell below an objective standard of reasonableness. The second prong, also known as the prejudice prong, focuses on whether" ( People v. McDonald, 1 N.Y.3d 109, 113–114, 769 N.Y.S.2d 781, 802 N.E.2d 131 [citation and internal quotation marks omitted] ) " ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different’ " ( People v. Pagan, 155 A.D.3d 779, 781, 64 N.Y.S.3d 299, quoting Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. 2052 ).
To establish a claim of ineffective assistance of counsel under the New York Constitution, a defendant must show that he or she was not afforded "meaningful representation" based upon "the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation" ( People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ). "Our cases, however, agree with Strickland on the first prong" in that " ‘counsel's efforts should not be second-guessed with the clarity of hindsight’ " and the defendant is not entitled to perfect representation ( People v. Turner, 5 N.Y.3d 476, 480, 806 N.Y.S.2d 154, 840 N.E.2d 123, quoting People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ).
Generally, whether to call an expert is a tactical decision (see People v. McDonald, 79 A.D.3d 771, 911 N.Y.S.2d 908 ; People v. Daniels, 35 A.D.3d 495, 496, 826 N.Y.S.2d 369 ; People v. Foust, 192 A.D.2d 718, 597 N.Y.S.2d 149 ; People v. Baston, 181 A.D.2d 786, 787, 581 N.Y.S.2d 826 ; People v. Diaz, 131 A.D.2d 775, 775, 517 N.Y.S.2d 66 ). In many instances, cross-examination of the People's expert will be sufficient to expose defects in an expert's presentation (see Harrington v. Richter, 562 U.S. 86, 111, 131 S.Ct. 770, 178 L.Ed.2d 624 ). "As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance" ( People v. Benevento, 91 N.Y.2d at 712–13, 674 N.Y.S.2d 629, 697 N.E.2d 584 ).
Here, we agree with the Supreme Court's determination that trial counsel provided meaningful representation notwithstanding his decision not to call an expert witness to counter the People's medical evidence. The record shows that trial counsel made efforts to investigate the medical issues in this case. He effectively cross-examined the People's witnesses, including the experts, and elicited testimony that was damaging to the People's case. The fact that the defense did not call its own expert witnesses was the result of trial counsel's legal strategy that the best way to defend this case was through impeachment of the People's witnesses. Under the particular circumstances of this case, trial counsel provided effective representation (see Harrington v. Richter, 562 U.S. at 111, 131 S.Ct. 770 ; People v. Aiken, 45 N.Y.2d 394, 400, 408 N.Y.S.2d 444, 380 N.E.2d 272 ), and we agree with the court's determination to deny the defendant's CPL 440.10 motion.
DILLON, J.P., LEVENTHAL, ROMAN and DUFFY, JJ., concur.