Defendant was convicted of two counts of murder in the second degree following a jury trial in 1991. In an earlier direct appeal, Defendant’s convictions were affirmed. However, in 2012, the appellate division granted Defendant’s writ of corum nobis for ineffective assistance of counsel, vacated its prior order, and heard this appeal de novo. On review, the court held that Defendant’s trial counsel committed two serious errors which warranted reversal and granted a new trial: (1) counsel failed to object to certain testimony; and (2) counsel used a flawed alibi defense.
The first error—which the court found sufficiently egregious by itself to deny Defendant a fair trial—was counsel’s inexplicable failure to object to testimony which he had successfully sought to preclude. Specifically, counsel failed to object when the prosecution elicited testimony from a witness about an alleged threat made by Defendant. Not only was the testimony allowed, but the prosecution used the testimony to the State’s full advantage during summation by arguing that the threat placed Defendant at the scene. According to the court, counsel’s failure to object was absent of any “strategic or other legitimate explanation,” People v. Cleophus, 916 N.Y.S.2d 624, 625 (2d Dep’t 2011), and was “sufficiently serious to have deprived defendant of a fair trial.” People v. Webb, 935 N.Y.S.2d 423, 424 (4th Dep’t 2011).
The second serious error committed by Defendant’s trial counsel was his use of a flawed alibi defense. Two alibi witnesses testified at trial, and both incorrectly identified the days of the week when testifying on Defendant’s whereabouts. Again, the prosecution took full advantage of the flawed erroneous testimony on cross-examination, through a rebuttal witness, by asking the court to take judicial notice of the week the relevant dates fell on and by denigrating it as a “Hollywood charade” during summation. In light of this error, compounded with the first, the court reversed the judgment of conviction and granted a new trial.
Two justices rejected the majority’s conclusion that Defendant’s counsel was ineffective. First, the dissent urged that counsel’s failure to object was not devoid of any strategy or legitimate explanation, and the dissenters posed several hypothetical reasons for the lack of an objection. Second, the dissent argued that the single discrepancy in the alibi defense did not compel reversal. In the dissent’s view, the prosecutor had not conclusively established that the alibi was false, but that it was an issue for the jury to resolve. The dissent concluded that counsel provided the defendant with impressive representation by thoroughly cross-examining the prosecution witnesses and presenting a unified defense theory.
978 N.Y.S.2d 522 (4th Dep’t 2014)