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Twenty-Two-Year-Old Conviction Reversed Because of Ineffective Assistance of Counsel

The Fourth Department, over a two-justice dissent, reversed defendant’s 1992 conviction.  The conviction had already been upheld on appeal.  But, in 2012, a writ of coram nobis was brought arguing defendant did not receive a fair trial because of the ineffectiveness of his counsel.  The writ was granted and, on appeal, the court determined defendant was entitled to a new trial.  Defense counsel was deemed ineffective (1) for failure to object to the elicitation of testimony about a threat which had been precluded by the trial judge, and (2) for using a flawed alibi defense (referring to the wrong days of the week) which gave the jury the impression the alibi witnesses were testifying falsely:

We conclude that “defendant has demonstrated the absence of any strategic or other legitimate explanation for his attorney’s” failure to object to the introduction of this prejudicial and previously precluded testimony … .  Moreover, after defense counsel failed to object to the admission of that precluded testimony, the prosecutor continued to use that testimony to full advantage, arguing on summation that the threat to the prosecution witness “puts the [d]efendant [at the crime scene] just as easily as any person you saw in there” … .  Defense counsel’s error in failing to object to the testimony of the prosecution witness “simply cannot be construed as a misguided though reasonably plausible strategy decision” …, and “ ‘is sufficiently serious to have deprived defendant of a fair trial’… . * * *

Presenting an alibi defense for the wrong date or time has been found, by itself, to constitute ineffective assistance of counsel … .  We conclude that presenting an alibi defense for the wrong day of the week, as occurred here, similarly constitutes ineffective assistance of counsel inasmuch as offering patently erroneous alibi testimony cannot be construed as a plausible strategy… . People v Jarvis, 1009, 4th Dept 1-3-14

 

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