The First Department determined the defendant did not receive effective assistance of counsel. Counsel did not object to inadmissible hearsay which corroborated the complainant’s testimony, counsel did not subpoena medical records or call a medical expert despite proof at the first trial the evidence of complainant’s injury was unsupported, and counsel did not impeach the complainant by confronting her with her prior inconsistent statements:
in a case that depended heavily on the credibility of the complainant, counsel failed to object to hearsay testimony indicating that several unnamed out-of-court declarants supported the complainant’s version of the incident. These bystander statements were not admissible under any theory, and we reject the People’s arguments to the contrary. These declarations did not qualify as excited utterances, and, under the circumstances of the case, they were not admissible as background information to complete the narrative and explain police actions. At a prior trial, at which defendant was represented by different counsel, and which ended in a hung jury, the content of these declarations was not placed in evidence.
We are unable to discern any strategic basis for counsel’s failure to object to this highly prejudicial hearsay evidence. Any benefit that defendant may have gained when his counsel attempted to suggest that a police witness fabricated the existence of the bystander declarations was clearly outweighed by the prejudicial effect of having the jury hear the declarations in the first place. Defendant had nothing to lose, and much to gain, by keeping the declarations completely out of the case. Furthermore, the trial record reveals that counsel was unaware, and apparently surprised, that the content of these declarations was not in evidence at the first trial. This tends to suggest that counsel’s failure to object had nothing to do with strategy. People v Ugweches, 2014 NY Slip Op 02333, 1st Dept 4-3-14