The Third Department determined defendant was not provided effective assistance of counsel. Defense counsel permitted lengthy, unresponsive answers from the People’s witnesses and failed to address in any way the People’s failure to present the confidential informant (CI) as a witness in this “buy and bust” case:
Although defense counsel lodged some successful objections at trial, he largely permitted the People’s police witnesses to provide lengthy, nonresponsive answers to questions asked on both direct and cross-examination, even after County Court commented on his failure to object or request that the nonresponsive testimony be stricken from the record. …
Even more perplexing, however, was defense counsel’s absolute failure to address the absence of the CI, a pivotal player in the “buy and bust” operation. Initially, the record is devoid of any indication that defense counsel recognized the possibility of requesting a missing witness charge … . It is difficult to imagine any legitimate trial tactic for not requesting such a charge under the particular circumstances of this case … . People v Smith, 2016 NY Slip Op 04745, 3rd Dept 6-16-16
CRIMINAL LAW (PERMITTING NONRESPONSIVE ANSWERS FROM WITNESSES AND NOT ADDRESSING THE PEOPLE’S FAILURE TO PRESENT THE CONFIDENTIAL INFORMANT AS A WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, PERMITTING NONRESPONSIVE ANSWERS FROM WITNESSES AND NOT ADDRESSING THE PEOPLE’S FAILURE TO PRESENT THE CONFIDENTIAL INFORMANT AS A WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE OF COUNSEL (PERMITTING NONRESPONSIVE ANSWERS FROM WITNESSES AND NOT ADDRESSING THE PEOPLE’S FAILURE TO PRESENT THE CONFIDENTIAL INFORMANT AS A WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE