The Fourth Department determined defendant was entitled to a hearing on her motion to vacate her conviction on ineffective assistance grounds. Defendant testified her husband’s neck was cut in a struggle for the knife her husband had used to attack her. The People apparently argued defendant’s wounds were self-inflicted. There was evidence of a wound behind defendant’s left armpit which could not have been self-inflicted. The Fourth Department held that defense counsel’s failure to show the jury the wound, failure to engage an expert concerning the wound, failure to examine defendant’s clothing and failure to show the clothing to the jury could amount to ineffective assistance of counsel because such evidence would demonstrate the wound behind the armpit was not surgical in origin (as was argued at trial). A hearing, therefore, should have been held:
Defendant … submitted an affirmation from her appellate counsel, who examined the shirts and asserted that, contrary to the testimony of the … prosecution witness, the holes in the shirts matched precisely the location of defendant’s alleged stab wound behind her left armpit. At oral argument of the motion, appellate counsel urged the court to examine the garments before ruling on the motion. The court declined to do so and denied defendant’s motion without a hearing.
We conclude that, if, as appellate counsel asserts, there are holes in the shirts defendant was wearing at the time of the altercation matching the wound behind her left armpit, in the absence of some strategic explanation, the failure of defendant’s trial attorney to examine that clothing, coupled with his failure to call a medical expert to discuss the wound and to show the wound to the jury, would have been so ” egregious and prejudicial’ ” as to deprive defendant of a fair trial … . Because defendant’s “submissions [thus] tend[ ] to substantiate all the essential facts’ necessary to support [her] claim of ineffective assistance of counsel” … , we conclude that the court should have held a hearing on the motion … . People v Smith, 2016 NY Slip Op 06565, 4th Dept 10-7-16
CRIMINAL LAW (DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS)/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS)/VACATE CONVICTION, MOTION TO (DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS)/INEFFECTIVE ASSISTANCE (MOTION TO VACATE CONVICTION,DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS)