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DEFENSE COUNSEL, DURING VOIR DIRE, RELIED ON THE PEOPLE’S REPRESENTATION THAT THE COMPLAINANT WOULD NOT TESTIFY, BEFORE OPENING STATEMENTS DEFENSE COUNSEL WAS INFORMED THE COMPLAINANT WOULD TESTIFY, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined defense counsel had relied, during voir dire, on the People’s representation that the complainant could not be located and would not testify. After voir dire, but before opening statements, defense counsel was informed the complainant had been found and would testify:

The People had omitted the complainant from their witness list because they were unable to locate him in the two years between the incident and the trial. However, after the jury was selected, and just before opening arguments, they advised the court that they had located the complainant, and the court permitted him to testify the next day.

Defense counsel clearly “relied to her detriment on her expectation that the People would not call this witness,” the sole eyewitness to the incident, and was substantially prejudiced by the change of course… . Defense counsel had used voir dire to question jurors about other issues, including their ability to evaluate videotape evidence, believing that this would be the main evidence in the case, and she had not questioned prospective jurors about their ability to impartially evaluate a victim’s testimony. In addition, because the defense had represented to the jury during voir dire that no complainant would appear, the complainant’s appearance at trial would undermine the defense’s credibility.

Thus, as counsel pointed out, her questioning and selection of jurors was geared entirely to a trial without the complainant’s testimony, and was totally unsuited to a trial with his testimony. People v Kyser, 2018 NY Slip Op 01160, Frist Dept 2-20-18

CRIMINAL LAW (DEFENSE COUNSEL, DURING VOIR DIRE, RELIED ON THE PEOPLE’S REPRESENTATION THAT THE COMPLAINANT WOULD NOT TESTIFY, BEFORE OPENING STATEMENTS DEFENSE COUNSEL WAS INFORMED THE COMPLAINANT WOULD TESTIFY, NEW TRIAL ORDERED (FIRST DEPT))/VOIR DIRE (CRIMINAL LAW, DEFENSE COUNSEL, DURING VOIR DIRE, RELIED ON THE PEOPLE’S REPRESENTATION THAT THE COMPLAINANT WOULD NOT TESTIFY, BEFORE OPENING STATEMENTS DEFENSE COUNSEL WAS INFORMED THE COMPLAINANT WOULD TESTIFY, NEW TRIAL ORDERED (FIRST DEPT))/WITNESSES (CRIMINAL LAW, DEFENSE COUNSEL, DURING VOIR DIRE, RELIED ON THE PEOPLE’S REPRESENTATION THAT THE COMPLAINANT WOULD NOT TESTIFY, BEFORE OPENING STATEMENTS DEFENSE COUNSEL WAS INFORMED THE COMPLAINANT WOULD TESTIFY, NEW TRIAL ORDERED (FIRST DEPT))

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