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DEFENSE COUNSEL SUCCESSFULLY PURSUED A MISIDENTIFICATION DEFENSE THROUGHOUT THE TRIAL BUT CONCEDED THE ISSUE IN SUMMATION, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL; A WITNESS MAY IDENTIFY THE DEFENDANT AT TRIAL DESPITE A PROCEDURALLY-DEFECTIVE PRE-TRIAL IDENTIFICATION (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined defendant did not receive effective assistance of counsel. During the trial the victim of the robbery twice misidentified the defendant before identifying the defendant, first indicating he did not see the defendant in the courtroom and then indicating a spectator was the assailant. Defense counsel pursued the misidentification defense throughout the trial, successfully challenging the admission of a surveillance video. But in summation defense counsel essentially conceded that defendant was one of the assailants. The Second Department noted that a witness who participated in a procedurally-defective pretrial identification procedure may still identify the defendant at trial if the People demonstrate the in-court identification is based upon the witness’s independent observation of the defendant, here the observations made during the robbery itself:

“A witness may identify the perpetrator of a crime as part of his or her in-court testimony, notwithstanding the existence of a procedurally-defective pretrial identification procedure, provided that the People establish by clear and convincing evidence that the in-court identification is based upon the witness’s independent observation of the defendant” … . Here, contrary to the defendant’s contention, at an independent source hearing, the prosecution proved by clear and convincing evidence that the complainant’s in-court identification of the defendant would be based on his independent observations during the robbery … . * * *

… [D]efense counsel’s confused and contradictory actions, effectively conceding the dispositive issue, deprived the defendant of his right to the effective assistance of counsel … . Given defense counsel’s opening statement and his conduct throughout the course of the trial in advancing his misidentification defense, his decision to abandon his chosen defense midstream in favor of a nebulous and contradictory argument that no forcible taking of property had occurred, “was so unreasonable, inconsistent, and devoid of any possibility of success that it does not even rise to the level of trial strategy” … . Under the circumstances, the defendant was deprived of the effective assistance of counsel and is entitled to a new trial. People v Goondall, 2019 NY Slip Op 04721, Second Dept 6-12-19

 

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