You are here: / / DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD HAVE BEEN GRANTED;...
, ,

DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD HAVE BEEN GRANTED; DEFENSE COUNSEL DID NOT ATTEMPT TO SECURE THE TESTIMONY OF A WITNESS WHO WOULD TESTIFY THAT HER BOYFRIEND, WHO USED TO BE THE BOYFRIEND OF THE MURDER VICTIM, CONFESSED TO KILLING THE VICTIM (FOURTH DEPT).

The Fourth Department, reversing County Court, over a two-justice dissent, determined defendant’s motion to vacate his murder conviction on ineffective assistance grounds should have been granted. Defendant demonstrated that a witness was willing to testify that her boyfriend had confessed to the murder. When the witness did not show up to testify, defense counsel did not attempt to secure her attendance:

… [A]t the time of the trial, defense counsel explicitly informed the court, on the record, that his strategy was to call the witness and present her exculpatory testimony. In this regard, defense counsel stated, “[t]here’s one other issue that may or may not come up . . . [that has] to do with [the witness]. [The witness] had a conversation with her then-boyfriend . . . who had been the boyfriend of [the victim] where [the boyfriend] made a tape recording of his voice, identifying his name, his date of birth and his social security number, and indicated there that he killed [the victim]. His words were I killed the bitch. I killed the bitch. I killed the bitch.’ And that is the substance of a police report that I received from [the prosecutor].” When the court asked how defense counsel intended to introduce this testimony, he responded, “[w]ell, I intend to call [the witness], should she appear in court. She was subpoenaed. She appeared on Thursday pursuant to the subpoena as well and told me this information for the first time. I don’t know whether she’s going to be here when we need to call her, which is why I thought maybe we’d wait and see if she showed up and not take the Court’s time to do extra research on this issue. But since you’ve asked me to bring up any possible issues, I would put her on the witness stand and make an offer of proof to the Court and attempt to prove her reliability of the information that she’s giving under the Settles case relating to a statement against [the boyfriend’s] penal interest.” When the court then asked whether “[the witness’s] testimony would relate to this particular homicide,” defense counsel responded, “Oh yes. Yes.” Nevertheless, and consistent with defense counsel’s representation that he would pursue the testimony only if the witness appeared as directed, defense counsel took no further action to secure the witness’s presence when she did not appear … . We agree with defendant that the failure to secure the witness’s attendance was deficient conduct and that the record discloses no tactical reason for defense counsel’s actions … . People v Borcyk, 2020 NY Slip Op 03359, Fourth Dept 6-12-20

 

You might also like
THE DEFENSE ATTORNEY HAD BEGUN WORKING FOR THE DISTRICT ATTORNEY’S OFFICE AT THE TIME DEFENDANT ENTERED HIS PLEA; DEFENDANT WAS THEREBY DEPRIVED OF HIS RIGHT TO COUNSEL; PLEA VACATED (FOURTH DEPT).
THERE IS NO LEGAL SUPPORT FOR A ‘TRI-PARENT’ ARRANGEMENT WHERE A FORMER SAME-SEX PARTNER OF MOTHER, MOTHER AND FATHER SHARE VISITATION AND CUSTODY OF THE CHILD (FOURTH DEPT).
GRANDMOTHER’S APPEAL OF THE DENIAL OF VISITATION HEARD DESPITE THE FACT THAT GRANDMOTHER HAD BEEN GRANTED VISITATION WHILE THE APPEAL WAS PENDING; DISSENT ARGUED THE EXCEPTION TO THE MOOTNESS DOCTRINE SHOULD NOT HAVE BEEN APPLIED (FOURTH DEPT).
DEFENDANT’S HOME WAS CONSTRUCTED ABOUT EIGHT FEET FROM THE PROPERTY LINE VIOLATING THE COVENANT OR RESTRICTION REQUIRING TEN FEET; PLAINTIFF, AFTER A BALANCING OF THE EQUITIES, WAS NOT, HOWEVER, ENTITLED TO EQUITABLE RELIEF (FOURTH DEPT).
PLAINTIFFS ALLEGED THE CONTRACT FOR THE PURCHASE OF LAND INCLUDED A PARCEL OF LAND NOT INCLUDED IN THE DEED AND SOUGHT A CORRECTED DEED; PURSUANT TO THE MERGER DOCTRINE, THE CONTRACT AND THE DEED MERGED AT THE CLOSING AND THE PROPERTY DESCRIPTION IN THE DEED IS DEEMED TO REFLECT THE FINAL AGREEMENT OF THE PARTIES (ABSENT FRAUD OR AMBIGUITY IN THE DEED); PLAINTIFFS’ COMPLAINT SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).
Conversion Cause of Action Cannot Be Based Solely Upon Allegations of Breach of Contract
THE GRANDPARENTS’ PETITION FOR VISITATION SHOULD NOT HAVE BEEN DENIED ABSENT A FULL BEST INTERESTS OF THE CHILD HEARING (FOURTH DEPT). ​
SELF-SERVING AFFIDAVIT FROM DEFENDANT DID NOT REBUT THE PRESUMPTION OF THE VALIDITY OF THE SERVICE OF PROCESS (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DISMISSAL OF COMPLAINT TOO SEVERE A SANCTION FOR FAILING TO COMPLY WITH DISCOVERY... QUESTION OF FACT RAISED ABOUT WHETHER THE HOSPITAL DEFENDANTS MADE A REASONABLE...