You are here: / / AT THE HEARING ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, DEFENDANT...
, ,

AT THE HEARING ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, DEFENDANT PRESENTED SEVERAL WITNESSES WHO SUPPORTED HIS ALIBI DEFENSE; DEFENSE COUNSEL HAD BEEN MADE AWARE OF THE WITNESSES BUT FAILED TO INVESTIGATE; THERE CAN BE NO STRATEGIC JUSTIFICATION FOR SUCH A FAILURE; DEFENDANT’S CONVICTION SHOULD HAVE BEEN VACATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction based upon ineffective of counsel should have granted. Although defendant did not demonstrate “actual innocence,” the defendant presented several witnesses who testified defendant had left the party before the shooting and defendant’s hair was short, not braided, at the time of the shooting. The perpetrator was described as having braids:

Although a defendant claiming ineffective representation “bears the ultimate burden of showing . . . the absence of strategic or other legitimate explanations for counsel’s challenged actions” … , “[i]t simply cannot be said that a total failure to investigate the facts of a case, or review pertinent records, constitutes a trial strategy resulting in meaningful representation” … . Here, the failure by the defendant’s trial counsel to contact and interview these witnesses cannot be characterized as a legitimate strategic decision since, without collecting that information, counsel could not make an informed decision as to whether the witnesses’ evidence might be helpful at trial … . The fact that some of these witnesses had criminal records does not excuse trial counsel’s failure to investigate since a witness’s “‘unsavory background[ ]’ does not render his or her ‘testimony incredible as a matter of law,'” particularly since the People regularly rely on witnesses with criminal backgrounds, and did so in this case … . Moreover, even if the witnesses’ criminal records provided a strategic basis for choosing not to present their testimony, it does not provide an excuse for counsel’s failure to investigate them as possible witnesses … . People v Davis, 2021 NY Slip Op 02408, Second Dept 4-21-21

 

You might also like
COMMUNICATION BETWEEN SPOUSES DOES NOT CONSTITUTE PUBLICATION IN A DEFAMATIOIN ACTION; MOTION TO SET ASIDE PLAINTIFF’S VERDICT SHOULD HAVE BEEN GRANTED.
THE MEDICAL RECORDS DID NOT PROVIDE NOTICE TO THE HOSPITAL OF A POTENTIAL MEDICAL MALPRACTICE ACTION AND PETITIONER FAILED TO SHOW THE HOSPITAL WOULD NOT BE PREJUDICED BY THE DELAY IN SERVING A NOTICE OF CLAIM; LEAVE TO SERVE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
IN THIS SLIP AND FALL CASE, STEPS WHICH DO NOT HAVE UNIFORM RISER HEIGHTS COULD CONSTITUTE A DANGEROUS CONDITION UNDER COMMON LAW NEGLIGENCE PRINCIPLES, WITHOUT REFERENCE TO WHETHER A BUILDING CODE WAS VIOLATED; BOTH THE PROPERTY OWNER AND THE SUBLESSEE COULD BE LIABLE (FIRST DEPT). ​
Criteria for Disclosure from Nonparty Witness
PLAINTIFF DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE OF DEFAULT PROVISION OF THE MORTGAGE; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
Elements of Tortious Interference with Contract and Tortious Interference With Prospective Business Relations Explained
Unwed Birth Father’s Consent for Adoption Properly Required
Orange County Executive Did Not Have Authority to Terminate County Employees Before County Legislature Eliminated Positions

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

THE STOP OF DEFENDANT’S CAR WAS NOT SUPPORTED BY REASONABLE SUSPICION;... THE JUDGE’S LAW CLERK, A FORMER ASS’T DA, DISCUSSED DEFENDANT’S...