DEFENSE COUNSEL EXPLAINED HIS STRATEGIES BEHIND WAIVING THE HUNTLEY HEARING AND REFRAINING FROM CONSULTING AND PRESENTING EXPERTS IN THE DEFENDANT’S FIRST DEGREE RAPE TRIAL; THEREFORE DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS WAS PROPERLY DENIED (THIRD DEPT).

The Third Department, over a dissent, determined that defense counsel, at the hearing on defendant’s motion to vacate his conviction on ineffective assistance grounds, adequately explained the strategic reasons for waiving the Huntley hearing and not consulting experts in this first degree rape case. Defendant was charged with having sex with a woman who was incapable of consent due to intoxication. Defendant was not read his Miranda rights until well into the police interrogation:

In support of his belief that the admission of the statements would be beneficial, counsel explained that defendant had maintained throughout the interview that the victim was an active and willing participant in the sexual encounter and that, if the statements were suppressed, the jury would only hear about the changes that defendant had made to his story when, as expected, he testified at trial and was cross-examined about them … . In contrast, if the entire interview were put into evidence with appropriate redactions, the defense would benefit from having the jury repeatedly hear defendant’s exculpatory version of events and be assured that almost all of his account had remained consistent over time. Counsel further believed that any damage caused by the jury seeing defendant walk back aspects of his story could be ameliorated, reasoning that jurors could be persuaded to sympathize with a “desperate” and “confused” defendant who wavered on a few points after prolonged, increasingly hostile questioning, but remained “adamant that everything that had just happened was consensual and [that the victim] was awake for it.” …

… [A]lthough defendant complains that counsel failed to consult with experts or present their testimony to rebut proof related to the victim’s sexual assault examination, her degree of intoxication and the presence of defendant’s genetic material in her anus, the hearing evidence reflected that counsel “had a strategic reason for [that] failure” … . … A finding that the victim was alert and willing would have … resulted in defendant’s acquittal on all charges, and counsel made the tactical decision to focus on that issue to the exclusion of murkier battles over whether the alleged anal sexual conduct had occurred or whether some of the conclusions drawn by the People’s experts were open to question. Counsel explained that he chose that course because of emotionally charged testimony from the victim, the sexual assault nurse examiner and others, all of whom he realized posed a real danger of inflaming the sympathies of the jury against defendant. As such, counsel viewed it as essential to present a narrowly tailored defense that kept the jury “singl[ed] in on” concrete facts pointing to the victim as an active participant in the sexual encounter. People v Sposito, 2021 NY Slip Op 02441, Third Dept 4-21-21