DEFENSE COUNSEL INEFFECTIVE; IN THIS MURDER CASE IN WHICH THE EXTREME EMOTIONAL DISTURBANCE (EED) DEFENSE WAS RAISED, DEFENDANT’S MILITARY SERVICE RECORDS, SOCIAL SECURITY DISABILITY RECORDS AND PTSD DIAGNOSIS SHOULD HAVE BEEN PRESENTED AND A PSYCHIATRIC EXPERT SHOULD HAVE BEEN CONSULTED; NEW TRIAL ORDERED (FOURTH DEPT).
The Fourth Department, reversing County Court and ordering a new trial, determined defendant’s motion to vacate his conviction on ineffective assistance grounds should have been granted. Defendant presented an extreme emotional disturbance (EED) defense in this murder case. But the defense consisted only of his and his girlfriend’s testimony. Defense counsel did not request defendant’s Social Security disability records which showed a post-traumatic-stress-disorder (PTSD) diagnosis related to three tours of duty in Iraq and did not consult an expert about defendant’s PTSD:
Defense counsel testified at the CPL article 440 hearing that, in preparing for trial, she requested and received defendant’s military records, which indicated that defendant had been diagnosed with PTSD, but she did not request or review records relating to defendant’s Social Security disability benefits, even though defendant informed her that he received such benefits. She also accompanied defendant to an interview conducted by the People’s expert, who concluded that defendant was not “suffering from active PTSD symptoms during the shooting,” but she did not seek an independent expert opinion. Rather than introducing expert or medical evidence, defense counsel attempted to establish an EED defense through the testimony of defendant and his girlfriend. Although defense counsel did not clearly recall the details of the case, and her file had been destroyed, she thought that she might have opted not to introduce defendant’s military records at trial because she was uncertain how to lay a foundation for their admissibility.
We conclude on this record that defendant met his burden of establishing that he received less than meaningful representation. People v Jackson, 2022 NY Slip Op 00785, Fourth Dept 2-4-22