DEFENSE COUNSEL MISTAKENLY FAILED TO NOTIFY THE PROSECUTION OF AN ALIBI WITNESS; DEFENSE COUNSEL ADMITTED HE HAD NO EXCUSE FOR HIS MISTAKE; BECAUSE THE FAILURE WAS NOT DELIBERATE AND WAS NOT AN ATTEMPT TO GAIN A TACTICAL ADVANTAGE, THE DEFENSE MOTION FOR PERMISSION TO SERVE A LATE NOTICE OF ALIBI SHOULD HAVE BEEN GRANTED (FOURTH DEPT),

The Fourth Department, reversing defendant’s conviction on the two relevant counts, determined defense counsel’s failure to timely notify the prosecution of an alibi witness was not deliberate and the defense motion to serve a late notice of alibi should have been granted:

… [O]n the day prior to jury selection, defendant filed a motion to permit the late service of a notice of alibi with respect to the first two counts of the indictment. In an affirmation in support of the motion, defense counsel explained that, just days after defendant’s arraignment on the indictment, defendant informed him of the existence of a potential alibi witness, and defense counsel’s investigator confirmed the alibi with the witness a week later. Defense counsel averred that, despite his awareness of that witness, he failed to notify the court and the prosecutor of the existence of the witness simply through his own negligence. Defense counsel had no objection to a brief adjournment for the People to investigate the alibi. Defense counsel’s averments and statements to the court established that his failure to comply with the time limits of CPL 250.20 was not willful or motivated by a desire to obtain a tactical advantage but simply a mistake … and, under these circumstances, defendant’s constitutional right to offer the testimony of the alibi witness outweighed any prejudice to the People or their interest in having the trial begin as scheduled … . The court therefore abused its discretion in precluding the testimony of the alibi witness (see Green, 70 AD3d at 45-46). The evidence against defendant was not overwhelming, and thus the harmless error doctrine is inapplicable here … . People v Thomas, 2022 NY Slip Op 05430, Fourth Dept 9-30-22

Practice Point: The failure to notify the prosecution of an alibi witness was an inadvertent mistake. The defense motion for permission to serve a late notice of alibi should have been granted. The denial of the motion denied defendant a fair trial.