You are here: / / DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO INVESTIGATE THE ROBBERY VICTIM’S...
,

DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO INVESTIGATE THE ROBBERY VICTIM’S STATEMENT THAT DEFENDANT WAS NOT ONE OF THE PERPETRATORS; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined defendant did not receive effective assistance counsel in that counsel did not investigate the robbery victim’s statement which indicated defendant was not one of the perpetrators:

… [T]he second victim’s hearing testimony that defendant was not present during the shooting is consistent with his initial statement to law enforcement, and it is also “wholly consistent with the theory pursued by [defense] counsel [at trial], namely that defendant was not present at the shooting and that the crime was instead committed by [different] individual[s]”… . Additionally, although the motion court chose to … discredit the second victim’s testimony, with respect to whether the second victim ever named for him the two individuals that the second victim believed carried out the attempted robbery, there is no evidence in the hearing record contrary to the second victim’s testimony that he would have named those individuals at trial had he been called … .

… [T]he hearing record discloses no tactical reason for defense counsel’s failure to interview the second victim … . Inasmuch as defendant established that defense counsel “did not fully investigate the case and did not collect the type of information that a lawyer would need in order to determine the best course of action” … , we conclude that defense counsel’s deficient conduct was “sufficiently egregious and prejudicial as to compromise [the] right to a fair trial” … . People v Everson, 2023 NY Slip Op 00761, Fourth Dept 2-10-23

Practice Point: Although defense counsel may have made an appropriate strategic decision re: whether to call the robbery victim as a witness, counsel was ineffective in failing to investigate the victim’s statement that defendant was not one of the perpetrators.

 

You might also like
A Shooting Victim’s Negligence and Public Nuisance Actions Against the Manufacturer, Distributor and Resellers of Firearms Is Allowed to Go Forward.
(Harmless) Error to Admit Voice Identification Testimony—The People Did Not Provide Notice of the Testimony and the Identification Was Not Merely Confirmatory
Despite Broad General Language, the Release Applied Solely to the Property-Damage Claim Referenced In It and Not to Plaintiff’s Personal Injury Action
FORMER AND CURRENT SECTION 413 OF THE SOCIAL SERVICES LAW REQUIRES THE REPORTING OF ANY SUSPECTED INTENTIONAL INFLICTION OF SERIOUS PHYSICAL INJURY UPON A CHILD, WHICH INCLUDES SEXUAL ABUSE, EVEN WHEN THE PERSON SUSPECTED OF THE ABUSE IS NOT LEGALLY RESPONSIBLE FOR THE CARE OF THE CHILD; TWO JUSTICE DISSENT (FOURTH DEPT).
JUDGE’S FAILURE TO ADDRESS JURY NOTES BEFORE THE VERDICT NOT REVIEWED IN THE INTEREST OF JUSTICE, DEFENSE COUNSEL MAY HAVE HAD A STRATEGIC REASON FOR NOT OBJECTING, CONVICTION AFFIRMED AFTER COURT OF APPEALS REVERSAL.
PLAINTIFF ENTITLED TO JURISDICTIONAL DISCOVERY WITH RESPECT TO DEFENDANT HOSPITAL IN THIS MEDICAL MALPRACTICE ACTION; HOSPITAL DID NOT CONSENT TO JURISDICTION BY REGISTERING AS A FOREIGN CORPORATION; DOCTORS DID NOT CONSENT TO JURISDICTION BY BECOMING LICENSED IN NEW YORK (FOURTH DEPT).
Pecuniary Loss Defined
THE WAIVER OF INDICTMENT WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT PRECISELY IDENTIFY WHICH OF TWO UNDERLYING OFFENSES IT DESCRIBED AND DID NOT PROTECT AGAINST DOUBLE JEOPARDY (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

THE JUDGE SHOULD NOT HAVE LEFT IT TO THE AGENCY TO DETERMINE FATHER’S... THE JUDGE’S FAILURE TO MAKE FINDINGS OF FACT IN THIS CUSTODY CASE PRECLUDED...