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.