People v. ScottPeople v. Scott
Defendant thereafter filed the instant
In an affidavit opposing the motion, the People did not contest that defendant was entitled to a hearing based on the alibi witness‘s affidavit and stated that “defendant has raised an issue of fact as to whether [the alibi witness] was available to testify . . . on his behalf and had favorable testimony to give.” The People further stated that defendant bore the burden at the hearing of establishing “(1) that the witness had material, favorable testimony to give, (2) an absence of a legitimate reason for counsel‘s choice not to call her; and (3) that the failure to call her, in and of itself, rendered counsel‘s representation less than meaningful.” The People asserted that defendant would not be able to meet his burden at the hearing.
Supreme Court nevertheless denied defendant‘s motion without a hearing, noting that
“It is well established that the failure to investigate or call exculpatory witnesses may amount to ineffective assistance of counsel’ ” (People v Dombrowski, 87 AD3d 1267, 1268 [4th Dept 2011]; see People v Mosley, 56 AD3d 1140, 1140-1141 [4th Dept 2008]). Contrary to the court‘s determination, a “defendant‘s failure to submit an affidavit from trial counsel is not fatal to [a
While a hearing may ultimately reveal that there was a strategic or legitimate reason for defense counsel‘s determination not to call the purported alibi witnesses (see People v Pottinger, 156 AD3d 1379, 1380 [4th Dept 2017]; People v Conway, 118 AD3d 1290, 1291 [4th Dept 2014]), we agree with defendant that “his submissions support[] his contention that he was denied effective assistance of counsel . . . and raise[] a factual issue that requires a hearing’ ” (People v Frazier, 87 AD3d 1350, 1351 [4th Dept 2011]; see Conway, 118 AD3d at 1291). We thus reverse the order and remit the matter to Supreme Court to conduct a hearing pursuant to
Finally, we note that defendant‘s contention regarding defense counsel‘s failure to file and serve a notice of alibi is not properly before us inasmuch as sufficient facts appear on the record of the proceedings underlying the judgment to have permitted review of the issue had defendant raised it on the prior appeal (see
All concur except Winslow, J., who dissents and votes to affirm in the following memorandum: I respectfully dissent in part. Although I agree with the majority that defendant‘s contention concerning defense counsel‘s alleged failure to file and serve a notice of alibi is not properly before us (see
I recognize that “the failure to investigate or call exculpatory witnesses may amount to ineffective assistance of counsel” (People v Young, 167 AD3d 1448, 1449 [4th Dept 2018], lv denied 33 NY3d 1036 [2019] [internal quotation marks omitted]). But an attorney also may be deemed ineffective for presenting alibi witnesses who give flawed or unsound testimony (see People v Jarvis, 113 AD3d 1058, 1060-1061 [4th Dept 2014], affd 25 NY3d 968 [2015]). Thus, a decision not to call an alibi witness is often the product of “sound trial strategy” rather than ineffectiveness (People v Smith [William], 115 AD2d 304, 304 [4th Dept 1985]).
Although the Court of Appeals and this Court have encouraged the factual development of ineffective assistance claims by way of
Here, during jury selection, defense counsel alerted the court that defendant had informed him of the existence of a potential alibi witness. Defense counsel advised the court that his investigator was seeking evidence to corroborate defendant‘s belated claim that he was out of state with his girlfriend when the homicide occurred. Defense counsel further indicated to the court that he did not anticipate that it would be part of his trial strategy to call the alibi witness and that he would do so only if he and defendant agreed and deemed it to be necessary. Ultimately, defense counsel did not present alibi evidence. The People presented the eyewitness testimony of an informant, a drug dealer, and the drug dealer‘s two brothers, one of whom testified against defendant under a cooperation agreement in a federal drug trafficking case and the other of whom had been unable to identify the shooter prior to trial. The People‘s case hinged on the credibility of those witnesses, and defense counsel logically attacked their credibility. Defendant did not challenge counsel‘s representation at any time prior to sentencing.
After his conviction, defendant moved to vacate the judgment of conviction pursuant to
Viewing the trial record and defendant‘s postjudgment submissions objectively, I conclude that defendant‘s right to effective assistance of counsel has been satisfied (see Satterfield, 66 NY2d at 799; People v Baldi, 54 NY2d 137, 146-147 [1981]). Defense counsel‘s strategic determination not to present alibi testimony was at most a tactical error, and it is not for this Court to second-guess whether the course chosen by defense counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation (see Satterfield, 66 NY2d at 799-800; People v Delp, 156 AD3d 1450, 1451 [4th Dept 2017], lv denied 31 NY3d 983 [2018]). “It is always easy with the advantage of hindsight to point out where trial counsel went awry in strategy. But trial tactics which terminate unsuccessfully do not automatically indicate ineffectiveness” (Baldi, 54 NY2d at 146), and counsel‘s subjective reasons for choosing to pursue one trial strategy over another are immaterial (see Satterfield, 66 NY2d at 799).
The motion court was familiar with defense counsel‘s representation of defendant, having presided over both of his trials and defendant‘s sentencing. Further, given the nature of the claimed ineffective assistance, defendant‘s motion could be determined without a hearing based on the trial record and defendant‘s submissions on the motion, and I thus conclude that the court did not err in summarily denying the motion (see
Entered: March 13, 2020
Mark W. Bennett
Clerk of the Court