NY Daily Record Since 1908
New York State Supreme Court, Appellate Division, Fourth Judicial Department
Ineffective assistance of counsel
Interviewing fact witnesses
KA 20-00223
Appealed from Supreme Court, Onondaga County
Background: The defendant appealed from his conviction of two counts of assault, two counts of attempted robbery, and one count of criminal possession of a weapon. He argues that he was denied effective assistance of counsel on the basis that his attorney failed to investigate or call the second victim to testify on the defendant’s behalf at trial. According to police reports, while the first victim identified the defendant, the second victim had become uncooperative and could not recall anything from the night of the incident. The defendant had presented family members, as well as his own testimony, for testimony of his whereabouts on the night of the robbery.
Ruling: The Appellate Division reversed. The court held that the defendant’s motion to vacate the judgment ought to have been granted. The court noted that the second victim described one assailant as heavyset, a description that did not match the defendant at the time of his arrest. Both assailants were wearing masks. Furthermore, the second victim’s description conflicted with the first victim’s asserted ability to identify one of the assailants as the defendant. Defense counsel never interviewed the second victim.
Thomas M. Leith, of the Frank H. Hiscock Legal Aid Society, for the defendant-appellant; Bradley W. Oastler, of the district attorney’s office, for the respondent.
