NY appeals court orders hearing in rape case

In a split decision, a state appeals court has ordered a hearing in a rape case to determine if the defendant was denied effective assistance of counsel.

Defendant Omar Anwar was convicted in February 2012 of first-degree rape, first-degree criminal sexual act, first-degree sexual abuse, second-degree unlawful imprisonment, and third-degree assault.

In February 2023, Onondaga County Court Judge Theodore H. Limpert denied Anwar’s motion to vacate a conviction under CPL 440.10 claiming the motion was procedurally barred..

In a recent decision, the Appellate Division of state Supreme Court, Fourth Department, voted 3-2 to reverse Limpert’s decision and send the case back to Onondaga County Court for a hearing on Anwar’s motion.

“We agree with defendant that County Court erred in its determination that defendant’s claim that he was denied effective assistance of counsel was procedurally barred,” the Fourth Department wrote.

In a previous appeal, the Fourth Department affirmed the conviction and rejected the ineffective assistance of counsel claim.

“We conclude that his present contentions are properly raised by way of a CPL 440.10 motion because they concern matters outside the record that was before us on his direct appeal,” the panel wrote.

“Defendant’s motion contained sufficient evidence …  demonstrating that a hearing is necessary to determine whether trial counsel’s waiver of an interpreter for defendant adversely affected defendant’s right to meaningfully participate in his own defense,” the court wrote.

Anwar argued that, while he is able to navigate conversational topics in English, he requires an interpreter for more technical or esoteric topics.

“He had in fact utilized the assistance of an interpreter at all but one court appearance prior to his trial counsel waiving such services for defendant just prior to trial,” the majority noted.

“Thus, we reverse the order and remit the matter to County Court for such a hearing,” the court found.

Justices Tracey A. Bannister and Lynn W. Keane dissented and voted to affirm Limpert’s ruling.

“We agree with the majority that County Court erred in its determination that defendant’s ineffective assistance of counsel claim was procedurally barred. Nonetheless, we would have affirmed the order,” Bannister and Keane wrote.

“We agree with (Limpert) that defendant’s motion alleging … ineffective assistance of counsel is both legally and factually insufficient to warrant the relief requested,” they wrote.

“Although defense counsel waived any request for a translator after purportedly conferring with his client, he did so only after the court issued a … ruling that defendant did not need a translator, leading us to conclude that any request for an interpreter by defense counsel would have had little or no chance of success,” Bannister and Keane wrote.

Anwar’s posttrial motion was filed more than 10 years after his 2012 trial and conviction.

“Thus, he chose to proceed to trial and, only after obtaining an unfavorable verdict, contends that he was denied effective assistance of counsel,” they wrote.

“In our minds, and on these facts, the court did not err in denying without a hearing the motion with respect to defendant’s claim that defense counsel was ineffective for waiving any request for a translator inasmuch as that claim lacks the requisite support in the motion papers,” they wrote.

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