| People v Wosu |
| 2008 NY Slip Op 07292 [55 AD3d 1253] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Joy Wosu,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in theFourth Judicial Department, from an order of the Supreme Court, Erie County (Richard C.Kloch, Sr., A.J.), entered May 18, 2006. The order denied without a hearing defendant's motionpursuant to CPL 440.10 to vacate the judgment convicting defendant of, inter alia, rape in thefirst degree (eight counts) and sodomy in the first degree (eight counts).
It is hereby ordered that the order so appealed from is reversed on the law and the matter isremitted to Supreme Court, Erie County, for a hearing pursuant to CPL 440.30 (5) in accordancewith the following memorandum: Defendant appeals from an order denying without a hearingher motion pursuant to CPL 440.10 to vacate the judgment convicting her of multiple counts ofsexual offenses that occurred in 1991 (People v Wosu, 213 AD2d 967 [1995], affd87 NY2d 935 [1996]). In support of her motion, defendant contended that she was denied herright to effective assistance of counsel. We note at the outset that, because defendant relied solelyon the federal constitution in support of her motion, Supreme Court properly applied the test forclaims of ineffective assistance of counsel set forth in Strickland v Washington (466 US668 [1984]; see People v McDonald,1 NY3d 109, 114-115 [2003]).
We further conclude, however, that nonrecord facts may support the contention of defendantthat her trial counsel unreasonably failed to pursue a meaningful theory of defense other than anarrow alibi that applied to only a six-day portion of the November 1991 period in which thecriminal acts of which defendant was convicted were alleged to have occurred. Thus, defendant'strial counsel failed to present any meaningful defense for the remainder of that month. Indeed, wenote that defendant relies heavily on the decision of the Second Circuit with respect to acodefendant's application for a writ of habeas corpus based on ineffective assistance of counsel(Eze v Senkowski, 321 F3d 110 [2003]). According to defendant, she and her twocodefendants presented a unified defense at trial, and thus the same deficiencies in therepresentation of the attorney for the codefendant who sought a writ of habeas corpus were alsopresent in the representation of defendant's trial attorney. Consequently, we conclude that thecourt erred in failing to conduct an evidentiary hearing to explore nonrecord facts that maysupport the contention of defendant that she received ineffective assistance of counsel. Wetherefore reverse the order and remit the matter to Supreme Court for a hearing pursuant to CPL[*2]440.30 (5) (see People v Ferreras, 70 NY2d 630[1987]; People v Jenkins, 68 NY2d 896 [1986]; People v Howard, 12 AD3d 1127 [2004]).
All concur except Smith, J.P., and Peradotto, J., who dissent and vote to affirm in thefollowing memorandum.
Smith, J.P., and Peradotto, J. (dissenting). We respectfully dissent and would affirm because,in our view, Supreme Court properly denied defendant's CPL article 440 motion withoutconducting a hearing to determine whether defendant was denied effective assistance of counsel.We conclude upon our review of the record as well as defendant's submissions in support of themotion that defendant received effective assistance of counsel as required by the federalconstitution (see Strickland v Washington, 466 US 668 [1984]), the sole standard reliedupon by defendant in support of her motion (see People v McDonald, 1 NY3d 109, 114-115 [2003]).
We note at the outset that the motion of defendant is premised upon the fact that one of hercodefendants, Louis Eze, sought a writ of habeas corpus in District Court based on ineffectiveassistance of counsel and, following a hearing on the petition pursuant to the decision of theSecond Circuit (Eze v Senkowski, 321 F3d 110 [2003]), the District Court concluded thatEze was in fact denied effective assistance of counsel based on the standard set forth inStrickland. Defendant contends that she is similarly situated to Eze and thus that she wasalso denied effective assistance of counsel. She notes in addition that the second of her twocodefendants, Dominic Okongwu, was granted a hearing by the same Supreme Court Justice onhis CPL article 440 motion.
Although the federal decisions pertaining to Eze may "serve as useful and persuasiveauthority" (People v Kin Kan, 78 NY2d 54, 60 [1991], rearg denied 78 NY2d1008 [1991]), we note that the defense presented by the attorney for Eze was separate anddistinct from that presented by defendant's attorney. The primary distinction between the defenseoffered by defendant as opposed to Eze and Okongwu was defendant's presentation of an alibidefense. As the court properly noted in denying defendant's motion without conducting a hearing,defendant's case rested primarily on that alibi defense and on the contention that, if abuseoccurred, defendant was not a party to it. Because of that crucial difference between the defensepresented by defendant and those of her codefendants, we believe that the instances ofineffectiveness found by the federal courts in passing upon Eze's habeas corpus petition did notinfect the representation provided by defendant's attorney.
As stated by the Court of Appeals, "[i]n Strickland, the Supreme Court adopted atwo-part test for evaluating claims of ineffective assistance of counsel generally. A 'defendantmust show that counsel's performance was deficient,' and 'that the deficient performanceprejudiced the defense' " (McDonald, 1 NY3d at 113). Here, it cannot be said that theperformance of defendant's attorney was deficient. Defendant's attorney made pretrial motions,elicited testimony from the alleged victims of the sexual abuse with respect to their rehearsedtrial testimony, and challenged the detective's failure to examine the mattresses upon which thealleged abuse occurred, despite admissions from the victims that there may have been semen onthe mattresses. Defendant's attorney also presented the testimony of defendant and that of hercodefendants and fiancé that she was not at Okongwu's house in November 1991 when thealleged sexual abuse occurred. Thus, the evidence presented by defendant's attorney supportedthe alibi defense, and it distinctly separated the defense presented by defendant from that of hercodefendants.
Because defendant presented an alibi defense, her attorney, unlike the attorneys whorepresented her codefendants, had little incentive to challenge the testimony of a physicianconcerning the alleged sexual abuse of the victims or, indeed, to introduce in evidence the resultsof a 1988 physical examination of one of the victims of sexual abuse. Although the Second [*3]Circuit determined that those omissions by the attorney for Ezecontributed to her ineffective assistance, the attorney for Eze did not assert an alibi defense andthus the same cannot be said with respect to the attorney for defendant.
With respect to the challenge by defendant to her attorney's failure to call a rebuttal witnesswith respect to the testimony of an expert witness for the prosecution on the psychology of sexualabuse, we note that the Second Circuit acknowledged that it was unable to ascertain whether thefailure of the attorney for Eze to call such a witness was a matter of trial strategy (seeEze, 321 F3d at 131-132). Moreover, the Second Circuit's concern with respect to theinconsistent statements of the victims to that witness dealt specifically with statements that didnot tend to exculpate defendant.
Indeed, in our view, had defendant's attorney vigorously cross-examined the People's expertsor offered the testimony of experts or submissions to rebut the conclusions of the People'sexperts, defendant's alibi defense may have been undercut. Stated differently, there was nostrategic need to present an aggressive defense on the issue whether there was in fact sexualabuse because, pursuant to defendant's alibi defense, defendant was not a participant in any suchabuse. Further, because defendant's attorney is now deceased, we do not believe that nonrecordfacts, including the testimony and submissions of the attorneys for the codefendants, couldcontradict the record evidence that defendant's attorney provided effective assistance of counselby pursuing an alibi defense. In short, we conclude that defendant failed to meet the first part ofthe Strickland test inasmuch as she failed to show that her attorney's performance wasdeficient, and we thus do not reach the second part of the Strickland test, i.e., whether "'the deficient performance prejudiced the defense' " (McDonald, 1 NY3d at 113).Present—Smith, J.P., Centra, Fahey, Peradotto and Pine, JJ.