| People v Okongwu |
| 2010 NY Slip Op 02198 [71 AD3d 1393] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DominicOkongwu, Appellant. |
—[*1] Frank A. Sedita, III, 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 (Timothy J.Drury, J.), entered December 12, 2007. The order denied defendant's motion pursuant to CPL440.10 to vacate the judgment convicting defendant of rape in the first degree (16 counts),sodomy in the first degree (14 counts), incest (12 counts), sexual abuse in the first degree (16counts), endangering the welfare of a child (six counts), and harassment (seven counts).
It is hereby ordered that the order so appealed from is unanimously reversed on the law, themotion is granted, the judgment of conviction is vacated and the matter is remitted to SupremeCourt, Erie County, for further proceedings on the indictment.
Memorandum: Defendant appeals from an order denying his motion pursuant to CPL 440.10to vacate the judgment convicting him of multiple counts of sexual offenses that occurred in1991 (People v Okongwu, 233 AD2d 841 [1996], lv denied 89 NY2d 927[1996]). In support of his motion, defendant contended that he was denied his right to effectiveassistance of counsel. We note at the outset that, because defendant relied solely on the federalstandard for ineffective assistance of counsel as set forth in Strickland v Washington(466 US 668 [1984], reh denied 467 US 1267 [1984]) in support of his motion, SupremeCourt properly applied that standard in this case (see People v Wosu, 55 AD3d 1253, 1254 [2008], lv denied11 NY3d 931 [2009]; see also People vMcDonald, 1 NY3d 109, 114-115 [2003]).
The court denied defendant's motion following a hearing, concluding that the variousomissions by defense counsel were "not outside the wide range of professionally competentassistance, and, if they were, there is not a reasonable probability that, but for these errors, theresult of the trial would have been different." We agree with defendant that the court erred indenying his motion.
In support of his motion, defendant challenged defense counsel's representation on threegrounds, each of which was raised by a codefendant, Louis Eze, in his federal petition for a writof habeas corpus (Eze v Senkowski, 321 F3d 110, 119-120 [2003]). The Second CircuitCourt of Appeals remitted the matter to the District Court for a hearing to afford Eze's trialcounsel the [*2]opportunity to explain specified acts andomissions. The Second Circuit found that those purported acts and omissions, if unexplained,would constitute constitutionally deficient representation and would likely establish a reasonableprobability that, but for the errors, the result of Eze's trial would have been different (id.at 136-138). Following the hearing, the District Court vacated the judgment of conviction againstEze on the ground that he was denied effective assistance of counsel.
The decision of the Federal District Court applying the federal standard and determining thatEze received ineffective assistance of counsel "serve[s] as useful and persuasive authority"(People v Kin Kan, 78 NY2d 54, 60 [1991], rearg denied 78 NY2d 1008 [1991]),and we afford "great weight" to the determinations of federal courts on federal constitutionalissues (New York R.T. Corp. v City of New York, 275 NY 258, 265 [1937], affd303 US 573 [1938], reh denied 304 US 588 [1938]). We recognize that there are somefactual distinctions between the case against defendant and that against Eze, but we concludethat those distinctions do not justify a different result inasmuch as the purported failures ofdefense counsel and trial counsel for Eze, during their joint trial, are the same.
Both defendant and Eze contended that their attorneys failed to introduce evidence of a 1988medical examination of one of the victims establishing that the physical findings then were thesame as those found during a 1992 examination. That evidence could have nullified anycontention that the physical injuries of that victim resulted from the abuse alleged in theindictment. At the hearing on defendant's CPL 440.10 motion, defense counsel testified that hebelieved that the 1988 records could have been damaging to his client by causing the jury tobelieve that defendant was the perpetrator of sexual abuse against that victim in 1988. Defensecounsel conceded, however, that the court would have permitted introduction of redacted recordsto avoid any negative inferences against defendant. Thus, in our view, defense counsel failed to"explain[ ] convincingly [that the omission] result[ed] from a sound trial strategy" (Eze,321 F3d at 112).
Both defendant and Eze also complained that their attorneys failed to obtain experts to refutethe People's experts and failed to introduce evidence to discredit those experts. Defense counseladmitted that he was the attorney responsible for obtaining experts, and he contended that hetried to contact between 5 and 10 experts but was blocked from contact by the experts' staff. Weconclude that defense counsel's explanation is inadequate. Based on the many charges and theevidence that there were other possible causes for the physical evidence of abuse, there is noexcuse for such feeble attempts to contact experts. Defense counsel further testified at thehearing that, in his opinion, "juries d[idn't] make decisions based on expert witnesses,particularly [in] these kinds of cases." Again, we conclude that defense counsel's explanation isinadequate. Where, as here, medical evidence is unrefuted, that evidence corroborates a victim'stestimony.
Finally, defense counsel indicated that he was unfamiliar with the literature raising doubtsabout child sexual abuse syndrome (CSAS), and he admitted that he did not cross-examine thePeople's psychological expert concerning that literature. In his view, the testimony on CSAS waslimited to delayed disclosure and inconsistent statements made by victims, neither of whichapplied to defendant's case. Considering that there were in fact inconsistent statements involvingdefendant that were made by the children, we cannot conclude that defense counsel's explanationis convincing.
We thus conclude that defense counsel's representation " 'fell below an objective standard ofreasonableness' " (id. at 123, quoting Strickland, 466 US at 688), and ourconfidence in the outcome of defendant's trial therefore is undermined. In our view, as inEze, " 'there is a reasonable probability that, but for [defense] counsel's unprofessionalerrors, the [*3]result of the proceeding would have been different'" (id., quoting Strickland, 466 US at 694). We therefore reverse the order, grantdefendant's motion, vacate the judgment of conviction and remit the matter to Supreme Court forfurther proceedings on the indictment. Present—Smith, J.P., Centra, Fahey, Green andPine, JJ.