| People v Jarvis |
| 2014 NY Slip Op 00001 [113 AD3d 1058] |
| January 3, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Kharye Jarvis, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Charles T. Maloy, J.),rendered October 28, 1992. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is reversed on the law and anew trial is granted.
Memorandum: Following a jury trial in 1991, defendant was convicted of two countsof murder in the second degree (Penal Law § 125.25 [1]), and we affirmed thejudgment of conviction on direct appeal (People v Jarvis, 202 AD2d 1036[1994], lv denied 83 NY2d 968 [1994]). In 2012, defendant moved for a writ oferror coram nobis in this Court, asserting that appellate counsel was ineffective in failingto raise an issue on direct appeal that would have resulted in reversal, i.e., failing to argueineffective assistance of trial counsel. We granted the writ and vacated our prior order(People v Jarvis, 98 AD3d1323 [2012], lv denied 20 NY3d 1012 [2013]), and we now consider theappeal de novo. Defendant's sole contention is that he is entitled to a new trial because hewas deprived of effective assistance of counsel. We agree.
The right to effective assistance of counsel is guaranteed by both the Federal andState Constitutions (US Const 6th Amend; NY Const, art I, § 6). Theconstitutional requirement is met provided that the evidence, the law, and thecircumstances of a particular case, viewed in totality and as of the time of therepresentation, reveal that the attorney provided meaningful representation (seePeople v Baldi, 54 NY2d 137, 147 [1981]). In reviewing claims of ineffectiveassistance of counsel, our concern is to avoid "confusing true ineffectiveness with merelosing tactics and according undue significance to retrospective analysis" (id. at146). As long as there was a "reasonable and legitimate strategy under the circumstancesand evidence presented, even if unsuccessful, [the representation] will not fall to thelevel of ineffective assistance" (People v Benevento, 91 NY2d 708, 712-713[1998]). It is " 'incumbent on defendant to demonstrate the absence of strategic or otherlegitimate explanations' " for counsel's alleged failures (id. at 712, quotingPeople v Rivera, 71 NY2d 705, 709 [1988]; see People v Roundtree, 75 AD3d 1136, 1138 [2010],lv denied 15 NY3d 855 [2010]). "[I]t is well settled that disagreement over trialstrategy is not a basis for a determination of ineffective assistance of counsel" (People v Dombrowski, 94AD3d 1416, 1417 [2012], lv denied 19 NY3d 959 [2012]; see People v Henry, 74 AD3d1860, 1862 [2010], lv denied 15 NY3d 852 [2010]; see [*2]generally Benevento, 91 NY2d at 712-714). As theCourt of Appeals recently observed, "[c]ounsel's performance must be evaluated todetermine whether the tactics and strategies were consistent with . . . [t]hetest [of] 'reasonable competence' " (People v Oathout, 21 NY3d 127, 128 [2013]). Whileperfect representation is not required, "that test cannot be so weak as to deny a defendantadequate due process" (id. at 128-129).
In our view, defense counsel committed two serious errors that rendered hisrepresentation ineffective. The first error, which was sufficiently egregious by itself todeny defendant a fair trial, was defense counsel's inexplicable failure to object totestimony that he had successfully sought to preclude. Defense counsel obtained a rulingfrom County Court precluding the People, on their direct case, from questioning a certainprosecution witness about an alleged threat by defendant that he would shoot her if she"knew what happened" with respect to the murders herein. Nevertheless, defense counselfailed to object or move for a mistrial when the prosecutor, on the People's direct case,elicited that very testimony from the witness. We conclude that "defendant hasdemonstrated the absence of any strategic or other legitimate explanation for hisattorney's" failure to object to the introduction of this prejudicial and previouslyprecluded testimony (People vCleophus, 81 AD3d 844, 846 [2011]). Moreover, after defense counsel failed toobject to the admission of that precluded testimony, the prosecutor continued to use thattestimony to full advantage, arguing on summation that the threat to the prosecutionwitness "puts the [d]efendant [at the crime scene] just as easily as any person you saw inthere" (People v Webb, 90AD3d 1563, 1564-1565 [2011], amended 92 AD3d 1268 [2012]). Defensecounsel's error in failing to object to the testimony of the prosecution witness "simplycannot be construed as a misguided though reasonably plausible strategy decision"(id. at 1564; see Peoplev Jeannot, 59 AD3d 737, 737 [2009], lv denied 12 NY3d 916 [2009];People v Ofunniyin, 114 AD2d 1045, 1046-1047 [1985]), and " 'is sufficientlyserious to have deprived defendant of a fair trial' " (Webb, 90 AD3d at 1564).
Compounding the above error was defense counsel's use of a flawed alibi defense."[I]t is generally acknowledged that an attempt to create a false alibi constitutes evidenceof the defendant's consciousness of guilt" (Henry v Poole, 409 F3d 48, 65[2005], cert denied 547 US 1040 [2006] [internal quotation marks omitted]). " 'Ifthe prosecution can establish the falsity of an alibi . . . , [a defendant's] caseis as good as lost' " (id.). Here, the subject murders occurred at approximately1:20 a.m. on Tuesday, June 4, 1991. Two alibi witnesses, defendant's girlfriend and hermother, testified to defendant's whereabouts on the evening of June 3rd and the earlymorning hours of June 4th, but incorrectly identified the days of the week on which thosedates fell. After the mother first incorrectly identified June 4th as a Friday on directexamination, defense counsel compounded her error by asking, "Ten minutes to twoFriday morning? That would have been June 4th?," to which the mother responded,"Yes." On cross-examination, the mother testified that defendant was at her home on theevening of Friday, June 3rd, and that the following day was Saturday, June 4th. Theprosecutor further emphasized the mother's mistake by asking her about other events thatoccurred on those days, including a television show that she watched on Friday night anda birthday party for her twin granddaughters held that Saturday. On rebuttal, the Peoplecalled a witness who established that the subject television program did in fact air onFriday night and not Monday night. The cross-examination of defendant's girlfriend withrespect to defendant's alibi also established the girlfriend's mistaken belief that June 3rdwas a Friday and that June 4th was a Saturday. The court granted the People's request totake judicial notice of the fact that June 3, 1991 was a Monday and June 4, 1991 was aTuesday, which further highlighted for the jury that defendant's alibi witnesses had givenerroneous testimony. We note, too, that the People took full advantage of thepoorly-presented alibi defense during summation, denigrating it as a "Hollywoodcharade."
Presenting an alibi defense for the wrong date or time has been found, by itself, to[*3]constitute ineffective assistance of counsel (seePeople v Cabrera, 234 AD2d 557, 558 [1996]; People v Long, 81 AD2d521, 521-522 [1981]; see also Henry, 409 F3d at 65-66). We conclude thatpresenting an alibi defense for the wrong day of the week, as occurred here, similarlyconstitutes ineffective assistance of counsel inasmuch as offering patently erroneous alibitestimony cannot be construed as a plausible strategy (see Webb, 90 AD3d at1564).
In light of the two serious errors of defense counsel, we reverse the judgment ofconviction and grant a new trial.
All concur except Valentino and Whalen, JJ., who dissent and vote to affirm in thefollowing memorandum.
Valentino and Whalen, JJ. (dissenting). We respectfully dissent. We disagree withthe majority's conclusion that defendant was deprived of effective assistance of counsel,and we therefore would affirm the judgment of conviction.
First, we cannot agree with the majority that defense counsel was ineffective forfailing to object when the prosecutor elicited testimony from a certain prosecutionwitness that defendant threatened her, despite County Court's pretrial ruling precludingsuch testimony. In our view, defendant failed to meet his burden of establishing theabsence of a strategic or other legitimate explanation for defense counsel's failure toobject to that testimony (see People v Benevento, 91 NY2d 708, 712 [1998];People v Rivera, 71 NY2d 705, 709 [1988]; see also People v Baker, 14 NY3d 266, 270-271 [2010]; People v Atkins, 107 AD3d1465, 1465 [2013], lv denied 21 NY3d 1040 [2013]). For instance, defensecounsel may have decided not to object in order to avoid focusing the jury's attention onthe testimony of the witness (seePeople v Taylor, 1 NY3d 174, 177 [2003]); he may have sought to use thetestimony of the witness to defendant's advantage by calling attention to her inability torecall the threat, rather than requesting that the court strike her testimony and give acurative instruction; or, he may have made a tactical decision to allow the prosecutor toelicit testimony concerning the threat on direct examination rather than on rebuttal, ifdefense counsel suspected that he might be forced to open the door to the testimony oncross-examination of the witness.
We further disagree with the majority's conclusion that defendant met his burden ofestablishing the absence of strategic or other legitimate explanations for defensecounsel's decision to present an alibi defense through the testimony of defendant'sgirlfriend and mother (see generally Benevento, 91 NY2d at 712). We concludethat the cases relied upon by the majority—People v Cabrera (234 AD2d557, 558 [1996]) and People v Long (81 AD2d 521, 521-522 [1981])—donot compel reversal in the instant case. In those cases, the alibi witnesses testified tobeing with the respective defendants 18 to 24 hours after the time of the crimes therein.Consequently, in each case, the attorney for the defendant knew that such alibi testimonywas not probative on the issue of defendant's innocence.
Here, defense counsel called three witnesses whose testimony on direct examinationestablished an alibi for defendant for the time of the crime. On cross-examination, theprosecutor showed a single discrepancy in the alibi defense, i.e., that the television showthat defendant was purportedly watching, according to the testimony of one of the threealibi witnesses, was not airing at the time that the witness specified. We note, however,that the remaining two alibi witnesses did not tie their testimony to the television show.Thus, in our view, the prosecutor did not conclusively establish that the alibi was false;rather, that was an issue for the jury to resolve. Given those circumstances, we cannotconclude that defense counsel's presentation of the alibi defense through the three alibiwitnesses constitutes ineffective assistance of counsel (see People v Johnson, 30AD3d 1042, 1043 [2006], lv denied 7 NY3d 790 [2006], reconsiderationdenied 7 NY3d 902 [2006]; People v Channer, 222 AD2d 1023, 1023[1995]). Under the majority's analysis, defense counsel would have to be prescient toknow that the prosecutor was going to cross-examine one of the witnesses with respect tothe television show and then establish that the witness was incorrect [*4]about the time that it aired. We refuse to hold defensecounsel to such a standard.
Defense counsel's otherwise impressive representation contradicts defendant'scontention that he was denied effective assistance of counsel. Defense counselthoroughly cross-examined the witnesses and presented a unified defense theory, with theresult that the jury was compelled to deliberate for an extended period of time despitestrong evidence incriminating defendant. Present—Fahey, J.P., Peradotto,Sconiers, Valentino and Whalen, JJ.