| People v Scott |
| 2020 NY Slip Op 01807 [181 AD3d 1220] |
| March 13, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Rickie R. Scott, Also Known as "Stephan Sumpsster,"Appellant. |
Michael J. Stachowski, P.C., Buffalo (Michael J. Stachowski of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court inthe Fourth Judicial Department, from an order of the Supreme Court, Erie County(Christopher J. Burns, J.), dated August 29, 2016. The order denied defendant's motionpursuant to CPL 440.10 to vacate the judgment convicting defendant of murder in thesecond degree, criminal possession of a weapon in the second degree and criminalpossession of a weapon in the third degree.
It is hereby ordered that the order so appealed from is reversed on the law and thematter is remitted to Supreme Court, Erie County, for a hearing pursuant to CPL 440.30(5) in accordance with the following memorandum: Defendant appeals from an order thatsummarily denied his CPL 440.10 motion to vacate the judgment convicting himfollowing a jury trial of, inter alia, murder in the second degree (Penal Law§ 125.25 [1]). On his direct appeal from the judgment, defendantcontended, among other things, that his trial attorney was ineffective for failing to call attrial an alibi witness who, according to defendant, would have testified that defendantwas with her in North Carolina at the time the murder was committed in Buffalo.Although we affirmed the judgment, we stated that defendant's claim of ineffectiveassistance of counsel was "based on matters outside the record on appeal, 'and thus theproper procedural vehicle for raising that contention is by way of a motion pursuant toCPL 440.10' " (People vScott, 107 AD3d 1635, 1637 [4th Dept 2013], lv denied 21 NY3d 1077[2013]).
Defendant thereafter filed the instant CPL article 440 motion, submitting in supportthereof an affidavit from a second potential alibi witness in which she stated under oaththat she informed defendant's former attorney at defendant's arraignment that defendanthad been in North Carolina with her and his then-girlfriend during the weeks before andafter the murder. The alibi witness further stated that she and defendant's formergirlfriend were present at the courthouse during defendant's trial and were prepared totestify on his behalf, yet they were never called as witnesses. According to the alibiwitness, defendant's attorney told them that they could not be present in the courtroombecause they might be called as witnesses. Based on the affidavit, defendant requested ahearing on his motion.
In an affidavit opposing the motion, the People did not contest that defendant wasentitled to a hearing based on the alibi witness's affidavit and stated that "defendant hasraised an issue of fact as to whether [the alibi witness] was available to testify. . . on his behalf and had favorable testimony to give." The People furtherstated that defendant bore the burden at the hearing of establishing "(1) that the witnesshad material, favorable testimony to give, (2) an absence of a legitimate reason forcounsel's choice not to call her; and (3) that the failure to call her, in and of itself,rendered counsel's representation less than meaningful." The People asserted thatdefendant would not be able to meet his burden at the hearing.
Supreme Court nevertheless denied defendant's motion without a hearing, noting thatdefendant failed to provide "an affidavit from his former attorney attesting to the reasonswhy these witnesses were not called." The court also stated that defendant "does notallege that he was able to provide to his attorney tangible and credible proof, beyond theproposed testimony of these two witnesses, of his whereabouts at the time of the killingother than at the scene of the crime." We conclude that the court erred in summarilydenying the motion.
"It is well established that 'the failure to investigate or call exculpatory witnesses mayamount to ineffective assistance of counsel' " (People v Dombrowski, 87AD3d 1267, 1268 [4th Dept 2011]; see People v Mosley, 56 AD3d 1140, 1140-1141 [4th Dept2008]). Contrary to the court's determination, a "defendant's failure to submit an affidavitfrom trial counsel is not fatal to [a CPL 440.10] motion" (People v Washington, 128AD3d 1397, 1399 [4th Dept 2015]; see People v Campbell, 81 AD3d 1251, 1251-1252 [4thDept 2011]). Where, as here, the defendant's " 'application is adverse and hostileto his [or her] trial attorney,' it 'is wasteful and unnecessary' to require the defendant tosecure an affidavit from counsel, or to explain his [or her] failure to do so" (People v Bennett, 139 AD3d1350, 1351-1352 [4th Dept 2016]; see People v Pinto, 133 AD3d 787, 790 [2d Dept 2015],lv denied 27 NY3d 1004 [2016]; People v Stevens, 64 AD3d 1051, 1053 n [3d Dept 2009],lv denied 13 NY3d 839 [2009]). Moreover, to be entitled to a hearing, adefendant is not required to submit with his or her motion evidence corroborating thealibi witness's affidavit (see generally CPL 440.30 [1] [a]). Although the lack ofcorroboration is a factor the court may consider at a hearing, it is not a basis for denyingthe motion summarily.
While a hearing may ultimately reveal that there was a strategic or legitimate reasonfor defense counsel's determination not to call the purported alibi witnesses (see People v Pottinger, 156AD3d 1379, 1380 [4th Dept 2017]; People v Conway, 118 AD3d 1290, 1291 [4th Dept 2014]),we agree with defendant that "his submissions 'support[ ] his contention that he wasdenied effective assistance of counsel . . . and raise[ ] a factual issue thatrequires a hearing' " (People v Frazier, 87 AD3d 1350, 1351 [4th Dept 2011];see Conway, 118 AD3d at 1291). We thus reverse the order and remit the matterto Supreme Court to conduct a hearing pursuant to CPL 440.30 (5) on defendant's claimof ineffective assistance of counsel.
Finally, we note that defendant's contention regarding defense counsel's failure to fileand serve a notice of alibi is not properly before us inasmuch as sufficient facts appear onthe record of the proceedings underlying the judgment to have permitted review of theissue had defendant raised it on the prior appeal (see CPL 440.10 [2] [c]).
All concur except Winslow, J., who dissents and votes to affirm in the followingmemorandum.
Winslow, J. (dissenting in part). I respectfully dissent in part. Although I agree withthe majority that defendant's contention concerning defense counsel's alleged failure tofile and serve a notice of alibi is not properly before us (see CPL 440.10 [2] [c]),I disagree with the conclusion of the majority that defendant's submissions on his CPL440.10 motion raise a factual issue that requires a hearing on defendant's claim ofineffective assistance of counsel. In my view, defendant's submissions fail to "show thatthe nonrecord facts sought to be established are material and would entitle him to relief"(People v Satterfield, 66 NY2d 796, 799 [1985]). Thus, I conclude that a hearingregarding defense counsel's failure to present the testimony of alibi witnesses isunnecessary, and I would affirm Supreme Court's order denying defendant's motion.
I recognize that "the failure to investigate or call exculpatory witnesses may amountto ineffective assistance of counsel" (People v Young, 167 AD3d 1448, 1449 [4th Dept 2018],lv denied 33 NY3d 1036 [2019] [internal quotation marks omitted]). But anattorney also may be deemed ineffective for presenting alibi witnesses who give flawedor unsound testimony (seePeople v Jarvis, 113 AD3d 1058, 1060-1061 [4th Dept 2014], affd 25NY3d 968 [2015]). Thus, a decision not to call an alibi witness is often the product of"sound trial strategy" rather than ineffectiveness (People v Smith [William], 115AD2d 304, 304 [4th Dept 1985]).
Although the Court of Appeals and this Court have encouraged the factualdevelopment of ineffective assistance claims by way of CPL 440.10 motions (see e.g. People vKonstantinides, 14 NY3d 1, 12 [2009]; People v Washington, 39 AD3d 1228, 1230 [4th Dept2007], lv denied 9 NY3d 870 [2007]), a hearing to develop additionalbackground facts is not "invariably necessary," and a moving defendant "must show thatthe nonrecord facts sought to be established [at a hearing] are material and would entitlehim [or her] to relief" (Satterfield, 66 NY2d at 799).
Here, during jury selection, defense counsel alerted the court that defendant hadinformed him of the existence of a potential alibi witness. Defense counsel advised thecourt that his investigator was seeking evidence to corroborate defendant's belated claimthat he was out of state with his girlfriend when the homicide occurred. Defense counselfurther indicated to the court that he did not anticipate that it would be part of his trialstrategy to call the alibi witness and that he would do so only if he and defendant agreedand deemed it to be necessary. Ultimately, defense counsel did not present alibi evidence.The People presented the eyewitness testimony of an informant, a drug dealer, and thedrug dealer's two brothers, one of whom testified against defendant under a cooperationagreement in a federal drug trafficking case and the other of whom had been unable toidentify the shooter prior to trial. The People's case hinged on the credibility of thosewitnesses, and defense counsel logically attacked their credibility. Defendant did notchallenge counsel's representation at any time prior to sentencing.
After his conviction, defendant moved to vacate the judgment of conviction pursuantto CPL 440.10 on the ground of ineffective assistance of counsel. The basis of theclaimed ineffectiveness was, insofar as relevant here, defense counsel's failure to presentthe testimony of alibi witnesses, and thus the purpose of a hearing would be to probedefense counsel's reasons for not calling the alibi witnesses. Defense counsel's reasoning,however, is clear from defendant's motion submissions, which allege that defensecounsel told defendant that he "figured the People's evidence wasn't strong enough tosupport a conviction, so [there was] no need for him to produce any witnesses."
Viewing the trial record and defendant's postjudgment submissions objectively, Iconclude that defendant's right to effective assistance of counsel has been satisfied(see Satterfield, 66 NY2d at 799; People v Baldi, 54 NY2d 137, 146-147[1981]). Defense counsel's strategic determination not to present alibi testimony was atmost a tactical error, and it is not for this Court to second-guess whether the coursechosen by defense counsel was the best trial strategy, or even a good one, so long asdefendant was afforded meaningful representation (see Satterfield, 66 NY2d at799-800; People v Delp,156 AD3d 1450, 1451 [4th Dept 2017], lv denied 31 NY3d 983 [2018]). "Itis always easy with the advantage of hindsight to point out where trial counsel went awryin strategy. But trial tactics which terminate unsuccessfully do not automatically indicateineffectiveness" (Baldi, 54 NY2d at 146), and counsel's subjective reasons forchoosing to pursue one trial strategy over another are immaterial (see Satterfield,66 NY2d at 799).
The motion court was familiar with defense counsel's representation of defendant,having presided over both of his trials and defendant's sentencing. Further, given thenature of the claimed ineffective assistance, defendant's motion could be determinedwithout a hearing based on the trial record and defendant's submissions on the motion,and I thus conclude that the court did not err in summarily denying the motion (seeCPL 440.30 [2]; see also Baldi, 54 NY2d at 146-147; People v Kates, 162 AD3d1627, 1631-1632 [4th Dept 2018], lv denied 32 NY3d 1065 [2018],denied reconsideration 32 NY3d 1173 [2019]; People v Stewart, 295 AD2d249, 249-250 [1st Dept 2002], lv denied 99 NY2d 540 [2002], cert denied538 US 1003 [2003]). Present—Carni, J.P., Lindley, DeJoseph, Curran andWinslow, JJ.