| People v Lanier |
| 2021 NY Slip Op 01094 [191 AD3d 1094] |
| February 18, 2021 |
| Appellate Division, Third Department |
[*1](February 18, 2021)
| The People of the State of New York,Respondent, v Shateek Lanier, Appellant. |
Levitt & Kaizer, New York City (Richard W. Levitt of counsel), for appellant.
Mary Pat Donnelly, District Attorney, Troy (George J. Hoffman Jr. of counsel), forrespondent.
Aarons, J. Appeal, by permission, from an order of the County Court of Rensselaer County(Young, J.), entered August 15, 2018, which denied defendant's motion pursuant to CPL 440.10to vacate the judgment convicting him of the crimes of attempted murder in the second degree,attempted assault in the first degree, criminal use of a firearm in the first degree and criminalpossession of a weapon in the second degree (two counts), after a hearing.
Defendant was charged with various crimes in a multicount indictment based upon anincident where an individual was shot multiple times in the leg. Following a jury trial, defendantwas convicted of attempted murder in the second degree, attempted assault in the first degree,criminal use of a firearm in the first degree and criminal possession of a weapon in the seconddegree (two counts)—a conviction that was upheld on appeal (130 AD3d 1310 [2015],lv denied 26 NY3d 1009 [2015]). Defendant thereafter moved to vacate the judgment ofconviction under CPL 440.10 (1) (g) and (h), alleging that there was newly discovered evidenceestablishing that he was not the shooter and that he did not receive the effective assistance ofcounsel. A hearing was held, after which County Court denied the motion. Defendant appeals bypermission.
One contention raised by defendant in his CPL article 440 motion is a claim of actualinnocence.[FN1] Thiscontention rests on the notion that the eyewitnesses who testified at trial that defendant was theshooter could not have identified him because of their intoxicated state at the time of theshooting. One eyewitness testified at the hearing that, on the day of the shooting, she hadconsumed cocaine, smoked marihuana and had taken approximately 20 Xanax pills.[FN2] She also stated that the powerand streetlights were out at the time of the shooting because of a blackout and that she did notremember much from that night. A detective with the City of Troy Police Department, however,testified that he spoke with this eyewitness after the shooting and described her as lucid, coherentand articulate and that she did not appear to be intoxicated. The record also discloses conflictingevidence regarding whether this eyewitness, at the time of the shooting, was inside a house oroutside of the house where she could have seen the shooting. As County Court found, the hearingevidence revealed some inconsistencies as to the testimony identifying defendant as theshooter.[FN3] Given that "apreponderance of conflicting evidence as to . . . defendant's guilt" (People v Mosley, 155 AD3d 1124,1126 [2017] [internal quotation marks and citations omitted], lv denied 31 NY3d 985[2018]) does not suffice to support a claim of actual innocence, the court correctly denied thispart of defendant's motion.
We agree, however, with defendant that he did not receive the effective assistance of counsel.One facet of this claim stems from counsel's failure to investigate witnesses who would haverefuted the eyewitness' [*2]testimony of being outside of a housewhen the shooting occurred. Immediately prior to trial, the People provided a letter to counselabout these witnesses. These witnesses testified at the hearing that the eyewitness was inside, andnot outside, of a house at the time of shooting. As counsel recognized, the case against defendantcentered, in part, upon the identification of him as the shooter by the eyewitness. The witnessesidentified in the letter sent by the People would have cast further doubt on the eyewitness'identification testimony, as well as whether she could have even seen the shooting. Yet, therecord reflects that counsel made little efforts to reach out to these witnesses and minimalfollow-up efforts.
Defendant also argues that he received ineffective assistance due to counsel's failure toinvestigate an alibi witness. At the hearing, defendant's uncle testified that defendant was withhim in a house at the time of the shooting and that they were nowhere near the area where theshooting occurred. The uncle further stated that he was willing to testify at trial and leftnumerous voice messages for defendant's counsel. Defendant's counsel testified that she did notreceive any voice messages from the uncle but recalled that the uncle would be an alibi witness.Other than stating in a conclusory manner that she was unable to locate the uncle, the record failsto show diligent attempts by counsel to reach him. The uncle's testimony would have bolsteredthe defense by providing the jury with conflicting evidence as to defendant's whereabouts at thetime of the shooting. In our view, the failure to investigate this potential alibi defense and thewitnesses who would have refuted the eyewitness' location at the time of the shooting cannot beconsidered a reasonable trial strategy (see People v Oliveras, 21 NY3d 339, 348 [2013]; People v Milazo, 18 AD3d 1068,1070 [2005]; People v Fogle, 10AD3d 618, 618-619 [2004]; People v Donovan, 184 AD2d 654, 655 [1992]).Accordingly, defendant's motion, to the extent predicated upon a claim of ineffective assistanceof counsel, should have been granted (see People v Borcyk, 184 AD3d 1183, 1184-1186 [2020]; People v Hull, 71 AD3d 1336,1339 [2010]; People v Bussey, 6AD3d 621, 623 [2004], lv denied 4 NY3d 828 [2005]).
Garry, P.J., Clark, Pritzker and Colangelo, JJ., concur. Ordered that the order is reversed, onthe law, motion granted and matter remitted to the County Court of Rensselaer County for a newtrial.
Footnote 1:Contrary to the People'sassertion, defendant may raise a freestanding claim of actual innocence under CPL 440.10 (1) (h)(see People v Mosley, 155 AD3d1124, 1125 [2017], lv denied 31 NY3d 985 [2018]).
Footnote 2:Another eyewitness likewisetestified that she had taken many drugs prior to the shooting and that she could not rememberwhat had happened on the night of the shooting.
Footnote 3:To the extent that the testimonyof the eyewitnesses could be considered as recantation evidence, such evidence is viewed asextremely unreliable (see People vHowe, 150 AD3d 1321, 1323 [2017]).