Single Instance of Ineffectiveness Results in Reversal

A single instance of ineffectiveness on the part of trial counsel will result in reversal in only a limited number of circumstances. Defining what type of single error should result in reversal is an issue that appears to be still unresolved. For example, in People v. Turner (5 NY3d 476 [2005]), one of the more recent treatments of the subject, the Court of Appeals held that an attorney's failure to raise a valid statute of limitations defense constituted a single egregious instance of ineffectiveness. By contrast, in People v. Hobot (84 NY 2d 1020 [1995]), the court ruled that defense counsel’s single error in failing to review a medical document important to the impeachment of a prosecution witness did not rise to the level of a single instance of ineffectiveness required for reversal (see also, People v. Flores, 84 NY 2d 184 [1994]). After Turner, it remains unclear whether mathematical certainty of success is required to win on the "single egregious error" theory of ineffectiveness or whether some lesser quantum of likely success is required.

Although Turner would seem to suggest that mathematical certainty of success is required, the Fourth Department's decision in People v. Spartacus Brown suggests otherwise. In Brown, the Fourth Department reversed for a single instance of ineffectiveness when, in a prosecution for sexual abuse in the first degree, "defense counsel[] fail[ed] to object to the admission in evidence of the victim's medical records, which contained information concerning prior allegations of sexual abuse against defendant". This decision is, perhaps, further evidence that the Court of Appeals should clarify its application of the "single egregious error" theory.

Rape in the First Degree Deemed Inclusory Concurrent Count

In People v. Henry Scott, the Fourth Department reversed a conviction for Rape in the First Degree on the grounds that it was an inclusory concurrent count of Predatory Sexual Assault Against a Child. The Court explained that:

"the predatory sexual assault count charged rape in the first degree as one of its elements and, as charged in the indictment, the elements of the predatory sexual assault with respect to rape in the first degree are precisely those required for rape in the first degree under Penal Law § 130.35 (4). Thus, it was impossible for defendant to commit predatory sexual assault against a child without, by the same conduct, committing rape in the first degree..."

New Link Regarding Challenges to Firearm Examiner's Testimony

The Indignant Indigent has added two news link to the "Resources" toolbar at the right entitled "Challenging Firearms Examiners" (two parts). The links lead to two articles by Professor Adina Schwartz of the John Jay College of Criminal Justice that appeared last year in the New York State Defender's Association publication, The Champion. In the articles, Professor Schwartz points out the weaknesses inherent to any firearms examiner's testimony and provides scientific evidence to support the position that no firearms examiner can reliably testify that he has found the one-and-only weapon that discharged a particular bullet or shell casing. The articles should be required reading for any attorney before cross-examining a firearms expert. You can also find the articles here and here.

It should also be known that three recent federal cases highlight the problems inherent in firearms identification and suggest that such testimony is vulnerable to legal challenges despite its having been long accepted in evidence, often without much debate (see US v. Glynn, 578 F Supp 2d 567 [SDNY 2008]; US v Montiero, 407 F Supp 2d 351, 355 [Dist Mass 2006]; and US v Green, 405 F Supp 2d 104).

Rare Reversal for Prosecutorial Misconduct

On April 24, 2009, the Fourth Department took the rare step of reversing a conviction on the grounds of partially unpreserved instances of prosecutorial misconduct. In People v. Kevin R. Morrice, "the prosecutor asked the witness if she was 'getting anything in return for [her] cooperation of telling the truth,' and she responded '[n]ot at all.' In fact, that witness was an accomplice and had received transactional immunity in exchange for her testimony before the grand jury (see CPL 50.10 [1]; 190.40 [2]). The prosecutor had an obligation to correct the misstatement of that witness but failed to do so." Then, "he compounded his misconduct in failing to correct the misstatement by telling the jury during summation that the witness was 'getting nothing out of having testified in this case'."

Later, "[t]he prosecutor also engaged in misconduct when he [twice] questioned a police detective on direct examination with respect to defendant's invocation of the right to counsel."

To make matters worse, "[t]he prosecutor further engaged in misconduct when he asked a defense witness on cross-examination whether she had ever been arrested for a crime", and then scolded the witness for only answering regarding whether she had ever been convicted of a crime.

As if this was not enough, "[t]he prosecutor also engaged in misconduct when he questioned that witness concerning whether her boyfriend was currently incarcerated, and he exceeded the bounds of legitimate advocacy during summation by characterizing defendant as a liar (see People v Fiori, 262 AD2d 1081; People v Bonilla, 170 AD2d 945, lv denied 77 NY2d 904)."

The court noted that although reversal is not the desired remedy for prosecutorial misconduct, "it is nevertheless mandated when the conduct of the prosecutor has caused such substantial prejudice to the defendant that he [or she] has been denied due process of law".

More posts to come over the next two days.