With respect to the "objective incompetence" prong, I note that although the Supreme Court has cautioned that "judicial scrutiny of counsel's performance must be highly deferential," Strickland, 466 U.S. at 688, Magistrate Judge Gershon properly found it impossible to conclude that petitioner's counsel's omissions in this case were merely tactical decisions, given that the co-defendant's hearsay statement implicating petitioner, if believed by the jury, was devastating to petitioner's claim of innocence. The oversights were particularly prejudicial when compounded with other egregious errors made by counsel, including his failure to object to hearsay testimony offered by Detective Palmieri (Tr. at 192), and his failure to request a missing witness charge regarding the absence of the confidential informant at trial. (Report at 43.)
With respect to the prejudice prong, I agree with the Magistrate Judge that the admission of the co-defendant's statement was disastrous to petitioner's defense: it provided highly prejudicial evidence, that, contrary to petitioner's claim, he and his co-defendant were acquainted, and that petitioner was in the vicinity of the "buy and bust" operation not for innocent reasons, but rather, because he was actively involved in the sale of narcotics. (Tr. at 487-88). See generally Bruton v. United States, 391 U.S. 123, 136, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968) (describing in detail prejudice suffered by defendant when codefendant's testimony is admitted against defendant at joint trial).
Because I agree with Magistrate Judge Gershon that petitioner has shown both that counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, see Strickland, 466 U.S. at 694, I find that petitioner has established a constitutional claim for ineffective assistance of counsel. Accordingly, I adopt the Magistrate Judge's Report in full, and order petitioner's writ of habeas corpus granted. Respondent is directed either to release petitioner from custody, or to retry him within ninety days of this order.
DATED: New York, New York
July 14, 1995
Kimba M. Wood
United States District Judge