Appeals by the defendant (1) from a judgment of the Supreme Court, Queens County (Kron, J.), rendered February 3, 2005, convicting him of attempted murder in the second degree, criminal possession of a weapon in the second degree, and assault in the second degree, upon a jury verdict, and imposing sentence, and (2), by permission, from an order of the same court dated December 21, 2007, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate the judgment of conviction rendered February 3, 2005.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PETER B. SKELOS, J.P., DANIEL D. ANGIOLILLO, RUTH C. BALKIN and ARIEL E. BELEN, JJ.
ORDERED that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for a new trial; and it is further,
ORDERED that the appeal from the order is dismissed as academic in light of our determination on the appeal from the judgment.
In 2005 the defendant was convicted, after a jury trial, of attempted murder in the second degree, assault in the second degree, and criminal possession of a weapon in the second degree, arising out of an incident on October 20, 2003, wherein the defendant shot his former girlfriend's co-worker and friend, the complainant Diego Villanueva. The defendant was sentenced to a term of eight years imprisonment for attempted murder in the second degree, to run concurrently with determinate terms of imprisonment of five years and one year on the weapons possession and assault charges, respectively.
On his direct appeal from the judgment of conviction, the defendant contends, inter alia, that he was deprived of his constitutional right to the effective assistance of counsel (US Const, 6th Amend; NY Const, art I, § 6), based on a multitude of trial errors, including his counsel's failure to cross-examine witnesses, object to irrelevant or prejudicial evidence, present and argue a coherent defense strategy, and call the defendant as a witness on his own behalf. The defendant raised the same issues in support of his subsequent motion to vacate the judgment of conviction pursuant to CPL 440.10, which the Supreme Court denied without a hearing on December 21, 2007. This Court granted leave to appeal from the order denying the CPL 440.10 motion, and subsequently consolidated the appeals from the judgment and the order. Upon our review of the alleged errors for which sufficient facts appear on the record to permit adequate review, we reverse the judgment on direct appeal, and dismiss the appeal from the order as academic in light of this determination (see People v Brown, 300 AD2d 314; People v Lindo, 167 AD2d 558, 559).
In an adversarial system of justice, the fundamental right to the effective assistance of counsel is essential to a criminal defendant's due process entitlement to a fair trial (see People v Caban, 5 NY3d 143, 152; People v Benevento, 91 NY2d 708, 711; People v Claudio, 83 NY2d 76, 80; NY Const, art I, § 6). "In reviewing the defendant's contention, we are guided by the instructions to avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis'" (People v Dean, 50 AD3d 1052, 1052-1053, quoting People v Baldi, 54 NY2d 137, 146; see People v Stultz, 2 NY3d 277, 284), and to view the record in its totality in order to determine whether the defendant was denied meaningful representation (see People v Ennis, 11 NY3d 403, 412, cert deniedUS, 129 S Ct 2383; People v Stultz, 2 NY3d at 283; People v Benevento, 91 NY2d at 712; People v Satterfield, 66 NY2d 796, 798-799). To prevail on a claim of ineffective assistance of counsel, "it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations" for the alleged shortcomings of counsel (People v Rivera, 71 NY2d 705, 709; see People v Benevento, 91 NY2d at 712; People v Benn, 68 NY2d 941, 942; People v Alford, 33 AD3d 1014). Indeed, "a single error may qualify as ineffective assistance, but only when the error is sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial" (People v Caban, 5 NY3d at 152; see People v Cyrus, 48 AD3d 150, 153).
Upon our review of the totality of the record herein, we find that defense counsel engaged in "an inexplicably prejudicial course" of conduct throughout the trial, as opposed to merely misguided tactical errors, the cumulative effect of which was to deprive the defendant of the effective assistance of counsel and his right to a fair trial (People v Zaborski, 59 NY2d 863, 865; see People v Dean, 50 AD3d at 1053; People v Cortez, 296 AD2d 465, 466).
The trial record underscores defense counsel's meager efforts and unsuccessful attempts to cross-examine witnesses with respect to identification discrepancies of the perpetrator as well as events leading up to the shooting. The complainant stated in the police report that on the day of the incident he was "followed to/from ATM/BA" to the driveway of his home, where he was shot by a "black," "male," named "UNK, Andrew." Subsequently and inconsistently, the complainant testified during a Rodriguez hearing (see People v Rodriguez, 79 NY2d 445, 450) that the perpetrator was "interracial" and then went on to identify the defendant. At trial, the complainant hesitated in attributing a racial category or ethnicity to the perpetrator in response to questioning by the court, saying that he was "light skin, just a little bit dark," perhaps looking "Hispanic" or "Dominican." Defense counsel then abandoned this topic.
With respect to the events leading up to the shooting, while the complainant's police report indicated that he was followed by the perpetrator from his bank's Automatic Teller Machine (ATM) to his residence, he did not provide this testimony on direct examination, instead testifying that he went directly home from work that night and was approached by the shooter while parking his car in his driveway. Despite this blatant discrepancy, defense counsel did not follow up with any cross-examination of the complainant on this issue.
While it is true that an attorney's trial strategy and "efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective" (People v Benevento, 91 NY2d at 712; see People v Aiken, 45 NY2d 394, 399; People v Wagner, 104 AD2d 457, 459), where a witness has offered prior testimony which is significantly at odds with his or her trial testimony, the discrepancy can be used on cross-examination to cast doubt on the credibility of the witness (see People v Brown, 300 AD2d at 315). Instead of highlighting the discrepancies contained in the complainant's report to the police with his testimony at the Rodriguez hearing and at trial, defense counsel improperly failed to fully pursue ...