Robert T. Johnson, District Attorney, Bronx (Mary Jo L. Blanchard and Joseph N. Ferdenzi of counsel), for appellant.
Office of the Appellate Defender, New York City (Richard M. Greenberg and Risa Gerson of counsel), for respondent.
Milbank, Tweed, Hadley & McCloy LLP, New York City (Dorothy Heyl of counsel), for The Innocence Network, amicus curiae.
The People appeal an order of the Appellate Division granting defendant George Oliveras' motion to vacate his conviction, and remanding for a new trial on the ground that defendant was deprived adequate assistance of counsel (90 A.D.3d 563, 936 N.Y.S.2d 12 [1st Dept.2011] ). We affirm [971 N.Y.S.2d 222] and reject the People's argument that defendant received adequate assistance where trial counsel failed to conduct an [993 N.E.2d 1242] appropriate investigation of records critical to the defense.
I. Facts and Procedural History
A. Defendant's Interrogation and Inculpatory Statements
New York City Police Department detectives suspected defendant of the November 24, 1999 shooting and murder of Marvin Thompson. Upon defendant's voluntary appearance at the police station two days after the shooting, detectives immediately arrested and placed defendant in a windowless interrogation room. Prior to the interrogation, defendant's mother, who had gone to the station with him, informed the detectives that defendant had been hospitalized for mental illness as a child.
Detectives proceeded to interrogate defendant over the next 6 1/2 hours.  During the course of the interrogation, defendant made three statements. His first statement, made within the first 30 minutes of the interrogation, asserted his innocence and that he was at his girlfriend's home when the shooting occurred. The officers then left defendant alone for several hours. When they returned to resume their questioning, defendant appeared
tired and upset and explained to the detectives he felt overwhelmed. At 12:50 A.M. the detectives recorded defendant's second statement, that he had killed the victim because he had reached into his coat pocket as if to pull out a gun to shoot defendant. At approximately 2:00 A.M., defendant made a third statement repeating he had shot the victim when he saw him reach in his pocket for what he thought was a gun. He made this statement in the presence of an Assistant District Attorney who had joined the interrogation and asked defendant questions about the shooting, including if the gun he used was an automatic or a revolver, to which defendant replied " I think revolver. I'm not sure." 
B. Trial Counsel's Pretrial Motions
In early 2000, trial counsel moved for a psychiatric examination pursuant to CPL article 730. Two reports from psychiatric experts concluded defendant was fit to stand trial, but also noted he has a learning disability and certain mental health issues. Specifically, both psychiatric experts separately noted that defendant demonstrated a mild impairment of concentration and memory and was previously evaluated for auditory hallucinations. They both noted that defendant's intelligence was in the low average range. Supreme Court eventually found defendant fit to stand trial.
At the psychological evaluation hearing, trial counsel also announced his intention to present his client's psychiatric records to an expert in order to challenge the voluntariness of the admissions. The court issued judicial subpoenas for those records.
Months later, by early 2001, trial counsel had neither sought to execute the subpoenas [971 N.Y.S.2d 223] nor otherwise reviewed these or other documents related to defendant's mental illness or condition. Nevertheless, without supporting witnesses and relying solely on [993 N.E.2d 1243] the existing CPL article 730 report, trial counsel moved to suppress the incriminating statements based on involuntariness. Supreme Court denied the motion, concluding that the CPL article 730 report did not support the defense claim that defendant was unable to knowingly and voluntarily waive his Miranda rights due to mental illness. The court specifically noted the failure to produce defendant's psychiatric records.
After another nine months, trial counsel belatedly moved under CPL 250.10 for permission to serve and file late notice of intent to proffer psychiatric evidence. In response, the People objected and requested by motion in limine a ruling precluding trial counsel from raising any psychiatric or psychological issues during the trial. Supreme Court denied defendant's motion, predicating its denial on trial counsel's failure to proffer a reasonable explanation for the notification delay, and the failure to produce the aforementioned records in support of the motion. The court observed that the medical records " were never delivered to the Police Department" and were never seen by trial counsel. The court then observed that " we don't know what the abnormality is and we don't have any records and we don't have any consultation report to go on." The court ultimately found that trial counsel was " just fishing" for any useful information. Supreme Court granted the People's motion, holding that CPL 250.10 notice " is required in all sorts of different situations, including situations where ... the defense might wish to call a lay person to testify about psychiatric difficulties." In response to trial counsel's assertions at the hearing that he intended to present defendant's mental health history through testimony of defendant's mother but " not in an expert format," the court ruled that defendant's mother could give " non-expert" testimony, if relevant to the issue in the case, provided that she did not allude " to psychiatric records or the contents thereof," or otherwise give " the patina of psychological expertise" to her testimony.
C. Trial and Sentence
At the trial, the People's case consisted of testimony from a witness who saw the shooter running from the scene and who called 911 to report the incident; testimony from the detective who collected bullet casings from the crime scene; testimony from a medical examiner who reviewed the autopsy records describing the victim's wounds; testimony of the police officer who arrested, interrogated, and obtained defendant's inculpatory statements; and the submission into evidence of the defendant's statements. However, other than defendant's statements to the police, no other evidence directly connected defendant with the murder. The 911 caller's description of the perpetrator did not match defendant's ethnicity or attire, and the ballistic evidence recovered from the scene of the crime did not link defendant to the homicide.
Trial counsel called one witness, defendant's mother, who testified that her son attended special education classes as a
child, was committed to the Bronx Children's Psychiatric Center as a teen, and receives Social Security disability benefits as an adult. However, the court's limiting instruction precluded trial counsel from asking the mother about defendant's psychiatric history, ...