People v. Wosu

55 A.D.3d 1253, 865 N.Y.S.2d 411

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 3, 2008
• Status: Published

Opinions

Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Supreme Court, Erie County (Richard C. Kloch, Sr., A.J.), entered May 18, 2006. The order denied without a hearing defendant’s motion pursuant to CPL 440.10 to vacate the judgment convicting defendant of, inter alia, rape in the first degree (eight counts) and sodomy in the first degree (eight counts).

It is hereby ordered that the order so appealed from is reversed on the law and the matter is remitted to Supreme Court, Erie County, for a hearing pursuant to CPL 440.30 (5) in accordance with the following memorandum: Defendant appeals from an order denying without a hearing her motion pursuant to CPL 440.10 to vacate the judgment convicting her of multiple counts of sexual offenses that occurred in 1991 (People v Wosu, 213 AD2d 967 [1995], affd 87 NY2d 935 [1996]). In support of her motion, defendant contended that she was denied her right to effective assistance of counsel. We note at the outset that, because defendant relied solely on the federal constitution in support of her motion, Supreme Court properly applied the test for claims of ineffective assistance of counsel set forth in Strickland v Washington (466 US 668 [1984]; see People v McDonald, 1 NY3d 109, 114-115 [2003]).

We further conclude, however, that nonrecord facts may support the contention of defendant that her trial counsel unreasonably failed to pursue a meaningful theory of defense other than a narrow alibi that applied to only a six-day portion of the November 1991 period in which the criminal acts of which defendant was convicted were alleged to have occurred. Thus, defendant’s trial counsel failed to present any meaningful defense for the remainder of that month. Indeed, we note that defendant relies heavily on the decision of the Second Circuit with respect to a codefendant’s application for a writ of habeas corpus based on ineffective assistance of counsel (Eze v Senkowski, 321 F3d 110 [2003]). According to defendant, she and her two codefendants presented a unified defense at trial, and thus the same deficiencies in the representation of the attorney for the codefendant who sought a writ of habeas corpus were also present in the representation of defendant’s trial attorney. Consequently, we conclude that the court erred in failing to conduct an evidentiary hearing to explore nonrecord facts that may support the contention of defendant that she received ineffective assistance of counsel. We therefore reverse the order and remit the matter to Supreme Court for a hearing pursuant to CPL 440.30 (5) (see People v Ferreras, 70 NY2d 630 [1987]; People v Jenkins, 68 NY2d 896 [1986]; People v Howard, 12 AD3d 1127 [2004]).

All concur except Smith, J.E, and Peradotto, J., who dissent and vote to affirm in the following memorandum.