PEOPLE v. HOWARD (2024)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed.

Memorandum: Defendant was previously convicted following a nonjury trial by County Court (D'Amico, J.) of murder in the second degree (Penal Law § 125.25 [1]) and criminal possession of a weapon in the second degree (§ 265.03 [3]). We affirmed the judgment of conviction on direct appeal (People v. Howard, 101 A.D.3d 1749, 956 N.Y.S.2d 784 [4th Dept. 2012], lv denied 21 N.Y.3d 944, 968 N.Y.S.2d 6, 990 N.E.2d 140 [2013]) and denied defendant's subsequent motion for a writ of error coram nobis and “other relief” (People v. Howard, 112 A.D.3d 1385, 977 N.Y.S.2d 664 [4th Dept. 2013]). Defendant thereafter moved to vacate the judgment of conviction. County Court (D'Amico, J.) denied the motion without a hearing. This Court reversed that order and remitted the matter for a hearing on the motion insofar as it sought to vacate the judgment of conviction on the ground of ineffective assistance of counsel (People v. Howard, 175 A.D.3d 1023, 107 N.Y.S.3d 583 [4th Dept. 2019]). Defendant now appeals by permission of this Court from an order of County Court (Maxwell Barnes, J.) denying his motion after a hearing. We affirm.

According to defendant, the court erred in denying his motion because defense counsel readily admitted at the hearing that he did not conduct any investigation into an alibi defense, relying instead on defendant and his mother to identify witnesses who could support that defense. Defendant further contends that the court erred in concluding that any error by defense counsel in failing to conduct a proper investigation did not warrant a new trial.

As the Court of Appeals has explained, “[e]ssential to any representation, and to the attorney's consideration of the best course of action on behalf of the client, is the attorney's investigation of the law, the facts, and the issues that are relevant to the case” (People v. Oliveras, 21 N.Y.3d 339, 346, 971 N.Y.S.2d 221, 993 N.E.2d 1241 [2013]; see People v. Sposito, 37 N.Y.3d 1149, 1150, 159 N.Y.S.3d 753, 180 N.E.3d 1053 [2022]; see generally Strickland v. Washington, 466 U.S. 668, 690-691, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]). “It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case” (Rompilla v. Beard, 545 U.S. 374, 387, 125 S.Ct. 2456, 162 L.Ed.2d 360 [2005] [internal quotation marks omitted]; see generally People v. Ramos, 194 A.D.3d 964, 965-966, 149 N.Y.S.3d 171 [2d Dept. 2021]). “ ‘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 defense counsel's allegedly deficient conduct” (People v. Cleveland, 217 A.D.3d 1346, 1349, 191 N.Y.S.3d 242 [4th Dept. 2023], lv denied 40 N.Y.3d 933, 194 N.Y.S.3d 772, 215 N.E.3d 1213 [2023], lv denied 41 N.Y.3d 942, 206 N.Y.S.3d 256, 229 N.E.3d 1149 [2024], quoting People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988]).

Here, even assuming, arguendo, that defense counsel did not properly investigate defendant's alibi defense (see People v. Borcyk, 184 A.D.3d 1183, 1184-1186, 125 N.Y.S.3d 517 [4th Dept. 2020]; see also People v. Lanier, 191 A.D.3d 1094, 1096, 141 N.Y.S.3d 188 [3d Dept. 2021]; see generally Oliveras, 21 N.Y.3d at 348, 971 N.Y.S.2d 221, 993 N.E.2d 1241), we must determine whether counsel's acts or omissions “ ‘prejudice[d] the defense or defendant's right to a fair trial’ ” (People v. Benevento, 91 N.Y.2d 708, 714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998], quoting People v. Hobot, 84 N.Y.2d 1021, 1024, 622 N.Y.S.2d 675, 646 N.E.2d 1102 [1995]). Although defendant called numerous witnesses at the CPL 440.10 hearing, only one such witness provided testimony that could conceivably support an alibi defense. The witness testified that, on the night in question, she was with defendant at a party at his mother's house, which was on the same street as the shooting.

Given that the party was only a short distance from the crime scene and the witness did not testify that she kept her eyes on defendant the entire time she was at the party, we cannot conclude that the witness's testimony, if offered at trial, would likely have changed the result, especially considering that the factfinder heard and apparently rejected similar alibi testimony of defendant and his mother. Thus, we conclude that defendant “failed to demonstrate that trial counsel's omission actually had a probable effect on the outcome of the trial” (People v. Hobot, 200 A.D.2d 586, 596, 606 N.Y.S.2d 277 [2d Dept. 1994], affd 84 N.Y.2d 1021, 622 N.Y.S.2d 675, 646 N.E.2d 1102 [1995] [internal quotation marks omitted]; see People v. Daley, 172 A.D.2d 619, 620-621, 568 N.Y.S.2d 157 [2d Dept. 1991]), “so as to support the conclusion that he was denied ‘meaningful representation’ ” (Hobot, 200 A.D.2d at 596, 606 N.Y.S.2d 277, quoting People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981]).