THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. COREY BECOATS ALSO KNOWN AS JOKER DEFENDANT APPELLANT (2014)

MEMORANDUM AND ORDER

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, Monroe County (Francis A. Affronti, J.), dated March 20, 2013.   The order denied the motion of defendant pursuant to CPL 440.10.

Supreme Court properly determined that defendant established the lack of strategic or other legitimate reason for trial counsel's failure to take steps to secure the presence of the federal prisoner as a witness.  “It is well established that ‘the failure to investigate or call exculpatory witnesses may amount to ineffective assistance of counsel’ “ (People v. Dombrowski, 87 AD3d 1267, 1268), and we conclude that there is an issue of fact whether the error in failing to do so here “so seriously compromise[d] ․ defendant's right to a fair trial” that he was denied his constitutional right to a fair trial (People v. Hobot, 84 N.Y.2d 1021, 1022;  see People v. Cosby, 82 AD3d 63, 67, lv denied 16 NY3d 857;  cf.  People v. Ozuna, 7 NY3d 913, 915).   We therefore reverse the order and remit the matter to Supreme Court for a hearing to determine whether the failure to take adequate steps to secure the testimony of the federal prisoner constituted ineffective assistance of counsel (see People v. Flagg, 30 AD3d 889, 893, lv denied 7 NY3d 848;  see generally Dombrowski, 87 AD3d at 1268).

Defendant further contends that statements made by his codefendant during his plea colloquy following the reversal of the original judgment convicting him of, inter alia, manslaughter in the second degree (People v. Wright, 63 AD3d 1700, revd 17 NY3d 643) constitutes newly discovered evidence warranting vacatur of defendant's judgment of conviction (see CPL 440.10[1][g] ).  The codefendant stated during his colloquy that he acted alone and that defendant was not present when he was beating the victim.   The court properly determined that the codefendant's colloquy constitutes inadmissible hearsay inasmuch as, contrary to defendant's contention, it is not an admission against the codefendant's penal interest (see People v. Ennis, 11 NY3d 403, 413, cert denied 556 U.S. 1240).   Nevertheless, in light of the information the People provided to trial counsel regarding the purported observations of the federal prisoner, we cannot conclude on the record before us that “ ‘there is no reasonable possibility’ “ that the codefendant's statements are true (People v. Crenshaw, 34 AD3d 1315, 1316, lv denied 8 NY3d 879).   We therefore further direct Supreme Court to determine at the hearing on remittal whether the codefendant is available to testify, and if so, to assess his credibility (see People v. Staton, 224 A.D.2d 984, 984–985;  cf.  People v. Jackson, 238 A.D.2d 877, 878–879, lv denied 90 N.Y.2d 859;  see generally People v. McFarland, 108 AD3d 1121, 1122–1123).

Frances E. Cafarell

Clerk of the Court