THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JENISE HADDAD SMITH DEFENDANT APPELLANT (2016)

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 Oneida County Court (Michael L. Dwyer, J.), dated July 27, 2015.  The order denied the motion of defendant to vacate a judgment of conviction pursuant to CPL 440.10.

At trial, the People presented proof that defendant sliced her estranged husband's neck with a kitchen knife while he was lying upon a bed at his parents' residence, but he was able to flee and call for assistance.  The police thereafter found defendant in the residence with allegedly self-inflicted stab wounds, including an abdominal stab wound that required removal of her spleen.  Defendant testified in her own defense at trial and asserted that her husband attacked her with the knife, and that her husband's neck was cut in the ensuing struggle over the knife.  The jury, apparently disbelieving defendant's version of events, convicted her of attempted murder and assault.

Defendant also submitted an affirmation from her appellate counsel, who examined the shirts and asserted that, contrary to the testimony of the above-mentioned prosecution witness, the holes in the shirts matched precisely the location of defendant's alleged stab wound behind her left armpit.  At oral argument of the motion, appellate counsel urged the court to examine the garments before ruling on the motion.  The court declined to do so and denied defendant's motion without a hearing.

We conclude that, if, as appellate counsel asserts, there are holes in the shirts defendant was wearing at the time of the altercation matching the wound behind her left armpit, in the absence of some strategic explanation, the failure of defendant's trial attorney to examine that clothing, coupled with his failure to call a medical expert to discuss the wound and to show the wound to the jury, would have been so “ ‘egregious and prejudicial’ “ as to deprive defendant of a fair trial (People v. Turner, 5 NY3d 476, 480).  Because defendant's “submissions [thus] ‘tend[ ] to substantiate all the essential facts' necessary to support [her] claim of ineffective assistance of counsel” (People v. Hill, 114 AD3d 1169, 1169, quoting CPL 440.30[4][b];  see People v. Howard, 12 AD3d 1127, 1128), we conclude that the court should have held a hearing on the motion (see CPL 440.30[5];  People v. Frazier, 87 AD3d 1350, 1351).  We therefore reserve decision and remit the matter to County Court for a limited hearing on the issue relating to the location of the holes in the shirts.

Frances E. Cafarell

Clerk of the Court