The People, etc., respondent, v. Alma Caldavado, appellant.

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Supreme Court, Appellate Division, Second Department, New York.

The People, etc., respondent, v. Alma Caldavado, appellant.

2017–05897

Decided: November 14, 2018

MARK C. DILLON, J.P. JOHN M. LEVENTHAL SHERI S. ROMAN COLLEEN D. DUFFY, JJ. Mark M. Baker, New York, NY, for appellant.

Argued—May 29, 2018

DECISION & ORDER

Dana M. Delger and M. Chris Fabricant (Fried, Frank, Harris, Shriver & Jacobson LLP, New York, N.Y. [Douglas W. Baruch and Michael P. Sternheim], of counsel), for amicus curiae The Innocence Network.

Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County (Richard L. Buchter, J.), dated May 25, 2017, which, after a hearing, denied her motion pursuant to CPL 440.10 to vacate a judgment of the same court (Robert McGann, J.), rendered April 1, 2009, convicting her of assault in the first degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

ORDERED that the order is affirmed.

After the hearing, the Supreme Court denied the defendant's motion, determining that trial counsel's decision not to call an expert was a strategic one and that trial counsel was not ineffective.  The defendant appeals, and we affirm.

In Strickland v. Washington (466 U.S. 668), the United States Supreme Court adopted a two-part test for evaluating claims of ineffective assistance of counsel.  A “defendant must show that counsel's performance was deficient,” and “that the deficient performance prejudiced the defense” (id. at 687).  “The first prong of the Strickland test is essentially a restatement of attorney competence, which requires a showing that counsel's representation fell below an objective standard of reasonableness.  The second prong, also known as the prejudice prong, focuses on whether” (People v. McDonald, 1 NY3d 109, 113–114 [citation and internal quotation marks omitted] ) “ ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different’ ” (People v. Pagan, 155 AD3d 779, 781, quoting Strickland v. Washington, 466 U.S. at 694).

To establish a claim of ineffective assistance of counsel under the New York Constitution, a defendant must show that he or she was not afforded “meaningful representation” based upon “the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation” (People v. Baldi, 54 N.Y.2d 137, 147).  “Our cases, however, agree with Strickland on the first prong” in that “ ‘counsel's efforts should not be second-guessed with the clarity of hindsight’ ” and the defendant is not entitled to perfect representation (People v. Turner, 5 NY3d 476, 480, quoting People v. Benevento, 91 N.Y.2d 708, 712).

Generally, whether to call an expert is a tactical decision (see People v. McDonald, 79 AD3d 771;  People v. Daniels, 35 AD3d 495, 496;  People v. Foust, 192 A.D.2d 718;  People v. Baston, 181 A.D.2d 786, 787;  People v. Diaz, 131 A.D.2d 775, 775).  In many instances, cross-examination of the People's expert will be sufficient to expose defects in an expert's presentation (see Harrington v. Richter, 562 U.S. 86, 111).  “As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance” (People v. Benevento, 91 N.Y.2d at 712–13).

Here, we agree with the Supreme Court's determination that trial counsel provided meaningful representation notwithstanding his decision not to call an expert witness to counter the People's medical evidence.  The record shows that trial counsel made efforts to investigate the medical issues in this case.  He effectively cross-examined the People's witnesses, including the experts, and elicited testimony that was damaging to the People's case.  The fact that the defense did not call its own expert witnesses was the result of trial counsel's legal strategy that the best way to defend this case was through impeachment of the People's witnesses.  Under the particular circumstances of this case, trial counsel provided effective representation (see Harrington v. Richter, 562 U.S. at 111;  People v. Aiken, 45 N.Y.2d 394, 400), and we agree with the court's determination to deny the defendant's CPL 440.10 motion.

DILLON, J.P., LEVENTHAL, ROMAN and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court