Eye on Eagle

Issue before the Court: Whether counsel was ineffective where he failed to seek redaction of an order of protection that referenced Mr. Howard’s criminal history and elicited similar evidence of prior bad acts and incarceration when questioning witnesses?

Factual Background: Mr. Howard was convicted of first-degree burglary, second-degree assault, and criminal content based on the allegations that he broke into his estranged wife’s home and assaulted her in violation of an order of protection. At trial, counsel undercut the benefit of the court’s favorable Sandoval ruling in a few ways. First, he failed to ask that Mr. Howard’s prior conviction be redacted from the OTP. And, second, he elicited from two witnesses that Mr. Howard had been incarcerated previously and from the complaining witness that Mr. Howard had broken into her apartment before.

On appeal to the Fourth Department, Mr. Howard argued that his that his attorney had been ineffective for eliciting this prejudicial evidence. The court affirmed, over two dissenters, finding that the case “lack[ed] . . . any viable defense beyond attacking the credibility of the People’s witnesses” and that Mr. Howard had failed to demonstrate an absence of strategic decision-making by his attorney. Mr. Howard also raised an unpreserved problem with the court’s jury instructions, which appears to have been converted to an IAC on appeal.

Held: This appeal was put on the SSM track; thus, the majority wrote only that “on this record” Mr. Howard had failed to demonstrate IAC. Rivera puts some meet on the bones in a dissent, which Wilson joined. In addition to the problems discussed in dissent below, counsel also filed an omnibus motion that referenced facts unrelated to Mr. Howard’s case. He then refused to show Mr. Howard BWC footage prior to the hearing where it was at issue, despite Mr. Howard’s complaints and the court’s directions.

CAL Observes: It is hard to know how much work “on this record” is doing in the majority’s memorandum opinion—i.e., whether the affirmance was motivated by the failure to bring a C.P.L. § 440.10 motion or more substantively on a lack of prejudice, given the apparently strong evidence of guilt. If the former, however, it is difficult to imagine what strategic reason counsel could offer for introducing this harmful evidence against his client that had otherwise been precluded. Rivera highlighted that point in dissent. She also offered another strong reiteration of New York’s more liberal IAC standard with respect to any prejudice analysis: Overwhelming evidence of guilt is not a counterbalance for an attorney’s conduct that “undermines the integrity of the judicial process.” In particular, she found that the charging error was sufficient single-error IAC because it could have permitted the jury to convict based on a theory that varied from the indictment.

Finally, Rivera also rightly calls out the trial court’s comments. When Mr. Howard repeatedly (and with good reason) complained about his attorney’s failings, the court dismissed his concerns in the most disrespectful ways possible and particularly troubling for indigent clients.