People v. Salas
Issues before the Court: Whether (1) the lack of transcript reflecting response to a jury note is an O’Rama error; and (2) the trial court abused its discretion in summarily denying a 440 motion alleging ineffective assistance of counsel?
Factual Background: Christopher Salas was charged with a fatal stabbing. The prosecution gave notice of a single-photo ID and the court ordered Rodriguez and Wade hearings. The hearings were never held, and immediately prior to trial, the court asked, “are there hearings in this case?”; both parties said no, and the case went to trial. During jury selection, the prosecution said it was “definitively” not calling the witness who made the photo ID and counsel tailored his opening accordingly. When the prosecution argued that this opened the door to the witness’ testimony, counsel didn’t raise the issue of the previously-ordered hearings and then conducted what sounds like a pretty bad cross-examination of the witness. In a 440 motion, Mr. Salas argued that his attorney was ineffective. Counsel had no recollection of his reasoning but couldn’t imagine why he wouldn’t have asked for the suppression hearing. The court denied the motion summarily. While counsel’s failure to request a suppression hearing was “troublesome,” counsel effectively fixed his error in opening the door.
Separately, minutes reflecting the discussion and court’s response to one of the jury notes was lost. Mr. Salas moved for a reconstruction hearing. The trial court denied the motion without prejudice, finding that Mr. Salas had not diligently pursued other means of reconstructing the missing minutes.
Held: Singas, writing for a unanimous Court, held that the motion court abused its discretion in denying the motion without a hearing because it required “resolving questions of fact” (440.30(1)(a)) and it did not fit within any of the “enumerated circumstances” in 440.30(4) that permit summary denial. Counsel’s affirmation and trial conduct “suggest[ing] that counsel may have lacked a strategic or other legitimate basis for one or more of his actions” was enough to merit a hearing. With respect to the missing minutes, the court held that, consistent with Mr. Salas’ earlier requests, a reconstruction hearing is the proper remedy. The Court would not presume the lack of transcript meant the court had failed to respond to the jury note on the record as O’Rama requires, particularly under the facts here.
CAL Observes: A somewhat surprising, but very welcome, reiteration of the narrow statutory bases for summarily denying a 440.10 motion and a step back from the Court’s prior treatment of it as a completely discretionary decision, unbounded by the statutory language. See People v. Jones, 24 N.Y.3d 623 (2014) (Abdus-Salaam, concurring). The limited circumstances articulation is one we always press, but the motion courts usually ignore the finer points of 440.30(4) and then appellate divisions can do whatever they want with cover of the abuse of discretion standard.
The O’Rama/reconstruction ruling is both less surprising and a bit weirder. To start, all of this could have been avoided because the prosecution consented to reconstruction at the trial level, yet the motion was denied. As to the merits, on the one hand, the Court has been slowly carving away at O’Rama since that decision, and this was yet another chance to do so. On the other hand, procedurally, this was a tough argument to make, even if it may have been the only one available, jurisdictionally (see Reply at n1.). Mr. Salas tried to frame his earlier requests for reconstruction of missing minutes as a “belt-and-suspenders” approach while he focused his Court of Appeals’ argument on the lack of the required on-the-record response to the jury note. The Court didn’t appreciate what it construed as a change of factual positions. See Decision n.2. Either the minutes—which would show a proper response to the note or prove an O’Rama violation—were missing or they didn’t exist because the note had never been discussed/responded to.