Issue: 

Defendant was convicted of killing a baby based largely on expert testimony regarding “Shaken Baby Syndrome.”  In this appeal from a C.P.L. § 440.10 motion, filed six years after her conviction, defendant argues, among other claims, that counsel was ineffective in not calling an expert to rebut the nine experts called by the prosecution.

Held: 

While noting that “it is exceedingly rare that a defense attorney’s strategic decision not to present expert testimony amounts to ineffective assistance of counsel,” the Court ruled that a hearing on the claim was necessary because counsel’s assertion that calling an expert would have been futile given the number of experts called by the prosecution was “not a legitimate or reasonable tactical choice.”

CAL Observes:

Seemingly underlying this case is the growing awareness of the questionable nature of Shaken Baby Syndrome testimony.  In calling for a hearing, the Court was inviting a full (re-)litigation on the claim with competing experts.

Notably, the Court declined to address the open issue as to whether a free-standing claim of actual innocence is cognizable in a C.P.L. § 440.10 motion.  Acknowledging that the Second Department in Hamilton (2d Dep’t 2014) had recognized such a claim, the Court found defendant’s proof lacking here.  It’s hard to understand why acknowledging that the State Constitution would prohibit the incarceration of a provably innocent person would need to await another day.