People v. Alma Caldavado


AD2 order dated April 16, 2014, affirming denial of 440.10 motion without a hearing. Decision below: 116 AD3d 877, 983 NYS2d 410. Graffeo, J., granted leave August 7, 2014. Argued October 15, 2015.
ISSUE PRESENTED: Whether defendant was entitled to an evidentiary hearing on her CPL §440.10 motion alleging ineffective assistance of trial counsel for not presenting expert testimony in light of a growing body of medical evidence, not introduced at trial, suggesting that “shaken baby syndrome” can be explained by a medical condition unrelated to the physical treatment of the child.


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.


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.