AD3 order dated February 23, 2012, affirming judgment of conviction. Decision below: 92 A.D.3d 1139, 939 N.Y.S.2d 162. Lippman, Ch.J., granted leave July 2, 2012.

ISSUES PRESENTED: (1) Whether defense counsel was ineffective for failing to exercise a peremptory challenge to a juror after the denial of his challenge for cause to that juror, who had a social acquaintance with the prosecutor. (2) Whether the grand jury testimony of a ballistics expert was a "written report or document" discoverable pursuant to CPL §240.20. (Assigned counsel: Jack H. Weiner, 1488 State Route 203, Chatham, NY 12037.)

Issue before the Court: Whether counsel’s failure to exercise a peremptory against a juror who was a long-time friend of the prosecuting attorney and where defense counsel’s for-cause challenge against this juror had been denied, amounted to ineffective assistance of counsel.

Held: Counsel’s failure to use a peremptory is not "one of those very rare cases in which a single error by otherwise competent counsel was so serious that it deprived defendant of his constitutional right." Counsel may have had a reason to refrain from challenging the juror, and the record provides no basis for concluding that the juror’s presence prejudiced the defendant. And though by failing to exercise a peremptory, counsel failed to preserve the for-cause challenge for appeal, that mistake "was not the sort of ‘egregious and prejudicial’ error that amounts to a deprivation of the right to counsel." The issue of the for-cause challenge was not "clear cut and completely dispositive," as whether the court committed reversible error by denying the challenge is debatable.

CAL Observes: Continuing its pattern of evaluating IAC claims in a variety of contexts, the Court reiterates the exceptionally high standard for establishing IAC in a single error case. It must be "clear cut and completely dispositive," which means that if any debate about the "proper" resolution of the particular issue exists, an IAC claim will founder.