Issue before the Court: Whether trial counsel was ineffective for failing to argue that
testimony of an OCME criminalist who did not perform or independently analyze raw
data underlying a DNA report violated the Confrontation Clause, in a trial that occurred
before People v. John, 27 N.Y.3d 294 (2016) was decided.

Factual Background: In a burglary trial that occurred after briefing and oral argument
in John but before that case was decided, the prosecution presented evidence that Mr.
Espinosa’s DNA matched that found on a screwdriver recovered from the scene. This
was the only evidence linking Mr. Espinosa to the crime. The OCME criminalist who
conducted the DNA analysis did not testify—instead, another criminalist who claimed
to have conducted a “technical review” of the original report did. The report (which he
did not prepare) was entered into evidence through his testimony. While the defense
cross-examined the criminalist about his lack of involvement in preparing the report,
he made no Confrontation Clause objection to his testimony or the report’s admission
into evidence.

CAL Observes: The majority, relying on a previous memorandum decision, People v.
Rodriguez, 31 N.Y.3d 1067 (2018), held that, because the trial occurred before John was
decided, the Confrontation Clause issue was not “so clear-cut and dispositive that no
reasonable defense counsel would have failed to raise it.” Counsel was, therefore, not
ineffective. Judge Rivera, as is her wont, filed the lone dissent, which none of the other
judges joined.

While much of the briefing centered on whether there was a Confrontation Clause
violation, the case is not very important for what it says about that issue (which the
Court explored more fully this Term in People v. Jordan). Its primary import for
practitioners lies instead in the conflict it presents over the standard defendant must
meet in order to establish that his trial attorney was ineffective for failing to make a
particular argument below. Continuing a troubling trend for the Court, the parties
hardly briefed this issue, which ultimately resolved the case.

All of the Judges on the Court now seem to agree that, in order for counsel to perform
deficiently in failing to raise an issue before the trial court, that issue must be “clear-cut
and dispositive”—a seemingly terrible standard for the defense. But the Judges do not
agree about what the standard means.

This is, perhaps, because the Court has not been especially clear in the past. The phrase
“clear-cut and dispositive,” first appeared in People v. Turner, 5 N.Y.3d 476 (2005). In
that case, the Court held that an attorney who failed to recognize and raise a statute-of-
limitations defense was ineffective. That sort of error, the Court said, was “clear-cut
and dispositive”—but the Court, which was purporting to apply the deficientperformance
standard established in Strickland v. Washington, 466 U.S. 668 (1984), did
not say that an error had to be clear-cut and dispositive to count. Eight years later,
however, the Court said just that. See People v. McGee, 20 N.Y.3d 513 (2013) (explaining
that, for an attorney’s failure to make an argument to rise to the level of deficient
performance, “the omission must typically involve an issue that I so clear-cut and
dispositive that no reasonable defense counsel would have failed to assert it”) (emphasis
added).

But what do those words mean? During oral argument Judge Garcia suggested that the
standard could not be met unless the Court of Appeals had previously confronted the
precise “fact scenario” presented by the case at hand. Judge Cannataro seemed to go
even further, suggesting that, in order for the standard to be met, the issue counsel
failed to raise needed to be a “slam dunk winner.” Judge Wilson pushed back. While
agreeing that the issue needed to be “clear cut and dispositive,” he emphasized that this
did “not” mean “that it has to be a winner.” Rather, the issue had “to be a good enough
argument that . . . a competent lawyer . . . would” make it.

This dispute over the meaning of “clear cut and dispositive” carried over into the
dissent. According to Judge Rivera, for the standard to be met, the law need not have
been “definitively settled” at the time of trial, and the omitted argument need not have
been a “clear winner”—counsel would act unreasonably so long as there were some
“clear appellate authority” supporting the claim.

The issue remains unresolved, and it is likely to arise again, given how commonly an
attorney’s failure to make a legal argument serves as the basis for an ineffectiveassistance-
of-counsel claim. And the Court of Appeals may, in People v. Corey Dunton,
may soon provide additional guidance, where CAL filed an amicus brief directly taking
on this issue.