People v. Kharye Jarvis


AD4 order dated January 3, 2014, reversing judgment of conviction. Decision below: 113 AD3d 1058,978 NYS2d 522. Whalen (AD dissenter), J., granted leave to People March 20, 2014.
ISSUE PRESENTED: Whether trial defense counsel was ineffective for (a) failing to object to testimony that he had successfully moved to preclude, and (b) presenting an alibi for the wrong date. (Assigned counsel: William G. Pixley, 620 Park Avenue, No. 410, Rochester, NY 14607.)

Issue before the Court:  Whether  trial counsel was ineffective for (a) failing to invoke the court’s order precluding a prosecution witness’ testimony that defendant threatened her prior to her testimony, and (b) putting on an alibi for the wrong date.


Held: In a summary opinion, the Court affirmed the Appellate Division’s reversal of the conviction on IAC grounds.  (No 440 motion had been brought.)  The Court noted that the People’s evidence was otherwise “particularly weak.” Judge Pigott dissented, solo. 


CAL Observes: The only remarkable thing about this decision is Judge Pigott’s dissent.  Contrary to the majority’s view, he found the evidence “compelling.”  He listed all the things that defense counsel had done right.  As to counsel’s failure to invoke the preclusion order, Judge Pigott noted that there were a number of theoretically possible strategic reasons why counsel did not object to that testimony.

Curiously, in the first paragraph of page 5 of Judge Pigott’s dissent, he writes “ is beyond me how the majority can possibly state, on this record that ‘defendant  met his burden of establishing the absence of strategic or legitimate reasons for counsel’s failure to invoke the court’s prior preclusion ruling’ (maj mem, at 2).”  Judge Pigott is entirely correct in this regard, since the majority had previously excised that quote from its memorandum decision.  Presumably the Law Reporting Bureau will pick this up and correct it before too long.  But you’ll always be able to read it here!

As to two alibi witnesses having testified to an alibi for Friday when the crime occurred on Tuesday, Judge Pigott chalked that up to faulty memories on the witnesses’ part, for which trial counsel should not be held responsible (lest it be suggested that he suborned perjury!).  (Apparently, failing to prep two alibi witnesses, to get the day right, is not something a defense lawyer should be blamed for.)

The majority’s decision is a continuation of the Court’s trend, over the last few years, of not being afraid to call trial lawyers in effective, even on direct appeal.  Indeed, it is not surprising that the Court was hesitant to reverse an intermediate appellate court’s highly reasoned finding of IAC.