Issue before the Court: Is a lawyer ineffective for failing to review, or comprehend, surveillance video and then advancing a defense theory contradicted by that video?

 

Held: Not on this record.

 

CAL Observes: No matter how ineffective counsel seems on the record, this Court will find room for doubt. 

 

The record in this case screamed ineffectiveness. Counsel blindly adopted his client’s theory, and promised the jury that his client would testify, even after the prosecutor forewarned that video surveillance proved that theory false. After the surveillance was played at trial, counsel advised that defendant would not testify. Counsel also basically admitted he didn’t even watch the video. Then, in summation, counsel argued a version of the facts inconsistent with what he described in his opening. 

 

By holding that the record did not “conclusively establish” ineffectiveness, the Court (except for Judge Rivera) emphasized its strong reluctance to pass judgment on counsel’s strategic decisions, if any, without full “exploration” via a CPL 440.10 motion. This case (and the other “Mendoza”-related ineffectiveness case decided the same day, see People v. David Mendoza) highlights the necessity of expanding the record on ineffectiveness claims, even where it seems obvious that the lawyer’s actions (pursuing a theory you’ve been warned would be exposed as false) could not possibly have been motivated by reasonable strategy. But the Court’s “judicial restraint,” coupled with the practical challenges of meaningfully exploring these issues via 440, operate together to effectively condone some pretty egregious lawyering. 

 

Separately, every member of the Court found harmless that admitting defendant’s DNA profile through an analyst who did not generate the profile was harmless.