People v. Abodalo

189 A.D.3d 1607

138 N.Y.S.3d 149

The PEOPLE, etc., respondent,

v.Jalal ABODALO, appellant.

2016–09091

Ind. No. 1818/08

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 13, 2020

December 30, 2020

Barket Epstein Kearon Aldea & LoTurco, LLP, Garden City, N.Y. (Donna Aldea of counsel), for appellant.

Madeline Singas, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Barbara Kornblau of counsel), for respondent.

LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

Appeal by the defendant, by permission, from an order of the Supreme Court, Nassau County (Teresa K. Corrigan, J.), entered July 28, 2016. The order, insofar as appealed from, denied, after a hearing, those branches of the defendant's motion which were pursuant to CPL 440.10 to vacate so much of a judgment of the same court (James P. McCormack, J.), rendered November 6, 2009, as convicted him of course of sexual conduct against a child in the first degree, aggravated sexual abuse in the second degree under count four of the indictment, sexual abuse in the first degree under count five of the indictment, sodomy (now criminal sexual act) in the first degree (two counts), and incest in the third degree (two counts), upon a jury verdict, and imposed sentence.

ORDERED that the order is affirmed insofar as appealed from.

The defendant was convicted of certain crimes in connection with the sexual abuse of his nephew over the course of several years. He appealed from the judgment, arguing that he was denied the effective assistance of counsel. This Court affirmed the judgment, based upon our determination that the defendant's claim of ineffective assistance of counsel presented a mixed claim of ineffective assistance involving, in part, matter appearing on the record and, in part, matter outside the record, and thus, a CPL 440.10 proceeding was the appropriate forum for reviewing the claim in its entirety (see People v. Abodalo, 100 A.D.3d 648, 952 N.Y.S.2d 902 ).

The defendant thereafter moved to vacate the judgment of conviction pursuant to CPL 440.10, contending, inter alia, that he was denied the effective assistance of counsel by various failures of his counsel, including failing to procure and introduce certain alibi evidence. After a hearing, the Supreme Court found that the defendant had failed to sustain his burden of proof on his claim of ineffective assistance of counsel.

Nevertheless, the Supreme Court found that the defendant had succeeded in showing, by clear and convincing evidence, that he was actually innocent of the commission of certain acts alleged to have been committed on specific dates, encompassed by count one (course of sexual conduct against a child in the first degree), count two (aggravated sexual abuse in the second degree), and count three (sexual abuse in the first degree). The court, therefore, dismissed counts two and three. However, the court did not dismiss count one, based upon its reasoning that, "[b]ecause count 1 covers numerous acts of abuse on numerous dates for which there is not clear and convincing evidence of actual innocence, the conviction associated with count 1 remains." The defendant's motion with respect to the remaining counts was otherwise denied.

" ‘The right to effective assistance of counsel is guaranteed by the Federal and State Constitutions[,] [but a] contention of ineffective assistance of trial counsel requires proof of less than meaningful representation, rather than simple disagreement with strategies and tactics’ " ( People v. Clark, 129 A.D.3d 1, 16, 9 N.Y.S.3d 277, affd 28 N.Y.3d 556, 46 N.Y.S.3d 817, 69 N.E.3d 604, quoting People v. Rivera, 71 N.Y.2d 705, 708–709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ; see People v. Maffei, 35 N.Y.3d 264, 269, 127 N.Y.S.3d 403, 150 N.E.3d 1169 ). "To prevail on an ineffective assistance claim, a defendant must ‘demonstrate the absence of strategic or other legitimate explanations’—i.e., those that would be consistent with the decisions of a ‘reasonably competent...