People v. Ramos

194 A.D.3d 964

149 N.Y.S.3d 171

The PEOPLE, etc., respondent,

v.John RAMOS, appellant.

2013-08255, 2019-02363

Ind. No. 6502/12

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

Argued—April 26, 2021

May 19, 2021

Paul Skip Laisure, New York, N.Y. (Yvonne Shivers of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee, and Arieh Schulman of counsel), for respondent.

ROBERT J. MILLER, J.P., HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeals by the defendant (1) from a judgment of the Supreme Court, Kings County (Mark Dwyer, J.), rendered July 19, 2013, convicting him of course of sexual conduct against a child in the second degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence, and (2), by permission, from an order of the same court dated February 5, 2019, which, after a hearing, denied the defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction rendered July 19, 2013.

ORDERED that the order is reversed, on the law, the defendant's motion pursuant to CPL 440.10 to vacate the judgment is granted, the judgment is vacated, and the matter is remitted to the Supreme Court, Kings County, for a new trial; and it is further,

ORDERED that the appeal from the judgment is dismissed as academic in light of our determination on the appeal from the order.

The defendant was convicted, upon a jury verdict, of course of sexual conduct against a child in the second degree ( Penal Law § 130.80[1][b] ) and endangering the welfare of a child ( Penal Law § 260.10[1] ). Thereafter, the defendant moved pursuant to CPL 440.10(1)(h) (hereinafter the 440 motion) to vacate the judgment of conviction on the grounds of ineffective assistance of counsel and actual innocence. After a hearing on the claim of ineffective assistance of counsel only, the Supreme Court, in an order dated February 5, 2019, denied the 440 motion in its entirety. This Court granted the defendant leave to appeal from the order, and consolidated the appeal from the order with the defendant's direct appeal from the judgment of conviction.

"In an adversarial system of justice, the fundamental right to the effective assistance of counsel is essential to a criminal defendant's due process entitlement to a fair trial" ( People v. Clarke, 66 A.D.3d 694, 696, 886 N.Y.S.2d 753, citing People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 and People v. Benevento, 91 N.Y.2d 708, 711, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; see U.S. Const 6th Amend; NY Const, art I, § 6 ). Under the New York Constitution, a defendant must show that he or she was not afforded "meaningful representation" ( People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ). A reviewing court must examine whether "the evidence, the law, and the circumstances of [the] particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation" ( id. at 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ; see People v. Corchado, 175 A.D.3d 705, 707–708, 108 N.Y.S.3d 53 ; People v. Clarke, 66 A.D.3d at 696, 886 N.Y.S.2d 753 ). "To prevail on a claim of ineffective assistance of counsel, ‘it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations’ for the alleged shortcomings of counsel" ( People v. Clarke, 66 A.D.3d at 696, 886 N.Y.S.2d 753, quoting People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ).

Upon our review of the totality of the record herein, we find that the cumulative effect of trial counsel's errors deprived the defendant of meaningful representation and a fair trial (see People v. Baldi, 54 N.Y.2d at 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ; People v. Clarke, 66 A.D.3d at 698, 886 N.Y.S.2d 753 ).

Under the circumstances of this case, where the determination of guilt hinged on sharp issues of credibility, we find that trial counsel lacked a strategic or legitimate justification for the failure to investigate the defendant's alleged alibi defense (see People v. Graham, 129 A.D.3d 860, 862–863, 11 N.Y.S.3d 242 ), and to present evidence to impeach the complainant's testimony as to the duration and frequency of the alleged abuse (see People v. Clarke, 66 A.D.3d at 696–698, 886 N.Y.S.2d 753 ; cf. People v. Park, 229 A.D.2d 598, 599, 646 N.Y.S.2d 145 ). Further, trial counsel failed to impeach the complainant with her sworn testimony given in the grand jury, which contradicted her trial testimony in various respects (see People v. Clarke, 66 A.D.3d at 696–698, 886 N.Y.S.2d 753 ). Notwithstanding a pretrial ruling by the court precluding the People from eliciting testimony regarding an early 2010 conversation about the alleged abuse between the complainant and her friend, trial counsel failed to object when such testimony was elicited at the trial. As such, counsel failed in his duty to protect the defendant's interests by objecting to the People's introduction of inadmissible evidence (see People v. De Jesus, 42 N.Y.2d 519, 526, 399 N.Y.S.2d 196, 369 N.E.2d 752 ; People v. Corchado, 175 A.D.3d at 708, 108 N.Y.S.3d 53 ; People v. Clarke, 66 A.D.3d at 697, 886 N.Y.S.2d 753 ). The cumulative effect of these errors was to deprive the defendant of "meaningful representation" by his trial counsel (see People v. Bodden, 82 A.D.3d 781, 783, 918 N.Y.S.2d 141 ; People v. Clarke, 66 A.D.3d at 698, 886 N.Y.S.2d 753 )....