        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

691
KA 15-01532
PRESENT: CENTRA, J.P., LINDLEY, CURRAN, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JENISE HADDAD SMITH, DEFENDANT-APPELLANT.


EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Oneida County Court (Michael L. Dwyer, J.), dated July 27, 2015.
The order denied the motion of defendant to vacate a judgment of
conviction pursuant to CPL 440.10.

     It is hereby ORDERED that the case is held, the decision is
reserved, and the matter is remitted to Oneida County Court for a
hearing pursuant to CPL 440.30 (5) in accordance with the following
memorandum: On appeal from an order denying her motion pursuant to
CPL 440.10 to vacate a judgment convicting her of attempted murder in
the second degree (Penal Law §§ 110.00, 125.25 [1]) and assault in the
second degree (§ 120.05 [2]) on the ground of ineffective assistance
of counsel, defendant contends, among other things, that County Court
erred in denying her motion without a hearing. We agree.

     At trial, the People presented proof that defendant sliced her
estranged husband’s neck with a kitchen knife while he was lying upon
a bed at his parents’ residence, but he was able to flee and call for
assistance. The police thereafter found defendant in the residence
with allegedly self-inflicted stab wounds, including an abdominal stab
wound that required removal of her spleen. Defendant testified in her
own defense at trial and asserted that her husband attacked her with
the knife, and that her husband’s neck was cut in the ensuing struggle
over the knife. The jury, apparently disbelieving defendant’s version
of events, convicted her of attempted murder and assault.

     Defendant did not appeal her conviction, but filed the instant
CPL 440.10 motion to vacate the judgment, contending that her trial
attorney was ineffective because he failed to show the jury a wound
behind her left armpit, failed to engage a medical expert to testify
about that wound, and failed to examine the clothing she was wearing
                                 -2-                           691
                                                         KA 15-01532

at the time of the stabbings and to show that clothing to the jury.
In support of her motion, defendant submitted an affidavit from a
medical expert who opined that the wound behind defendant’s left
armpit could not have been self-inflicted and was not, as the medical
testimony at trial appeared to establish, a surgical wound where a
chest tube was inserted when defendant was treated at the hospital.
According to defendant, the armpit wound aligned with holes in the
shirts she was wearing at the time of the altercation, which supported
her claim that her husband stabbed her from behind. At trial,
defendant’s attorney noted that he had not examined the shirts
defendant was wearing at the time of the altercation before they were
offered for admission in evidence, and the record is unclear whether
trial counsel examined those shirts before their admission. In an
affirmation submitted in support of the instant motion, defendant’s
trial counsel asserted that he did not recall having examined the
shirts. The jury did not examine the shirts at trial, although a
witness for the People testified that the only holes in the shirts
aligned with injuries to defendant’s abdomen.

     Defendant also submitted an affirmation from her appellate
counsel, who examined the shirts and asserted that, contrary to the
testimony of the above-mentioned prosecution witness, the holes in the
shirts matched precisely the location of defendant’s alleged stab
wound behind her left armpit. At oral argument of the motion,
appellate counsel urged the court to examine the garments before
ruling on the motion. The court declined to do so and denied
defendant’s motion without a hearing.

     We conclude that, if, as appellate counsel asserts, there are
holes in the shirts defendant was wearing at the time of the
altercation matching the wound behind her left armpit, in the absence
of some strategic explanation, the failure of defendant’s trial
attorney to examine that clothing, coupled with his failure to call a
medical expert to discuss the wound and to show the wound to the jury,
would have been so “ ‘egregious and prejudicial’ ” as to deprive
defendant of a fair trial (People v Turner, 5 NY3d 476, 480). Because
defendant’s “submissions [thus] ‘tend[ ] to substantiate all the
essential facts’ necessary to support [her] claim of ineffective
assistance of counsel” (People v Hill, 114 AD3d 1169, 1169, quoting
CPL 440.30 [4] [b]; see People v Howard, 12 AD3d 1127, 1128), we
conclude that the court should have held a hearing on the motion (see
CPL 440.30 [5]; People v Frazier, 87 AD3d 1350, 1351). We therefore
reserve decision and remit the matter to County Court for a limited
hearing on the issue relating to the location of the holes in the
shirts.




Entered:   October 7, 2016                      Frances E. Cafarell
                                                Clerk of the Court
