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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 52
The People &c.,
            Appellant,
        v.
Kharye Jarvis,
            Respondent.




            Geoffrey Kaeuper, for appellant.
            William G. Pixley, for respondent.




MEMORANDUM:
            The order of the Appellate Division should be
affirmed.   Counsel's failure to invoke the court's prior
preclusion order, coupled with his presentation of an alibi
defense for the wrong day of the week, could have led to

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defendant's conviction.   In this case, where the evidence against
defendant was particularly weak since credibility issues affected
each of the prosecutor's major witnesses, the cumulative effect
of counsel's lapses deprived defendant of meaningful
representation (People v Oathout, 21 NY3d 127, 132 [2013]).




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People v Kharye Jarvis
No. 052




PIGOTT, J.(dissenting):
           In 1992, following a jury trial, defendant was
convicted, on compelling evidence, of two counts of murder in the
second degree for the fatal shooting of two men.   Now, 23 years
later, the majority holds that defense counsel was ineffective
for not objecting at trial when the prosecutor elicited testimony
from a prosecution witness, Charlotte Barnwell, that defendant
threatened her prior to her testimony.   County Court had earlier
ruled that such testimony was inadmissible unless the issue of
Barnwell's delay in coming forward was raised on cross
examination.   The majority further holds that defense counsel's
presentation of an alibi defense through three alibi witnesses
constitutes ineffective assistance.    In my view, defendant failed
to meet his burden of establishing the absence of a strategic or
other legitimate explanation for defense counsel's alleged
errors.   Therefore, I dissent and would affirm the judgment of
conviction.
           In People v Baldi, this Court held that in order for a
defendant to succeed on his claim of ineffective assistance of
counsel, defendant must prove that he was deprived of a fair


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trial by less than "meaningful representation" determined by
counsel's performance "viewed in totality" (People v Oathout, 21
NY3d 127, 128 [2013], citing Baldi, 54 NY2d 137, 147 [1981]).
Further, we have said that in reviewing claims of ineffective
assistance, we must take care "to avoid both confusing true
ineffectiveness [of counsel] with mere losing tactics and
according undue significance to retrospective analysis" (Baldi,
54 NY2d at 146).
          Defense counsel undoubtedly conducted a diligent
defense throughout the trial.   He capably argued motions
including the mid-trial Molineux/Ventimiglia hearing, delivered a
cogent opening statement, cross-examined the People's witnesses,
lodged appropriate objections and offered an articulate closing
argument that identified weaknesses in the People's proof.
Defense counsel attacked the prosecution's proof as to identity,
offering three witnesses in support of an alibi and, further,
challenged the credibility of each of the People's witnesses
throughout the trial.    Moreover, defense counsel's effectiveness
was demonstrated by the length of the jury's deliberations before
it eventually convicted defendant.      Given the breadth of defense
counsel's representation, it could not reasonably be said, on
this record, that defendant was denied meaningful representation.
          The majority bases its holding, in part, on a claimed
"lapse" of defense counsel in failing to object to Barnwell's
limited-use testimony.   In People v Rivera, this Court held that


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in order "[t]o 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 counsel's
failure" to object (71 NY2d 705, 709 [1988]).   "Absent such a
showing, it will be presumed that [defense] counsel acted in a
competent manner and exercised professional judgment" in choosing
not to object (id.).   We further noted that only "in the rare
case, it might be possible from the trial record alone to reject
all legitimate explanations for counsel's failure" (id.).
          In this case, the majority ignores the fact that the
People offered a number of strategic reasons why defense counsel
may not have objected to Barnwell's limited-use testimony.    For
instance, defense counsel may have decided not to object in order
to avoid focusing the jury's attention to Barnwell's testimony
altogether (see People v Taylor, 1 NY3d 174, 177 [2003]).     Just
prior to the line of questioning concerning the threat, Barnwell
had provided damaging testimony that before the shootings she
overheard defendant threaten to kill one of the victims.
          Alternatively, defense counsel may have sought to use
Barnwell's testimony to defendant's advantage by calling
attention to her difficulties in testifying.    It is evident from
the record that throughout the prosecution's case-in-chief
Barnwell appeared uncooperative, hesitant and unreliable.    In
fact, the prosecution asked 11 questions -- with two objections
by defense counsel -- before finally eliciting testimony from


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Barnwell that she overheard defendant threaten that he was going
to shoot the victim.   Additionally, Barnwell was unable to recall
the threat defendant directed at her without the use of her prior
statement to the police.   Defense counsel had good reason to
believe that Barnwell would continue to undercut her own
credibility with her continued reluctance and vacillations.
          Also evident from the record is defense counsel's
execution of this strategy.   On cross examination, defense
counsel challenged Barnwell's inability to recall the threat
without use of a prior recollection recorded.    In summation,
defense counsel argued at length about Barnwell's unreliable
testimony, stressing her relationship to the victims and further
urging the jurors to disregard her statements.   In particular, he
argued:
          "You cannot separate some of what she says
          from her manner in which she says it. This
          is a case where if you ask to have her
          testimony read back and then you listen to
          it, it might make a degree of sense. But you
          have to remember that when she was
          testifying, the judge had to instruct her at
          one point to answer the question. And the
          second thing is the most critical piece of
          evidence she claims she has, she tells the
          District Attorney she forgot. Well, I forgot
          that. She had to go off and read her
          statement, then says, oh, yea, now I
          remember."
Towards the end of summation, defense counsel returned to
Barnwell's credibility, urging the jury to find Barnwell's
testimony unbelievable.    What is more, the jury requested a read-
back of Barnwell's testimony and nonetheless remained deadlocked.

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          Therefore, "[t]he decision not to object to
prosecutorial actions . . . simply 'reflect[ed] a reasonable and
legitimate strategy under the circumstances and evidence
presented'" (Taylor, 1 NY3d at 177, quoting People v Tonge, 93
NY2d 838, 840 [1999]).   Accordingly, while defense counsel's
decision not to object may have been debatable, it 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).
          Furthermore, I disagree with the majority's conclusion
that defendant, on this record, met his burden of establishing
the absence of strategic or other legitimate explanations for the
presentation of an alibi defense through the testimony of
defendant's girlfriend and mother.
          Here, the subject murders occurred at approximately
1:20 a.m. on Tuesday, June 4, 1991.    Two alibi witnesses,
defendant's girlfriend and her mother, testified to defendant's
whereabouts on the evening of June 3rd and the early morning
hours of June 4th, but incorrectly identified the days of the
week on which those dates fell.
          As the Appellate Division acknowledged, in reliance on
People v Cabrera, 234 AD2d 557, 558 (1996), People v Long, 81
AD2d 521, 521–522 (1981), and Henry v Poole, 409 F3d 48, 65-66
(2005), cert denied 547 US 1040 (2006), presenting an alibi


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defense for the wrong date or time has been found to constitute
ineffective assistance of counsel (113 AD3d 1058, 1061 [4th Dept
2014]).   However, in each of these cases, the defense counsel
interjected the errors into the alibi witnesses' testimony.     In
Cabrera, the defense counsel's questions focused on a Friday
evening when the robbery of which the defendant was convicted
occurred early Friday morning (see 234 AD2d at 558).     In Long,
the defense counsel "direct[ed] [the witness's] attention to July
22, 1978 in the evening of that day" when the robbery actually
occurred in the early morning hours of July 22 (81 AD2d at 521).
Likewise, in Henry, the attorney specifically keyed the testimony
in his question to the night of August 10, 24 hours after the
robbery, thereby leading the witness to testify as to the
incorrect night (see 409 F3d at 64).
           In this case, however, defense counsel never directed
the alibi witnesses to the incorrect days of the week; he only
questioned them with respect to their memory of June 3 and 4, the
day before and the day of the murders.   The alibi witnesses
gratuitously and erroneously offered that they were providing
alibis for a Friday morning even though defense counsel
questioned them specifically about June 3 and 4.   Defense counsel
cannot possibly be faulted for the witnesses' failed memories or
for their addition of details that were deleterious to
defendant's alibi defense.
           To the extent the majority suggests that defense


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counsel was in fact responsible for the discrepancies exposed in
the alibi witnesses' testimony, it is suggesting that defense
counsel suborned perjury and such a claim is predicated on facts
not found in the record on appeal.1
                In short, it is impossible on the record on appeal
alone to reject all legitimate explanations for defense counsel's
alleged errors and therefore determine defendant was denied
effective assistance of counsel.          The claims should be raised in
a postconviction application under CPL article 440, where the
basis of the claims may be fully developed (see People v Brown,
45 NY2d 852 [1978]).
*   *       *    *   *   *   *   *    *      *   *   *   *   *   *   *   *
Order affirmed, in a memorandum. Chief Judge Lippman and Judges
Read, Rivera, Abdus-Salaam and Stein concur. Judge Pigott
dissents in an opinion. Judge Fahey took no part.

Decided April 7, 2015




        1
        See generally Manuel Berrélez et al., Note, Disappearing
Dilemmas: Judicial Construction of Ethical Choice as Strategic
Behavior in the Criminal Defense Context, 23 Yale L. & Pol'y Rev.
225 (2005).

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