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

1153
KA 13-01022
PRESENT: CENTRA, J.P., CARNI, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RACHAEL CASEY, DEFENDANT-APPELLANT.


KEIR M. WEYBLE, OF THE SOUTH CAROLINA BAR, ADMITTED PRO HAC VICE, AND
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER, FOR
DEFENDANT-APPELLANT.

SANDRA DOORLEY, SPECIAL DISTRICT ATTORNEY, ROCHESTER (ROBERT J.
SHOEMAKER OF COUNSEL), FOR RESPONDENT.

M. CHRIS FABRICANT, NEW YORK CITY, FOR INNOCENCE NETWORK, AMICUS
CURIAE.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Steuben County Court (Marianne Furfure, A.J.), entered April 26,
2013. The order denied the motion of defendant to vacate a judgment
of conviction.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law and the matter is remitted to Steuben
County Court for further proceedings in accordance with the following
memorandum: Defendant appeals from an order denying, without a
hearing, her CPL 440.10 motion to vacate the 2003 judgment convicting
her following a jury trial of, inter alia, arson in the first degree
(Penal Law § 150.20) and two counts of murder in the second degree (§
125.25 [2], [3]) in connection with the death of her seven-month-old
daughter (People v Casey, 37 AD3d 1113, lv denied 8 NY3d 983). In
support of her motion, defendant contended that defense counsel was
deficient based upon his failure to obtain mental health experts to
explain why her various versions of the events were inconsistent.
Defendant further contended that she was denied effective assistance
of counsel based upon defense counsel’s failure to obtain an expert to
refute the theory of the People’s fire investigation expert, an
investigator for the arson bureau of the New York State Office of Fire
Prevention and Control, or to utilize nationally recognized standards
of fire investigation published in the National Fire Protection
Association 921 Guide for Fire and Explosion Investigations (NFPA 921
guide) during his cross-examination of the People’s expert. Defendant
has abandoned on appeal her remaining allegation of ineffective
assistance of counsel (see generally People v Rivera, 117 AD3d 1475,
                                 -2-                          1153
                                                         KA 13-01022

1476, lv denied 23 NY3d 1024).

     We agree with County Court that the recent forensic evaluations
are not sufficient to establish that defense counsel was deficient in
failing to obtain any mental health experts to explain why defendant
provided multiple inconsistent versions of the events (see generally
People v Kot, 126 AD3d 1022, 1025, lv denied 25 NY3d 1203). We
conclude, however, that the court erred in denying defendant’s motion
without a hearing to the extent that defendant contended that defense
counsel was deficient in failing to utilize alleged nationally
recognized standards of fire investigation, either through the
testimony of an expert or to aid in the cross-examination of the
People’s expert. Specifically, defendant contends that the theory of
the People’s expert that the fire was intentionally started was
scientifically flawed based upon information contained in the NFPA 921
guide and that defense counsel’s failure to counter that opinion
constituted ineffective assistance of counsel.

     It is well established that “there may be cases in which a single
failing in an otherwise competent performance is so ‘egregious and
prejudicial’ as to deprive a defendant of [her] constitutional right
to a fair trial” (People v Turner, 5 NY3d 476, 480). We conclude that
defendant raised a factual issue whether defense counsel’s failure to
utilize information contained in the NFPA 921 guide, either through
expert testimony or during cross-examination, was unreasonable (see
People v Conway, 118 AD3d 1290, 1291). In our view, a hearing must be
held to determine whether the NFPA 921 guide was generally accepted in
New York State as authoritative at the time of the trial and whether
expert testimony was available. We therefore reverse the order and
remit the matter for a hearing in order for defendant to establish by
a preponderance of the evidence that defense counsel’s failure to
retain an expert or to utilize the information in the NFPA 921 guide
was not reasonable (see CPL 440.30 [6]). If defendant meets her
burden, then defense counsel will have an opportunity “to provide a
tactical explanation for the omission” of an expert witness and/or the
information contained in the NFPA 921 guide from the defense (People v
Dombrowski, 87 AD3d 1267, 1268 [internal quotation marks omitted]).




Entered:   November 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
