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

1009
KA 10-01955
PRESENT: FAHEY, J.P., PERADOTTO, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KHARYE JARVIS, DEFENDANT-APPELLANT.


WILLIAM G. PIXLEY, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Charles T.
Maloy, J.), rendered October 28, 1992. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree (two
counts).

     It is hereby ORDERED that the judgment so appealed from is
reversed on the law and a new trial is granted.

     Memorandum: Following a jury trial in 1991, defendant was
convicted of two counts of murder in the second degree (Penal Law §
125.25 [1]), and we affirmed the judgment of conviction on direct
appeal (People v Jarvis, 202 AD2d 1036, lv denied 83 NY2d 968). In
2012, defendant moved for a writ of error coram nobis in this Court,
asserting that appellate counsel was ineffective in failing to raise
an issue on direct appeal that would have resulted in reversal, i.e.,
failing to argue ineffective assistance of trial counsel. We granted
the writ and vacated our prior order (People v Jarvis, 98 AD3d 1323,
lv denied 20 NY3d 1012), and we now consider the appeal de novo.
Defendant’s sole contention is that he is entitled to a new trial
because he was deprived of effective assistance of counsel. We agree.

     The right to effective assistance of counsel is guaranteed by
both the Federal and State Constitutions (US Const, 6th Amend; NY
Const, art I, § 6). The constitutional requirement is met provided
that the evidence, the law, and the circumstances of a particular
case, viewed in totality and as of the time of the representation,
reveal that the attorney provided meaningful representation (see
People v Baldi, 54 NY2d 137, 147). In reviewing claims of ineffective
assistance of counsel, our concern is to avoid “confusing true
ineffectiveness with mere losing tactics and according undue
significance to retrospective analysis” (id. at 146). As long as
there was a “reasonable and legitimate strategy under the
circumstances and evidence presented, even if unsuccessful, [the
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representation] will not fall to the level of ineffective assistance”
(People v Benevento, 91 NY2d 708, 712-713). It is “ ‘incumbent on
defendant to demonstrate the absence of strategic or other legitimate
explanations’ ” for counsel’s alleged failures (id. at 712, quoting
People v Rivera, 71 NY2d 705, 709; see People v Roundtree, 75 AD3d
1136, 1138, lv denied 15 NY3d 855). “[I]t is well settled that
disagreement over trial strategy is not a basis for a determination of
ineffective assistance of counsel” (People v Dombrowski, 94 AD3d 1416,
1417, lv denied 11 NY3d 924; see People v Henry, 74 AD3d 1860, 1862,
lv denied 15 NY3d 852; see generally Benevento, 91 NY2d at 712-714).
As the Court of Appeals recently observed, “[c]ounsel’s performance
must be evaluated to determine whether the tactics and strategies were
consistent with . . . [t]he test [of] ‘reasonable competence’ ”
(People v Oathout, 21 NY3d 127, 128). While perfect representation is
not required, “that test cannot be so weak as to deny a defendant
adequate due process” (id. at 128-129).

     In our view, defense counsel committed two serious errors that
rendered his representation ineffective. The first error, which was
sufficiently egregious by itself to deny defendant a fair trial, was
defense counsel’s inexplicable failure to object to testimony that he
had successfully sought to preclude. Defense counsel obtained a
ruling from County Court precluding the People, on their direct case,
from questioning a certain prosecution witness about an alleged threat
by defendant that he would shoot her if she “knew what happened” with
respect to the murders herein. Nevertheless, defense counsel failed
to object or move for a mistrial when the prosecutor, on the People’s
direct case, elicited that very testimony from the witness. We
conclude that “defendant has demonstrated the absence of any strategic
or other legitimate explanation for his attorney’s” failure to object
to the introduction of this prejudicial and previously precluded
testimony (People v Cleophus, 81 AD3d 844, 846). Moreover, after
defense counsel failed to object to the admission of that precluded
testimony, the prosecutor continued to use that testimony to full
advantage, arguing on summation that the threat to the prosecution
witness “puts the [d]efendant [at the crime scene] just as easily as
any person you saw in there” (People v Webb, 90 AD3d 1563, 1564-1565,
amended 92 AD3d 1268). Defense counsel’s error in failing to object
to the testimony of the prosecution witness “simply cannot be
construed as a misguided though reasonably plausible strategy
decision” (id. at 1564; see People v Jeannot, 59 AD3d 737, 737, lv
denied 12 NY3d 916; People v Ofunniyin, 114 AD2d 1045, 1046-1047), and
“ ‘is sufficiently serious to have deprived defendant of a fair
trial’ ” (Webb, 90 AD3d at 1564).

     Compounding the above error was defense counsel’s use of a flawed
alibi defense. “[I]t is generally acknowledged that an attempt to
create a false alibi constitutes evidence of the defendant’s
consciousness of guilt” (Henry v Poole, 409 F3d 48, 65, cert denied
547 US 1040 [internal quotation marks omitted]). “ ‘If the
prosecution can establish the falsity of an alibi . . . , [a
defendant’s] case is as good as lost’ ” (id.). 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
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                                                         KA 10-01955

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. After the mother first incorrectly
identified June 4th as a Friday on direct examination, defense counsel
compounded her error by asking, “Ten minutes to two Friday morning?
That would have been June 4th?,” to which the mother responded, “Yes.”
On cross-examination, the mother testified that defendant was at her
home on the evening of Friday, June 3rd, and that the following day
was Saturday, June 4th. The prosecutor further emphasized the
mother’s mistake by asking her about other events that occurred on
those days, including a television show that she watched on Friday
night and a birthday party for her twin granddaughters held that
Saturday. On rebuttal, the People called a witness who established
that the subject television program did in fact air on Friday night
and not Monday night. The cross-examination of defendant’s girlfriend
with respect to defendant’s alibi also established the girlfriend’s
mistaken belief that June 3rd was a Friday and that June 4th was a
Saturday. The court granted the People’s request to take judicial
notice of the fact that June 3, 1991 was a Monday and June 4, 1991 was
a Tuesday, which further highlighted for the jury that defendant’s
alibi witnesses had given erroneous testimony. We note, too, that the
People took full advantage of the poorly-presented alibi defense
during summation, denigrating it as a “Hollywood charade.”

     Presenting an alibi defense for the wrong date or time has been
found, by itself, to constitute ineffective assistance of counsel (see
People v Cabrera, 234 AD2d 557, 558; People v Long, 81 AD2d 521, 521-
522; see also Henry, 409 F3d at 65-66). We conclude that presenting
an alibi defense for the wrong day of the week, as occurred here,
similarly constitutes ineffective assistance of counsel inasmuch as
offering patently erroneous alibi testimony cannot be construed as a
plausible strategy (see Webb, 90 AD3d at 1564).

     In light of the two serious errors of defense counsel, we reverse
the judgment of conviction and grant a new trial.

     All concur except VALENTINO and WHALEN, JJ., who dissent and vote
to affirm in the following Memorandum: We respectfully dissent. We
disagree with the majority’s conclusion that defendant was deprived of
effective assistance of counsel, and we therefore would affirm the
judgment of conviction.

     First, we cannot agree with the majority that defense counsel was
ineffective for failing to object when the prosecutor elicited
testimony from a certain prosecution witness that defendant threatened
her, despite County Court’s pretrial ruling precluding such testimony.
In our view, defendant failed to meet his burden of establishing the
absence of a strategic or other legitimate explanation for defense
counsel’s failure to object to that testimony (see People v Benevento,
91 NY2d 708, 712; People v Rivera, 71 NY2d 705, 709; see also People v
Baker, 14 NY3d 266, 270-271; People v Atkins, 107 AD3d 1465, 1465, lv
denied 21 NY3d 1040). For instance, defense counsel may have decided
not to object in order to avoid focusing the jury’s attention on the
testimony of the witness (see People v Taylor, 1 NY3d 174, 177); he
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may have sought to use the testimony of the witness to defendant’s
advantage by calling attention to her inability to recall the threat,
rather than requesting that the court strike her testimony and give a
curative instruction; or, he may have made a tactical decision to
allow the prosecutor to elicit testimony concerning the threat on
direct examination rather than on rebuttal, if defense counsel
suspected that he might be forced to open the door to the testimony on
cross-examination of the witness.

     We further disagree with the majority’s conclusion that defendant
met his burden of establishing the absence of strategic or other
legitimate explanations for defense counsel’s decision to present an
alibi defense through the testimony of defendant’s girlfriend and
mother (see generally Benevento, 91 NY2d at 712). We conclude that
the cases relied upon by the majority—People v Cabrera (234 AD2d 557,
558) and People v Long (81 AD2d 521, 521-522)—do not compel reversal
in the instant case. In those cases, the alibi witnesses testified to
being with the respective defendants 18 to 24 hours after the time of
the crimes therein. Consequently, in each case, the attorney for the
defendant knew that such alibi testimony was not probative on the
issue of defendant’s innocence.

     Here, defense counsel called three witnesses whose testimony on
direct examination established an alibi for defendant for the time of
the crime. On cross-examination, the prosecutor showed a single
discrepancy in the alibi defense, i.e., that the television show that
defendant was purportedly watching, according to the testimony of one
of the three alibi witnesses, was not airing at the time that the
witness specified. We note, however, that the remaining two alibi
witnesses did not tie their testimony to the television show. Thus,
in our view, the prosecutor did not conclusively establish that the
alibi was false; rather, that was an issue for the jury to resolve.
Given those circumstances, we cannot conclude that defense counsel’s
presentation of the alibi defense through the three alibi witnesses
constitutes ineffective assistance of counsel (see People v Johnson,
30 AD3d 1042, 1043, lv denied 7 NY3d 790, reconsideration denied 7
NY3d 902; People v Channer, 222 AD2d 1023, 1023). Under the
majority’s analysis, defense counsel would have to be prescient to
know that the prosecutor was going to cross-examine one of the
witnesses with respect to the television show and then establish that
the witness was incorrect about the time that it aired. We refuse to
hold defense counsel to such a standard.

     Defense counsel’s otherwise impressive representation contradicts
defendant’s contention that he was denied effective assistance of
counsel. Defense counsel thoroughly cross-examined the witnesses and
presented a unified defense theory, with the result that the jury was
compelled to deliberate for an extended period of time despite strong
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evidence incriminating defendant.




Entered:   January 3, 2014                Frances E. Cafarell
                                          Clerk of the Court
