People v. Borcyk

• Decision Date: 12 June 2020
• Docket Number: 1216,KA 19-00307
• Citation: 125 N.Y.S.3d 517,184 A.D.3d 1183
• Parties: The PEOPLE of the State of New York, Respondent, v. Gregory BORCYK, Defendant-appellant.
• Court: New York Supreme Court — Appellate Division

184 A.D.3d 1183

125 N.Y.S.3d 517

The PEOPLE of the State of New York, Respondent,

v.Gregory BORCYK, Defendant-appellant.

1216

KA 19-00307

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

Entered: June 12, 2020

EDELSTEIN & GROSSMAN, NEW YORK CITY (JONATHAN I. EDELSTEIN OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF COUNSEL), FOR RESPONDENT.

PRESENT: CARNI, J.P., LINDLEY, CURRAN, WINSLOW, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is reversed on the law, the motion is granted, the judgment of conviction is vacated, and a new trial is granted.

Memorandum: Defendant was previously convicted after a jury trial of murder in the second degree ( Penal Law § 125.25 [1] ). He appealed, and this Court affirmed ( People v. Borcyk , 60 A.D.3d 1489, 876 N.Y.S.2d 287 [4th Dept. 2009], lv denied 12 N.Y.3d 923, 884 N.Y.S.2d 704, 912 N.E.2d 1085 [2009] ). Defendant thereafter moved to vacate the judgment of conviction. County Court denied the motion without a hearing. This Court reversed that order and remitted the matter for a hearing on the motion insofar as it sought to vacate the judgment of conviction on the grounds of ineffective assistance of counsel and actual innocence ( People v. Borcyk , 161 A.D.3d 1529, 1530, 77 N.Y.S.3d 242 [4th Dept. 2018] ). Defendant now appeals by permission of this Court from an order denying his motion after a hearing.

Initially, we reject defendant's contention that he established his claim of actual innocence by clear and convincing evidence (see People v. Hamilton , 115 A.D.3d 12, 26-27, 979 N.Y.S.2d 97 [2d Dept. 2014] ; see generally CPL 440.10 [1] [h] ; People v. Conway , 118 A.D.3d 1290, 1290, 988 N.Y.S.2d 337 [4th Dept. 2014] ).

We agree with defendant, however, that the court erred in denying the motion with respect to defendant's claim that he received ineffective assistance of counsel, and we therefore reverse the order, grant the motion to vacate the judgment of conviction on the ground of ineffective assistance of counsel, and grant defendant a new trial.

"What constitutes effective assistance is not and cannot be fixed with yardstick precision, but varies according to the unique circumstances of each representation" ( People v. Baldi , 54 N.Y.2d 137, 146, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ; see People v. Benevento , 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ). "The core of the inquiry is whether defendant received ‘meaningful representation’ " ( Benevento , 91 N.Y.2d at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ). "[T]o prevail on a claim of ineffective assistance, [a] defendant[ ] must demonstrate that [he or she was] deprived of a fair trial by less than meaningful representation; a simple disagreement with strategies, tactics or the scope of possible cross-examination, weighed long after the trial, does not suffice" ( id. at 713, 674 N.Y.S.2d 629, 697 N.E.2d 584 [internal quotation marks omitted] ). Thus, "it is incumbent on [a] defendant to demonstrate the absence of strategic or other legitimate explanations for defense counsel's allegedly deficient conduct" ( People v. Atkins , 107 A.D.3d 1465, 1465, 967 N.Y.S.2d 318 [4th Dept. 2013], lv denied 21 N.Y.3d 1040, 972 N.Y.S.2d 537, 995 N.E.2d 853 [2013] [internal quotation marks omitted]; see People v. Bank , 124 A.D.3d 1376, 1377, 1 N.Y.S.3d 687 [4th Dept. 2015], affd 28 N.Y.3d 131, 42 N.Y.S.3d 651, 65 N.E.3d 680 [2016] ; People v. Young , 167 A.D.3d 1448, 1449, 89 N.Y.S.3d 800 [4th Dept. 2018], lv denied 33 N.Y.3d 1036, 102 N.Y.S.3d 499, 126 N.E.3d 149 [2019] ). It is well settled that "[t]he failure to investigate or call exculpatory witnesses may amount to ineffective assistance of counsel" ( People v. Mosley , 56 A.D.3d 1140, 1140-1141, 867 N.Y.S.2d 289 [4th Dept. 2008] ; see People v. Pottinger , 156 A.D.3d 1379, 1380, 67 N.Y.S.3d 746 [4th Dept. 2017] ).

In support of his motion, defendant contended that defense counsel was ineffective because he failed to secure the presence of a witness who had potentially exculpatory information. In particular, defendant contended that defense counsel spoke, prior to trial, with a witness who represented that she would testify, among other things, that her former boyfriend had admitted to her that he killed the victim. According to defendant, although the witness's testimony would have supported the defense presented at trial and although defense counsel stated his intent to call the witness, when the witness did not appear at trial, defense counsel inexplicably failed to pursue available means for securing her attendance.

Under the circumstances of this case, we conclude that defendant met his burden of establishing that defense counsel's failure to secure the presence of the witness constituted ineffective assistance of counsel inasmuch as the record before us reflects "the absence of strategic or other legitimate explanations for defense counsel's allegedly deficient conduct" ( Atkins , 107 A.D.3d at 1465, 967 N.Y.S.2d 318 [internal quotation marks omitted]; see generally CPL 440.30 [6] ). Importantly, this is not a case where we must speculate about defense counsel's trial strategy. Throughout defendant's trial, defense counsel pursued a theory that one or more members of a group of three men, which included the witness's former boyfriend, killed the victim and moved her body to the wooded area in which it was ultimately discovered. Indeed, evidence at trial included the statement of a man who saw the three men, who appeared to be engaged in a drug sale, enter the victim's home. He later saw two of the men emerge with an item that appeared to be the victim's body, which they placed into the trunk of the car that they drove away. Additionally, the sperm of the witness's former boyfriend was recovered from a shirt inside of the victim's home, and it was stipulated at trial that, at the time of the murder, the witness's former boyfriend was dating the victim.

Consistent with the theory defendant presented at trial, the witness testified at the CPL article 440 hearing that, although she did not know the victim, her former boyfriend told her prior to defendant's trial that he was a suspect in the victim's murder but did not believe that he would be charged. The witness explained that some time later, but also prior to defendant's trial, that boyfriend broke into her home and attempted to strangle her and that, during this incident, he recorded himself on a tape recorder, stating his name, date of birth, and social security number, and saying, "yeah, I killed that bitch," although the witness did not know what happened to the tape recorder. She further testified that the boyfriend stated that he killed the victim and left her body in a wooded area.

Moreover, at the time of the trial, defense counsel explicitly informed the court, on the record, that his strategy was to call the witness and present her exculpatory testimony. In this regard, defense counsel stated, "[t]here's one other issue that may or may not come up ... [that has] to do with [the witness]. [The witness] had a conversation with her then-boyfriend ... who had been the boyfriend of [the victim] where [the boyfriend] made a tape recording of his voice, identifying his name, his date of birth and his social security number, and indicated there that he killed [the victim]. His words were ‘I killed the bitch. I killed the bitch. I killed the bitch.’ And that is the substance of a police report that I received from [the prosecutor]." When the court asked how defense counsel intended to introduce this testimony, he responded, "[w]ell, I intend to call [the witness], should she appear in court. She was subpoenaed. She appeared on Thursday pursuant to the subpoena as well and told me this information for the first time. I don't know whether she's going to be here when we need to call her, which is why I thought maybe we'd wait and see if she showed up and not take the Court's time to do extra research on this issue. But since you've asked me to bring up any possible issues, I would put her on the witness stand and make an offer of proof to the Court and attempt to prove her reliability of the information that she's giving under the Settles case relating to a statement against [the boyfriend's] penal interest." When the court then asked whether "[the witness's] testimony would relate to this particular homicide," defense counsel responded, "Oh yes. Yes." Nevertheless, and consistent with defense counsel's representation that he would pursue the testimony only if the witness appeared as directed, defense counsel took no further action to secure the witness's presence when she did not appear (see Borcyk , 161 A.D.3d at 1531, 77 N.Y.S.3d 242 ). We agree with defendant that the failure to secure the witness's attendance was deficient conduct and that the record discloses no tactical reason for defense counsel's actions (see generally People v. Dombrowski , 94 A.D.3d 1416, 1417, 942 N.Y.S.2d 830 [4th Dept. 2012], lv denied 19 N.Y.3d 959, 950 N.Y.S.2d 111, 973 N.E.2d 209 [2012] ).

In so holding, we reject the determination of the court, following the CPL article 440 hearing, that defense counsel may have legitimately decided against calling the witness because he deemed her incredible. To the contrary, the record affirmatively establishes that, even after meeting with and speaking to the witness, defense counsel stated that he intended to call her as a witness. We note that defense counsel could not be located to testify at the CPL article 440 hearing, although the record reflects that he previously informed the parties that he could no longer recall defendant's trial.

The dissent's focus on the court's determination that the witness was not credible is misplaced. The hearing on defendant's CPL article 440 motion took place years after both the events described by the witness and the alleged instance of...