People v. Caldavado

• Decision Date: 23 November 2015
• Docket Number: No. 162,162
• Citation: 26 N.Y.3d 1034,2015 N.Y. Slip Op. 08614,43 N.E.3d 369,22 N.Y.S.3d 159
• Parties: The PEOPLE of the State of New York, Respondent, v. Alma CALDAVADO, Also Known as Alma Calderaro, Appellant.
• Court: New York Court of Appeals Court of Appeals

26 N.Y.3d 1034
43 N.E.3d 369
22 N.Y.S.3d 159
2015 N.Y. Slip Op. 08614

The PEOPLE of the State of New York, Respondent
v.
Alma CALDAVADO, Also Known as Alma Calderaro, Appellant.

No. 162

Court of Appeals of New York.

Nov. 23, 2015.

Mark M. Baker, New York City, for appellant.

Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano, Robert J. Masters, Nicoletta J. Caferri and William H. Branigan of counsel), for respondent.

Fried, Frank, Harris, Shriver & Jacobson LLP, New York City (David B. Hennes, Nathan M. Erickson and Michael P. Sternheim of counsel), Seth Miller, Innocence Network, Tallahassee, Florida (Katherine Judson of counsel), and Dana M. Delger and M. Chris Fabricant, New York City, for Innocence Network, amicus curiae.

Thomas R. Villecco, Jericho, Mark Fernich, New York State Association of Criminal Defense Lawyers, New York City, and Richard Willstatter, National Association of Criminal Defense Lawyers, White Plains, for National Association of Criminal Defense Lawyers and another, amici curiae.

Gerald F. Mollen, Benjamin E. Rosenberg and Jamie Masten for District Attorneys Association of the State of New York, amicus curiae.

OPINION OF THE COURT

MEMORANDUM.

43 N.E.3d 370

The order of the Appellate Division should be reversed, and the case remitted to Supreme Court for further proceedings in accordance with this memorandum.

In 2006, defendant was charged with assault in the first degree (Penal Law § 120.10[3] ) and endangering the welfare of a child (Penal Law § 260.10 [1] ), in connection with injuries sustained by a seven-month-old infant in her care. At defendant's trial in 2009, the People's theory was that the infant suffered from shaken baby syndrome (SBS) after defendant violently shook her. The People called 13 medical professionals in support of their case, nine of whom testified as expert witnesses. Defense counsel, relying on a 1 ½–page opinion by a physician, challenged the People's witnesses through cross-examination

by suggesting that the victim's injuries were caused by a “re-bleed” of an earlier trauma. Defense counsel did not, however, present any expert testimony at trial to contradict the SBS diagnosis proffered by the People's witnesses. Following deliberations, defendant was found guilty of both charges. Upon her subsequent appeal, the Appellate Division affirmed (78 A.D.3d 962, 963, 910 N.Y.S.2d 673 [2d Dept.2010], lv. denied 16 N.Y.3d 829, 921 N.Y.S.2d 193, 946 N.E.2d 181 [2011] ).

In 2012, defendant moved, pursuant to CPL 440.10(1)(g) and (h), for an order vacating her conviction on the grounds of newly discovered evidence, ineffective assistance of counsel, and actual innocence. Supreme Court denied defendant's motion without an evidentiary hearing, and the Appellate Division affirmed (116 A.D.3d 877, 877, 983 N.Y.S.2d 410 [2d Dept.2014] ). A Judge of this Court granted defendant leave to appeal (23 N.Y.3d 1060, 994 N.Y.S.2d 319, 18 N.E.3d 1140 [2014] ), and we now reverse.

On this record, defendant established that “there were sufficient questions of fact as to whether [counsel] had an adequate explanation” for his failure to pursue certain...