People v. Nichols

• Decision Date: 06 December 2001
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>WILLIAM F. NICHOLS, Appellant.
• Court: New York Supreme Court — Appellate Division

289 A.D.2d 605

733 N.Y.S.2d 778

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.WILLIAM F. NICHOLS, Appellant.

Spain, J.

Decided December 6, 2001.

Cardona, P. J., Peters, Carpinello and Mugglin, JJ., concur.

Spain, J.

On October 23, 1996, defendant was charged in an indictment with four counts of rape in the second degree, seven counts of rape in the third degree and one count of sexual abuse in the third degree for acts committed against the victim on 11 separate dates between July 1992 and May 1996. As relevant to this appeal, the victim testified at trial that on March 19, 1993, defendant picked her up from school and drove to the hospital so they could visit with her mother, who had just given birth to a baby girl. At approximately 7:00 P.M., defendant and the victim left the hospital and went home, and at approximately 10:00 P.M., defendant told her that he wanted to have intercourse with her and that no one would know since they were alone in the house. Thereafter, defendant had intercourse with the victim. Following a jury trial, defendant was found guilty as charged. Defendant was sentenced as a second felony offender to prison terms of 3½ to 7 years for two convictions of rape in the second degree, 2 1/3 to 7 years for the remaining two convictions of rape in the second degree and 1 1/3 to 4 years for his four convictions of rape in the third degree, as well as 90 days in jail for his conviction of sexual abuse in the third degree, each term to be served consecutively. On direct appeal, this Court affirmed the judgment of conviction (257 AD2d 851, lv denied 93 NY2d 901).

Thereafter, defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction on the ground that he was denied the effective assistance of counsel because his counsel failed to investigate witnesses and pursue an alibi defense. County Court withheld decision concluding that defendant had "failed to substantiate his motion with sworn allegations of fact and relie[d] instead on bare conclusory allegations as to the existence of alibi witnesses and other exculpatory evidence," and directed defendant to submit affidavits from those alibi witnesses that he was claiming counsel should have called at trial. Pursuant to that directive, defendant provided only the affidavit of his mother and the names of four other witnesses who failed or refused to provide affidavits. After County Court denied defendant's CPL 440.10 motion, defendant moved to reargue asserting that his mother had been willing to testify at trial but his counsel had told her that the court would not allow her testimony. County Court granted the motion to reargue and held a hearing to further develop the record on this point. Following a hearing at which defendant's mother and his former counsel testified, the court again denied defendant's motion, finding that the mother's testimony contained inconsistencies and discrepancies and appeared to have been "either * * * manufactured or imagined to be true" and counsel's failure to call her at trial did not deprive defendant of meaningful representation. This Court granted defendant permission to appeal, and we affirm.

Defendant argues that no trial strategy justified defense counsel's failure to call defendant's mother as a witness. This Court cannot agree that defense counsel failed to provide effective assistance, as the transcript and submissions viewed objectively reveal the existence of a strategy that may have been pursued by a reasonably competent attorney (see, People v Satterfield, 66 NY2d 796, 799). Notably, while defense counsel's subjective reasons for the strategy choice are immaterial to this analysis (see, id.), County Court's first-hand observations that defendant's mother's testimony—which pertained only to count three of the lengthy indictment—was of doubtful credibility and accuracy belies defendant's claim...