People v. Wiley

• Decision Date: 10 November 1986
• Parties: PEOPLE of the State of New York, Respondent, v. Nicholas WILEY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 928

507 N.Y.S.2d 928

120 A.D.2d 66

PEOPLE of the State of New York, Respondent, v. Nicholas WILEY, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Nov. 10, 1986.

Gerald T. Barth, Syracuse (James P. Maxwell, of counsel), for appellant.

Richard A. Hennessy, Jr., Dist. Atty., Syracuse (John A. Cirando and Marine A. MacPherson, of counsel), for respondent.

Before DILLON, P.J., and CALLAHAN, DOERR, BOOMER and SCHNEPP, JJ.

SCHNEPP, Justice.

Although defendant raises several issues on this appeal from a judgment convicting him of burglary in the first degree (Penal Law § 140.30[2] ), we address primarily his contention that he was denied the effective assistance of counsel. We conclude that the ineffectiveness of his assigned counsel is clearly demonstrated on the record and that his conviction must be reversed and a new trial ordered.

Defendant was convicted under a multi-count indictment which charged that on June 7, 1983 he entered the home of 66-year-old Doris Lando, struck her several times in the head with a hammer, cut her telephone line and stole cash and other property from her person and house. The victim was seriously injured in the attack.

The facts adduced at trial reflect that the victim was slightly acquainted with defendant prior to the attack. She identified him out of a lineup and at trial as her assailant. The other possible witness to the attack, John Dilderback, an itinerant handyman known to the victim as "Stretch" and employed by her to fix a leak in her roof, was not called to testify at the trial. Defendant denied any knowledge of the incident and testified in his own behalf that he was at a friend's house when the victim was attacked and his friend's mother, Ruby Sewell, testified in support of his claim.

The victim testified that when she was attacked she screamed for Stretch who was then working on her roof and as he came into the house defendant ran out the back door. Stretch called the police who, after they interviewed him at the scene, began a search for defendant whom they located and arrested that evening.

The theories of the defense were misidentification and alibi. The only evidence of defendant's guilt came from the testimony of the victim. The testimony of defendant and Ruby Sewell that defendant was at Sewell's house around the time of the crime clearly presented an alibi defense. Alibi testimony does not have to show that it would have been impossible for the defendant to have committed the crime and need not cover the whole time of the transaction in question; it is enough that it renders guilt merely improbable (People v. Barbato, 254 N.Y. 170, 178-179, 172 N.E. 458). If defendant produces proof in support of a plausible alibi he is entitled to an alibi charge (see, People v. Bacon, 84 A.D.2d 680, 446 N.Y.S.2d 634; People v. Bruno, 77 A.D.2d 922, 431 N.Y.S.2d 106). When sufficient evidence of alibi is presented, it "is treated for practical purposes the same as a statutory 'defense' under subdivision 1 of section 25.00 of the Penal Law * * * Thus, the People have the burden of disproving an alibi beyond a reasonable doubt, and a Judge must unequivocally state that burden in the jury charge" (People v. Victor, 62 N.Y.2d 374, 377-378, 477 N.Y.S.2d 97, 465 N.E.2d 817). If the alibi charge is properly requested and not given or the failure to include a warranted alibi charge is duly protested so that the issue is preserved for appellate review as a matter of law (CPL 470.05[2] ), the conviction should be reversed (see, People v. Holt, 67 N.Y.2d 819, 501 N.Y.S.2d 641, 492 N.E.2d 769; People v. Victor, 62 N.Y.2d 374, 477 N.Y.S.2d 97, 465 N.E.2d 817, supra; see also, People v. Grant, 84 A.D.2d 793, 444 N.Y.S.2d 19). Here defense counsel failed to request an alibi instruction or to object to the charge and thus failed to preserve this issue for our review as a matter of law (see, People v. Thomas, 50 N.Y.2d 467, 429 N.Y.S.2d 584, 407 N.E.2d 430; People v. Spruill, 103 A.D.2d 785, 477 N.Y.S.2d 424). Although the conviction could be reversed in the interest of justice (CPL 470.15[6][a] ) if the circumstances of this case warranted, we need not reverse as a matter of discretion since we hold that on these facts defendant was denied effective assistance of counsel. Defense counsel's error, which cannot be explained by reference to any discernible trial strategy, has led directly to a waiver of reversible error and denied defendant meaningful representation of counsel (see, e.g., Commonwealth v. Nauman, 345 Pa.Super. 457, 498 A.2d 913; Commonwealth v. Brunner, 341 Pa.Super. 64, 491 A.2d 150). Moreover, if the alibi charge had been given, in our view, there is a reasonable probability of a different result inasmuch as the evidence of guilt is not overwhelming.

At the trial defense counsel called a licensed New York State private investigator who testified that he had been requested by counsel to conduct an investigation concerning "Stretch". In the absence of the jury, defense counsel offered to prove Stretch's identity, his Syracuse Police Department criminal record and then whereabouts in Watertown. It would appear from statements made by defense counsel at the sentencing that he had then made known to the court that Stretch was known by two separate names and had two separate "rap sheets", that a pending Onondaga County criminal charge then existed, and that Stretch "was in fact still within the jurisdiction of this particular trial court, to wit, Jefferson County."

The prosecutor, who opposed the offer of proof as immaterial since Stretch had not been called as a witness, advised the court that he had no idea where the witness was and indicated that an Investigator Stapleton of the District Attorney's office had made unsuccessful efforts to locate Stretch and subpoena him for the trial. The prosecutor indicated that Stretch informed him, when they met at the Grand Jury, that he was from Montana, had grown up there, and had only been in Syracuse a relatively short period of time. Assuming, however, that the prosecutor was unaware of this witness' whereabouts until defense counsel revealed that he had located him in Watertown, no attempt was then made by the District Attorney to subpoena him, notwithstanding the trial court's offer to adjourn the trial for the purpose of calling Stretch as a witness. Since defense counsel did not seek an explanation for the prosecutor's failure to follow up on his information and subpoena Stretch, we can only speculate as to the prosecutor's motives in not producing Stretch as his witness. In this regard we note that an affidavit made in opposition to defendant's omnibus motion avers that defendant and "eyewitness John Dilderback may have together burglarized a music store in Syracuse earlier [in 1983]" and that the police had information predating the crime that "the defendant and several other youths, including one named 'Stretch' had plotted to rob an old woman who lived in the 300 block of Kellogg Street".

Although defense counsel considered Stretch a key witness who had identified defendant to the police and was frustrated in his ill-conceived efforts to impeach his credibility, he inexplicably failed to request an unfavorable inference charge when the prosecutor did not produce Stretch or explain...