Opinion
July 29, 1996
Appeal from the Supreme Court, Queens County (Appelman, J.).
Ordered that the order is reversed, on the law, the defendant's motion is granted, the judgment is vacated, so much of the decision and order of this Court, dated January 30, 1995, as affirmed the judgment of conviction, is recalled and vacated, and the matter is remitted to the Supreme Court, Queens County, for a new trial.
The defendant contends that he was deprived of the effective assistance of trial counsel by his counsel's failure to present witnesses who would have testified in support of an alibi defense, that the defendant's physical condition was such as to render it less likely that he was one of the perpetrators. On this record, it cannot be said that the failure to present the potential alibi witnesses constituted ineffective assistance of counsel. The Supreme Court credited the testimony that the potential alibi witnesses could not tell trial counsel with certainty that they were with the defendant on the day the crime for which he was convicted was committed. The Supreme Court's factual findings on this issue will not be disturbed on appeal (see, People v. Castaneda, 198 A.D.2d 292). Therefore, given the weaknesses in the potential alibi defense, it appears that trial counsel had a valid tactical reason for failing to present an alibi defense at trial (see, People v. Norris, 108 A.D.2d 760).
However, there appears to be no valid tactical reason for trial counsel's failure to present witnesses and other evidence which indicated that injuries the defendant had suffered as a result of a recent motorcycle accident made it unlikely that he committed the crime for which he was convicted (see, People v. Donovan, 184 A.D.2d 654). Therefore, the judgment of conviction must be vacated and the defendant is granted a new trial. Bracken, J.P., Copertino, Pizzuto and Hart, JJ., concur.