Opinion
2014-03-21
The PEOPLE of the State of New York, Respondent, v. JIAN LONG SHI, Appellant.
Goldberger & Dubin, P.C., New York City (Stacey Van Malden of counsel), for appellant. Thomas P. Zugibe, District Attorney, New York City (Carrie A. Ciganek of counsel), for respondent.
Goldberger & Dubin, P.C., New York City (Stacey Van Malden of counsel), for appellant. Thomas P. Zugibe, District Attorney, New York City (Carrie A. Ciganek of counsel), for respondent.
Present: NICOLAI, P.J., IANNACCI and TOLBERT, JJ.
ORDERED that the judgment of conviction is reversed, on the law, and the matter is remitted to the Justice Court for a new trial.
On at least 16 occasions during August and September 2010, defendant allegedly engaged in improper contact with an 11–year–old girl. After a jury trial, he was convicted of endangering the welfare of a child (Penal Law § 260.10 [1] ).
The Justice Court erred in permitting a detective, who had participated in approximately 50 investigations involving abuse of children, to testify, over defendant's objection, that based on his experience, after interviewing the victim, he found her to be credible. The detective's opinion should not have been admitted into evidence, as the victim's credibility was a matter that was exclusively within the province of the jury ( see People v. Allen, 222 A.D.2d 441, 442, 635 N.Y.S.2d 40 [1995];People v. Major, 154 A.D.2d 225, 226, 545 N.Y.S.2d 923 [1989];People v. Kampshoff, 53 A.D.2d 325, 330, 385 N.Y.S.2d 672 [1976];People v. Graydon, 43 A.D.2d 842, 843, 351 N.Y.S.2d 172 [1974];cf. People v. Butler, 2 A.D.3d 1457, 1458, 769 N.Y.S.2d 768 [2003] ). The error was not harmless, as the finding of guilt rested “squarely on the jury's assessment of the credibility of the victim and defendant” ( People v. Greene, 306 A.D.2d 639, 643, 760 N.Y.S.2d 769 [2003] ), and the proof of defendant's guilt was not overwhelming ( see People v. Robinson, 17 N.Y.3d 868, 870, 933 N.Y.S.2d 192, 957 N.E.2d 761 [2011] ). We note that defendant's objection to the detective's testimony on the ground that it “is something that is part of the Jury's province,” was sufficiently specific to preserve the issue for appellate review ( see People v. Chestnut, 19 N.Y.3d 606, 611 n. 4, 950 N.Y.S.2d 287, 973 N.E.2d 697 [2012];People v. Vincenty, 68 N.Y.2d 899, 508 N.Y.S.2d 938, 501 N.E.2d 587 [1986];People v. Smith, 28 Misc.3d 81, 83, 907 N.Y.S.2d 537 [App.Term, 9th & 10th Jud.Dists.2010] ).
The prosecutor extensively cross-examined defendant regarding his illegal entry into the United States, the potential effect of a criminal conviction on his application for political asylum, and whether he would do anything, including lie, to remain in the United States. Defendant's testimony was the only evidence presented in support of his defense. The jury had to determine his and the victim's credibility. Nevertheless, trial counsel failed to move for or seek a pre-trial Sandoval hearing or ruling ( see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 [1974] ), at which the Justice Court would have determined if the probative value of the evidence of prior bad acts outweighed its prejudicial effect. Defendant claims that, as a result, he was not afforded the effective assistance of counsel.
Generally, the failure to make a motion that has little or no chance of success does not constitute ineffective assistance ( see People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004] ), and the failure to make a potentially meritorious motion, including one for a pre-trial Sandoval hearing, does not necessarily constitute ineffective assistance ( see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988];People v. Cox, 146 A.D.2d 795, 796, 537 N.Y.S.2d 274 [1989] ). However, under the circumstances of this case, counsel's failure to move for a Sandoval hearing or ruling constitutes a single, egregious error that deprived defendant of the effective assistance of counsel ( see People v. Turner, 5 N.Y.3d 476, 480, 806 N.Y.S.2d 154, 840 N.E.2d 123 [2005];People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ). Measured by an objective standard of reasonableness, a reasonably competent attorney would have moved for a pretrial Sandoval hearing or ruling, and there was no strategic or other legitimate explanation for counsel's failure to do so ( see Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984];People v. Oathout, 21 N.Y.3d 127, 128, 967 N.Y.S.2d 654, 989 N.E.2d 936 [2013];People v. Turner, 5 N.Y.3d at 480, 806 N.Y.S.2d 154, 840 N.E.2d 123;People v. Caban, 5 N.Y.3d at 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;People v. Henry, 95 N.Y.2d 563, 566, 721 N.Y.S.2d 577, 744 N.E.2d 112 [2000] ). Defendant, “the only available source of testimony in support of his defense” ( People v. Mandigo, 176 A.D.2d 386, 387, 574 N.Y.S.2d 92 [1991] ), testified without the benefit of a Sandoval ruling ( see People v. Delgado, 101 A.D.3d 1144, 1146, 956 N.Y.S.2d 579 [2012];People v. Slide, 76 A.D.3d 1106, 1106–1108, 908 N.Y.S.2d 414 [2010];People v. Montoya, 63 A.D.3d 961, 962–963, 882 N.Y.S.2d 429 [2009]; People v. Langlois, 265 A.D.2d 683, 684–685, 697 N.Y.S.2d 360 [1999];People v. Mandigo, 176 A.D.2d at 387, 574 N.Y.S.2d 92). Moreover, a motion to prohibit cross-examination regarding defendant's illegal entry into the United States and his immigration status was potentially meritorious ( see People v. Perez, 40 A.D.3d 1131, 1132, 837 N.Y.S.2d 275 [2007];People v. Perez, 160 A.D.2d 637, 638, 553 N.Y.S.2d 755 [1990];People v. Torriente, 131 A.D.2d 793, 517 N.Y.S.2d 159 [1987];compare People v. Bravo, 154 A.D.2d 690, 546 N.Y.S.2d 892 [1989];People v. Garcia, 146 A.D.2d 584, 585, 536 N.Y.S.2d 834 [1989];People v. Ortero, 75 A.D.2d 168, 175, 428 N.Y.S.2d 965 [1980]; but see People v. Medina, 281 A.D.2d 563, 564, 721 N.Y.S.2d 829 [2001];People v. Caicedo, 173 A.D.2d 630, 570 N.Y.S.2d 215 [1991] ). Counsel could not have reasonably determined that it was so unlikely that the Justice Court would have granted a Sandoval hearing that it would have been futile to request it ( see People v. Heidgen, 22 N.Y.3d 259, 278, 980 N.Y.S.2d 320, 3 N.E.3d 657 [2013] ).
We note that defendant's counsel failed to object to portions of the prosecutor's summation that were replete with improper comments that vouched for the credibility of the victim and the other prosecution witnesses, repeatedly asserted that defendant was the only one who had a motive to lie, and sought to evoke sympathy for the victim ( see People v. Pagan, 2 A.D.3d 879, 880, 769 N.Y.S.2d 741 [2003];People v. Andre, 185 A.D.2d 276, 278, 585 N.Y.S.2d 792 [1992];People v. Blowe, 130 A.D.2d 668, 671, 515 N.Y.S.2d 812 [1987];People v. Ortiz, 125 A.D.2d 502, 503, 509 N.Y.S.2d 418 [1986];People v. Ostrow, 12 Misc.3d 69, 70–71, 819 N.Y.S.2d 378 [App.Term, 2d & 11th Jud.Dists.2006];see also People v. Bailey, 58 N.Y.2d 272, 277, 460 N.Y.S.2d 912, 447 N.E.2d 1273 [1983] ).
In view of the foregoing, we are of the opinion that a new trial is required. In light of our determination, we need not reach defendant's remaining contentions.
Accordingly, the judgment of conviction is reversed and the matter is remitted to the Justice Court for a new trial.