Opinion
581 KA 18–00728
08-22-2019
The PEOPLE of the State of New York, Respondent, v. Shala WILLIAMS, Defendant–Appellant. (Appeal No. 2.)
JOHN R. LEWIS, SLEEPY HOLLOW, FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
JOHN R. LEWIS, SLEEPY HOLLOW, FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously reversed on the law and the matter is remitted to Onondaga County Court for a hearing pursuant to CPL 440.30(5) in accordance with the following memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, murder in the second degree ( Penal Law § 125.25[1] ). In appeal No. 2, defendant appeals from an order denying his CPL 440.10 motion to vacate the judgment of conviction on the ground of ineffective assistance of counsel.
Defendant contends in appeal No. 1 that County Court (Fahey, J.) erred in determining, following a Sirois hearing, that the People "demonstrate[d] by clear and convincing evidence that [he] engaged in misconduct aimed at least in part at preventing [a] witness from testifying and that those misdeeds were a significant cause of the witness's decision not to testify" ( People v. Smart , 23 N.Y.3d 213, 220, 989 N.Y.S.2d 631, 12 N.E.3d 1061 [2014] ) and that, consequently, the court erred in permitting the prosecution to elicit testimony concerning hearsay statements attributed to that witness in its direct case (see generally People v. Geraci , 85 N.Y.2d 359, 365–367, 625 N.Y.S.2d 469, 649 N.E.2d 817 [1995] ; People v. Vernon , 136 A.D.3d 1276, 1277–1278, 25 N.Y.S.3d 755 [4th Dept. 2016], lv. denied 27 N.Y.3d 1076, 38 N.Y.S.3d 846, 60 N.E.3d 1212 [2016] ). We reject that contention. The court found that the witness, while testifying at the Sirois hearing, appeared "agitated, anxious, uncomfortable and evasive." The court also credited the testimony of a law enforcement officer that, according to the witness, defendant confronted the witness with a photograph of that witness approximately one week prior to trial and informed him that defendant was aware of the witness's upcoming testimony, and the witness asserted afterward that he would not testify. We further reject defendant's contention that the hearsay statement attributed to the witness at trial regarding defendant's purported admission to him was "so devoid of reliability as to offend due process" ( People v. Cotto , 92 N.Y.2d 68, 78, 677 N.Y.S.2d 35, 699 N.E.2d 394 [1998] ).
Contrary to defendant's additional contention, he is not entitled to a new trial based on an alleged Rosario violation. Defendant failed to identify the "written or recorded statement" that the People allegedly withheld ( CPL 240.45[1][a] ), and his speculation that law enforcement notes of a specific witness interview may exist is improperly raised for the first time in his reply brief (see generally People v. Smith , 147 A.D.3d 1527, 1529, 48 N.Y.S.3d 563 [4th Dept. 2017], lv denied 29 N.Y.3d 1087, 64 N.Y.S.3d 176, 86 N.E.3d 263 [2017] ).
With respect to appeal No. 2, however, we agree with defendant that the court (Dougherty, J.) erred in denying his CPL 440.10 motion without a hearing. The issue whether counsel failed to file an alibi notice or adequately investigate and utilize potentially exculpatory witnesses involves matters outside the record on direct appeal (see People v. Conway , 118 A.D.3d 1290, 1291, 988 N.Y.S.2d 337 [4th Dept. 2014] ; see also People v. Blocker , 132 A.D.3d 1287, 1287–1288, 17 N.Y.S.3d 227 [4th Dept. 2015], lv. denied 27 N.Y.3d 992, 38 N.Y.S.3d 103, 59 N.E.3d 1215 [2016] ). Thus, the court was not required to deny the motion pursuant to CPL 440.10(2)(b). Contrary to the court's further conclusion, defendant's ineffective assistance claim is not based upon " ‘facts that should have been placed on the record during trial [proceedings]’ " ( People v. Culver , 69 A.D.3d 976, 979, 893 N.Y.S.2d 327 [3d Dept. 2010] ; see CPL 440.10[3][a] ). Thus, inasmuch as we agree with defendant that his submissions raise a factual issue whether he was denied effective assistance of counsel, we remit the matter for a hearing.