SMITH, JENISE HADDAD, PEOPLE v ( 2016 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    691
    KA 15-01532
    PRESENT: CENTRA, J.P., LINDLEY, CURRAN, TROUTMAN, AND SCUDDER, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    JENISE HADDAD SMITH, DEFENDANT-APPELLANT.
    EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
    COUNSEL), FOR RESPONDENT.
    Appeal, by permission of a Justice of the Appellate Division of
    the Supreme Court in the Fourth Judicial Department, from an order of
    the Oneida County Court (Michael L. Dwyer, J.), dated July 27, 2015.
    The order denied the motion of defendant to vacate a judgment of
    conviction pursuant to CPL 440.10.
    It is hereby ORDERED that the case is held, the decision is
    reserved, and the matter is remitted to Oneida County Court for a
    hearing pursuant to CPL 440.30 (5) in accordance with the following
    memorandum: On appeal from an order denying her motion pursuant to
    CPL 440.10 to vacate a judgment convicting her of attempted murder in
    the second degree (Penal Law §§ 110.00, 125.25 [1]) and assault in the
    second degree (§ 120.05 [2]) on the ground of ineffective assistance
    of counsel, defendant contends, among other things, that County Court
    erred in denying her motion without a hearing. We agree.
    At trial, the People presented proof that defendant sliced her
    estranged husband’s neck with a kitchen knife while he was lying upon
    a bed at his parents’ residence, but he was able to flee and call for
    assistance. The police thereafter found defendant in the residence
    with allegedly self-inflicted stab wounds, including an abdominal stab
    wound that required removal of her spleen. Defendant testified in her
    own defense at trial and asserted that her husband attacked her with
    the knife, and that her husband’s neck was cut in the ensuing struggle
    over the knife. The jury, apparently disbelieving defendant’s version
    of events, convicted her of attempted murder and assault.
    Defendant did not appeal her conviction, but filed the instant
    CPL 440.10 motion to vacate the judgment, contending that her trial
    attorney was ineffective because he failed to show the jury a wound
    behind her left armpit, failed to engage a medical expert to testify
    about that wound, and failed to examine the clothing she was wearing
    -2-                           691
    KA 15-01532
    at the time of the stabbings and to show that clothing to the jury.
    In support of her motion, defendant submitted an affidavit from a
    medical expert who opined that the wound behind defendant’s left
    armpit could not have been self-inflicted and was not, as the medical
    testimony at trial appeared to establish, a surgical wound where a
    chest tube was inserted when defendant was treated at the hospital.
    According to defendant, the armpit wound aligned with holes in the
    shirts she was wearing at the time of the altercation, which supported
    her claim that her husband stabbed her from behind. At trial,
    defendant’s attorney noted that he had not examined the shirts
    defendant was wearing at the time of the altercation before they were
    offered for admission in evidence, and the record is unclear whether
    trial counsel examined those shirts before their admission. In an
    affirmation submitted in support of the instant motion, defendant’s
    trial counsel asserted that he did not recall having examined the
    shirts. The jury did not examine the shirts at trial, although a
    witness for the People testified that the only holes in the shirts
    aligned with injuries to defendant’s abdomen.
    Defendant also submitted an affirmation from her appellate
    counsel, who examined the shirts and asserted that, contrary to the
    testimony of the above-mentioned prosecution witness, the holes in the
    shirts matched precisely the location of defendant’s alleged stab
    wound behind her left armpit. At oral argument of the motion,
    appellate counsel urged the court to examine the garments before
    ruling on the motion. The court declined to do so and denied
    defendant’s motion without a hearing.
    We conclude that, if, as appellate counsel asserts, there are
    holes in the shirts defendant was wearing at the time of the
    altercation matching the wound behind her left armpit, in the absence
    of some strategic explanation, the failure of defendant’s trial
    attorney to examine that clothing, coupled with his failure to call a
    medical expert to discuss the wound and to show the wound to the jury,
    would have been so “ ‘egregious and prejudicial’ ” as to deprive
    defendant of a fair trial (People v Turner, 5 NY3d 476, 480). Because
    defendant’s “submissions [thus] ‘tend[ ] to substantiate all the
    essential facts’ necessary to support [her] claim of ineffective
    assistance of counsel” (People v Hill, 114 AD3d 1169, 1169, quoting
    CPL 440.30 [4] [b]; see People v Howard, 12 AD3d 1127, 1128), we
    conclude that the court should have held a hearing on the motion (see
    CPL 440.30 [5]; People v Frazier, 87 AD3d 1350, 1351). We therefore
    reserve decision and remit the matter to County Court for a limited
    hearing on the issue relating to the location of the holes in the
    shirts.
    Entered:   October 7, 2016                      Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 15-01532

Filed Date: 10/7/2016

Precedential Status: Precedential

Modified Date: 10/7/2016