People v. D’Alessandro, 25 N.Y.3d 1035 (2015)

Ineffective assistance of counsel may be found when an attorney’s strategic decision not to present expert testimony is based solely on the quantity of expert testimony presented by the prosecution, rather than a legitimate tactical choice.

Summary

The New York Court of Appeals reversed the Appellate Division’s denial of a defendant’s motion to vacate her conviction for assault and endangering the welfare of a child. The defendant claimed ineffective assistance of counsel, arguing that her attorney’s failure to present expert testimony to rebut the prosecution’s shaken baby syndrome (SBS) theory was not a strategic decision but rather a result of the volume of expert testimony presented by the prosecution. The Court held that the defendant’s claims warranted a hearing to determine if the attorney’s failure to call an expert constituted ineffective assistance, especially because casting doubt on the prosecution’s medical proof was the crux of the defense. The Court found the attorney’s justification for failing to call an expert, that it would be pointless due to the number of prosecution experts, was not a legitimate tactical choice.

Facts

In 2006, the defendant was charged with assault and endangering the welfare of a child, concerning injuries sustained by a seven-month-old infant in her care. At trial, the prosecution argued the infant suffered from shaken baby syndrome (SBS). They presented 13 medical professionals, including nine expert witnesses. The defense cross-examined the prosecution’s witnesses, suggesting the injuries were caused by a “re-bleed” of an earlier trauma, but did not present its own expert testimony to contradict the SBS diagnosis. The defendant was found guilty. After her appeal, she moved to vacate the conviction based on ineffective assistance of counsel, newly discovered evidence, and actual innocence. The trial court and Appellate Division denied the motion without a hearing.

Procedural History

The defendant was found guilty in 2009. The Appellate Division affirmed the conviction in 2010, which was followed by a denial of leave to appeal to the Court of Appeals. In 2012, the defendant moved to vacate her conviction under CPL 440.10, which was denied by the Supreme Court and affirmed by the Appellate Division. The Court of Appeals granted leave to appeal.

Issue(s)

1. Whether the defendant’s motion to vacate her conviction based on ineffective assistance of counsel should have been granted without a hearing.

Holding

1. Yes, because the defendant’s proof raised a question as to whether the counsel’s alleged deficiencies were the result of a reasonable, but unsuccessful, trial strategy or whether the counsel failed to pursue the minimal investigation required under the circumstances.

Court’s Reasoning

The Court of Appeals cited that the defense counsel’s decision not to call an expert witness when the prosecution’s case hinged on expert testimony, and the counsel based his decision on the number of experts called by the prosecution, created a legitimate question as to the counsel’s effectiveness. The Court noted that while a hearing is not invariably required on a CPL 440.10 motion, in this case, the defendant presented statements from two experts describing additional lines of inquiry that would have been advantageous and an affidavit from her sister stating the counsel found it pointless to call an expert given the volume of expert testimony presented by the prosecution. The Court found that it was exceedingly rare that a defense attorney’s strategic decision not to present expert testimony amounts to ineffective assistance of counsel but, in this instance, it warranted further inquiry. The Court applied the principles of Strickland v. Washington and People v. Baldi to determine if counsel’s actions fell below the standard of a reasonable attorney.

Practical Implications

This case underscores the importance of providing expert testimony, especially when challenging the prosecution’s expert-driven arguments. Attorneys must carefully consider the strategic reasons for not calling an expert. A decision solely based on the quantity of opposing expert testimony may be viewed as ineffective assistance. The case also highlights the need for a thorough investigation, which includes consulting with potential experts, and making a reasonable tactical decision, not a decision that is “pointless.” Subsequent cases involving ineffective assistance claims will likely scrutinize the rationale behind decisions not to present expert testimony, particularly in cases where such testimony is central to the defense.