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This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 52 

The People &c.,

 Appellant,

 v.

Kharye Jarvis,

 Respondent.

Geoffrey Kaeuper, for appellant.

William G. Pixley, for respondent.

MEMORANDUM:

The order of the Appellate Division should be

affirmed. Counsel's failure to invoke the court's prior

preclusion order, coupled with his presentation of an alibi

defense for the wrong day of the week, could have led to

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defendant's conviction. In this case, where the evidence against

defendant was particularly weak since credibility issues affected

each of the prosecutor's major witnesses, the cumulative effect

of counsel's lapses deprived defendant of meaningful

representation (People v Oathout, 21 NY3d 127, 132 [2013]).

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People v Kharye Jarvis

No. 052 

PIGOTT, J.(dissenting):

In 1992, following a jury trial, defendant was

convicted, on compelling evidence, of two counts of murder in the

second degree for the fatal shooting of two men. Now, 23 years

later, the majority holds that defense counsel was ineffective

for not objecting at trial when the prosecutor elicited testimony

from a prosecution witness, Charlotte Barnwell, that defendant

threatened her prior to her testimony. County Court had earlier

ruled that such testimony was inadmissible unless the issue of

Barnwell's delay in coming forward was raised on cross

examination. The majority further holds that defense counsel's

presentation of an alibi defense through three alibi witnesses

constitutes ineffective assistance. In my view, defendant failed

to meet his burden of establishing the absence of a strategic or

other legitimate explanation for defense counsel's alleged

errors. Therefore, I dissent and would affirm the judgment of

conviction.

In People v Baldi, this Court held that in order for a

defendant to succeed on his claim of ineffective assistance of

counsel, defendant must prove that he was deprived of a fair

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trial by less than "meaningful representation" determined by

counsel's performance "viewed in totality" (People v Oathout, 21

NY3d 127, 128 [2013], citing Baldi, 54 NY2d 137, 147 [1981]). 

Further, we have said that in reviewing claims of ineffective

assistance, we must take care "to avoid both confusing true

ineffectiveness [of counsel] with mere losing tactics and

according undue significance to retrospective analysis" (Baldi,

54 NY2d at 146). 

Defense counsel undoubtedly conducted a diligent

defense throughout the trial. He capably argued motions

including the mid-trial Molineux/Ventimiglia hearing, delivered a

cogent opening statement, cross-examined the People's witnesses,

lodged appropriate objections and offered an articulate closing

argument that identified weaknesses in the People's proof. 

Defense counsel attacked the prosecution's proof as to identity,

offering three witnesses in support of an alibi and, further,

challenged the credibility of each of the People's witnesses

throughout the trial. Moreover, defense counsel's effectiveness

was demonstrated by the length of the jury's deliberations before

it eventually convicted defendant. Given the breadth of defense

counsel's representation, it could not reasonably be said, on

this record, that defendant was denied meaningful representation. 

The majority bases its holding, in part, on a claimed

"lapse" of defense counsel in failing to object to Barnwell's

limited-use testimony. In People v Rivera, this Court held that

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in order "[t]o prevail on a claim of ineffective assistance of

counsel, it is incumbent on defendant to demonstrate the absence

of strategic or other legitimate explanations for counsel's

failure" to object (71 NY2d 705, 709 [1988]). "Absent such a

showing, it will be presumed that [defense] counsel acted in a

competent manner and exercised professional judgment" in choosing

not to object (id.). We further noted that only "in the rare

case, it might be possible from the trial record alone to reject

all legitimate explanations for counsel's failure" (id.). 

In this case, the majority ignores the fact that the

People offered a number of strategic reasons why defense counsel

may not have objected to Barnwell's limited-use testimony. For

instance, defense counsel may have decided not to object in order

to avoid focusing the jury's attention to Barnwell's testimony

altogether (see People v Taylor, 1 NY3d 174, 177 [2003]). Just

prior to the line of questioning concerning the threat, Barnwell

had provided damaging testimony that before the shootings she

overheard defendant threaten to kill one of the victims. 

Alternatively, defense counsel may have sought to use

Barnwell's testimony to defendant's advantage by calling

attention to her difficulties in testifying. It is evident from

the record that throughout the prosecution's case-in-chief

Barnwell appeared uncooperative, hesitant and unreliable. In

fact, the prosecution asked 11 questions -- with two objections

by defense counsel -- before finally eliciting testimony from

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Barnwell that she overheard defendant threaten that he was going

to shoot the victim. Additionally, Barnwell was unable to recall

the threat defendant directed at her without the use of her prior

statement to the police. Defense counsel had good reason to

believe that Barnwell would continue to undercut her own

credibility with her continued reluctance and vacillations. 

Also evident from the record is defense counsel's

execution of this strategy. On cross examination, defense

counsel challenged Barnwell's inability to recall the threat

without use of a prior recollection recorded. In summation,

defense counsel argued at length about Barnwell's unreliable

testimony, stressing her relationship to the victims and further

urging the jurors to disregard her statements. In particular, he

argued:

"You cannot separate some of what she says

from her manner in which she says it. This

is a case where if you ask to have her

testimony read back and then you listen to

it, it might make a degree of sense. But you

have to remember that when she was

testifying, the judge had to instruct her at

one point to answer the question. And the

second thing is the most critical piece of

evidence she claims she has, she tells the

District Attorney she forgot. Well, I forgot

that. She had to go off and read her

statement, then says, oh, yea, now I

remember."

Towards the end of summation, defense counsel returned to

Barnwell's credibility, urging the jury to find Barnwell's

testimony unbelievable. What is more, the jury requested a readback of Barnwell's testimony and nonetheless remained deadlocked. 

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Therefore, "[t]he decision not to object to

prosecutorial actions . . . simply 'reflect[ed] a reasonable and

legitimate strategy under the circumstances and evidence

presented'" (Taylor, 1 NY3d at 177, quoting People v Tonge, 93

NY2d 838, 840 [1999]). Accordingly, while defense counsel's

decision not to object may have been debatable, it is beyond me

how the majority can possibly state, on this record, that

"defendant met his burden of establishing the absence of

strategic or legitimate reasons for counsel's failure to invoke

the court's prior preclusion ruling" (maj mem, at 2).

Furthermore, I disagree with the majority's conclusion

that defendant, on this record, met his burden of establishing

the absence of strategic or other legitimate explanations for the

presentation of an alibi defense through the testimony of

defendant's girlfriend and mother. 

Here, the subject murders occurred at approximately

1:20 a.m. on Tuesday, June 4, 1991. Two alibi witnesses,

defendant's girlfriend and her mother, testified to defendant's

whereabouts on the evening of June 3rd and the early morning

hours of June 4th, but incorrectly identified the days of the

week on which those dates fell.

As the Appellate Division acknowledged, in reliance on

People v Cabrera, 234 AD2d 557, 558 (1996), People v Long, 81

AD2d 521, 521–522 (1981), and Henry v Poole, 409 F3d 48, 65-66

(2005), cert denied 547 US 1040 (2006), presenting an alibi

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defense for the wrong date or time has been found to constitute

ineffective assistance of counsel (113 AD3d 1058, 1061 [4th Dept

2014]). However, in each of these cases, the defense counsel

interjected the errors into the alibi witnesses' testimony. In

Cabrera, the defense counsel's questions focused on a Friday

evening when the robbery of which the defendant was convicted

occurred early Friday morning (see 234 AD2d at 558). In Long,

the defense counsel "direct[ed] [the witness's] attention to July

22, 1978 in the evening of that day" when the robbery actually

occurred in the early morning hours of July 22 (81 AD2d at 521). 

Likewise, in Henry, the attorney specifically keyed the testimony

in his question to the night of August 10, 24 hours after the

robbery, thereby leading the witness to testify as to the

incorrect night (see 409 F3d at 64). 

In this case, however, defense counsel never directed

the alibi witnesses to the incorrect days of the week; he only

questioned them with respect to their memory of June 3 and 4, the

day before and the day of the murders. The alibi witnesses

gratuitously and erroneously offered that they were providing

alibis for a Friday morning even though defense counsel

questioned them specifically about June 3 and 4. Defense counsel

cannot possibly be faulted for the witnesses' failed memories or

for their addition of details that were deleterious to

defendant's alibi defense.

To the extent the majority suggests that defense

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counsel was in fact responsible for the discrepancies exposed in

the alibi witnesses' testimony, it is suggesting that defense

counsel suborned perjury and such a claim is predicated on facts

not found in the record on appeal.1 

In short, it is impossible on the record on appeal

alone to reject all legitimate explanations for defense counsel's

alleged errors and therefore determine defendant was denied

effective assistance of counsel. The claims should be raised in

a postconviction application under CPL article 440, where the

basis of the claims may be fully developed (see People v Brown,

45 NY2d 852 [1978]).

* * * * * * * * * * * * * * * * *

Order affirmed, in a memorandum. Chief Judge Lippman and Judges

Read, Rivera, Abdus-Salaam and Stein concur. Judge Pigott

dissents in an opinion. Judge Fahey took no part.

Decided April 7, 2015

1

 See generally Manuel Berrélez et al., Note, Disappearing

Dilemmas: Judicial Construction of Ethical Choice as Strategic

Behavior in the Criminal Defense Context, 23 Yale L. & Pol'y Rev.

225 (2005).

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