[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] THOMAS FARBER, J.

Defendant Danny Rivera moves, pursuant to Section 440.10 of the Criminal Procedure Law, to vacate a judgment of conviction. Defendant alleges that a series of pre-trial and trial errors committed by his trial counsel deprived him of the effective assistance of counsel. Specifically, defendant alleges that his counsel: 1) unnecessarily disclosed client confidences in affidavit form in support of a motion to suppress physical evidence that did not exist; 2) failed to move to suppress a suggestive pre-trial identification; 3) failed to obtain readily available psychiatric reports indicating that defendant was mentally retarded and thus failed to make an effective argument at the pre-trial and trial stages that defendant's confession was involuntary; 4) at the behest of defendant's family, and against counsel's own better judgment, called a witness at trial without preparing the witness, and apparently without understanding that calling her would permit the People to introduce (as a prior inconsistent statement) a signed statement implicating defendant; 5) failed to request in a timely manner a missing witness charge for the police officer who took defendant's statement; and 6) failed to move to dismiss the indictment, not having noticed that the arresting officer, who was also a witness in the grand jury, was present during the complainant's videotaped hospital testimony.

The parties have filed extensive papers; I heard oral argument. Following the argument, an evidentiary hearing was held at which defendant's trial counsel testified. Both sides then submitted additional papers. I have reviewed the submissions of both sides and carefully reviewed the pre-trial hearing transcript, the trial transcript, the CPL § 440 hearing minutes and the relevant case law. I now reluctantly conclude that trial counsel's errors were collectively so egregious that they indeed deprived defendant of the effective assistance of counsel under both the federal and state standards. Accordingly, defendant's motion is granted. My findings of fact, including my credibility findings, are contained in this decision.

BACKGROUND

Defendant was convicted of the brutal stabbing of Julio Tapia Vega on a stairwell at 507 East 140th Street in the Bronx. Overwhelming evidence at trial indicated that on June 16, 2002, defendant's "common law" wife, Diana Fonseca, had offered to have sex with Tapia Vega for money. Defendant followed them into the stairwell, attacking Tapia Vega from behind as he was about to have sex with Fonseca. Defendant stabbed Tapia Vega five times, twice in the back and once in the back of the neck, leaving him for dead in a pool of blood on the staircase.

Tapia Vega was transported to the hospital in critical condition and was in and out of consciousness for weeks. The police had no suspect or clues. Eighteen days after the stabbing, however, Diana Fonseca a crack addict and a part time prostitute entered the 40th precinct and told the police that defendant had been stalking her. Almost as an afterthought, she told the police that defendant had stabbed a man in a stairwell. She led the police to the location, then identified the victim in the hospital, and led the police to the vacant lot where she had seen defendant throw the knife he used in the attack. The police recovered the knife. Fonseca wrote out a two-page statement detailing the stabbing, fully implicating defendant.

Defendant, who had been following Fonseca, and who was known to the police, walked into the police station shortly after Fonseca. After the police had Fonseca's statement, they confronted defendant with some of the details of the stabbing. Defendant wrote out a confession, in essence stating that he stabbed the victim after seeing him having sex with his "wife."

Tapia Vega was in the hospital for approximately three months. During the initial month he breathed with the aid of a tracheal tube and was in and out of consciousness. He was heavily medicated and unable to speak. There is some indication in the hospital records that during this time he had trouble recognizing his own brother. Nevertheless, approximately three weeks after the stabbing, the police showed Tapia Vega a photographic array at the hospital. Tapia Vega chose defendant's photograph. No line-up was ever held.

Defendant has a psychiatric history and significant mental deficiencies. Psychiatric records obtained by defendant's current counsel (hereinafter "appellate counsel"), indicate that defendant's IQ may be as low as 50 to 57, putting him in the mild mental retardation range.

By the time defendant was arraigned in Supreme Court, the People had substantial evidence of his guilt. An eyewitness, Diana Fonseca, provided motive, opportunity and a direct account of the stabbing. The police had recovered the murder weapon, exactly where Diana Fonseca had seen defendant throw it. They had a confession from defendant. And they had an identification although not one that could be used in court.

The strength of the People's case, however, rested largely on Diana Fonseca. Without her testimony, the case would rest on a confession obtained from a mentally retarded man and the possibility of an identification by the victim who was stabbed from behind and had observed his attacker under circumstances that might well make a subsequent identification impossible. Several factors made Diana Fonseca's availability to the People at trial open to question. First, she was the girlfriend or "common law" wife of defendant, and she made the original complaint as retaliation for an incident of domestic violence. Second, she was a crack addict and a prostitute with a long criminal record. There was no guarantee that Fonseca would be alive, in the jurisdiction, available to or friendly to the People at the time of trial. And, indeed, she was ultimately not available to the People.

PRE-TRIAL PROCEEDINGS

Defendant was indicted by a grand jury. Tapia Vega testified on videotape from his hospital bed. Since he was unable to speak, he gave his answers by nodding or shaking his head. Police Officer Carlos Lopez, the arresting officer, was present with Tapia Vega in the hospital room during his testimony. Officer Lopez was also a witness in the grand jury.

Defense counsel entered the proceedings shortly after defendant was indicted, when defendant's first appointed lawyer asked to be relieved because of differences with his client. The case was pending in Part M60 and was on for arraignment in Supreme Court. Defense counsel reviewed the available paperwork, which contained extensive discovery provided by the People and had a brief twenty to thirty minute interview with defendant. In the course of the interview, defendant told defense counsel, in essence, that he had stabbed Tapia Vega in self-defense (CPL § 440 hearing transcript, hereinafter referred to as "HT," 45). Defendant stated that he had followed Fonseca and Tapia Vega into the building and saw Fonseca holding Tapia Vega's penis in her hand. As the defendant approached, Tapia Vega pulled out a knife, lunged at the defendant and attempted to throw him down the stairs. Defendant was able to "momentarily" get the knife from Tapia Vega and stabbed him in "self-defense" (HT 43-51). Defendant apparently repeated this story to counsel's investigator (HT 66).

On September 10, 2002, twelve days after he entered the case, trial counsel filed motions. At the time trial counsel filed his motions, he had the people's Voluntary Disclosure Form and an extensive discovery package containing most of the police paperwork. He and his investigator had interviewed defendant. He had conducted no other investigation. The Voluntary Disclosure Form gave notice of the complainant's hospital identification from a photographic array. It gave notice of defendant's statement. It did not indicate that any property was recovered from defendant. Indeed, since defendant was arrested weeks after the incident, and the alleged weapon was recovered from a vacant lot, recovery of any property from defendant would have been extremely unlikely. And, of course, none was.

Although no property was recovered, defense counsel moved to suppress property recovered from defendant. In support of this motion, counsel filed an affirmation disclosing the substance of what his client had told him in their initial interview and admitting that defendant had stabbed the victim:

[D]efendant asserts that he discovered the complainant . . . with his common law wife, DIANA FONSECA. Ms. Fonseca was holding the complainant's penis in preparation of commiting [sic] a sex act. When the defendant confronted them, the complainant, Mr. Vega pulled out a knife and stabbed or slashed the defendant on his left wrist. A struggle for the knife ensued. Mr. Vega tried to throw Danny Rivera down a flight of stairs. During the altercation, the defendant managed to momentarily [my emphasis] gain control of the knife and stabbed at the complainant in self defense. The incident happened very fast. The defendant did not intend to kill the complainant but was only defending himself.

Counsel then requested that "In the event that the prosecution seeks to introduce physical evidence which it claims was in the defendant's possession or control," that such evidence be suppressed (PM Exhibit 1).

Defense counsel also moved to suppress the statement on two grounds. First, counsel averred that Miranda warnings were not given until after the statement was taken. Second, counsel averred that the defendant was suffering from "mental problems which would enable . . . [the police] to overcome his will upon questioning" (PM Exhibit 1).

Although counsel had received notice of a pre-trial identification (the photo array conducted while the complainant was in the hospital), he did not make a motion to suppress the identification.

When defendant made his pre-trial motion to suppress statements, he was aware that defendant was cognitively impaired. Prior to making the motion, defendant's father had given defense counsel a "document or two," but based on counsel's "experience" which apparently included no psychological or educational background counsel estimated that defendant's IQ was "between 70 and 80" (HT 36). In fact, defendant had been given full intelligence tests some years earlier, indicating a Full-Scale IQ of 50, with a Verbal IQ of 57 and a Performance IQ of 54 (DMV Exhibit C). This put him in the "mild mental retardation range." These and other reports, which appellate counsel obtained easily, were never obtained by trial counsel (DMV 43).

THE PRE-TRIAL HEARINGS

Since there was no physical evidence to suppress, defendant's motion for a hearing to suppress physical evidence was summarily denied. Since defendant did not make a motion to suppress identification testimony, no hearing was granted. Thus, the pre-trial hearing was limited exclusively to defendant's statement.

The pre-trial hearings were conducted before Justice David Stadtmauer on December 2, 6 and 12, 2002. Police Officer Lopez (now Detective Lopez) and Detective Ramirez testified for the People. Defendant took the stand on his own behalf. Prior to defendant taking the stand, defense counsel sought a motion in limine to prevent the People from cross-examining defendant about the actual stabbing. The People argued that defendant's credibility was at issue and specifically noted that defendant's motion papers had raised the issue of self-defense. Justice Stadtmauer ruled that the People could cross-examine the defendant on this issue, but the People ultimately chose not to (pre-trial hearing transcript, hereinafter referred to as "PTT," 108-115).

Defendant testified that after being placed in a holding cell for over six hours, Officer Lopez entered the room and told him he wanted defendant to give a statement. Defendant said he did not want to make a statement without his attorney present and Lopez "mushed" him in the head. The officers told him he could not have an attorney. They told him what to write on the statement. After defendant made the statement, the officers gave him a Miranda form and told him to write "yes" in all the boxes and sign the statement (PTT 192-194, 203-204).

Trial counsel asked the court to accept defendant's version of the events and suppress the statement (PTT 237). Counsel also argued that defendant was "slow," that he was kept in the holding cell for six hours and was emotionally distraught (PTT 229, 231, 236-237). While counsel argued that this combination of circumstances made the overall atmosphere coercive, and the statement involuntary, he never specifically argued that defendant's cognitive impairments prevented him from understanding the Miranda warnings.

Counsel did not introduce any documentary evidence to support his argument that the defendant was "slow." Indeed, other than a couple of documents given to him by defendant's family, he did not have any, having failed to do any investigation of this area.

The hearing court denied defendant's motion, finding defendant's version of the events "incredible" and "tailored." The case was adjourned for trial.

THE TRIAL

The People's Case. The case proceeded to trial before me on June 3, 2003. By the time of trial, Diana Fonseca, not surprisingly, was not cooperating with the People, and they were apparently unable to call her as a witness. Thus, the People's entire case rested on defendant's statement and the possibility that the victim would be able to identify defendant in court.

The People called the first officer on the scene of the stabbing and an officer from the evidence collection unit. The next witness was the victim, Julio Tapia Vega. Tapia Vega testified that he was approached by a woman (identified from a photograph as Diana Fonseca) who asked if he wanted to buy a CD player. He refused. She then offered sex for 20 dollars, but Tapia Vega told her he didn't have an apartment to go to since he was living with relatives. Fonseca suggested that they go to his building and have sex in the stairwell. They went to Tapia Vega's building, 507 East 140th Street, and went to the sixth floor landing. Mr. Tapia Vega gave her 20 dollars and she opened up a condom. Tapia Vega unzipped the zipper of his pants and Fonseca started to put the condom on his penis. Fonseca took her pants off (trial transcript, hereinafter "TT," 480-482, 486-487).

Tapia Vega was standing, facing upstairs, with his back facing downstairs. As Fonseca took her pants off, "all of a sudden" a man arrived and struck Tapia Vega on the back of the head. Tapia Vega turned around to look at the man and saw his face. Tapia Vega started to lose consciousness. He grabbed on to the railing, but everything was turning around. He felt his hand go numb and he heard a man arguing in Spanish (TT 493-495). When the prosecutor asked Tapia Vega if he saw the man who stabbed him in court, Tapia Vega pointed to defendant and said "it looks like him" (TT 491).

Tapia Vega was severely injured. He was hospitalized for approximately three months (TT 498). He needed to learn to walk again. He needed to learn to speak again. He was fed through a tube (TT 498-499a). He couldn't move his arm or hands. At the time of trial, he still suffered some lasting effects to his speech and had substantial scarring on his body (TT 503-505).

Although Tapia Vega testified on direct examination that defendant "looked like" the man who stabbed him, on cross-examination Tapia Vega stated that he was certain that defendant was the man who stabbed him. Each time trial counsel asked if Tapia Vega had said on direct that "it looked like him," Tapia Vega replied in substance that it was definitely defendant, leaving the clear impression that the original answer was either an interpreter's error or was caused by defendant having more facial hair than he did on the night in question (TT 582-583). Somewhat blunting the effect of the identification, however, was Tapia Vega's testimony that the prosecutor brought him to the courtroom and told him where the defendant would be sitting (TT 584).

The People called three medical witnesses: Dr. Kigongo who treated the victim at Lincoln hospital; Iliana Santiago, the EMS technician who treated the victim at the scene; and Dr. John Megarr, who supervised the victim's lengthy rehabilitation at Metropolitan Hospital. Dr. Kigongo testified that he treated Mr. Tapia Vega when he entered Lincoln hospital. Mr. Tapia Vega had a small wound on the back of his head; he had a wound on this right arm near the elbow; he had a wound on the left side of his abdomen; and two wounds on the left side of his back. The wound to the abdomen lacerated the left kidney and the large intestine. Dr. Kigongo testified that for a knife to pierce the abdomen and go through the kidney it would have to go through a layer of muscle and would require "a substantial amount of force." The wound to the back of the head had pierced the occipital bone and entered the brain, interfering with the flow of cerebral spinal fluid. The doctor testified that the amount of force necessary to pierce the occipital bone would be a "very, very substantial amount of force," and that one receiving this type of wound would pass out fairly soon, if not immediately, after the injury (TT 619). A tracheotomy was performed because the victim was having trouble breathing. He was in Lincoln Hospital for 1 month before being moved to Metropolitan Hospital, still needing the tracheotomy tube.

The next scheduled witness was the arresting officer, Detective (formerly Police Officer) Carlos Lopez. Anticipating Detective Lopez's testimony, I asked the prosecutor if the People intended to call Diana Fonseca. The People said they did not intend to call Fonseca on their direct case. I asked the People, sua sponte, what, if anything, they intended to bring out from the arresting officer about Fonseca coming to the precinct and implicating defendant. After argument, I told the People that I would not allow the prosecution to use Detective Lopez to bring in the hearsay statement of Diana Fonseca.

Detective Lopez testified that Diana Fonseca entered the precinct and reported that defendant had assaulted her (TT 707). Defendant then entered the precinct, looking for Diana Fonseca, and was placed in a holding cell (TT 710-711). Officer Lopez went with Diana Fonseca to the 507 East 140th Street, then to Mr. Tapia Vega's hospital room and finally to the vacant lot where the police recovered a knife (TT 713-715, 718-719, 721-723). The police returned to the precinct and ultimately, following Miranda warnings, questioned defendant (TT 728-729). Defendant wrote out the following confession (misspellings and idiosyncratic capitalization in original), which was admitted as People's Exhibit 14:

two week ago I Suspected my wife went with this DuDe to this Building and I personaly followed them into the Building and I had a knife with me and I saw my wife grabin is pines and he was in top of her to having sex and when I saw that I got jeleous and I start to fight with this Dude and I stab him for having sex with my wife I never suspect that my wife Do this to me. this happen to a mexican guy and that fight happen in the las floor in the Builiding nex to the school us to be p.s 40. After that I Ran Down the sters and I got scared I Ran towaredes 139 and I tro the knife over the fence. Silver knife. I mean to Do this By stabing this guy I never stab Nobody Before.

The statement was signed by defendant and witnessed by Officer Lopez (TT 735). The police then showed defendant the knife they had recovered from the lot. Rivera identified the knife as the weapon he used to stab Tapia Vega (TT 737).

The cross-examination centered around the time that Detective Lopez put on the statement, which was 18:00 hours the same time he used for the Miranda warning (TT 759-767). Defense counsel also brought out that when Miranda warnings were read, the police did not tell defendant that he was under arrest for the stabbing, but only for the assault against Fonseca (TT 757).

The People rested.

The Defense Case. Prior to the defense case, defense counsel produced as "Damon" material ( People v. Damon, 24 NY2d 256 (1969)), a notarized statement of Diana Fonseca dated January 10, 2003. Defense counsel did not disclose a videotaped statement from Fonseca which was also in his possession. At the hearing on the instant motion, counsel stated that he did not believe he was required to turn this tape over (HT 232).

Diana Fonseca took the stand on behalf of the defendant. According to his testimony at the hearing on the instant motion, trial counsel had spoken to Fonseca for about 20 minutes to half an hour. He had asked her what happened, but had not gone over with her the questions he would ask her or the questions that might be asked on cross-examination, because he "never does" that (HT 227-228).

The effect of this method of "preparation" was apparent from the second question asked of Fonseca on direct examination:

Q. Have you ever been convicted of a crime?

A. Of a crime, no. Selling drugs, yes. (TT 819).

Fonseca proceeded to admit to only two felony convictions which were "dropped already," failing to bring out an extensive misdemeanor record in addition to the felony convictions which were, of course, not "dropped" (TT 819). She then testified that she had known Tapia Vega for a month as "Julio" on a "hi and bye" basis (TT 820-821). On the evening in question she testified that Tapia Vega asked her to have sex with him for money (TT 821-23). She intended to take the money, but not to have sex with him (TT 822). When she and Tapia Vega got to Tapia Vega's building they went up the landing, where Fonseca "changed her mind" about having sex. Tapia Vega then grabbed her shirt and told her they were going to have sex whether she "liked it or not" (TT 823-824).

All of a sudden two guys, a black guy and a Puerto Rican guy came out of nowhere (TT 824). When they asked Fonseca what she was doing there, she told them "none of your business" (TT 825). They told Fonseca to "get out of here" (TT 825). The Puerto Rican guy had a knife (TT 824). Fonseca left and heard screams coming from the landing where she had been (TT 825). She ran into defendant as she was coming down the stairs and they ran out of the building (TT 825). As they were running they saw the two guys run past them and throw a knife into the vacant lot. Ms Fonseca could see it was a gray knife "one of those knives that you flick with the little hooks in it" (TT 825-826).

On cross-examination, Fonseca simply disintegrated. First she tried to explain her distinction between selling drugs and crimes. A crime being "like hurting somebody, killing somebody" (TT 829). Then, having only remembered being convicted of two crimes, she was taken through a long list of other crimes. She ultimately admitted to being convicted of criminal possession of a controlled substance in 1991 and 1999. She denied being convicted of prostitution in 1994, then admitted being arrested, but only because she was caught up in a sweep. She denied pleading guilty, but upon further cross-examination admitted pleading guilty, but only because she had no choice (TT 832-843).

Similarly, Fonseca did not remember having pled guilty to endangering the welfare of a child in 1995 for leaving her 10 day old baby home alone. Then she remembered the incident, but said she was not guilty, having left the child with his godmother. She finally admitted pleading guilty (TT 835-837).

The People then took Fonseca through four other misdemeanors all committed within a ten week period between November 2002 and January 2003 (TT 839-842). Although the last conviction was only six months prior to the trial, Fonseca could not remember it (TT 842).

The People then focused on the inherent improbability of Fonseca's account, particularly her testimony that as Tapia Vega was about to forcibly have sex with her whether she "liked it or not," Fonseca told the two men who approached to mind their own business (TT 864). Retreating from the testimony that Tapia Vega had grabbed her shirt, Fonseca said he "just used verbal words. He didn't use hands" (TT 865). The People then brought out that Fohnseca left the builiding with her "friend" gravely injured on the stair landing and did not call 911 (TT 876).

But most devastating, of course, was the introduction of Fonseca's signed statement. This statement directly contradicted Fonseca's trial testimony, squarely implicated defendant as the stabber and filled in every detail that had been missing from the People's account. The People set the stage by bringing out that Fonseca made the statement to Detective Lopez immediately upon returning from the hospital and seeing Tapia Vega, suggesting that the written statement was a truthful account given at a time when she was overcome with remorse (TT 902, 905-906). The People then introduced the statement into evidence and took Fonseca through it word for word (TT 902-905):

Q. And in this statement you said: About three weeks ago I was with a friend of mine in a building hanging out. It says that my ex-boyfriend seen us and he snapped. You wrote that correct?

A. Yes.

Q. And you went on to write: He seen us and he snapped and stabbed my friend a couple of times and then slapped me in the face. You wrote that, correct?

A. Yes.

Q. Then threw me down the stairs as I fell. He kept stabbing my friend. All I hear was the screaming. You wrote that, correct?

A. Yes.

Q. And by your ex-boyfriend, you were referring to Danny Rivera, correct?

A. Yes.

Q. So I ran down the stairs and my ex followed me and threatened me with the knife, so I kept running and he threw the knife a couple of blocks away. And then while walking my ex kept hitting me. You wrote this, correct?

A. Yes.

Q. He also stalks me 24, seven days. So I report to homicide before he hurts someone else. You wrote this, correct?

A. Yes, I did.

Q. And I saw my friend at the hospital. And it hurted me so bad to see him in intensive care and he is fighting for his life right now and it hurts me so much. Correct? You wrote that?

A. Yes, I wrote it. Like I said, I was forced in a way. I was forced to write that letter because Lopez doesn't like Danny, first of all.

Q. Now, you also wrote: The stabbing took place at 140th Street inside a building. You wrote that, correct?

A. Yes

Q. Where my friend lived at, correct?

A. Yes.

Q. You continued to write: I also to[ok] the homicide squad to where he threw the knife. It was a gray knife and it was found. You wrote those words, correct?

A. Yes, I did.

Q. Then, Miss Fonseca, you wrote your name both on the last page and on this page, as well, correct?

A. Yes.

Pointing out that the statement does not mention Tapia Vega's name, although Fonseca had previously said she had known him as Julio for a month, the People continued:

Q. And isn't it true that you referred to him as your friend because you didn't know his name, Julio? You had never met him before this night, isn't that true?

A. Yes.

The effect of these admissions was, of course, devastating to the defense case. But the record does not even begin to describe the palpable effect that this cross-examination had on the witness. She lowered her head, defeated; and, although on redirect she woodenly reiterated her direct testimony, her entire body language indicated that she herself did not believe it. Except on television, I have never seen a witness wither so quickly or so completely.

Although trial counsel's opening suggested the possibility that his client would testify on his own behalf, the defense rested without calling the defendant to testify. At the hearing on the instant motion, counsel admitted that he knew he could not call his client because he would be cross-examined with the "justification" statement that he had included in his motion (HT 243).

Charging Issues. At the charge conference, the defense requested that I give a missing witness charge because the People failed to call Detective Ramirez. Counsel argued that Detective Ramirez's testimony would not be cumulative because Detective Lopez did not remember exactly what questions were posed to defendant. I denied the motion, since it was untimely and since the testimony would have been cumulative.

Summations, Charge and Verdict. Trial counsel's summation was unremarkable. He noted that defendant was found on the fifth floor landing rather than the sixth floor landing where he was stabbed; that no serological test was done on the knife; that Tapia Vega, although a victim, had an inappropriate affect while testifying; that the jury should credit Fonseca in spite of her criminal record and prior inconsistent statement; and that the statement taken from defendant was coerced.

The People argued that the evidence was overwhelming. There were severe injuries. There was an identification by the victim. There was motive. The murder weapon was recovered and there was a full confession. In addition, the prosecutor urged the jury to focus on Diana Fonseca's statement as corroboration of Tapia Vega's testimony:

[I]n coming to your conclusion, not only are you going to think about the victim in this case positively identifying Danny Rivera, but you have the ability to look at the words of Diana Fonseca and the confession of Danny Rivera (TT 961).

We have a positive identification by the victim in this case that Danny Rivera is the person who did this to me and we have a statement from Diana Fonseca which corroborates, you will see, the testimony of Julio Tapia Vega and a confession from Danny Rivera. An identification, a corroboration, and a confession (TT 968).

You got an in-court identification, Diana Fonseca's statement and a confession (TT 977).

The second reference was followed by the prosecutor's comment that trial counsel "chose to call Diana Fonseca. That's how he chose to address the identification, the statements and the confession" (TT 968-969). This comment generated the only objection to this line of questioning, and caused me to remind the jury that "the prior inconsistent statements are admissible only on the issue of credibility. It is not evidence in chief of [sic] the case." Trial counsel did not object to the other statements.

The only counts submitted to the jury were Assault in the First Degree and Attempted Murder in the Second Degree. The jury returned a verdict of guilty as to both counts.

DISCUSSION

Federal and State Standards. The right to counsel is guaranteed by the Sixth and Fourteenth Amendments of the Constitution. The right to counsel has been interpreted to mean the right to effective counsel: "It has long been recognized that the right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 US 759, 771, n. 14, (1970). As the Supreme Court noted in Strickland v. Washington, 466 US 668, 686 (1984), "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result."

The defendant is not entitled to perfect counsel. "The proper measure of attorney performance remains simply reasonableness under prevailing social norms." Strickland v. Washington, 466 US at 688. Under federal law, a defendant claiming ineffective assistance of counsel must show first that defense counsel's performance fell below this standard of reasonableness. Second, a defendant must also show that he was prejudiced:

The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Id. at 694.

Under New York law, the standard is whether defendant received "meaningful representation." People v. Baldi, 54 NY2d 137, 146-147 (1981). While the state standard also has a prejudice component, "prejudice' is examined more generally in the context of whether defendant received meaningful representation." People v. Benevento, 91 NY2d 708, 713 (1998). This standard thus focuses on "the fairness of the process as a whole rather than its impact on the outcome of the case." Id. at 714.

Of course "meaningful" representation does not mean "perfect" representation. See People v. Aiken, 45 NY2d 394, 398 (1978). And it goes without saying that a defendant is not entitled to an acquittal: "That a defendant was convicted may have little to do with counsel's performance, and courts are properly skeptical when disappointed prisoners try their former lawyers on charges of incompetent representation.'" People v. Benevento, 91 NY2d at 712, quoting People v. Brown, 7 NY2d 359, 361 (1960).

Thus a court reviewing a claim of ineffective assistance of counsel must be careful not to apply 20-20 hindsight in analyzing claims of ineffectiveness. "Hindsight should not escalate what may have been a few tactical errors into ineffective assistance of counsel. . . ." People v. Baldi, 54 NY2d at 151. As the Supreme Court noted in Strickland:

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.

Strickland v. Washington, 466 US at 689.

Accordingly, the focus is not on whether a particular action or inaction turned out to be effective or ineffective, but on whether it was the result of an objectively reasonable trial strategy:

[C]ounsel's performance will not be considered ineffective, even if unsuccessful, as long as it reflects an objectively reasonable and legitimate trial strategy under the circumstances and evidence presented. . . .

People v. Berroa, 99 NY2d 135, 138 (2002). As the United States Court of Appeals for the Second Circuit stated in Tippins v. Walker, 77 F.3d 682, 686 (2d Cir 1996):

[I]n case after case, we have declined to deem counsel ineffective notwithstanding a course of action (or inaction) that seems risky, unorthodox or downright ill-advised. See United States v. Tarricone, 21 F.3d 474, 476 (2d Cir. 1993) (decision to forgo testimony of handwriting expert); United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987) (decision to forgo opening statement), cert. denied, 484 U.S. 957, 108 S.Ct. 355, 98 L. Ed.2d 380 (1987); Cuevas v. Henderson, 801 F.2d 586, 590 (2d Cir. 1986) (questioning that "opened the door" to damaging evidence), cert. denied, 480 U.S. 908, 107 S.Ct. 1354, 94 L. Ed. 2d 524, (1987).

But the strong presumption of competence and the need to be "highly deferential" does not immunize ineffective counsel from scrutiny. A conscious decision to act or not act may be called a "strategy" or "tactic," but it may still not be an "objectively reasonable and legitimate trial strategy under the circumstances and evidence presented." People v. Berroa, 99 NY2d at 138. See also People v. Bartley, 298 AD2d 160 (1st Dept 2002) ("unsupportable" and "harmful" strategies were ineffective assistance of counsel).

Having carefully examined the several pre-trial and trial errors attributed to trial counsel, I find that these errors did indeed meet the heavy burden required to show ineffective assistance of counsel. While the People and trial counsel himself argue that trial counsel's actions and inactions constituted simply a losing trial strategy, I find that this is almost entirely a post hoc attempt to justify conduct that cannot be explained as legitimate strategy, because it was objectively unreasonable. While the evidence of defendant's guilt at trial was indeed overwhelming, it was so largely as a result of counsel's ineffective assistance. I find that these errors deprived defendant of meaningful representation, and that defendant was indeed prejudiced by these errors. I analyze them individually below.

The Disclosure of Client Confidences. Trial counsel filed his pre-trial motions twelve days after entering the case. At the time he filed motions, he had interviewed defendant but had not interviewed any other potential witnesses, including Diana Fonseca. Counsel had available to him extensive discovery and the People's Voluntary Disclosure Form. Even a cursory review of the available discovery material would have indicated that no property was recovered from defendant and that the knife was recovered from a vacant lot. Nevertheless, trial counsel moved to suppress "physical evidence." In support of this motion, counsel, in an apparent attempt to establish lack of probable cause, disclosed, in affidavit form, the substance of his client's confidential communications to him.

Disclosing these confidences was an egregious error that served no reasonable strategic or tactical purpose. First, had counsel reviewed the file, he would have known there was nothing to suppress. Second, the version of events set forth in the affirmation, even if true, did not negate probable cause to arrest. Third, there was no conceivable reason at this stage of the trial to commit defendant to any defense, justification or otherwise. And although counsel testified at the hearing on the instant motion that he believed justification to be a "particularly viable" defense (HT 78), it is hard to see how a reasonable defense counsel, having reviewed the discovery, would believe it to be so. Both the defendant and Diana Fonseca had given statements attributing the attack to jealousy rather than fear and indicated that the victim had been attacked from behind. The medical evidence indicated multiple stab wounds, including one to the back of the victim's head and two to his back. These stab wounds, which the medical evidence indicated would have had to have been administered with a "very, very substantial amount of force" were consistent with a brutal surprise attack from behind and difficult to reconcile with defendant's statement that he "momentarily" had possession of the knife. See e.g. People v. Collins, 290 AD2d 457, 458 (2nd Dept 2002) (defendant not entitled to justification charge where "number, depth and severity of the wounds inflicted upon the victim belie the defendant's claim . . . that the victim was stabbed while he was fighting to get the knife away from her); People v. Brathwaite, 276 AD2d 707 (2nd Dept 2000). Thus, disclosing these confidences, particularly in the form in which they were disclosed, committed defendant to a version of the events that was both improbable and in direct conflict with his ultimate defense. These admissions would severely hamper the defense at the pre-trial hearings and at trial.

Trial counsel testified at the hearing that since his client's defense was going to be justification, he saw no downside to disclosing it. But why had counsel committed his client to this defense before a full investigation months, if not years before the case was likely to be tried? The principle witness against defendant was his common law wife, who continued to return to defendant even after making reports against him to the police. She was a crack addict and a prostitute and the likelihood that she would not be available to the People or be an unwilling witness by the time the case went to trial would have occurred to any experienced counsel especially one who had experience with domestic violence cases. The victim had been struck from behind, and the only pre-trial identification proceeding was a photographic array conducted at a time when the victim was in and out of consciousness. There was no guarantee that he would make an in court identification. It was thus possible that, without the testimony of Diana Fonseca, the case would rest entirely upon the statement of a mentally retarded defendant. Not to see a "downside" in conceding identification under these circumstances is inexcusable.

At the hearing on the instant motion, trial counsel testified that he disclosed the confidences for the purposes of conditioning the judge who would be reading the motions to offer a favorable disposition and stimulate plea negotiations. I do not credit this assertion for the following reasons. First, although trial counsel spoke to both attorneys handling the instant motion, he told neither side that he did it for the purpose of "stimulating plea negotiations." Second, it is simply inconceivable that competent defense counsel would believe that disclosing a client confidence in affidavit form is an effective way to "stimulate" plea negotiations. Judges read motion papers in criminal cases for the purpose of deciding legal issues, not evaluating a case for plea discussions. If an attorney wants to inform the court or the prosecutor of the strength of his case for the purpose of getting a favorable plea, there is ample opportunity to do it informally, off the record during a plea conference without disclosing client confidences in an affirmation.

Finally, trial counsel testified at the hearing on the instant motion that his client had rejected all plea offers and indicated that he did not want to plead guilty; that trial counsel himself did not believe that his client should plead guilty; and that trial counsel never once discussed the possibility of a plea with the prosecutor or the court (HT 80-81). Counsel testified: "Okay, I wasn't looking to plea bargain that. I wasn't looking to plea bargain at all. . . ." (HT 83). It is thus difficult to see this explanation as anything other than a post hoc explanation intended to explain the unexplainable.

The People further suggest that trial counsel made the motion as a prophylactic measure, as part of his "standard practice," based on his experience that the People do not always disclose everything that was recovered. But the record is clear that at the time trial counsel made the motion he knew that the knife had been recovered and had not been recovered from defendant. Trial counsel also had substantial discovery including all of the police paperwork generated during the investigation, none of which indicated any additional evidence. He knew that the circumstances of his client's arrest over two weeks after the incident made it highly unlikely that anything of use to the People would be recovered from his client. And, of course, he had access to his client. Moreover, as noted above, the affidavit did not negate probable cause and did not entitle defendant to a hearing even if anything was recovered. And if trial counsel learned that something had been recovered that had not been disclosed he could have moved at any time for a hearing if he was entitled to it. Accordingly, this argument too fails.

The People seem to argue that because trial counsel deliberately as opposed to inadvertently disclosed his client's confidences, it must be categorized as a "strategic" or "tactical" decision, thus immunizing it from ineffective assistance analysis. To be sure, the case law makes it clear that a bad or ill-advised strategy is not necessarily ineffective assistance. See Tippins v. Walker, 77 F3d 682, 686 (2d Cir. 1996). But the case law also makes clear that to be a legitimate strategy it must be rationally related to a goal that a reasonable person would see as furthering a client's interest. See People v. Berroa, 99 NY2d 134 (2002). It is not sufficient that it was simply done "deliberately." A defense lawyer who selects jurors who have last names beginning with a vowel because in the past he has had good luck with those jurors, is making a deliberate, perhaps even "strategic" decision, but calling it a legitimate or reasonable strategy or tactic would make a mockery of the sixth amendment.

"[I]t is obvious why a defendant would not want to commit himself in advance of trial as to a specific defense or to apprise the prosecutor as to his expected testimony." People v. Eagleton, 161 AD2d 482 (1st Dept 1990). In People v. Cosme, 169 AD2d 467 (1st Dept 1991), a lawyer disclosed a lengthy confidential letter that his client had written him. The Court held that "[t]his single error requires vacatur of the conviction. . . ." Id. at 468. See also People v. Wilson, 133 AD2d 179, 180-181 (2nd Dept 1987) (ineffective assistance to have defendant offer inculpatory testimony at co-defendant's trial, resulting in "gratuitous waiver of the defendant's ability to mount a defense based on factual innocence").

The premature disclosure of Rivera's "justification" defense had a real and prejudicial impact on defendant's ability to mount an effective defense. Since Diana Fonseca was not available to the People at trial, the case rested entirely on a questionable identification by a complainant struck from behind and defendant's statement. As trial counsel recognized at the hearing on the instant motion, defendant's testimony would be instrumental in challenging the voluntariness of the statement at trial. But with the prosecution able to impeach Mr. Rivera with counsel's affirmation, defendant could not take the stand. And he did not (HT 243).

Trial Counsel's Failure to Move for a Wade Hearing. Although counsel moved to suppress physical evidence that did not exist, he never moved for a Wade hearing to suppress a potentially suggestive pre-trial photographic identification. The failure to make this motion, which defendant was entitled to simply for the asking, is inexplicable.

The discovery material available to trial counsel at the time he filed motions would have indicated that the victim was brutally struck from behind while preparing to engage in a sexual act with Fonseca. One of the wounds was to the back of the skull, piercing the victim's occipital bone. The victim lost consciousness soon after he was stabbed. Thus any opportunity that Tapia Vega had to view his attacker would be brief and not under optimal conditions. Less than a month later, while Tapia Vega lay in the hospital, tracheal tube in his throat, lapsing in and out of consciousness, he was shown a photographic array by the arresting officer and picked defendant out of the array. During this same time period, there is an indication in the hospital records that the defendant was sometimes unable to recognize his own brother. No subsequent line-up was held. The possibility that this identification was unnecessarily suggestive should have occurred to any reasonable defense counsel. At the very least, competent counsel would request a hearing to explore the nature of the identification.

Various explanations have been advanced for the failure to move for a hearing. None is convincing. At the hearing, counsel seemed to suggest that he did not move for a Wade hearing because 1) identification was not an issue in the case, since his client was advancing a justification defense and he expected Fonseca to place defendant on the scene; 2) the photo array could not have been used at trial in any event; and 3) the possibility of police suggestiveness never occurred to him.

With respect to the first explanation, identification was not an issue only because trial counsel committed himself to a questionable justification defense at a time when he had interviewed only his client and conducted no other investigation. Defendant and the victim were clearly strangers. While the People's proof may ultimately have made misidentification an unwise defense, in the early stage of the case this would have been impossible to predict. Indeed, defendant's ultimate defense at trial was in fact misidentification and not justification.

The People argue that defendant is demanding not just "meaningful representation" but "omniscient" defense counsel. "No defense attorney," the People opine, "could be reasonably expected to predict the events that unfolded in this case" (PPHSM 4-5). But why not? The single event that led to this change the unavailability of Fonseca to the People as a trial witness was surely not unpredictable. As noted above, Fonseca was the girlfriend of defendant, a victim of domestic violence and a crack addict and prostitute. That she would not be available to the People at the time of trial was, to say the least, not at all unlikely.

While it is true that the photo array could not be used in evidence, were the identification to have been suppressed as unnecessarily suggestive, the People would have had to show an independent source before an in-court identification could be made. People v. Adams, 53 NY2d 241 (1981); People v. Young, 133 AD2d 656 (2nd Dept 1987). And, given the conditions under which the victim viewed his attacker, there was a strong likelihood that the people could not make this showing. Thus, had defendant prevailed at the hearing, the identification would have been suppressed, making the People's entire case rest on the statement of a mentally retarded defendant.

Trial counsel's admission that the possibility of a suggestive identification had not occurred to him is astounding. Trial counsel clearly recognized the brief opportunity the victim could have had to see his attacker (HT 94, 108, 202, 204-206). At the time of the identification, the victim was in the hospital with a tube inserted in his trachea. He was in and out of consciousness. His own brother told the doctors that he didn't think the victim was recognizing him. Surely there were reasonable grounds to believe that this could have been a suggestive identification.

Moreover, as to this motion, there truly was no downside, since defendant was entitled to it simply by asking for it. And, while one could debate the ethics of making a frivolous motion to get pre-trial discovery, this was certainly not a frivolous motion. The worst that could have happened is that the defense would be unable to establish a suggestive identification. The upside, of course, was suppression of the identification. The collateral benefit, in any event, would have been the ability to explore the police conduct at a time when the victim was still severely incapacitated. Indeed, had an independent source hearing been ordered, the People would have had to call the complainant to testify, giving the defense the opportunity to examine him prior to the trial. I conclude, therefore, that counsel simply omitted to make the motion for a Wade hearing out of simple negligence.

The People argue that failing to move for a Wade hearing has been held not to be ineffective assistance of counsel where counsel was otherwise effective. And there is some support for that proposition in the case law. See e.g. People v. Ryan, 229 AD2d 623 (3rd Dept 1996), affd. 90 NY2d 822. In addition, where the failure to move for the hearing does not seriously prejudice defendant, defense counsel has been found not to be ineffective. See e.g. People v. Maryon, 20 AD3d 911 (4th Dept 2005), lv denied 5 NY3d 854; People v. Waliyuddin, 286 AD2d 915 (4th Dept 2001); People v. Barlow, 222 AD2d 1123 (4th Dept 1995); People v. Morris, 187 AD2d 460 (2nd Dept 1992), lv denied 81 NY2d 890.

In the instant case, however, identification was a critical issue; suggestiveness was a real possibility, given the circumstances of the identification; there was little chance of showing independent source; and the failure to move for the hearing was just one of several significant errors made by counsel. Under these circumstances, the failure to move for the Wade hearing, combined with trial counsel's other errors, rendered his representation ineffective. See People v. Echavarria, 167 AD2d 138, 139 (1st Dept 1990); People v. Dombrowski, 163 AD2d 873, 874 (4th Dept 1990); People v. Hauser, 158 AD2d 1005 (4th Dept 1990); People v. Sims, 55 AD2d 629 (2nd Dept 1976).

Trial Counsel's Failure to Obtain Psychiatric Reports Showing Defendant's Severely Diminished Mental Capacity. As noted above, the only identification in the case was a photographic array, which could not be used at trial. There was no line-up identification. There was no guarantee that the victim would be able to make an in-court identification. If Diana Fonseca was unavailable to the People, as she ultimately was, defendant's statement was a critical piece of evidence, and might well have been the only evidence at trial connecting defendant to the crime. The statement, in defendant's own handwriting, admitted that defendant stabbed the victim in a jealous rage upon seeing his wife holding the victim's penis. This statement, if credited by the jury, would have been fatal both to a justification defense and the identification defense ultimately pursued at trial.

Counsel pursued two avenues of attack on the statement. First, he argued, based upon the timing of the Miranda warnings, that the statement was taken before Miranda and was otherwise involuntary. Defendant testified at the hearing that the statement was given before he was mirandized and that Officer Lopez "mushed" him (slapped and pushed his head) to get him to write the statement. Second, counsel argued that the defendant was "slow." While counsel never argued that defendant's "slowness" impaired his ability to understand the Miranda warnings, he argued that this "slowness," along with the other factors, rendered the statement involuntary.

Although trial counsel argued at the pre-trial hearings that defendant was "slow," he made no investigation whatsoever to discover the details or depth of his client's cognitive impairment, relying instead upon his own evaluation at their initial meeting. While he did not find Mr. Rivera to be of even average intelligence, he was able to speak with him and understand him. Although counsel has no special expertise in psychological or educational testing he had no problem volunteering his assumption that his client's IQ was between 70 and 80:

I believed him to be in the lower range of, as I indicated probably somewhere in the area of 70 to 80 IQ. And this is based upon my observation of countless thousands of individuals who have been in these situations before, as well as my training as a criminologist.

At the time that trial counsel made his off-the-cuff assessment of his client's IQ, he had available to him records suggesting that his client's impairment was substantially more significant. Indeed, records easily obtained by defendant's appellate counsel indicate that in 1995 defendant was diagnosed with an IQ of 50-59, putting him in the mildly retarded range. These records also indicated that defendant had a history of mental illness, including suicide attempts and psychiatric hospitalizations. (The records are attached to the Moving Affirmation of Claudia S. Trupp [July 11, 2005] as Exhibits B, C and D).

These records would have been powerful evidence in support of the claim trial counsel raised at the hearing, that defendant's "slowness" along with other factors rendered the statement involuntary. And it also would have supported the argument that defendant's retardation made it unlikely that he could have understood these warnings. See Singletary v. Fischer, 365 F. Supp.2d 328 (EDNY 2005).

The People argue that trial counsel's failure to obtain the appropriate medical records "would only be significant if mental retardation renders per se invalid any such waiver" (PPHSM 9). Why so? Counsel argued to the hearing court that defendant was "slow." He just had little evidence to support this allegation, as the People pointed out during the pre-trial hearing. That a particular defendant with subnormal intelligence may be able to understand Miranda does not mean that it is not an important factor to consider in assessing voluntariness. Moreover, without obtaining the records, how was counsel supposed to know what they showed?

Clearly an argument that a mentally retarded defendant might not understand his Miranda warnings is not a frivolous argument. See Singletary v. Fisher, 365 F. Supp.2d 328 (EDNY 2005); People v. Layboult, 227 AD2d 773, 775 (3rd Dept 1996). In Singletary, the United States District Court for the Eastern District of New York granted a petition for habeas corpus, finding that trial counsel was ineffective for failing to obtain and put before the trial court evidence of defendant's retardation. The defendant in Singletary confessed to murdering his niece and gave a videotaped statement to an assistant district attorney following police interrogation. The defendant's measured IQ on the Wechsler Adult Intelligence Scale-III was Full Scale: 65, Verbal: 66 and Performance: 63. A defense expert testified that in his opinion:

Individuals with IQ scores in the range obtained . . . are generally more suggestible, more readily manipulable and more eager to please and comply with authority than those of average intelligence. In addition, studies have indicated that individuals with IQ scores in the mentally retarded and even borderline range, have difficulties understanding the plain meaning of one or more of the warnings.

Id. at 334. The district court found trial counsel "deficient in failing to bring these matters to the state court's attention in the motion to suppress or at the trial." Id. at 337. It vacated the conviction.

This is not to say that the hearing court or a trial jury would have been persuaded by this evidence. As the People point out, a person of below normal intelligence can still be capable of waiving Miranda rights. See People v. Williams, 62 NY2d 285 (1984) (functionally illiterate, mildly retarded man with organic brain damage could make valid waiver of rights where officer described rights in simple language and verified that defendant understood each right before proceeding); People v. Hendrie, 24 AD3d 871 (3rd Dept 2005) (subnormal intelligence does not necessarily invalidate warnings). But defendant was never able to make any effective argument, because trial counsel substituted his own, uninformed judgment about defendant's mental condition and failed to obtain the relevant records.

The People seem to confuse the benefits of obtaining critical information with the benefits of admitting it in evidence, arguing that the records contain some evidence that defendant would not want the jury to see. But hard evidence of mental retardation would not necessarily mean that the records would have to be introduced in their entirety. The defense could obtain a ruling in limine to prevent prejudicial but irrelevant material coming into evidence. Or they could simply have the doctor who administered the tests testify to the results of the IQ score without necessarily opening the door to admission of extraneous prejudicial material.

Since the People at trial would have to show that the statement was voluntary beyond a reasonable doubt, evidence of mental retardation would also be admissible at trial. While the People's suggestion that evidence of mental illness might not make a jury sympathetic to defendant, surely the same argument would not be made about mental retardation. And, as counsel recognized in his testimony at the hearing, Bronx juries are exceedingly suspicious of statements to law enforcement taken under even the best of circumstances (HT 202). The inability to present this evidence to a jury severely prejudiced defendant.

The "Decision" to Call Diana Fonseca at Trial. Thus, at the pre-trial stage, counsel disclosed client confidences in support of a motion to suppress physical evidence that did not exist; he failed to move to suppress a critical identification that did exist; and he failed to obtain information that would permit him to argue effectively that an incriminating statement would be suppressed. These lapses set the stage for his client's conviction. The decision to call Diana Fonseca as a witness virtually guaranteed it.

Initially, although trial counsel seems never to have considered it an option, the defense was not obligated to choose between a "justification" defense without calling Diana Fonseca and a "misidentification" defense calling Diana Fonseca. Defendant had a readily available third option: not to call Diana Fonseca and still argue that the People had not proven identification beyond a reasonable doubt. To an objective observer, this might seem like defendant's wisest choice, since the dangers of calling Diana Fonseca were obvious: 1) she had a long criminal record; 2) her testimony implicating two unknown men with no motive was incoherent and still put defendant, who had a motive, at the scene of the crime; and, 3) critically, allowed the people to put into evidence the prior inconsistent statement which not only implicated defendant but also explained exactly how the police came by defendant as a suspect. The statement gave the jury the missing pieces of the puzzle, providing a full and complete picture of the police investigation.

I recognize that, wise or unwise, the decision to call or not call a witness is exactly the type of trial strategy or tactic that the case law cautions judges not to second guess. See e.g. People v. Smith, 82 NY2d 731 (1993); People v. Stewart, 295 AD2d 249, 250 (1st Dept 2002). And in this case, in spite of Diana Fonseca's obvious infirmities as a witness, she was the only eyewitness to the crime and was willing to testify that defendant was not the stabber. There are, however, several factors that remove this disastrous "decision" from the realm of strategy and tactics. First, it was not a decision made by counsel at all, since he ceded the decision to his client's family against his own better judgment. Second, he appears not to have understood or considered the impact that allowing the prior inconsistent statement into evidence might have on the jury. And finally, he put her on the witness stand with almost no preparation, delivering her to the assistant district attorney like a lamb to the slaughter.

It is clear from counsel's testimony that he did not make the decision to call Diana Fonseca at all, but instead simply did what his client's family told him to do. Thus trial counsel testified at the hearing on direct examination:

Q. Ultimately and obviously, Diana Fonseca testified on behalf of the defense in this case at trial?

A. That is correct.

Q. Why? Whose decision was that?

A. The decision was very emphatically put to me by both Danny Rivera and his brother, with Danny Rivera separately. His brother separately, but together with the father who was present. But what he understood I don't know except that the brother did speak to the father and the father nodded in a sense that's what we want, in effect.

Q. Did you express . . . hesitation, concern, about their insistence on having her testify?

A. Well, with Mr. Rivera, that's Danny Rivera, I had mentioned that we had set forth a self-defense defense. . . . And . . . in my mind . . . a justification defense might well be a better and certainly a plausible defense in this particular kind of case, based on everything I knew up to that point. (HT 143-144).

And again on cross-examination:

Q. When did you decide, okay, the justification defense is off the table, we are going for miss [sic] ID?

A. I didn't make that decision.

Q. You didn't make that decision?

A. No, I made quite clear that decision was made by Danny Rivera, by his brother, with the father ascending [sic] to it, virtually insisting upon it, I might add (HT 197).

This is most remarkable testimony, since the decision to call a witness (other than a defendant) or pursue a particular trial strategy is not the client's but counsel's. See ABA, Standards for Criminal Justice, Defense Function (3rd Ed.), Standard 4-5.2 Control and Direction of the Case ("Strategic and tactical decisions should be made by defense counsel. . . . Such decisions include what witnesses to call. . . ."); Jones v. Barnes, 463 US 745, 751 (1983); People v. Smith, 82 NY2d 731, 733 (1993). This distinction seems to have entirely eluded counsel, as indicated by the following colloquy, which like many of the responses at the hearing, never directly answered the questions put:

THE COURT: Do you feel that that type of decision is a decision that should be made by the client as opposed to by the attorney?

THE WITNESS: It's a decision that has to be made certainly in consultation with the client. And if a client insists that you call a witness who previously had been a witness against him, who was now a witness for him, then I believe that you almost have to do that because frankly, look, you can't advance one defense and the other defense, both of them in the same trial, it cannot be done. You could do it in a civil case, you can have alternative theories. You can't have alternative theories as varied as this in a criminal trial, it doesn't work.

I argued that I have preferred the original defense, however, they insisted on calling this person. And it was my view, at that particular point and time, that if I didn't call this person, particularly after I had interviewed Diana Fonseca and she was willing to testify, that if I didn't call her and we went to trial on the justification defense, then we would in fact be having the very same hearing only saying why didn't you call this witness who wanted to exculpate Mr. Rivera.

THE COURT: I guess my question was just this, certain decisions, for example the decision whether to plead guilty or not guilty and the decision to testify or not testify are decisions that it is the client's decision to make, not the lawyer's decision to make.

THE WITNESS: Ultimately, yes. And that applies to a particular defense of justification, where the only person who could testify as to whether or not he was justified was the defendant, because there wasn't going to be anybody else who would testify to that so implicit in that is if you are going to use the defense of justification, it would be with Mr. Rivera's determination and consent that he testify.

THE COURT: I understand your strategic reasons for thinking that and what I want to know is whether it is your belief that the decision, whether to . . . mount a justification defense or not is in the same category as the decision whether to plead guilty or to testify, whether you believe that . . . ethically is a decision you must allow your client to make as opposed to making yourself.

THE WITNESS: Well, it depends on whether or not it could be raised without involving my client directly. I mean ultimately, if a client asks me to perform in a particular matter and it's not in violation of law, then generally you try to do what the client insists that you do, if it is at all possible to do so.

THE COURT: What if you believed that that decision would irreparably damage his chances of success in front of a jury, as a lawyer?

THE WITNESS: Well, I would advise him I don't think you should do this. I've had I have had situations, I recall one before Judge Marcus in this very courthouse where a client insisted on doing something. We made a very detailed record about it, that I did not believe that we should use that particular defense. The person insisted on testifying, I then had the person testify in a narrative, which telegraphed something to the judge any way and we proceeded accordingly, okay.

So ultimately these types of decisions may be dictated by the defendant as long as it's something which is not illegal or otherwise unethical

THE COURT: Well, you may have answered my question, but I am not sure.

THE WITNESS: All right, I'll try my best.

THE COURT: If your client insists upon testifying and you strongly advise him not to, then it's his decision, you have no ethical choice but to allow him to testify. And if he's told you something to the contrary, then you put him on and give a narrative answer as you have indicated you did in front of Judge Marcus.

THE WITNESS: That's correct.

THE COURT: If your client insists you call a fact witness, is it your understanding that you also have to call that fact witness because your client wants you to do that or is that a decision that you can say, no, I am not going to do that, that would be a disaster?

THE WITNESS: Well, it depends. . . .

(HT 197-201).

Allowing the defendant and his family to make critical trial decisions is especially troubling here, where defendant had severe cognitive impairments and the decision seems to have come from defendant's father (who did not speak English) and defendant's brother who had no special sophistication or right to dictate to counsel any trial strategy at all. It does not appear that counsel explained to defendant or his family the dangers of calling Diana Fonseca as a witness. Indeed, it does not seem that he did much more than suggest that he himself preferred a justification defense. And again, it seems that counsel never considered or discussed with defendant the clearly available third alternative of simply arguing, without Diana Fonseca, that the People had not proven identification beyond a reasonable doubt.

In fact, trial counsel could not very well have fully explained the dangers of calling Diana Fonseca as a witness, since it seems that he did not fully understand them himself. The greatest danger in calling Fonseca was, of course, that the jury would hear her prior statement fully implicating defendant. This would not only impeach her testimony, it would tie up all the remaining loose ends for the jury, since they would now understand exactly how defendant came to be arrested; how the police recovered the weapon; and how defendant's confession was obtained. And, although the jury would be told that they could not use the confession for its truth, the jury could not help but realize that this confession, given immediately after seeing the victim in the hospital, was substantially more plausible than her trial testimony and fully consistent with every other piece of evidence in the case. Yet trial counsel seems not to have fully appreciated that the statement could come in to evidence, even as a prior inconsistent statement.

Counsel testified at the hearing on the instant motion that he believed that because Fonseca was a "former lover, spurned lover or whatever" it was possible that the statement might not be able to be used at all. Leaving aside the unfortunate characterization of a victim of domestic violence as a "spurned lover," this too would go the weight of the statement before the jury, not it's admissibility. And counsel clearly believed that the statement itself would never come into evidence. Thus, when the People sought to introduce Fonseca's handwritten, signed statement as a prior inconsistent statement directly at odds with her trial testimony, trial counsel objected. "You don't put a document that's a prior inconsistent statement in" (TT 896). At the hearing on the instant motion, counsel seemed to confuse the question of whether the document would be admitted into evidence with the question of whether it would be admitted into evidence for its truth which of course it could not be. And, although, the decision to admit the statement itself was within the court's discretion (and, indeed, some of it was redacted), that Fonseca's signed statement would itself be admitted seems never to have occurred to trial counsel. See People v. Piazza, 48 NY2d 151 (1979) (it is within trial court's discretion to allow jury to see document admitted as prior inconsistent statement).

Finally, trial counsel put Fonseca on the witness stand with almost no preparation at all. He met with her one time prior to her testimony for twenty to thirty minutes and spoke to her briefly before trial. He never went over with her the questions that he would ask on direct examination or prepared her for the questions that would be asked on cross-examination. "I don't do either of those things," counsel testified (HT 227-228).

The "decision" not to prepare Fonseca for her trial testimony is inexplicable. This was an uneducated woman with a lengthy criminal record. She was testifying to a virtually incredible story that was in direct contradiction to her prior statement. She was a singularly unappealing witness, who was responsible for putting the victim in the situation in the first place and she left him bleeding on the stairs without calling 911 or the police. The prosecution had, to say the least, a lot to work with.

The effect of the lack of preparation was evident even before Fonseca was put to the test of cross-examination. On direct examination, the second question asked was "Have you ever been convicted of a crime?" Fonseca's answer: "Of a crime, no. Selling drugs, yes." She then followed up by saying the cases were "dropped already." No further questions were asked about this on direct, although Fonseca had a lengthy criminal record. And, as detailed above ( supra at pp. 12-16), on cross-examination Fonseca simply crumbled. She was unprepared to respond to the prosecutor's questions about her criminal record; she was forced to admit every detail of her statement implicating defendant; she finally admitted, contrary to her testimony on direct, that she had not known the complainant before that night; and ultimately just sat there looking down at her hands, defeated.

The foregoing factors remove the "decision" to call Fonseca as a witness from the category of "risky, unorthodox, or downright ill-advised" strategic decisions (although it was certainly all of those), and put it squarely into the category of ineffective counsel. Trial counsel in effect let his client's family decide who should be called as a witness. He did so without adequately advising them of the consequences which counsel clearly did not fully appreciate himself. He then carried out the decision without even the most basic pre-trial preparation, making Fonseca's collapse inevitable.

Defendant's Remaining Contentions. Defendant raises three additional issues which warrant some discussion. First, defendant argues that his trial counsel failed to object to certain remarks by the prosecutor. Second, defendant argues that defendant's failure to move to dismiss the indictment for an irregularity in the grand jury proceedings was error. Finally, defendant argues that counsel erred by failing to make a timely request for a missing witness charge. While each of these arguments has some merit, I would not find that even collectively they rendered counsel ineffective without the more serious lapses detailed above. In the overall context of the more serious lapses detailed above, however, they provide additional evidence of ineffective assistance.

With respect to the prosecutor's summation, the prosecutor stated that she had not called Fonseca because she had to "prove the case with integrity." While this statement is probably improper (and given the disreputable witnesses prosecutors frequently have to call, most likely untrue), it is not of the same nature as the statements disapproved of in the cases cited by the defense. See e.g. People v. Carter, 40 NY2d 933, 934 (1976); People v. Clark, 195 AD2d 988, 990 (4th Dept 1993).

The other summation comments are more troubling. Although the jury several times received an instruction that Fonseca's statement could not be used for its truth, the prosecutor several times suggested to the jury that the statement could be used as evidence against the defendant. Trial counsel should have objected to these comments. Still, it is unlikely that the prosecutor's comments had any effect on the outcome of the case, especially in light of my repeated instructions that the statement could not be considered for its truth.

The grand jury minutes reflect that the complainant testified by videotape at a time when he was still in the hospital, unable to speak. The questions were put to him by the assistant district attorney and defendant nodded his head. Present in the room, for reasons that were never satisfactorily explained, was Police Officer Lopez a critical fact witness who was the arresting officer, took defendant's statement and also was present when the complainant identified defendant in the photographic array. Officer Lopez was also a witness in the grand jury.

Sections 190.25(3) and 190.32(5) of the CPL enumerate the people who may be present during a grand jury presentation and the examination of a "special witness" by videotape. Clearly the arresting officer is not so authorized. The presence of the arresting officer during the testimony of the victim compromised the integrity of the grand jury proceedings, and, most likely would have resulted in dismissal of the indictment had trial counsel so moved. See People v. Sayavong, 83 NY2d 702 (1994) (presence of lead investigating police officer during videotaped grand jury testimony of child witness impaired integrity of proceeding).

While it appears that trial counsel did not even notice the irregularity in the proceeding, I do not find this failure severely prejudiced defendant. The case could easily have been presented to another grand jury, this time with a live victim and defendant's statement, and anything defendant gained by moving to dismiss the indictment would be speculative.

Finally, defendant also argues that counsel erred by making an untimely request for a missing witness charge when the People did not call Detective Ramirez. Ramirez was present with Lopez when the statement was taken and read the Miranda warnings. Ramirez testified at the Huntley hearing that defendant was crying uncontrollably for 15-20 minutes, while Lopez testified at trial that that defendant cried for about 3 minutes. Trial counsel moved for a missing witness charge at the charge conference, after he had rested. Counsel argued, in essence, that because Detective Lopez could not remember the exact questions that Detective Ramirez asked when defendant's statement was taken, his testimony is material and not cumulative. I denied the instruction, finding that the request was untimely and also that the testimony would be cumulative. Defendant's appellate counsel now argues that not only was the request untimely, but that counsel failed to mention the discrepancy in the amount of time defendant was crying. Since this testimony would be important both to defendant's argument that the statement was involuntary and to an assessment of Lopez's credibility, it was error for defense counsel not to make a timely request for a missing witness charge and to fail to point out to the Court the aspect of the testimony that made it not cumulative.

CONCLUSION

In sum, trial counsel's errors permeated every stage of the pre-trial and trial phases. He moved to suppress evidence that did not exist, prematurely committing his client to a justification defense later abandoned at trial. He failed to move to suppress a pre-trial identification made under potentially suggestive circumstances, forgoing a significant opportunity to challenge what should have been weak identification testimony. He failed to obtain easily obtainable records which would have been important in challenging the statement taken from his mentally challenged client. He called Diana Fonseca, against his own better judgment, ceding a critical decision to his client's family without adequately apprising them or understanding himself the disastrous consequences of this decision. And he put Diana Fonseca on the witness stand with almost no pre-trial preparation, virtually insuring her inevitable disintegration. He turned a case based upon a weak identification and the confession of a mildly retarded man into an overwhelming case.

While counsel may have gone through the motions of "zealous" advocacy and appeared on the surface to have "vigorously" represented his client, no amount of effective advocacy could overcome the numerous and profound errors committed by counsel at the pre-trial and trial stages. Having effectively insured his client's conviction by these errors, counsel's "vigor" can no more be considered effective advocacy then can the medical attention delivered to a child by a parent with Munchausen's Syndrome bv Proxy be considered effective medical care.

For the foregoing reasons, defendant's motion pursuant to CPL § 440.10 is granted. The judgment is vacated and a new trial is ordered.

This opinion constitutes the decision and order of the Court.