A state appeals court vacated two criminal sentences on Tuesday for ineffective assistance of counsel, ordering a new trial for one man whose attorney failed to object to hearsay evidence, and a resentencing for another man whose attorney failed to challenge the constitutionality of a prior conviction.
A unanimous Appellate Division, First Department panel ordered a new trial for Austen Ugweches, who was convicted of assaulting a police officer with his vehicle in 2009. Manhattan Supreme Court Justice Eduardo Padro (See Profile) had sentenced him to six months in prison concurrent with five years’ probation.
Justices Rolando Acosta (See Profile), Dianne Renwick (See Profile), Karla Moskowitz (See Profile), Helen Freedman (See Profile) and Paul Feinman (See Profile) sat on the panel, which said People v. Ugweches, 4349/05, was “one of the rare cases” where the trial record alone made clear that the defendant had received ineffective assistance of counsel.
Most importantly, the panel said, Ugweches’ counsel failed to object to hearsay statements attributed to bystanders to the crime.
“These bystander statements were not admissible under any theory, and we reject the People’s arguments to the contrary,” the panel wrote. “These declarations did not qualify as excited utterances, and, under the circumstances of the case, they were not admissible as background information to complete the narrative and explain police actions.”
The panel noted that in a previous trial, which resulted in a hung jury, the statements were not in evidence, suggesting they strongly bolstered the prosecution’s case.
“We are unable to discern any strategic basis for counsel’s failure to object to this highly prejudicial hearsay evidence,” it said.
The panel also said there was no strategic basis for failing to subpoena the complainant police officer’s medical records or introduce a medical expert witness. In the first trial, those records were introduced and an expert witness testified that they contradicted the officer’s claim that she was injured.
Finally, the panel found that Ugweches’s counsel failed to impeach the complaining witness by pointing out that her testimony was inconsistent with a prior statement she made before the Civilian Complaint Review Board.
Abigail Everett, a senior supervising attorney at the Center for Appellate Litigation, who represents Ugweches, declined to comment.
Manhattan Assistant District Attorney Martin Foncello represented the prosecution. A spokesman for the DA’s office also declined to comment.
A different First Department panel vacated the sentence of Keith Fagan, who pleaded guilty to attempted robbery in 2010 and was sentenced to 18 years to life as a persistent violent offender by Bronx Supreme Court Justice George Villegas (See Profile).
The 2010 sentence was enhanced because of a sentence 10 years earlier, in which Fagan also pleaded guilty to a felony, according to the decision. The 2000 prison sentence included mandatory post-release supervision under New York law, but Fagan was not advised of that fact at his 2000 plea proceeding.
In 2005, the Court of Appeals ruled in People v. Catu, 4 NY3d 242, that when a defendant is not advised of mandatory post-release supervision, the conviction is unconstitutional. The First Department found that Fagan had ineffective assistance of counsel because his attorney failed to challenge the constitutionality of the 2000 conviction on that ground.
In 2009, Fagan left prison and began serving his post-release supervision, even though it wasn’t explicitly included in his sentence. The court in the 2000 case then added post-release supervision to his sentence to correct the error. In 2010, it vacated that modification after the Court of Appeals ruled in People v. Williams, 14 NY3d 198, that post-release supervision cannot be added after a defendant’s release.
“Contrary to the People’s sole argument on appeal addressing the Catu issue, the vacatur of defendant’s [post-release supervision] could not cure the Catu error, or give defendant the benefit of his plea, since at the time of the vacatur he had already served four years of [post-release supervision], and had also spent time in jail in violation of that supervision,” the panel wrote.
The record in the lower court revealed that Fagan’s counsel in his second case was unaware of the constitutional issue with Fagan’s earlier conviction, according to the First Department panel.
“Thus, this was not a case where an attorney may have reasonably believed that it would have been futile to raise a Catu issue regarding the constitutionality, for predicate felony purposes, of defendant’s 2000 conviction, or that the law was unclear on this issue,” the panel wrote.
“Instead, failure to raise the issue was the product of a lack of investigation,” the panel added.
The panel remanded the case for a new sentencing hearing.
Barbara Zolot, a senior supervising attorney at the Center for Appellate Litigation, who represented Fagan, could not be reached for comment.
The prosecution was represented by Bronx Assistant District Attorney Clara Salzberg. A spokesman for the office declined to comment.