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cited 2× by 2 distinct cases, last quoted 2011 ·
…defendant has not demonstrated that such testimony was available, that it would have assisted the jury in its determination or that he was prejudiced by its absence
at p. 1020
⚠ not in text
Top citers, strongest first. 7 distinct citers.
How cited ↗
discussed
Cited as authority (rule)
People v. Cassala
Artus v Gersten, 547 US 1191 [2006]; see Pavel v Hollins, 261 F3d 210, 223-225 [2d Cir 2001]; Lindstadt v *1256 Keane, 239 F3d 191, 201-202 [2d Cir 2001]). 3 Thus, the record establishes that, without any justification, counsel prejudiced defendant by “s[itting] on his hands, confident that his client would be acquitted” rather than “consult [ing] [with] and be[ing] prepared to call an expert” (Pavel v Hollins, 261 F3d at 224 ), whose testimony then would have been “available . . . [to] assist[ ] the jury in its determination” (People v Castricone, 224 AD2d 1019, 1020 [1996]; accor…
discussed
Cited as authority (rule)
People v. Jenkins
Since that branch of the defendant’s motion which was based on ineffective assistance of trial counsel was supported by affidavits of witnesses who could have testified in support of an alibi defense, and it cannot be determined whether defendant’s trial counsel had strategic or tactical reasons for failing to investigate them or failing to call them to testify, the Supreme Court erred in denying the motion without first conducting an evidentiary hearing (see People v Nau, 21 AD3d at 569 ; People v Fogle, 307 AD2d at 301 ; People v Castricone, 224 AD2d 1019, 1020 [1996]).
discussed
Cited as authority (rule)
People v. Kilbury
“Defendant has not demonstrated that such testimony was available, that it would have assisted the jury in its determination or that he was prejudiced by its absence” (People v Castricone, 224 AD2d 1019, 1020 [1996]; see People v Brandi E., 38 AD3d 1218, 1219 [2007], lv denied 9 NY3d 863 [2007]).
discussed
Cited as authority (rule)
People v. Mosley
The court should have afforded defense counsel an opportunity to explain his alleged failure to investigate or to call that witness “or to provide a tactical explanation for the omission” (People v Castricone, 224 AD2d 1019, 1020 [1996]).
discussed
Cited as authority (rule)
People v. Brandi E.
The failure of defense counsel to obtain the testimony of an expert does not constitute ineffective assistance of counsel because defendant has not shown that “such testimony was available, that it would have assisted the jury in its determination or that [defendant] was prejudiced by its absence” (People v Castricone, 224 AD2d 1019, 1020 [1996]; see People v Prince, 5 AD3d 1098 [2004]).
discussed
Cited as authority (rule)
People v. Maryon
Similarly, defendant failed to demonstrate the absence of a legitimate explanation for the failure of defense counsel to renew his CPL 290.10 motion and his failure to seek lesser included charges or missing witness charges inasmuch as it appears from the record before us that defendant would not have prevailed with respect thereto (see generally Garcia, 75 NY2d at 974 ; Rivera, 71 NY2d at 709 ; People v Jenkins, 68 NY2d 896, 898 [1986]; People v Castricone, 224 AD2d 1019, 1020 [1996]).
discussed
Cited as authority (rule)
People v. Prince
With respect to defense counsel’s alleged failure to obtain expert testimony or evidence, defendant has not demonstrated that such testimony or evidence was available or that it would have assisted the jury in its determination (see People v Jurgensen, 288 AD2d 937 [2001], lv denied 97 NY2d 684 [2001]; People v Castricone, 224 AD2d 1019, 1020 [1996]; see also People v Skinner, 224 AD2d 916 [1996]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Chad Penn
v.
Chad Penn
Appellate Division of the Supreme Court of the State of New York.
Feb 2, 1996.
Published
—Judgment unanimously affirmed. Counsel’s application to withdraw granted (see, People v Crawford, 71 AD2d 38). (Appeal from Judgment of Supreme Court, Monroe County, Wesley, J. — Attempted Robbery, 1st Degree.) Present — Green, J. P., Pine, Fallon, Callahan and Boehm, JJ.