Summary
holding that because, "[g]enerally, the ineffectiveness of counsel is not demonstrable on the main record,... it would be better, and in some cases essential, that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by collateral or post-conviction proceedings brought under CPL 440.10"
Summary of this case from Chatmon v. ManceOpinion
Argued September 12, 1978
Decided October 19, 1978
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, DONALD J. SULLIVAN, J.
Daniel M. Ross and William E. Hellerstein for appellant.
Mario Merola, District Attorney (Leonard G. Kamlet and Alan D. Marrus of counsel), for respondent.
MEMORANDUM.
Order of the Appellate Division reversed and new trial ordered. The record, unlike as in most "ineffective counsel" cases, demonstrates beyond cavil that defendant was lacking effective counsel throughout the prosecution against him. For whatever reason, despite undoubtedly sincere efforts on his part, assigned defense counsel failed to protect the interests of his client. The result of reversal is unfortunate since the guilt of defendant was, and even with effective counsel most likely would have been, established by overwhelming evidence. Nevertheless, defendant was entitled to a fair trial represented by effective counsel. (See, e.g., People v Droz, 39 N.Y.2d 457, 462, and cases cited; People v Bennett, 29 N.Y.2d 462, 465-467.) Generally, the ineffectiveness of counsel is not demonstrable on the main record, but in this case it is. Consequently, in the typical case it would be better, and in some cases essential, that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by collateral or post-conviction proceeding brought under CPL 440.10 (cf. People v Brown, 28 N.Y.2d 282, 286-287).
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Order reversed, etc.