Judge Says Lawyer’s Error Not Enough to Overturn Conviction

(Joel Stashenko) A defense lawyer’s decision not to call his forensics expert to the stand because the attorney misunderstood procedural rules of expert testimony did not deprive his client of meaningful representation, a judge ruled.

Brooklyn Supreme Court Justice Albert Tomei (See Profile) denied defendant Gregory Morency’s CPL ยง440.10 motion to vacate his conviction and 15-year sentence for manslaughter based on Morency’s contention that errors by his 18-B assigned counsel, Kleon Andreadis, represented ineffective assistance of counsel.

Chiefly, Morency, in People v. Morency, 607/2008, took issue with the lawyer’s decision not to call defense forensics expert James Gannalo to the stand to rebut testimony from the prosecution’s expert about the 2008 shooting which resulted in the death of Morency’s girlfriend, Maribal Hernandez.

Andreadis said he asked Gannalo to attend the trial and listen to testimony from prosecution expert Edward Hueske, so Gannalo could immediately advise Andreadis what to ask Hueske during cross-examination.

Tomei said Andreadis, who had more than 20 years’ experience as a defense attorney, mistakenly believed that Gannalo could not be in the courtroom to hear Hueske’s testimony and still be called as a witness for the defense.

Tomei pointed out, however, that under the state Court of Appeals’ ruling in People v. Santana, 80 NY2d 92 (1992), the reasons precluding a fact witness from hearing the testimony of other fact witnesses during a trial do not apply to expert witnesses. Therefore, Gannalo was free to both hear Hueske’s testimony and to testify himself.

The judge noted that Andreadis also opted not to hire a second expert witness to appear in Gannalo’s stead, preferring to let his cross-examination of Hueske suffice to cast doubts on the prosecution’s expert.

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