NY3: Def counsel was ineffective for not objecting to SW affidavit coming into evidence full of inadmissible informant hearsay

Defendant proved ineffective assistance of counsel from defense counsel’s failure to object to the search warrant application coming into evidence full of informant hearsay that wasn’t admissible in the case in chief. People v. Newman, 2019 NY Slip Op 01263, 2019 N.Y. App. Div. LEXIS 1302 (3d Dept. Feb. 21, 2019) [Not to mention the DA arguing it when he or she should have seen this coming. Admittedly, unobjected to hearsay is “evidence,” but the DA should have played it closer to the vest and mitigated the mistakes of defense counsel to avoid this.]:

It must be further considered that the information in the application would not have otherwise come before the jury; neither Brady nor any other witness mentioned the CI’s claims at trial, no witness mentioned handguns, and no one claimed to have bought drugs from defendant or witnessed drug transactions in which he participated. The only other trial evidence that directly indicated that defendant had participated in drug transactions was that described above, when defense counsel asked the detective about the failure to obtain fingerprints.

As defendant argues, the highly prejudicial nature of the information in the application was revealed within the People’s summation. At the very beginning of the closing argument, before any discussion of the physical evidence, the prosecutor immediately brought up the CI’s claims, arguing that the information in the application established that defendant and the girlfriend “were in an enterprise to sell narcotics.” The prosecutor advised the jury to read the application, asserting that it “clearly show[ed]” that the girlfriend did not act alone in possessing and selling drugs, that defendant and the girlfriend acted together, and that the drugs found in the bedroom belonged jointly to defendant and the girlfriend. The prosecutor returned to the application later, arguing that, although defendant asserted that there was no evidence that he knew drugs were in the apartment, the jury should “[l]ook at the search warrant application. That might help answer that question.” Despite the inadmissible nature of the application’s hearsay information and defense counsel’s prior statement as to the limited purpose for which he had offered it into evidence, counsel did not object to any of the prosecutor’s statements about the application. Accordingly, the jury was never informed that the information about the CI’s claims was inadmissible hearsay, and was instead directly advised, without contradiction, that it could consider the information as substantive evidence of defendant’s guilt (compare People v Hughes, 72 AD3d 1121, 1123 [2010]; People v Montgomery, 22 AD3d 960, 962-963 [2005]).

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