Criminal Defense Appeal, Sexual Touching Dismissed

The case People v. Lakhani, 2020 N.Y. Slip Op 20342 (2nd Dep't. App. Term 2020) highlights why it is important to hire a competent criminal defense attorney and, even more so, an appellate attorney if things go south at the trial level.

Sexual assault and sexual abuse are common charges and are often vigorously prosecuted. The Defendant, Lakhani, was accused of sexual abuse in the second degree (Penal Law § 130.60 [2]). Here, "[t]he accusatory instrument alleged that, in August 2012, defendant lifted up the shirt of the complainant, who was less than 14 years old at the time, touched her breasts with his fingers, took a photograph of himself touching her, and grabbed the complainant's hand and placed it on his body somewhere 'lower than the defendant's stomach, hairy, dry and felt like skin.' " The Prosecutor hires a purported expert and the criminal defense attorney should have objected, preserving the record, but does not.

Criminal Defense Attorneys, Appeal Attorneys/Appellate Attorneys and Trial Attorneys know that certain objections must be preserved for appellate review. Here, the Court notes that "Defendant's legal sufficiency contention is unpreserved for appellate review since his trial attorney did not raise, at trial, the specific arguments made in support of this contention on appeal." People v. Lakhani, 2020 N.Y. Slip Op 20342 (2nd Dep't. App. Term 2020) (citing CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People v Hines, 97 NY2d 56, 61 [2001]; People v Gray, 86 NY2d 10 [1995]). Further, luckily for this New York Criminal Appeal, the accused, the Second Department Appellate Term notes that "since there is no preservation requirement associated with defendant's contention that the verdict was against the weight of the evidence, this court necessarily must determine whether all of the elements of the crime as charged were proven beyond a reasonable doubt as part of its weight of the evidence review." Id. (citing People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Thiel, 134 AD3d 1237 [2015]).

Together with failing to preserve the record for appeal, The Court notes the following about defense counsel's errors:

We find, however, that defendant was denied a fair trial due to errors made by the prosecutor (argument number 4), which we review as a matter of discretion in the interest of justice, and by his trial attorney (argument number 5). In order to rebut the testimony of defendant's forensic psychiatrist, the People presented the testimony of a licensed social worker who was qualified "to testify as an expert as to the issue of forensic interviewing and best practices," which apparently included the topics of false memories and suggestibility....on cross-examination, defendant's trial attorney repeatedly asked the witness questions regarding scenarios similar to the facts at bar—concerning when a child makes an outcry of sexual abuse and then does not mention it again for several years, after which the parent repeatedly asks the child about it but the child does not want to talk about it—which brought up the topic of original trace memories. The witness finally stated that "the original trace memory is the original memory. Even if this person, this adult ... is trying to put something else there, is asking about it, it's not going to change what that original trace memory was. That's there. That's encoded." We find that this testimony clearly bolstered the complainant's testimony.

Although the bulk of the issues, for this criminal defendant, were unpreserved, the Court states that the aforementioned acts and omissions by defendant's trial attorney were "so `egregious and prejudicial' as to deprive defendant of his constitutional right" to the effective assistance of counsel." People v. Lakhani, 2020 N.Y. Slip Op 20342 (2nd Dep't. App. Term 2020) (citing People v Turner, 5 NY3d 476, 480 [2005]; People v Caban, 5 NY3d 143, 152 [2005]). The Court notes that "the trial, viewed as a whole, was not fair [and] that the representation defendant received from his trial attorney fell short of an objective standard of reasonableness...and, thus, defendant was not provided with meaningful representation." People v. Lakhani, citations omitted. The Court finds that the Defendant's trial attorney's deficient performance prejudiced the defense and orders a new trial.

The case is People v. Lakhani, 2020 N.Y. Slip Op 20342 (2nd Dep't. App. Term 2020); Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA) if you are facing any accusation.