Murder conviction reversed over ineffective counsel

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A state appeals court has overturned a murder conviction because of ineffective assistance of counsel.

Defendant Lonnie McCray, 64, was convicted in March 2012 in state Supreme Court in the Bronx of second-degree murder and second-degree criminal possession of a weapon. He was sentenced to 25 years to life in prison.

McCray filed a motion seeking to vacate the conviction on ineffective counsel grounds.

In April 2019 Justice Ralph Fabrizio denied the motion without a hearing and McCray appealed to the Appellate Division of state Supreme Court First Department.

In October 2020 the First Department reversed Fabrizio’s ruling and ordered a hearing to be held on the motion. In July, Fabrizio held the hearing and again denied the motion.

“We conclude that the motion should have been granted,” the First Department wrote in a decision released Thursday.

“At the hearing, trial counsel testified that each of the alleged errors at issue on appeal was a strategic decision. However, based on our review of the record, we find that certain highly prejudicial decisions by counsel were not, in fact, strategic, or, even if subjectively intended to be strategic, were objectively unreasonable,” the court wrote.

According to the First Department decision, it was not a legitimate trial strategy for McCray’s lawyer to allow, without objection, the prosecution to call the sole eyewitness to the shooting without the required advance notice to the defense.

The judge even cautioned McCray’s lawyer about his willingness to waive the defendant’s right to preclude the testimony.

“Even after cross-examining the witness, trial counsel sought preclusion of the identification, showing that he still did not understand that under (New York State Criminal Procedure Law) he could no longer seek preclusion,” the court wrote.

The defense lawyer claimed that the testimony could not harm his client because the eyewitness description did not match his client.

Even though the judge did not allow the prosecution to present the photo identification of defendant, McCray’s lawyer introduced the mug shot shown to the witness. The defense lawyer claimed he did that to show the jury the suggestive nature of the single photo identification procedure.

The photo the defense lawyer presented in court had the word “shooter” on it. He claimed he did not ask to have it removed “because it showed the suggestiveness of the procedure.”

The defense lawyer admitted that he didn’t even know if “shooter” was written on the picture before or after the witness identified McCray.

The defense lawyer also did not redact McCray’s criminal history from the mug shot to show because it showed nonviolent drug crimes. But he previously objected to the prosecution bringing up the record to impeach McCray’s testimony.

The defense lawyer also did not object to a detective’s improper identification of defendant in a blurry video, the court wrote.

“Without the various evidence that would have been kept out of the trial if the defense lawyer had made the correct decisions, the People’s case would have been considerably weaker. The only remaining identifying witness provided circumstantial, rather than direct, evidence of defendant’s guilt, and his testimony was extensively impeached,” the First Department wrote.

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