Ineffective assistance of counsel; Strickland v Washington; Prejudice; People v Trakhtenberg

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 77223 in the 4/15/22 edition) and remanded to that court for reconsideration of defendant’s ineffective assistance of counsel claim. It concluded the Court of Appeals “cited the correct standard for assessing prejudice under Strickland” but failed to apply this standard. The court noted that prejudice is demonstrated “where a defendant shows that ‘but for counsel’s deficient performance, there is a reasonable probability that the outcome would have been different.’” On appeal, defendant contended “his trial counsel was ineffective for asking his ex-wife whether she was aware of any other allegations that the defendant had molested a child. In response, the witness said she had learned from the defendant’s sister that he had molested her when they were children. The Court of Appeals agreed with the defendant that his counsel was objectively unreasonable for opening the door to other-acts evidence. But it held that he was not prejudiced by the error.” The court found that the Court of Appeals “made a critical error. It concluded that because the victim’s testimony was ‘sufficient to convict defendant,’ he was not prejudiced by the admission of other-acts evidence. . . . Sufficient evidence to convict does not obviate the need to make a prejudice determination. Rather,” as the U.S. Supreme “Court noted in Strickland, a prejudice analysis requires determining how the error affected other evidence properly presented.” The court directed the Court of Appeals on remand to resolve defendant’s ineffective assistance of counsel claims “under the correct standard, evaluating the interaction of the improper other-acts evidence with the other evidence presented at trial.” Further, as that issue logically connected to his cumulative error claim, this “claim should also be addressed on remand, if necessary.”