Ineffective assistance of counsel; Failure to make use of certain evidence; Factual predicate; Overcoming the presumption that counsel performed effectively; Failure to call additional witnesses; People v Wade

Rejecting defendant’s claims that his trial counsel was unconstitutionally ineffective for failing to make use of certain evidence and to call additional witnesses at trial, the court affirmed his resisting and obstructing a police officer convictions. The evidence concerned “an ‘attack and injury’ that defendant claims he suffered on the night of the events at issue in” the case (9/30/23). He offered two documents. The first was a police report about a complaint he made a few days after those events. The second was “an ‘After Visit Summary’ reflecting” his 10/3/23 ER visit for a head injury, which included “a listed diagnosis of ‘[c]oncussion with loss of consciousness of 30 minutes or less, initial encounter.’” He asserted that trial counsel was ineffective for not using them to mount a defense “‘that he lacked intent and was not criminally responsible for his actions[.]’” But he offered nothing to support his contention that the documents “would have provided a colorable basis for requesting a criminal responsibility exam, let alone one that would have inured in favor of any defense on his part. In fact,” he did not identify what defense he believed such an exam would have supported. He also did not offer any meaningful support, legally or factually, for his argument that the documents would have warranted a jury instruction on intent. As to prejudice, he “offered nothing more than the conclusory assertion that a jury likely would have acquitted him had it only known of this alleged assault on him and his concussion.” He also failed to carry his burden as to his claim for failure to call additional witnesses. He noted that other people were present and witnessed the events at issue, but he made no effort to identify them, and he did not provide “affidavits or any other offer of proof that [they] would have testified in his favor.” To the extent his claim comprised “any suggestion that counsel inadequately investigated these witnesses, that suggestion is likewise wholly unsupported and undeveloped.”