I am always amazed when the Second Circuit vacates a state court criminal conviction on constitutional grounds. Not only because Congress has made it harder for federal courts to do this (state courts get the benefit of the doubt when interpreting the Constitution, even if incorrectly), but because the state conviction has already gone through the appellate process in New York and the Appellate Division and maybe even the New York Court of Appeals has already upheld the conviction. The Second Circuit has vacated another conviction, this time on grounds that the defendant's lawyer was ineffective at trial.
The case is Cornell v. Kirkpatrick, decided on December 1. Cornell was convicted of two rapes at the same trial in Ontario County Court. One rape took place in Monroe County, the other in Ontario County, within days of each other. The Second Circuit says that "The Ontario County District Attorney alleged that, because the attack on Victim #2 occurred 'in an automobile that traversed through Ontario County,' he had jurisdiction to simultaneously prosecute both alleged rapes—the one that occurred in Ontario and the one that occurred in Monroe—under New York Criminal Procedure Law § 20.40(4)(g) (the “private vehicle exception”)." Cornell's lawyer did not object when the Monroe County rape went to trial in Ontario County. He should have.
A defendant in New York has a right to be tried in the county where the alleged crime was committed. The prosecution has to prove at trial that the crime took place in that county. This can be a question for the jury, but there was no dispute here; the prosecutor in his opening statement said the crime took place in Monroe County. Now the state is singing a different tune, saying on appeal that the prosecutor was mistaken in his opening statement. The Second Circuit (Newman, Cabranes and Straub) is not buying this nonsense, and it suspects the DA is changing his story because it realizes that a State Court of Appeals ruling (People v. Moore) is directly on point in favor of Cornell (a case, by the way, that everyone seemed to overlook as the criminal case wended through the state system). Judge Straub writes, "We remind the State that the prosecutor plays a special role in our society, unique from that of his adversary at the defendant’s table. The prosecutor is “the representative . . . of a sovereignty . . . whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done.” The Second Circuit is also withering in its criticism of Cornell's trial counsel: "Although Cornell’s trial counsel presented an opening and closing statement, cross examined witnesses, and presented a defense case with three witnesses, the fact remains that he was completely ignorant of the venue law in New York."
Anyway, "[h]ad Cornell’s counsel objected to venue on the basis of Moore, the trial court would have been required to submit the issue of venue to the jury and instruct it on the limitation imposed by Moore" at trial. This could not have been a strategic decision by Cornell's criminal lawyer; he simply blew it. The error could have made a difference at trial because "the record demonstrates that the jury, appropriately instructed as to venue, would have easily found by a preponderance of the evidence that the rape occurred in Monroe County." Cornell thus gets a new trial.