After 22 Years, Panel Grants New Trial in Double Murder

, New York Law Journal

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A convict who has served 22 years of a 50-years-to-life sentence for a double homicide narrowly won a new trial after more than two decades of trying to persuade the courts that he was denied effective assistance of counsel.

The Appellate Division, Fourth Department, which affirmed Kharye Jarvis' conviction and sentence in 1994, now says in a 3-2 decision that his trial attorney committed grievous errors, that the prosecutor exploited those mistakes and that the defendant's appellate counsel failed to bring this to the attention of the justices in Rochester some 19 years ago.

People v. Jarvis, 1009/13, is rooted in the execution-style shootings of two people in Monroe County. Jarvis was convicted of two counts of second-degree murder following a jury trial in 1992. The Fourth Department dispatched with his appeal in a unanimous memorandum a few years later (People v. Jarvis, 202 AD2d 1036) and the Court of Appeals declined to hear the case.

But Jarvis, now 40 and imprisoned at Attica Correctional Facility, persisted. He filed a series of pro se motions that got him nowhere until a recent petition for a writ of coram nobis caught the court's attention. The court directed William Pixley, a semi-retired former prosecutor and former Fourth Department clerk from Rochester, to pursue an appeal.

"This one has been a long time coming," said Pixley, a onetime assistant district attorney who spent 14 years clerking for a long-retired Appellate Division justice. "[Jarvis] has been trying to get this thing reopened for some time. Someone [at the Fourth Department] there must have taken a close look at it and for whatever reason it jumped out at them. They said he was entitled to a new appeal, and I took it from there."

The court's decision focused on the performance of Jarvis' assigned trial counsel, Robert Smith, who is now in the federal defender's office, and the prosecutor, Joanne Winslow, who is now a Monroe County judge. It arose from a writ of coram nobis alleging that the defendant's first appellate counsel, James Eckert of Rochester, should have raised issues on direct appeal that would have resulted in a reversal in 1994.

Smith, according to the majority, "committed two serious errors," either of which would have warranted reversal on ineffective assistance grounds.

First, the court said, after stopping the prosecution from introducing evidence that the defendant had threatened a witness, Smith did not object when Winslow elicited that precluded testimony at trial. It said Smith's failure to object was "inexplicable" and "simply cannot be construed as a misguided though reasonably plausible strategy decision" (quoting from People v. Webb, 90 AD3d 1563 (2011).

Second, the majority said Smith "compounded" his initial error by presenting an alibi defense for what turned out to be the wrong day of the week.

"Presenting an alibi defense for the wrong date or time has been found, by itself, to constitute ineffective assistance of counsel," the majority said in a memorandum joined by justices Eugene Fahey, Erin Peradotto and Rose Sconiers. "We conclude that presenting an alibi defense for the wrong day of the week, as occurred here, similarly constitutes ineffective assistance of counsel inasmuch as offering patently erroneous alibi testimony cannot be construed as a plausible strategy."

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