John Pierotti, Petitionerv.David R. Harris, Superintendent, Green HavenCorrectional Facility,1 Respondent
MEMORANDUM & ORDER This habeas corpus petition returns to this Court for a ruling on the merits of John Pierotti’s (“Pierotti” or “Petitioner”) claim of ineffective assistance of trial counsel. For the reasons set forth below, the petition is conditionally granted.BACKGROUNDI. SummaryThe crimes underlying Petitioner’s conviction were the December 23, 1998 shooting deaths of Willis Frost (“Frost”) and Gerard Kennedy (“Kennedy”) outside the Dragger Inn, a bar in Baldwin, New York. The evidence at trial suggested that Petitioner had been drinking that evening and was armed with a loaded handgun. Outside of the Dragger Inn, Petitioner became involved in an altercation with Frost and Kennedy, who were in a van parked next to the bar. When the altercation ended, both Frost and Kennedy were dead. In statements to the police, Petitioner admitted he shot both individuals but claimed he was acting in self-defense. Petitioner was arrested, indicted, and subsequently convicted of two counts of first degree murder, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree after a jury trial in Nassau County.Petitioner now claims that, due to a severe hearing impairment and two broken hearing aids, he was unable to hear major portions of his trial and was therefore deprived of his Sixth Amendment rights. According to Petitioner, because of the nature of his hearing impairment he was only able to hear and understand a speaker speaking directly to him while facing him and that, any time there were multiple speakers, or a single speaker facing away from him, his hearing was severely limited. Petitioner normally wears two hearing aids but at the time of the trial his only working hearing aid had been broken.II. The State Criminal Proceedings2A. Pre-trial ProceedingsA multi-day pretrial hearing was conducted in January and February 2000 on the issue of the voluntariness of certain statements by Petitioner. Pierotti was represented at the hearings by Michael Fishman, Esq. (“Fishman”). Prior to the February 28, 2000 session, the direct examination of Pierotti was concluded. At the beginning of the February 28 session, when the Clerk inquired if Defendant was ready, Pierotti answered “no.” Fishman then went on to explain to the judge that Petitioner’s had an issue concerning medication. He also advised the judge that Pierotti’s “hearing aid was broken in the jail” and that “he has extreme difficulty hearing, so that if we are going to proceed, we have got to make some accommodations for his hearing loss at this time.” (Tr. 132.)3 The judge denied the request for a continuance, focusing on the medication issue. After addressing some housekeeping matters, Pierotti was called back to the stand and the following colloquy took place:The judge denied the request for a continuance, focusing on the medication issue. After addressing some housekeeping matters, Pierotti was called back to the stand and the following colloquy took place:THE COURT: Mr Walsh [prosecutor], do you want the podium?MR. WALSH: Yes, Judge.THE COURT: For the record, this is a very small courtroom here in the west wing. It was originally designed for misdemeanor trials.Mr. Walsh, please keep your voice up.Mr. Pierotti, if you have any problem hearing anything, you let me know.All right, you may inquire, counsel.THE CLERK: Mr. Pierotti, I would just like to remind you, you are still under oath. You are still under oath.THE WITNESS: Are you talking to me?THE CLERK: Yes.THE COURT: You are still under oath, Mr. Pierotti.THE DEFENDANT: Yes.MR. FISHMAN: May I ask you to give one more warning toMr. Pierotti that if he doesn’t completely hear the question, don’t assumewhat it is but ask to have it read back to him so –THE DEFENDANT: I can’t hear you from here.THE COURT: All right, we are going to — Mr. Walsh come up.I am going to tell you, Mr. Pierotti, you heard me very clearly when I started as to whether — you heard the clerk from a lot further away as to whether or not the defendant was ready to proceed. You could hear that, and you answered that question.Please don’t play games with me. I am a finder of fact here. I am telling you what I observed up to this point. Now let’s stop.All right, Mr. Walsh, please keep your voice up.(Tr. 138-39.) Pierotti then testified and responded to questions; at times he asked the prosecutor to repeat certain questions. (See id. at 139-97.) Once, Pierotti responded, “I didn’t hear you.” (Id. at 188.) The prosecutor repeated the question and Pierotti responded. After that exchange Pierotti did not indicate any problem with an ability to hear. (See generally Hearing Tr.). Later in the hearing he evidenced an ability to follow the proceeding, or at least some portion of it, when he interrupted a detective’s testimony by yelling out, “That’s a lie.” (Id. at 203.)B. The Trial and SentencingThe trial commenced in June 2000 with Pierotti now represented by Mark Goidell, Esq. (“Goidell”). Petitioner was still without his hearing aids. (Hinckle Declar. 8.) The transcript does not reveal that the Judge was apprised of that fact; nor does it reveal any requests or complaints by Petitioner or his counsel regarding any hearing problems. (See generally Trial Tr.) During the charge conference, the court directly questioned Petitioner regarding his decision not to request certain manslaughter instructions. Petitioner was asked if he understood what was going on and responded “yes.” He did not complain of or mention an inability to hear.Pierotti asserts that he continuously advised Mr. Goidell that he could not hear the proceedings. (Hinckle Declar. 8.) According to an affidavit submitted by Goidell, Pierotti told him he had no working hearing aids during one of their early meetings at the jail. (Hinkle Declar. Ex. 14-G.) He recalls “but [is] not certain, that the court turned on the assisted listening devices,4 either in response to a direct request that [he] made or perhaps sua sponte” and does not recall any other steps taken to assist Pierotti.” (Id.) The record, however, does not reveal any such request. Goidell further averred:During the trial, Mr. Pierotti indicated to me on various occasions that he could not hear what was happening. When this happened, I either whispered to him, wrote him notes to explain what was happening, or indicated to him to be quiet so that I could listen to what was happening in court.During breaks, I was able to discuss specific witness testimony with Mr. Pierotti, and he seemed aware of gist of the testimony and the proceedings, However, I never directly asked Mr. Pierotti during these breaks how well he was able to follow the proceedings.During the trial, at least one of Mr. Pierotti’s family members came to speak to me about Mr. Pierotti’s problems hearing the proceedings at his trial. However, I do not remember the specifics of that conversation.(Hinkle Declar. Ex. 14-G.)On June 26, 2000, the jury found Pierotti guilty on two counts of first degree murder, one count of criminal possession of a weapon in the second degree, and one count of criminal possession of a weapon in the third degree. (Trial Tr. 852-56.)Petitioner was sentenced on August 31, 2000. During several exchanges with the court, neither Pierotti nor his counsel referenced an inability to hear either then or during the trial.C. The Direct AppealOn appeal, Pierotti was represented by new counsel, Mark Diamond, Esq. The brief on appeal contained seven arguments, none of which related to claims of ineffective trial counsel or the lack of accommodation at trial for Pierotti’s hearing impairment.According to Petitioner, he attempted to contact Diamond several times to discuss several issues including his inability to hear the trial proceedings and trial counsel’s failure to raise the hearing issue during the trial. After several letters to Diamond, Petitioner finally received a letter in response dated June 1, 2001, explaining that the brief had been filed and why Diamond did not raise some of the arguments Pierotti raised in his letters.The Appellate Division, Second Department, affirmed Pierotti’s conviction on February 25, 2002 and leave to appeal to the New York State Court of Appeals was denied on June 25, 2002. People v. Pierotti, 291 A.D.2d 574, 737 N.Y.S.2d 879 (2d Dept.), leave to appeal denied, 98 N.Y.2d 679 (2002).III. The Habeas Petition and ExhaustionA. The Initial Habeas IssuesPetitioner timely filed the instant pro se petition for a writ of habeas corpus on August 7, 2003, asserting the same seven arguments presented in his state appeal. With the petition, Pierotti filed other papers that, as discussed below, referenced his inability to hear and the ineffectiveness of counsel. Thereafter the Legal Aid Society and Latham & Watkins entered the case as Pierotti’s pro bono counsel and filed a reply addressing the following issues: Petitioner’s inability to hear during his trial, and the ineffective assistance of both his trial and appellate counsel.B. Exhaustion1. The 440 MotionIn November 2006, Petitioner’s counsel informed this Court that Petitioner intended to exhaust the three issues addressed in the reply. A petition to vacate Pierotti’s conviction pursuant to New York Criminal Procedure Law (“CPL”) §440.10 was filed in the Nassau County Criminal Court alleging that Pierotti’s trial counsel was ineffective for failing to bring to the trial court’s attention, and secure accommodations for, Pierotti’s hearing impairment.In support of the petition, the affirmation of trial counsel, Mark Goidell, was submitted. In the affirmation, Goidell admitted that he was aware early in the relationship that Pierotti normally wore hearing aids but did not have any working aids at that time. Mr. Goidell stated that he did apprise the court of Petitioner’s problem, but was not sure if he did so on the record, and believed, but was not certain that the court turned on the assisted listening devices. In addition, Goidell explained that Pierotti did indicate on various occasions that he could not hear what was happening and “[w]hen this happened, [he] either whispered to him, wrote notes to him to explain what was happening or indicated to him to be quiet so [he, Goidell] could listen to what was happening in court.” (Goidell April 21, 2006 Aff.) During breaks Goidell discussed specific witness testimony with Petitioner and “he seemed aware of gist of the testimony and the proceedings” but Goidell “never directly” asked him “how well he was able to follow [the] proceedings.” Goidell admitted that during breaks family members spoke to him about petitioner’s hearing problems but disclaimed any memory of the specifics of those conversations. (Id.)5Numerous affidavits from family members and an expert were submitted in support of the petition, attesting to the extent and severity of Pierotti’s hearing impairment and containing explanations as to how Pierotti could not hear the trial proceedings notwithstanding that he was able to testify at the pretrial hearing without undue difficulty. (See Hinckle Ex. 8.) For example, the trial courtroom was much larger and filled with background noise, and witnesses sat far from the defense table and testified facing the jury or examining attorney. (Shamah Ex. A at
