People v. Wisdom
Docket Ind. No. 70678/22|Appeal No. 6482-6482A|Case No. 2023-03558, 2025-01343|
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- Filed
- Jurisdiction
- New York
- Court
- Appellate Division of the Supreme Court of the State of New York
- Type
- Opinion
- Case type
- Criminal Appeal
- Disposition
- Affirmed
- Citation
- 2026 NY Slip Op 02611
- Docket numbers
- Ind. No70678/22Appeal No6482-6482ACase No2023-03558, 2025-01343
Appeal from a judgment convicting defendant after a jury trial and from denial of a CPL 440.10 motion to vacate the judgment
Summary
The Appellate Division, First Department affirmed defendant Khalil Wisdom's conviction after a jury trial for two counts of criminal possession of a weapon in the second degree and the concurrent 12-year sentences imposed as a second violent felony offender. The court also affirmed the denial of his CPL 440.10 motion to vacate the judgment alleging ineffective assistance and newly discovered evidence. The court concluded counsel provided effective representation under state and federal standards, any alleged failures did not prejudice defendant given overwhelming video and other evidence, and the trial court properly declined various jury instructions and a new-evidence hearing.
Issues Decided
- Whether trial counsel provided ineffective assistance under state and federal standards
- Whether the trial court erred in denying a missing witness jury instruction
- Whether the circumstantial evidence charge should have been given
- Whether a hearing on newly discovered evidence claiming actual innocence was required
Court's Reasoning
The court applied the governing ineffective-assistance standards (People v Benevento and Strickland) and found counsel's advice and actions reasonable, and that defendant could not show prejudice because the surveillance video and other evidence strongly established guilt. A missing-witness charge was improper because the uncalled witness was likely to invoke the Fifth Amendment and would not accept a subpoena. A circumstantial evidence charge was unnecessary because the surveillance footage constituted direct evidence. The newly proffered material was not new and would not likely change the verdict, so no hearing was required.
Authorities Cited
- People v Benevento91 NY2d 708 (1998)
- Strickland v. Washington466 U.S. 668 (1984)
- People v Hardy26 NY3d 245 (2015)
- People v Wright27 NY3d 516 (2016)
Parties
- Appellant
- Khalil Wisdom
- Respondent
- The People of the State of New York
- Judge
- Robert M. Mandelbaum
- Attorney
- Jenay Nurse Guilford (Center for Appellate Litigation)
- Attorney
- Samuel Z. Goldfine (District Attorney's Office)
Key Dates
- Decision date
- 2026-04-28
- Original judgment date
- 2023-06-16
- CPL 440.10 motion denial order date
- 2024-11-07
What You Should Do Next
- 1
Consult appellate counsel about further review
If defendant wishes to seek review, consult counsel promptly about applying for leave to the New York Court of Appeals or other postconviction remedies, as deadlines apply.
- 2
Consider postconviction relief options
Discuss with counsel whether federal habeas corpus or other state postconviction motions are available given the affirmed decision and the specific claims raised.
- 3
Prepare for sentence-related issues
If there are collateral or administrative matters (e.g., classification, parole), coordinate with counsel to address them now that the conviction and sentence are final on appeal.
Frequently Asked Questions
- What did the court decide?
- The appellate court affirmed the conviction, sentence, and denial of the motion to vacate, finding counsel was effective and that the new-evidence claim lacked merit.
- Who is affected by this decision?
- Defendant Khalil Wisdom is affected because his conviction and 12-year sentence remain in place; the People’s conviction is upheld.
- Can this decision be appealed further?
- A further appeal to the New York Court of Appeals may be possible by permission, but the Appellate Division’s decision is final unless the Court of Appeals grants leave to review.
- What were the main reasons the court rejected the ineffective-assistance claim?
- The court found counsel advised the defendant appropriately, the defendant knowingly rejected plea advice despite video evidence, and any alleged errors did not prejudice the defense given overwhelming proof.
The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.
Full Filing Text
People v Wisdom - 2026 NY Slip Op 02611 People v Wisdom 2026 NY Slip Op 02611 April 28, 2026 Appellate Division, First Department The People of the State of New York, Respondent, v Khalil Wisdom, Appellant. Decided and Entered: April 28, 2026 Ind. No. 70678/22|Appeal No. 6482-6482A|Case No. 2023-03558, 2025-01343| Before: Webber, J.P., Mendez, Rodriguez, O'Neill Levy, Michael, JJ. Jenay Nurse Guilford, Center for Appellate Litigation, New York (Molly Booth of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel), for respondent. Judgment, Supreme Court, New York County (Robert M. Mandelbaum, J.), rendered June 16, 2023, convicting defendant, after a jury trial, of two counts of criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to concurrent terms of 12 years, unanimously affirmed. Order, same court and Justice, entered on or about November 7, 2024, which denied defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed. Based on the trial record, submissions, and testimony on defendant's CPL 440.10 motion, we find that defendant received effective assistance of counsel under the state and federal standards ( see People v Benevento , 91 NY2d 708, 713-714 [1998]; Strickland v Washington , 466 US 668 [1984]), and that the court properly denied the motion. In light of the overwhelming evidence of defendant's guilt, defendant has not established prejudice in either a state or federal ineffective assistance claim ( see People v Stultz , 2 NY3d 277, 283-284 [2004]). Considering the video evidence, which tracked defendant from the shooting to a bodega where he was fully visible, defendant was repeatedly advised to take the People's beneficial plea offer, which encompassed not only the instant charges but those in another case. Despite the urgings of counsel and defendant's possession of a copy of the video evidence, defendant remained stubborn in his desire for a lesser sentence than the People were willing to offer. His determination not to heed counsel's advice in no way constitutes ineffective assistance. In addition, defendant failed to preserve his argument that counsel was ineffective for failing to make a CPL 30.30 speedy trial motion, although we note that even considering the argument, the People did not exceed the required 181 days. The court did not abuse its discretion in rejecting counsel's request for a missing witness charge ( People v Diaz , 21 AD3d 58, 69 [1st Dept 2005], appeal dismissed 7 NY3d 831 [2006]). As the uncalled witness had been indicted for his role in the incident and was highly likely to invoke the Fifth Amendment privilege, which was supported by his lawyer's indication that he would not accept a subpoena, a missing witness charge would have been inappropriate ( People v Rodriguez , 38 NY2d 95, 100 [1975]). The court correctly declined to give the jury the circumstantial evidence charge, because the case did not rest exclusively on circumstantial evidence. The surveillance video provided direct evidence of defendant's guilt ( see People v Hardy , 26 NY3d 245, 249-251 [2015]; People v Harris , 199 Ad3d 497, 498 [1st Dept 2021], lv denied 38 NY3d 928 [2022]). The court's determination not to afford defendant a hearing on his claim of actual innocence based on newly discovered evidence was likewise a provident exercise of the court's discretion ( People v Wright , 27 NY3d 516, 520 [2016]). As a preliminary matter, none of the proffered evidence was new. Given the overwhelming evidence of defendant's guilt and the overall nature of the evidence, it was highly unlikely to change the result ( People v Velasquez , 143 AD3d 126, 131-132 [1st Dept 2016], lv denied 28 NY3d 1189 [2017]; CPL 440.10[1][g]). We find the sentence imposed was appropriate given the facts and circumstances presented. We have considered defendant's remaining arguments, including those raised in his pro se supplemental brief, and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: April 28, 2026