In People v Wosu (2008 NY Slip Op 07292 [4th Dept 10/3/08],by a 3-2 vote, the Fourth Department held that it was error for a court to deny a 440.10 motion based on a claim of ineffective assistance of counsel (IAC). Since counsel framed the claim exclusively in therms of the United States Constitution that Copurt applied the federal test for IAC set forth in Strickland v Washington (466 US 668); see People v McDonald, 1 NY3d 109, 114-115).

On appeal Ms. Wosu relied on the decision of the Second Circuit with respect to a codefendant's application for a writ of habeas corpus based on ineffective assistance of counsel (Eze v Senkowski, 321 F3d 110). According to defendant, she and her two codefendants presented a unified defense at trial, and thus the same deficiencies in the representation of the attorney for the codefendant who sought a writ of habeas corpus were also present in the representation of defendant's trial attorney.

The dissent rejected the relevance of the holding in the co-defendant's case because Ms. Wosu's attorney presented an alibi defense. Thus, the dissenting justices reason, the deficiencies int he co-defendant's attack on the credibility of the complainant was less relevant.