People v Rodriguez

[*1] People v Rodriguez 2006 NY Slip Op 50409(U) [11 Misc 3d 1067(A)] Decided on March 16, 2006 Supreme Court, Bronx County Newman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 16, 2006
Supreme Court, Bronx County

The People of the State of New York,

against

Wilfredo Rodriguez, Defendant.



5809/02



JODY RATNER, ESQ.

Center for Appellate Litigation Attorneys for defendant

74 Trinity Place

New York, New York 10006

FAX (212) 577-2535

A.D.A. MARIA I. IMMITT

Office of the District Attorney, Bronx County

198 East 161st Street

Bronx, New York 10451

FAX (718) 590-6523

Barbara F. Newman, J.

Defendant was charged in the above-captioned indictment with one count of robbery in the first degree (P.L. § 160.15[1]) and two counts of assault in the first degree (P.L. § 120.10[4] and [2]). Following a jury trial, defendant was acquitted of those charges and convicted of one count each of robbery in the second degree (Penal Law § 160.10[2][a]) and assault in the second degree (Penal Law § 120.05[1]). On July 24, 2003, judgment was entered by this Court sentencing defendant as a second felony offender to concurrent determinate terms of imprisonment of seven years and three years, respectively. Defendant filed a notice of appeal and as of the filing of the instant motion his appeal had not been decided. The Court has been informed by the People that defendant's appeal has been adjourned, but is not aware to what term of the Appellate Division, First Department, the appeal is presently adjourned. Defendant now moves pursuant to section 440.10 (1)(h) of the Criminal Procedure Law to vacate the judgment of conviction on the ground that he was denied the effective assistance of counsel because his attorneys: did not to interview or call as a witness at trial a police detective whose testimony defendant alleges would have impeached the credibility of the complainant and exculpated defendant; and did not call as a witness at trial a civilian whose testimony defendant alleges could have created a reasonable doubt that defendant had committed the offenses with which he was charged.

In their response to defendant's Notice of Motion the People opposed his application but,

consent[ed] to a hearing to resolve the factual questions concerning what, if any, reasons were behind trial counsel's decision not to interview Detective Jeff Parson prior to or during the trial and not to call him and Maria Ortiz as witnesses at trial. Additionally, the People consent[ed] to resolve the factual questions regarding what the substance of Detective Parson's testimony would have been if he had been called as a witness at trial.

(People's Supplemental Affirmation In Opposition dated July 18, 2005, at 1).

By Interim Decision and Order dated August 1, 2005, this Court granted defendant's motion to the extent that it would,

conduct a hearing to resolve the factual questions concerning what, if any, reasons were behind trial counsel's decision not to interview Det. Jeff Parson prior to or during the trial and not to call him and Maria Ortiz as witnesses at trial, and to resolve the factual questions regarding what the substance of Det. Parson's testimony would have been if he had been called as a witness at trial.

A hearing was conducted before this Court on October 17, 2005, and October 20, 2005. The Court has reviewed the testimony and other evidence which was admitted at the hearing, the transcript of the trial minutes, the applicable law and the following documents which were submitted after the hearing: (1) defendant's Post-Hearing Memorandum In Support Of Defendant's Motion To Vacate The Judgment Pursuant To C.P.L. § 440.10(1)(h) dated December 1, 2005 (hereinafter "Post-Hearing Memo"); (2) People's Memorandum Of Law dated January 2006; and, (3) defendant's Post-Hearing Reply Memorandum In Support Of Defendant's Motion To Vacate The Judgment Pursuant To C.P.L. § 440.10(1)(h) dated January 18, 2006.

Upon consideration of all of the foregoing, and for the reasons that follow, the motion is denied.

Findings of Fact

Defendant was charged in this case with the assault and robbery of Juan Cortez, which occurred in May 2002 in the hallway of the apartment building in which defendant and Mr. Cortez separately resided. The jury trial was held before this Court in June 2003. The People presented their direct case on June 23, 2003, and June 24, 2003. Defendant did not call any witnesses. Both sides rested and gave summations and the jury was charged, on June 25, 2003. Defendant was found not guilty of robbery in the first degree and not guilty of each count of assault in the first degree, and guilty of robbery in the second degree and guilty of assault in the second degree. Although this Court was not the finder of fact at the trial certain aspects of that which occurred during the trial is, of course, material and relevant to the determination of the instant motion. Accordingly, the findings of fact which this Court is required to make (C.P.L. § 440.30[5]) are divided into two sub-sections: (1) The Trial, which findings are based on a review of the trial transcript; and, (2) The Post-Judgment Hearing, which findings are based on this Court's evaluation of the testimony and other evidence which was admitted at that hearing.

The Trial

Defendant was represented at trial by two attorneys from the Bronx Defenders Office.[FN1] Attorney A was the lead counsel and Attorney B was the second counsel. Police Officer Carlo Sanchez of the New York Police Department (hereinafter "NYPD") was the second of four witnesses called by the People on their direct case.[FN2] Officer Sanchez testified that at approximately 1:50 p.m. on May 21, 2002, he and his partner responded to 995 Westchester Avenue, Bronx, New York, and that upon arrival they were directed to Apartment 7 on the third floor by a female bystander who told [*2]them that someone in the apartment was injured. (See T at 36, 37).[FN3] Officer Sanchez testified that he and his partner were admitted to Apartment 7 by Juan Cortez, "[a]n elderly male . . . [who] had an injury to the left side of his face." (T at 37). Inside the apartment Officer Sanchez, fluent in Spanish, had a conversation with Mr. Cortez in Spanish, during which Mr. Cortez told the officer what had occurred and provided a description of the person by whom he had been attacked. (See T at 38-39). Officer Sanchez testified that Mr. Cortez said the perpetrator "was a moreno," which to Officer Sanchez meant "a male black." (T at 40). Officer Sanchez also testified that the literal translation of moreno in Spanish is, "[s]omeone of dark skin," and that the term does not specifically refer to someone's ethnicity and that Mr. Cortez never told him that the perpetrator was "black" or "negro." (T at 40, 41).

On cross-examination by Attorney B, Officer Sanchez testified that at the time he interviewed Mr. Cortez he was aware that there are two interpretations of moreno and that one interpretation means black and the other interpretation means dark skin and that when he asked Mr. Cortez to clarify what he meant by moreno, Mr. Cortez "didn't know." (See T at 70-71). Officer Sanchez also testified that he "wrote male black as the description of the perpetrator" on the preliminary police report, which he prepared on May 21, 2002, after interviewing Mr. Cortez. (T at 49-50). That preliminary police report was admitted into evidence as Defendant's Exhibit A, without objection. (See T at 60, 61). In the box entitled "Race [of perpetrator]" Officer Sanchez wrote "black." (See T at 68).

Mr. Cortez, who was the fourth and final witness called by the People,[FN4] testified with the aid of a Spanish-to-English court interpreter. On direct examination he testified that May 21, 2002, was a payday and that he had stopped at a local grocery store to pay off his account on the way home from work. (See T at 119). Mr. Cortez testified that in the grocery store he paid with cash that he took from a pay envelope which he had in his pocket and that he saw defendant standing there looking at him as he did so. (Id.) Mr. Cortez testified that he had never seen defendant before May 21, 2002, but later that day, as he was ascending the stairs to his third floor apartment, the same person who had been watching him in the grocery store kicked him in the left eye, causing him to fall down the stairs. (See T at 123, 146). As he lay on the floor, Mr. Cortez testified, he saw and felt the person who had kicked him pulling him from side to side just before he lost consciousness. (See T at 124-125). Mr. Cortez testified that at some point he was able to get to his feet and make his way up the stairs to his apartment door, although at that point he did not have any recollection of the attack. (See T at 126).

As Mr. Cortez was opening his apartment door, he testified, the wife of the building superintendent came to his aid and helped him inside, where he was able to take oxygen from a machine which he had in the apartment, and his recollection of the attack began to return. (See T at 125). Mr. Cortez testified that sometime after he regained consciousness he realized that the pay envelope, which contained $975.00 in cash, was missing from his pocket. (See T at 147). Mr. Cortez testified that when he spoke to the police he described the man who attacked him as "a young [*3]man, dark skin, not black, but dark skin," that he used the words "Moreno trigueno," and that he never used the words "Negro" or "black" to describe the perpetrator. (T at 126). He also testified that on May 21, 2002, defendant was "thinner and darker" than he was on the day Mr. Cortez testified at trial, i.e., June 24, 2003. (T at 152).

On cross examination by Attorney A, Mr. Cortez testified that sometime after the robbery he went to "the police precinct" (T at 167) where he spoke with one "Detective Parson" (T at 165) and looked at photographs in an effort to identify the person who had robbed him (see T at 201). Before looking at the photographs, Mr. Cortez testified, he told Det. Parson that the perpetrator was "moreno trigueno Hispanic male." (T at 202). Mr. Cortez testified that he did not tell Det. Parson that the person who had robbed him was a male black. (See T at 169). When asked if all of the photographs were of "male blacks," Mr. Cortez testified, "Not only blacks. They were people that were lighter in skin and they were also women lighter in skin." (T at 203). When asked on re-direct examination if he could determine the ethnicity of the persons depicted in the photographs, Mr. Cortez testified that, "They were, I would say excuse me. I mean, except white. They were moreno and trigueno." (T at 228-229).

The Post-Judgment Hearing

The Court credits the testimony of the four defense witnesses who testified at the hearing. Attorney A graduated from the University of North Carolina School of Law in 1983. She worked as a staff attorney for the Criminal Defense Division of The Legal Aid Society of New York from 1987 to 1993, and she joined The Bronx Defenders as a staff attorney in 2001. Det. Jeff Parson has been a member of the NYPD for 19½ years, and he has been a detective since 1999. During May and June 2002 he was assigned to the Detective Squad, 41st precinct, Bronx. Attorney C graduated from the Hofstra University School of Law in 1980, and has extensive experience in criminal defense work. At the time of defendant's trial Attorney C was in private practice and was also employed as trial counsel to The Bronx Defenders. Attorney B was employed as a staff attorney with The Bronx Defenders from 2001 to 2005. He is presently in private practice as a criminal defense attorney. The People called no witnesses.

Attorney A was assigned to represent defendant in Criminal Court at his arraignment on the day following his arrest on the charges which were ultimately contained in the instant indictment and she continued to represent him, with Attorney B as second counsel, throughout the trial and sentencing. (See H at 8-9).[FN5] Defendant told Attorney A he had been in his apartment at 995 Westchester Avenue when Mr. Cortez, whom he knew as a neighbor in the building, was attacked, that he went out to the hallway to check out the commotion and that he saw "the super's wife" in the hall. (See generally H at 15-18). Based largely upon their client's account and their review of and discussions concerning four documents which they received from the People during the pre-trial discovery process, Attorney A and Attorney B decided that they would present a misidentification defense at trial. (See H at 332).

The first document was the preliminary police report, commonly referred to as a "scratch UF-61," prepared by Officer Sanchez on May 21, 2002, which was later admitted into evidence as [*4]Defendant's Exhibit A at trial (hereinafter the "scratch UF-61"), and in which Officer Sanchez had recorded that on the day of the robbery Mr. Cortez described the perpetrator as an "unknown male black."

The second document was a follow-up report, commonly referred to as a "DD-5," prepared by Det. Parson on May 24, 2002 (hereinafter the "first DD-5"), in which Det. Parson had recorded that during a telephone conversation he had with Mr. Cortez the complainant had "reiterated facts previously stated on original UF61." (A copy of the first DD-5 was admitted into evidence at the hearing as Defendant's Exhibit C).

The third document was another follow-up report prepared by Det. Parson on May 30, 2002 (hereinafter the "second DD-5"), in which Det. Parson recorded that Mr. Cortez had viewed photographs at the 41st precinct "via PIMS machine,"[FN6] and that the "PIMS [was] set for a M/B [i.e., male black] . . . ." (A copy of the second DD-5 was admitted into evidence at the hearing as Defendant's Exhibit D).

The fourth document was an arrest report prepared by Det. Rosa Alvarez, concerning defendant's arrest on June 3, 2002 (hereinafter the "arrest report"). In the section of the arrest report entitled "Defendant Information" Det. Alvarez had checked the box labeled "White-Hispanic" and had not checked the box labeled "Black," and in the section entitled "Skin Tone" she had checked the box labeled "Light." (A copy of the arrest report was admitted into evidence at the hearing as Defendant's Exhibit E).

The first three documents were all significant to the defense for the same reason: each of them appeared to indicate that the complainant had described the perpetrator to the police and possibly to more than one officer as a "male black" who was a stranger to the complainant. That description was initially recorded by Officer Sanchez in the scratch UF-61, and the language used in the first DD-5 could possibly have meant that the complainant had repeated the same description to Det. Parson three days afterward. The settings entered into the PIMS machine as recorded in the second DD-5 could possibly have meant that the complainant's description of the perpetrator had not changed, and may have been reiterated, nine days after the incident. (See generally H at 34-35, 39, 41). The arrest report was significant because it described defendant's race as other than black and his skin tone as light, which coincided with Attorney A's opinion that her client was not "black as an American black." (H at 19). Thus, part of the trial strategy was to bring out the discrepancies between defendant's appearance and the descriptions of the perpetrator that were recorded in the scratch UF-61 and the DD-5's. (See H at 53).

Prior to the start of trial neither Attorney A nor Attorney B made any attempt to contact any of the police officers who had authored the reports, nor did Attorney A prior to trial sincerely intend to call any of the officers as witnesses for the defense. It had been the experience of both attorneys that police officers simply would not speak with defense attorneys before taking the stand as a [*5]witness (see generally H at 55-56, 58-59, 104-105, 106-107, 112, 337),[FN7] and if an officer was called by the defense, their ability to control him during direct examination would be limited (see H at 413). Thus, in the opinions of Attorney A and Attorney B, attempting to interview Officer Sanchez or Dets. Parson or Alvarez prior to trial would have been futile. In any event, if the officers were called as witnesses for the People, counsel expected that they would be able to present evidence in support of their misidentification defense through cross-examination or, if necessary, admission of the scratch UF-61 and DD-5's which those witnesses had authored.[FN8]

Officer Sanchez was to be called by the People, but prior to opening statements the Assistant District Attorney told defense counsel that the prosecution would not be calling Det. Parson (see H at 62), and the assistant then objected to Attorney B's remarks in his opening statement that Mr. Cortez had described his assailant as a male black (see H at 342-343). As a result of those events, "at that stage" Attorney A did not foreclose the possibility that Det. Parson could be called as a defense witness. (See generally H at 61-66). On more than one occasion thereafter she and Attorney B discussed the potential benefits of using Det. Parson's testimony to impeach Mr. Cortez' in-court identification of their client and weighed them against the "very, very, very significant risk" that the detective's testimony would harm rather than help the defense. (See H at 112-114, 393-394, 413-414). Attorney B recalled that he and Attorney A discussed several issues which might arise should they call Det. Parson as a defense witness, including: the risks that the detective might corroborate Mr. Cortez' testimony concerning the photographs he viewed on the PIMS machine and that the detective might corroborate Officer Sanchez' explanation that his use of the term "male black" to describe the perpetrator in the scratch UF-61 was the result of mis-communication; that they would be unable to ask the detective leading questions, or otherwise control him during direct examination; and whether and how they would be able to impeach the detective with the DD-5's in the event that his testimony differed from what they expected as a result of their review of the police reports. (See H at 412-414). In contemplation of the possibility of calling Det. Parson as a defense witness, counsel asked and the People agreed to attempt to secure the detective's appearance.

Det. Parson, who assumed that he was being called as a witness for the prosecution, appeared in the hallway outside the courtroom one day during the trial. (See H at 248-249). Neither Attorney A nor Attorney B recalls whether they were aware that Det. Parson was in the hallway (see H at 106 and 346), although Attorney C did testify that during the trial Attorney A told him that Det. Parson was in the courthouse and sought his advice as to whether she should call the detective as a witness; Attorney C's advice to Attorney A was to do what she thought best. (See generally H at 304-323). In any event, even had the attorneys been aware of his presence, according to Det. Parson he probably would not have spoken to Attorney A or Attorney B since, "I have never spoken to defense counsel off the record. . . . Not before testifying." (H at 269).

At the hearing, Det. Parson testified that he had a brief telephone conversation with Mr. Cortez on May 24, 2002, which he memorialized in the first DD-5, and that he then met Mr. Cortez [*6]in person on May 30, 2002, when Mr. Cortez was at the 41st precinct to view photographs on the PIMS machine, which the detective memorialized in the second DD-5. (See generally H at 204-296). Det. Parson does not speak Spanish, so he communicated with Mr. Cortez in English. (See H at 206 and 245). According to the detective, Mr. Cortez "spoke very little English" (H at 245), and they had trouble understanding each other (see H at 253). During their telephone conversation on May 24, 2002, Mr. Cortez confirmed "[t]he details of the incident" (H at 218) as had been reported in the UF-61, but he did not give a description of the perpetrator to Det. Parson (see H at 218-219). Mr. Cortez may have used the Spanish word "moreno" to describe the perpetrator when they spoke on May 30, 2002, but the detective has no specific recollection of him doing so. (See H at 234 and 238).

On May 30, 2002, Det. Parson prepared the PIMS machine for Mr. Cortez to view photographs at the 41st precinct. Det. Parson selected "male black" for the gender and race settings. (See H at 220). When asked why he had picked those settings, Det. Parson testified, "That may have come from me speaking to the complainant and from the [UF-]61" (H at 293), but he had no independent recollection as to his specific reason for doing so (see H at 286-287). Thus set, the PIMS machine displayed 167 pages of photographs, possibly as many as 1,000 photographs, for Mr. Cortez to view. (See H at 285). According to Det. Parson, Mr. Cortez looked at 818 of the photographs which were displayed; he then told the detective that he had stopped looking at photographs because he was getting tired.[FN9] (See H at 285-286).

Det. Parson explained that one quirk of the PIMS system is that the categorization of each photograph in the system is determined by how the person depicted in the photograph is described by the person who inputs the photograph into the system. (See H at 221). So that, for example, if a dark-skinned male Caucasian were described as "male black" when his photograph was entered into the system, PIMS would display his photograph in response to the gender and race settings of male and black, even though the race of the person depicted in the photograph would actually be Caucasian. Consequently, Det. Parson testified, when Mr. Cortez sat before the PIMS machine on May 30, 2002, "[t]he photos displayed weren't only of male blacks. The settings narrowed the description of the person that we are trying to show, but male whites may have been viewed, females may have been viewed, Hispanics. . . . you may have put in male black, but the person whose photo [is displayed] maybe a male Hispanic." (Id.)

No evidence was presented at the hearing that defendant had provided Attorney A with a name for the person he had identified to her as "the super's wife." Attorney A testified that prior to the trial she sent an investigator to interview the wife of the building superintendent at 995 Westchester Avenue, one Maria Ortiz, and that Attorney A herself also personally and in person spoke with Ms. Ortiz. (See H at 127-128). Early on, Attorney A had been hopeful that Ms. Ortiz could be called as a defense witness to establish her client's account of his purportedly innocent actions on the day of the crime. (See H at 128). However, after speaking with Ms. Ortiz Attorney A decided not to call her for several reasons, including that Ms. Ortiz was blatantly antagonistic towards defendant, because Ms. Ortiz placed defendant at the scene within minutes of the crime, and because Ms. Ortiz was of the opinion that it was defendant who had attacked Mr. Cortez and that at [*7]the time defendant came out to the hallway, he had only been feigning concern in order to divert suspicion from himself. (See H at 128-130). Defendant did not call Ms. Ortiz as a witness at the hearing.

Discussion

Defendant's assertion that he was deprived of the effective assistance of counsel rests upon the fact that his attorneys did not interview or call as a defense witness Det. Parson, or call Ms. Ortiz as a defense witness. His motion based upon this assertion must be and is denied because he has failed to satisfy his burden to prove by a preponderance of the evidence every fact essential to support his motion. C.P.L. § 440.30(6).

Defendant claims the deprivation of his right to the effective assistance of counsel under both the United States and New York Constitutions. (See US Const Amend VI; NY Const, art I, § 6). To establish an ineffective assistance claim under the United States Constitution, a defendant must show (1) "that counsel's representation fell below an objective standard of reasonableness," and (2) "that there is a reasonable probability . . . [, i.e.,] a probability sufficient to undermine confidence in the outcome . . . that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v Washington, 466 U.S. 668, 688, 694 (1984). Under the New York Constitution "the core of the inquiry" is whether, considering the totality of the circumstances of the particular case, the defendant received "meaningful representation." (People v Benevento, 91 NY2d 708, 712 [1998]; see also People v Schulz, 4 NY3d 521, 531 [2005] [defendant's ineffective assistance claim denied because "there was no showing that trial counsel was deficient in failing to provide a meaningful defense in light of the circumstances (citations omitted)]").

"[O]ur state standard thus offers greater protection than the federal test . . . [because], even in the absence of a reasonable probability of a different outcome, inadequacy of counsel will still warrant reversal whenever a defendant is deprived of a fair trial." People v Caban, 5 NY3d 143, 156 (2005). The evidence adduced at the hearing established that the representation which defendant received from Attorney A and Attorney B was meaningful in that it neither fell below an objective standard of reasonableness nor was defendant deprived of a fair trial. Defendant has, therefore, failed to establish that he was deprived of his constitutional right to effective assistance under the New York standard and, consequently, he has necessarily failed to do so under the stricter federal standard as well. (Id.)

Defendant first argues that his trial counsel were deficient in that they did not even attempt to interview Det. Parson who, defendant contends, as the author of the DD-5's could have provided testimony that Mr. Cortez had previously described his assailant as a male black, which defendant was not and that their nonfeasance cannot be justified by any claim of trial strategy or tactics. However, in order to prevail on an ineffective assistance claim " it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations' for counsel's alleged shortcomings." People v Benevento, 91 NY2d at 712 (quoting People v Rivera, 71 NY2d 705, 709 [1988][emphasis supplied]). Neither Attorney A nor Attorney B testified that they made a strategic or tactical decision not to interview Det. Parson. Rather, they did not seek out Det. Parson because, based on their combined experiences, NYPD police officers almost universally refused to speak with [*8]criminal defense attorneys prior to the officer's testimony on the stand. This led them to conclude that any effort to interview Det. Parson would be a futile waste of time and investigative resources. Indeed, both the legitimacy and sagaciousness of counsels' explanation was borne out by Det. Parson, who confirmed that, "I have never spoken to defense counsel off the record. . . . Not before testifying." (H at 269).

Moreover, Attorney A described having gone to extraordinary efforts to identify, locate and interview Ms. Ortiz, the potential civilian witness who her client said could support his account, including, personally staking out the apartment building and talking to Ms. Ortiz despite the fact that her investigator had already spoken to Ms. Ortiz and had advised Attorney A that Ms. Ortiz would hurt the defense case (see H at 127-128). Compare Crisp v Duckworth, 743 F.2d 580, 584 (7th Cir. 1984) (attorney's failure to contact a potential civilian witness because "he thought [without having interviewed her] that her testimony would be damaging" could not be justified "simply by raising the shield of trial strategy and tactics.'" [emphasis added]). The aggressiveness of counsels' pursuit of this potential civilian witness provides further support for the conclusion that the fact that Det. Parson, who they rightly presumed would not speak to them anyway, was not sought out did not cause the overall quality of their representation of defendant to fall below an objective standard of reasonableness. Compare Pavel v Hollins, 261 F.3d 210, 217-219 (2nd Cir. 2001) (attorney's decision not to call witnesses "solely because he believed that [a] motion to dismiss would be granted" was not "strategic," since it "was animated primarily by a desire to save himself labor").

In addition, given Attorney A's testimony at the hearing of what Ms. Ortiz told her during their interview, it may no longer be seriously contended that the decision not to call Ms. Ortiz as a defense witness constituted ineffective assistance on the ground that her testimony could have created a reasonable doubt that defendant had committed the offenses with which he was charged.[FN10] An attorney's determination not to call a witness whom she has interviewed is a "strategic decision." People v Stewart, 295 AD2d 249, 250 (1st Dep't 2002). Moreover, after the interview defense counsel knew that Ms. Ortiz was openly antagonistic toward their client, and that she was of the opinion that defendant was the perpetrator and that his purported concern for Mr. Cortez was feigned and an attempt to divert suspicion from himself. Furthermore, Ms. Ortiz placed defendant at the scene within minutes of the crime. For several potent and cogent reasons, therefore, the decision not to call Ms. Ortiz was firmly based upon sound trial strategy and commensurate with meaningful representation. See, e.g., People v Brooks, 283 AD2d 367, 368 (1st Dep't 2001) (attorney's decision not to call witness was not deficient since, "there was a real risk that this witness, interviewed by counsel, would have furnished testimony damaging to defendant's position."); People v Shaw, 232 AD2d 174, 175 (1st Dep't 1996) ("Counsel's decision not to call alibi witnesses who would have [*9]placed defendant in close proximity to the robbery around the time that it occurred appears to have been a well-advised trial strategy.") In any event, not calling Ms. Ortiz as a defense witness did not depress the quality of the representation afforded defendant below an objective standard of reasonableness, either in and of itself or in combination with any of the other alleged deficiencies of which defendant now complains.

Defendant's final ineffective assistance claim is based upon the fact that Det. Parson was not called as a defense witness. However, since the decision not to call Det. Parson as a defense witness was the product of sound trial strategy and tactics and was also commensurate with meaningful representation in any event, defendant has failed to satisfy his burden as to this claim as well.

Essentially, defendant argues that Det. Parson was a critical witness for the defense because he could have provided testimony that would have been used to impeach Mr. Cortez' in-court identification of defendant and bolster defendant's misidentification defense. This argument is based upon two inferences, which defendant now draws and which Attorney A and Attorney B drew prior to trial from the DD-5's: (1) that on May 24, 2002, Mr. Cortez reiterated to Det. Parson the description of the perpetrator as a male black which, according to the scratch UF-61, he had given to Officer Sanchez on May 21, 2002; and (2) that while viewing the photographs displayed on the PIMS machine, which was set at male black, on May 30, 2002, Mr. Cortez did not tell Det. Parson that the wrong group of suspects was being displayed to him, and therefore his silence indicated that he was not looking for someone whose description fit defendant, an arguably light-skinned Hispanic.

Of course, viewing the situation from the perspective of trial counsel, the usefulness to the defense of Det. Parson's testimony depended upon the accuracy of the inferences they had drawn from the police reports. If Det. Parson testified that a description of the perpetrator was in fact one of the "reiterated facts [which Mr. Cortez had] previously stated on original UF61" (see first DD-5), and if in fact the PIMS machine had produced photographs of only male blacks and displayed no photographs of male Hispanics in response to the "M/B" setting (see second DD-5), then Det. Parson's testimony could be helpful to the defense. Attorney A, however, was apprehensive that Det. Parson's account might instead provide explanations which could negate any benefits to be derived from his testimony or even hurt the defense, as had been acutely learned during the testimony of another police witness, Officer Sanchez.

Indeed, Officer Sanchez' testimony as a prosecution witness provided an apt but painful object lesson on the inherent risks which police testimony poses for the defense in general and specifically in this case when the officer said that despite what he wrote on the scratch UF-61, Mr. Cortez had not in fact described his assailant as "male black," and that the appearance of that term in the scratch UF-61 was the result of the officer's own misunderstanding of the Spanish word "moreno" which Mr. Cortez used. That testimony provided a reasonable explanation for, and provided a means for the prosecution to effectively neutralize, the seeming discrepancy between the complainant's description of the perpetrator and defendant's appearance, which the defense had hoped to exploit. Worse for the defense, the explanation offered by Office Sanchez bolstered rather than impeached Mr. Cortez' subsequent in-court identification of defendant, when Mr. Cortez confirmed in his testimony that he had not used the term "male black," and testified that he had described his assailant to the police as "moreno trigueno" which, to Mr. Cortez, meant "Hispanic male." Additionally, the testimony of Officer Sanchez and Mr. Cortez severely diminished the likelihood that the first DD-5, or Det. Parson's testimony concerning it, would be beneficial to the [*10]defense because even if Mr. Cortez had reiterated to Det. Parson the description which he had given to Officer Sanchez that description was testified to have been "moreno" or "moreno trigueno," and not "male black." Understandably, therefore, Attorney A was apprehensive that putting Det. Parson on the stand, even if only to give testimony concerning the settings he entered for the PIMS machine, would produce "more of the same," i.e., more neutralization.[FN11] (H at 113).

Moreover, had Det. Parson been called by the defense, the risk of harm to the defense would be compounded greatly since, unlike Officer Sanchez, the detective would be a defense witness who could not be controlled through leading questions or destructive cross-examination. While defendant contends that trial counsel could have invoked C.P.L. § 60.35(1) to impeach Det. Parson if his testimony varied from the DD-5's (see Post-Hearing Memo at 51-52), in reality that tactic held little promise of benefit, and significant risks of harm, for the defense. For one thing, the defense had nothing to gain from impeaching Det. Parson other than the slim possibility of using the impeachment tools, i.e., the DD-5's, to indirectly impeach Mr. Cortez. Yet if used in that fashion the reports could be received in evidence only to impeach Det. Parson, not as proof that Mr. Cortez used the term "male black" to describe his assailant or that he viewed photographs of only male blacks without comment. See C.P.L. § 60.35(2). Further, on cross-examination by the People the detective would be given an opportunity to explain any apparent inconsistency between the DD-5's and Mr. Cortez' testimony of what he did and did not say to Det. Parson on May 24, 2002, and May 30, 2002, just as Officer Sanchez' testimony concerning the scratch UF-61 had effectively negated defense counsels' strategy to exploit what appeared a discrepancy between defendant's appearance and Mr. Cortez' description of his assailant on the day he was robbed. Indeed, by the conclusion of the People's direct case it was readily apparent that any attempt to impeach Det. Parson with the DD-5's would probably cause further damage to the defense.

Defendant also contends that Attorney A's apprehension about what Det. Parson might say on the stand was insufficient to justify as strategic her decision not to call him as a defense witness because the second DD-5 could have been introduced under the business record exception to the rule against hearsay as direct proof of the transaction recorded therein. See C.P.L.R. § 4518(a). Therefore, defendant argues, in the event that Det. Parson's testimony varied from what was recorded on the second DD-5, defense counsel could have introduced the report itself as direct proof of: "how Detective Parson set the race, gender and other descriptive selections on the PIMS machine; the number of photographs pulled up and viewed by the complainant; and the length of time the complainant spent viewing the photographs." (Post-Hearing Memo at 53).

This argument is unavailing for at least two reasons, however. First, defendant fails to explain how Attorney A's apprehension about what Det. Parson might say on the stand would have been allayed by the possibility of introducing the second DD-5 as a business record. The detective would still have been a defense witness even if he were called for no other reason than to lay a foundation for admission of his report, and the risk that he might provide damaging explanatory testimony on cross-examination would have been just as significant whether or not the document qualified as a business record. Further, regardless of what the second DD-5 may constitute direct [*11]proof, the report most certainly does not contradict Mr. Cortez' testimony on the People's case that he never described his assailant as a male black and that the persons depicted in the photographs which he viewed included those "lighter in skin" than blacks and "moreno and trigueno [i.e., male Hispanics]" (see T at 126, 129, 203, 228-229). Thus, admission of the second DD-5 would not have supported the position, which defendant now says defense counsel should have taken at trial, that Mr. Cortez' silence when viewing the photographs meant that he was looking for the male black perpetrator rather than someone whose description fit defendant. In other words, the report itself would have been worthless as a means of attacking or impeaching Mr. Cortez's credibility in general or his in-court identification of defendant in particular, or of bolstering defendant's misidentification defense.

Consequently, at the time that defense counsel made their determination, they recognized that the potential benefits which might reasonably be anticipated from calling Det. Parson as a defense witness for any purpose were virtually nil, whether or not the DD-5's were admitted into evidence, and were far outweighed by the significant risk that the detective would say something on cross-examination that could severely damage defendant's case. It is precisely an attorney's recognition and weighing of the potential benefits to be gained, against the significance of the risk of harm which might be incurred, in consequence of a possible course of action that determines whether her decision made in the heat of trial was strategic.' Compare, e.g., People v Alicea, 229 AD2d 80, 88-89 (1st Dep't 1997) (decision not to use police report to impeach witnesses with prior inconsistent statements was strategic since "using the statements . . . was fraught with risk . . . . In their attempts to explain the apparent inconsistencies the witnesses under cross-examination could well have given testimony that would have had an adverse impact on the defense.") with, Harris v Artuz, 288 F. Supp. 2d 247, 257-260 (E.D.NY 2003) (decision not to use medical records, which indicated that complainant was stabbed and not shot as he claimed, "cannot reasonably be excused as strategic. Simply stated, there was no downside to introducing the medical evidence for impeachment purposes."); see also Moore v Johnson, 194 F.3d 586, 615 (5th Cir. 1999) (defining a decision made by counsel during trial as "strategic, in the sense that it is expected, on the basis of sound legal reasoning, to yield some benefit or avoid some harm to the defense.") In light of the circumstances in which they found themselves, therefore, defense counsels' decision not to call Det. Parson was professionally and strategically sound and commensurate with meaningful representation.[FN12]

Moreover, based upon the detective's testimony at the hearing, defense counsels' decisions now appear to have been prescient. Det. Parson confirmed that he would not have spoken with the defense attorneys before he testified, and had he been called at the trial the detective's testimony [*12]would in fact have provided a reasonable explanation in addition to and support of the explanation provided by Officer Sanchez for what the defense had initially inferred from the police reports as an exploitable discrepancy between Mr. Cortez' descriptions of his assailant and defendant's physical appearance. Also, the detective's testimony would in fact have bolstered Mr. Cortez' testimony that persons depicted in the photographs which he viewed included male Hispanics and those lighter in skin than blacks, a description which defendant's appearance did fit. Thus, defense counsels' decision not to interview or call Det. Parson as a defense witness did not cause the overall quality of their representation to fall below an objective standard of reasonableness or otherwise deprive defendant of a fair trial. See People v Brooks, 283 AD2d at 368.

Conclusion

Defendant's motion to vacate his judgment of conviction on the ground that he was denied the effective assistance of counsel must be denied because he has failed to satisfy his burden to prove by a preponderance of the evidence every fact essential to support his motion. C.P.L. § 440.30(6). To the contrary, consideration of the trial transcript and the evidence adduced at the post-judgment hearing establish that based upon their review of documents received during discovery, conversations with defendant, interviews with potential witnesses and research and analysis of the applicable law, defendant's attorneys reasonably decided upon the plausible defense of misidentification and developed a reasonable and viable strategy in support of that defense. Counsel then clearly, consistently and competently executed that strategy from opening statements through summations. The decisions not to interview Det. Parson and not to call Ms. Ortiz and Det. Parson as witnesses, were strategically and professionally sound in that they were based upon a well-reasoned evaluation of the possible benefits versus the potential risks of harm to the defense which counsel were pursuing. Additionally, defendant has failed to show that the result of the trial was in any way affected to his detriment as a result of those decisions. Therefore, viewed in the totality of the circumstances at the time of the representation, defendant received meaningful representation and a fair trial. See People v Benevento, 91 NY2d at 714-715; People v Betsch, 4 AD3d at 820.

Accordingly, for all of the foregoing reasons, defendant's motion to vacate his judgment of conviction is denied in its entirety.

The foregoing constitutes the decision and order of the Court.

Dated: Bronx, New York E N T E R:

March , 2006

HON. BARBARA F. NEWMAN

Acting Justice of the Supreme Court

By Facsimile Transmission: Footnotes

Footnote 1:The names of the attorneys who represented defendant at trial, or who were consulted by the trial attorneys during the trial, have been redacted for publication and will be referred to herinafter as "Attorney A," "Attorney B" and "Attorney C."

Footnote 2:The first witness called was Dr. Jeremy Chess, M.D., whose testimony concerned the nature and severity of the injuries sustained by Mr. Cortez and is therefore not relevant to the determination of the instant motion.

Footnote 3:"T" refers to the trial transcript followed by the page number at which the cited material may be found.

Footnote 4:The third witness called by the People was Police Officer Charmaine McCullough of the NYPD, whose testimony concerned the arrest of defendant on June 3, 2002, and was not otherwise relevant to the determination of the instant motion.

Footnote 5:"H" refers to the hearing transcript followed by the page number at which the cited material may be found.

Footnote 6:"PIMS machine" refers to a computer generated photo imaging system which is used by the NYPD to conduct identification procedures. The PIMS operator, in this case Det. Parson, enters "settings" which correspond to the given description of a perpetrator and the system displays on a computer monitor the photographs of persons who have been arrested, and whose descriptions as entered at the time the arrest photograph was taken meet those settings, in arrays of six. (See generally H at 219-222).

Footnote 7:Indeed, Attorney B testified that he "[has] never made affirmative steps to talk to a police officer [prior to trial]." (H at 337).

Footnote 8:Det. Alvarez, the author of the arrest report, had retired from the NYPD and moved out of New York State prior to the start of the trial. Defendant does not claim on the instant motion that counsels' failure to seek out, interview or call Det. Alvarez as a witness constituted ineffective assistance.

Footnote 9:No evidence was presented at the hearing that a photograph of defendant was displayed or that Mr. Cortez identified a photograph from among those which were displayed.

Footnote 10:Defendant raised this claim in the papers which he originally submitted in support of the instant motion. However, defendant did not call Ms. Ortiz as a witness at the hearing and in the papers submitted by defendant following the hearing, in a combined total of seventy-eight pages of post-hearing argument, the only reference to this claim or Ms. Ortiz appears in a single footnote. (See Post-Hearing Memo at 28 n.19). In that footnote defendant attacks Attorney A for comments she made to the Court during sentencing as to why she had not called Ms. Ortiz as a witness at trial, but fails to indicate how that decision was either deficient or deprived him of a fair trial. Indeed, at the conclusion of the footnote defendant all but abandons this claim: "In any event, the Court need not resolve the claim regarding defense counsel's [sic] failure to call Ms. Ortiz as a defense witness in order to find that defense counsel was [sic] ineffective for their failure to interview and call Detective Parson as a defense witness." (Id.)

Footnote 11:For example, on cross-examination at the hearing Attorney A testified that she "definitely" feared that Det. Parson would corroborate Officer Sanchez' explanation that there was a language barrier between himself and Mr. Cortez. (H at 148).

Footnote 12:While neither party cites, nor could the Court find, any published opinion of a New York State court holding that a defense attorney's failure to call a police officer as a witness does or does not constitute ineffective assistance of counsel, courts of other jurisdictions have addressed the issue. See, e.g., Doss v Bock, ___ F. Supp.2d ___, 2002WL1554363 at 8-9 (E.D. Mich.) ("The choice not to call or demand the production of [police officers who responded to the crime scene] was a reasonable strategy within the range of professionally competent assistance, and does not form the basis for a Sixth Amendment violation."); Sanders v State, ___ S.W.3d ___, 2003WL22351933 at 4 (S. Ct. Ark. 2003) (attorney's concern "that if called to testify, [the police officer who interviewed a civilian witness who testified that defendant admitted killing the victims] would substantiate [the civilian's] story and strengthen her testimony . . . . was a matter of trial strategy"); Camphor v State, 529 S.E.2d 121, 125 (S. Ct. Ga. 2000) (attorney's decision not to call police officer "because he feared that [the officer] might clarify his report in a way that would harm [the] defense," did not constitute ineffective assistance).