People v De La Cruz

[*1] People v De La Cruz 2006 NY Slip Op 50446(U) [11 Misc 3d 1069(A)] Decided on January 26, 2006 Supreme Court, Bronx County Seewald, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 26, 2006
Supreme Court, Bronx County

THE PEOPLE OF THE STATE OF NEW YORK

against

ANGEL DE LA CRUZ, Defendant



1311/89

Robert G. Seewald, J.

Defendant's motion, pursuant to CPL § 440.10, to vacate the instant judgment of conviction is denied.

On February 4, 1989, Mr. Antonio Gonzalez was shot to death by a rifle-wielding gunman. Almost simultaneously, the rifleman's bullets also felled Edgar Ortiz, severely wounding him. As a result of the subsequent police investigation, a Grand Jury, on February 21, 1989, filed an indictment charging the defendant with, inter alia, murder in the second degree (PL § 125.25 [1]) referable to the death of Mr. Gonzalez, and attempted murder in the second degree (PL § 110/125.25 [1]) referable to the wounding of Mr. Ortiz.

Two years later, on February 21, 1991, a jury in Supreme Court, Bronx County, found the defendant guilty as charged. The case was then adjourned to April 3rd, when the defendant was scheduled to be sentenced.

On the adjourned date, April 3rd, a new attorney, Jesus Marrero, Esq., appeared with the defendant and sought an adjournment of the proceedings. In support of his application, Mr. Marrero informed the trial judge, the Hon. William H. Wallace, III [now retired], that he wanted to order the trial minutes and file a CPL § 330.30 motion, alleging ineffective assistance of trial counsel.

"Absolutely not" (ST,5), ruled Justice Wallace in rejecting Mr. Marrero's application. Justice Wallace then added: "The only thing [trial counsel] didn't do is get rid of the guy who survived the shooting and happened to be there and saw who shot the dead person. There was a witness, [and] a complainant who recovered, fortunately did recover" (ST,5-6). When Mr. Marrero replied "correct", Justice Wallace noted "[t]hat is where the identification came from. Very clear cut. I heard this trial. No adjournment, sir" (ST,6). The judge then sentenced the defendant to 25 years to life for the murder of Mr. Gonzalez, and 81/3 to 25 years for the attempted murder of Mr. Ortiz - both sentences to run concurrently, as the defendant had no prior record.

On appeal, the Appellate Division apparently shared Justice Wallace's assessment of the identification evidence. Specifically, although the Appellate Division had found that the trial court had erred in not precluding the identification testimony of one witness, as had been [*2]requested by the defense - since the People had previously failed to timely serve notice pursuant to CPL § 710.30 [1][b] - the appellate tribunal nonetheless affirmed the defendant's conviction, finding "the error was harmless in view of the overwhelming evidence of defendant's guilt [citation omitted]" (People v De La Cruz, 223 AD2d 472 [1st Dept 1996], lv denied 88 NY2d 846 [emphasis supplied]).

More than 8 years after his judgment of conviction was affirmed by the Appellate Division - and about 13 years after he was found guilty by the jury - defendant has brought the instant article CPL 440 motion. In his moving papers, defendant alleges two grounds for vacatur: specifically citing CPL § 440.10 (1) (b) & (h), defendant asserts that trial counsel was ineffective and, moreover, the judgment of conviction was procured by fraud or misrepresentation on the part of the prosecutor.

In addition, when the instant motion was sent to this Court for a hearing,[FN1] defendant presented the testimony of a witness, Miguel Guzman [now known as Aziz Mubaarak Bin Guzman], who is currently serving six consecutive sentences of life without parole - plus 145 years - in a federal prison in Colorado. Since Mr. Guzman testified [FN2] that he alone - and not the defendant - committed the subject shootings, it is readily apparent that the defendant is also seeking vacatur of his conviction upon the alleged ground of newly discovered evidence (see CPL § 440.10 [1] [g]) as well.

Turning first to the defendant's claim of newly discovered evidence, the defendant maintains that his conviction must be vacated because Mr. Guzman - albeit almost 15 years later - has now confessed.

To be sure, although the defendant was identified by two witnesses at trial as the shooter and, moreover, the Appellate Division found that the evidence of the defendant's guilt was overwhelming, as noted above, "[t]he concept of misidentification is a familiar one" (Hibel, New York Identification Law [3rd ed 2004, at xix]). As noted by one text writer:

Case studies, and legal scholars, attest to the fact that the

highest percentage of erroneous criminal convictions

results from mistaken identification. [Footnote omitted.]

As the Supreme Court noted in the seminal case, United

States v Wade: "The vagaries of eyewitness identification

are well-known; the annals of criminal law are rife with

instances of mistaken identification". [Footnote omitted.]

New York courts accordingly, and consistently, warn of [*3]

the inherent unreliability of eyewitness identification and

of the consequent risk of convicting an innocent person

based upon an identification by a stranger. [Footnote

omitted.] Indeed, this State's high court has declared its

heightened sensitivity to the issue of misidentification:

"The vagaries of eyewitness identification have long

been a concern of this court which has on occasion gone

further than the Federal Constitution requires in order to

further minimize the risk of mistaken identification. [Foot-

note omitted]".

(Id.).

Preliminarily, after carefully reviewing the trial evidence, this Court cannot conclude that the People have proven - beyond all doubt whatsoever - that the defendant was correctly identified as the shooter and, consequently, there was, as a matter of absolute certainty, no mistaken identification in this case.[FN3] However, the Court can conclude - with absolute certainty - that the People's testimonial evidence at trial [discussed infra] - as well as that proffered by the defendant [also discussed below] - established beyond any doubt whatsoever that the witness tendered by the defense, Miguel Guzman - referable to this aspect of the hearing - was the one person who could NOT have been the shooter - as he was actively engaged in a nearby fistfight with the complainant Edgar Ortiz, when the rifleman's bullets struck him and the decedent (Mr. Antonio Gonzalez). Thus, defendant's contention, namely, that he was misidentified for the killing and separate shooting supposedly committed by MIGUEL GUZMAN, is purely untenable and completely devoid of merit.

In any event, "[i]t is well settled that on a motion for a new trial based upon newly discovered evidence the movant must establish, among other things, that the newly discovered evidence must be such as to probably, not merely possibly, change the result if a retrial is had . . . [citation omitted]" (People v Rodriguez, 193 AD2d 363,365-366 [1st Dept 1993], lv denied 81 NY2d 1079). In this regard, "[a]s to whether the evidence would probably change the result if a retrial were had, it is clear that the veracity of the purported [shooter - Miguel Guzman] and the probability of [his] account are relevant and these factors may be considered on a motion for retrial [citation omitted]" (id. at 366 [emphasis added]; see also People v Staton, 224 AD2d 984, 984-985 [4th Dept 1996] [at a CPL article 440 hearing it is the Court which assesses the witnesses' credibility]; People v Wong, 11 AD3d 724, 725 [3rd Dept 2004]).

Furthermore, at a hearing conducted pursuant to CPL § 440.10, "the defendant has the burden of proving by a preponderance of the evidence every fact essential to the motion" (CPL § 440.30 [6]). [*4]

Upon the conclusion of this hearing, the Court finds the completely uncorroborated testimony of Miguel Guzman [discussed infra] as being the shooter - and, concomitantly, attempting to exculpate the defendant in that regard - utterly incredible and "unworthy of belief [citation omitted]" (People v Joseph, 8 AD3d 61, 62 [1st Dept 2004], lv denied 3 NY3d 676) - especially when it is viewed in context with the pertinent trial testimony - also discussed below - referable to the issue of the assailant's identification.[FN4]

THE TRIAL EVIDENCE

The first witness called by the People was Mr. Mark Alvarez. A review of the trial transcript reveals that, at the time of the trial (in February 1991), Mr. Alvarez was an 18-year-old high school student, who had never been convicted of a crime.

On the night of February 3, 1989, Mr. Alvarez was in a restaurant with three friends: Edgar Ortiz, Allen Ortiz and Antonio Gonzalez. After leaving the restaurant, about two hours later, the four men ultimately walked up 155th Street, toward Union Avenue. At that time, Mr. Alvarez heard a voice - coming from the park across the street - say "shut the fuck up" (TT,89). Mr. Alvarez thought he knew who it was and that the individual was playing with Mr. Alvarez and his friends. Mr. Alvarez and his three companions then went into the park and saw four males. Mr. Alvarez recognized one of those individuals: Miguel [Guzman]. While Mr. Alvarez did not consider Miguel Guzman a good friend - and did not know where he lived, Mr. Alvarez had previously seen Miguel Guzman in the neighborhood. Asked how long a time he had seen Miguel Guzman in the area, Mr. Alvarez replied "[f]orever. Since I was small" (TT,91).

In any event, Miguel Guzman, according to Mr. Alvarez, asked Edgar Ortiz "what's up? Miguel tells Edgar, what's your problem? What the fuck is wrong with you?" (TT,91-92). After Edgar and Miguel argued back and forth, Edgar asked him if he wanted to fight. Miguel said no - because he had stitches in his hand. Before Miguel and his three companions departed, Miguel told Mr. Alvarez "to tell Edgar to shut up or he's going to light him up" (TT,92).[FN5]

Afterwards, Miguel Guzman - and his cohorts - ran across the street to a nearby residential building, whereupon he called out "Dice, Dice, come down, come down, we've got [a] beef" (TT,94) - "something like that" (id.).[FN6] At that point, Mr. Alvarez and his friends also left, heading for a store.

Ten minutes later, as Mr. Alvarez, Edgar Ortiz, Allen Ortiz and Antonio Gonzalez were walking on Prospect Avenue, they encountered Miguel Guzman and about six to eight other [*5]males. Besides observing Miguel, Mr. Alvarez identified the defendant in-court as being present with Miguel at that time.[FN7] Edgar Ortiz asked Miguel Guzman if he wanted to fight without weapons. Miguel thereupon punched Edgar in the face. Edgar fought back and the two "were dragging around . . . they ended up between two cars" (TT,98-99).

Mr. Alvarez later testified that Miguel and Edgar had been fighting for about six minutes and that, in his opinion, Edgar was winning the fight. More particularly, "Edgar was dragging him against - - car to car to car, dragging him" (TT,101). "Edgar was beating him up, dragging him across the cars, and that is when I noticed him [the defendant] with the rifle" (TT,125).

More particularly, Mr. Alvarez observed the defendant, who was wearing a long trench coat with a hood. "He [the defendant] had a rifle under it, and I started staring at him, [to] see what he was going to do" (TT,99). Asked why he didn't say anything when he saw the rifle, Mr. Alvarez - who did not see anyone else with a weapon (TT,100) - testified that he "was too scared of getting shot" (TT,99).

In any event, at that point, the defendant "said get the fuck off and somebody [an]other guy came from behind Edgar and punched him in the face" (TT,101). Not the defendant; another individual came up behind Edgar and punched him, according to Mr. Alvarez.

As Edgar stumbled back, Mr. Alvarez saw the defendant open fire with the rifle. The defendant "lifted it up, pow, pow, pow, and he came around from side to side . . ."(TT,102). While Mr. Alvarez was not sure how many shots were fired -"I don't know, maybe like five, six - - I don't know" (TT,102) - he testified that he was standing about eight feet away from the defendant (TT,103); "I turned away [from the flash] and looked at his eyes, see [sic] like who he is looking to shoot next" (TT,102). Asked if he could see the defendant's face clearly, Mr. Alvarez said yes (TT,103-104). When later asked a second time by the prosecutor, Mr. Alvarez replied "[y]es, very clearly" (TT,104) - "[t]here was [sic] a lot of lights all over" (TT,104).

In that regard, Mr. Alvarez testified that he had occasion to observe the defendant - from about ten feet away - while Miguel Guzman was fighting with Edgar Oritz - a fight, according to Mr. Alvarez, that had lasted about five minutes (TT,104).

At this point, it is readily apparent that, according to Mr. Alvarez's testimony, the one person who could not have been firing the rifle was Miguel Guzman, as he was currently taking a beating from Edgar Ortiz. In any event, Mr. Alvarez subsequently identified the defendant in a line-up a couple of days later. At trial, Mr. Alvarez again identified the defendant as the rifleman, saying that he had no doubt that he was the person who had shot Mr. Antonio Gonzalez.

The second eyewitness called by the People was the complainant Edgar Ortiz. Mr. Ortiz, a construction worker - who had never been convicted of a crime (TT,27) - testified that after leaving a restaurant with his three friends, Mark [Alvarez], Allen [Ortiz] and Tony [Antonio Gonzalez], on the evening of February 3, 1989, they eventually made their way to Union Avenue, near a park. At that time, he heard some cursing - coming from the park. Believing that it was someone he and his friends knew, they entered the park. However, upon getting closer, Mr. Ortiz realized that the people he saw there were not his friends. At that point, one of the individuals, whose name Mr. Ortiz later learned was Miguel Guzman, asked him if he had a problem. After Mr. Ortiz [*6]replied no, the two exchanged curses. Asked if he wanted to fight, Mr. Ortiz "told him, you know, come on and he [Miguel Guzman] told one of my friends [Mark Alvarez] that he has stitches in his hand" (TT,11). Although Mr. Ortiz did not previously know Miguel Guzman, he testified that Mark Alvarez was acquainted with him.

In any event, as Mr. Ortiz turned to walk away, he heard Miguel Guzman say "you don't know who you are messing with. I am going to [light] you up. And he followed me when I was crossing the street, and he started calling some[one] to the window" (TT,12). Miguel Guzman, according to Mr. Ortiz, was calling someone named Dice, whom Mr. Ortiz did not know. Mr. Ortiz and his friends continued to walk away without incident.

But a short time later, Mr. Ortiz, who was still with his three friends, saw Miguel Guzman walking southbound on Prospect Avenue with six or seven guys. Miguel Guzman walked up to him and punched him in the face. Mr. Ortiz fought back with his hands. "[W]e [were] fighting, fighting between cars. Almost, I was beating him, and someone [, whom I did not see], struck me from behind" (TT,35).

At that point, his fight with Miguel Guzman now apparently over, Mr. Ortiz next saw a "dark skinned guy with a long trench coat who had a rifle" (TT,16). That individual - whom Mr. Ortiz identified in-court as the defendant - was standing on the sidewalk when he first saw him. The defendant, according to Mr. Ortiz, pulled out the gun and pointed it towards Antonio Gonzalez and himself. Mr. Ortiz then saw the defendant shoot Mr. Gonzalez. "Tony dropped" (TT,18). Mr. Ortiz, who saw Mr. Gonzalez fall to the ground, then got shot twice. Since Mr. Ortiz had been looking at Tony [Gonzalez], he "didn't actually see the guy [who shot him], but [he] saw him shoot Tony" (TT,18). Mr. Ortiz had no trouble seeing the defendant's face (TT,24).

Nor did Mr. Ortiz have any trouble seeing and recognizing Miguel Guzman's face, as he had earlier encountered him during a verbal confrontation, and then again a short time later - when they engaged in a physical confrontation.

Thus, it is again readily apparent that even if it is assumed that Mr. Ortiz mistakenly identified the defendant as the shooter, the one person who could not have been the deadly assailant was Miguel Guzman - because he was fighting with Mr. Ortiz between two cars when the shots were fired by the gunman standing on the sidewalk.

But the case for conclusively ruling out Miguel Guzman as the rifleman does not end with the two eyewitnesses produced by the prosecution. In an attempt to convince the jury that the defendant had been misidentified as the rifleman, the defense called a witness - Mr. George Leon.

Mr. Leon, a college student, testified that he has known Miguel Guzman for a long time (TT,165). "I know Miguel Guzman from grammar school. We went to grammar school together" (TT,165). On the night in question, Mr. Leon was walking with a friend, going to a restaurant. When they reached Prospect Avenue, Mr. Leon "saw a fistfight with Miguel and some other kid" (TT,155), whom he did not know. Mr. Leon estimated that there were about eight to ten people there.

In addition to seeing Miguel Guzman engaged in a fistfight, Mr. Leon "also saw a guy with a long black coat with a hood - - black hood" (TT,159), further testifying that "[t]he man with the black trench coat with the hood was the one who did the shooting" (TT,167). Mr. Leon, who knows the defendant - but not socially - also testified that the man wearing the long black coat and hood was not the defendant. In fact, according to Mr. Leon, he did not see the defendant at the scene. [*7]

In any event, Mr. Leon placed the shooter on the sidewalk (TT,170); his back was up against the building (TT,170) and, moreover, Mr. Leon never saw him move (TT,170). Asked, on cross-examination, if the gunman came on the scene before or after the fight, Mr. Leon testified "like in the middle, middle of the fight more or less" (TT,174), adding that he saw the gunman by himself. Then, according, to Mr. Leon, the gunman stopped by the building, took out a rifle and commenced firing.[FN8]

The salient point here, of course, is that all three eyewitnesses agree that Miguel Guzman was in fact engaged in a fistfight with another person [FN9] when the rifleman opened fire. Consequently, the defendant's present contention, namely, that Miguel Guzman was the shooter, when viewed in the context of the evidence adduced by both sides at trial, is absolutely preposterous and simply untenable.

THE HEARING TESTIMONY OF MIGUEL GUZMAN

Almost 15 years after his conviction for the murder of Antonio Gonzalez - and the attempted murder of Edgar Ortiz - defendant proffers the confessional testimony of Miguel Guzman, now serving six consecutive sentences of life without parole (+ 145 years) in a federal prison, as noted above. This sentence was imposed on May 11, 1999.

Mr. Guzman testified that in the early morning hours of February 4, 1989, he yelled out to some individuals "shut the F' up" (HT,5). As explained by Mr. Guzman, "I thought I recognized [them] but I didn't, because I always have poor vision. In any case, when those individuals approached him, words were exchanged and someone suggested that they fight. Mr. Guzman did not want to fight because he had some stitches in his hand. As explained by Mr. Guzman, he had had a wart removed; his hand "was just swollen from the stitches that they gave me. It didn't affect my hand in any way. I didn't want the stitches to break, to break open" (HT,26).

After they separated, Mr. Guzman "decided to go get somebody to fight on [his] behalf because [he] was . . . upset with these individuals, the way they [were] talking to [him] . . ." (HT,5). Mr. Guzman thereupon went to 584 Union Avenue, where he saw Carlito, a drug addict who was strong and knew how to fight. When Carlito rejected Mr. Guzman's plea to fight for him, he [*8]started calling out for "Dice" [the defendant]. Upon not hearing a response, Mr. Guzman entered the building, walked up to the fourth floor and knocked on the defendant's door. Defendant's wife answered and told him the defendant - "DICE" - was not home.

Mr. Guzman was not alone at that time. He was with another "dude" according to his testimony. A short time later, they met another person, and entered the apartment of an unidentified person that was with Mr. Guzman at that time. Inside, the unnamed individual gave Mr. Guzman a .45 caliber gun. Upon seeing the bullets - "[t]hose bullets were big" (HT,7) - Mr. Guzman returned the gun, telling the individual "I'm not trying to kill nobody" (HT,7). Mr. Guzman testified that he "said that in a joking way. I really wasn't trying to kill nobody" (HT,7).

In any event, the same individual - whom Mr. Guzman expressly declined to name during his testimony - gave him a rifle. "I took the gun [a rifle], [he] gave me a hood and gave me a trench coat and we exited the building downstairs" (HT,7). Mr. Guzman and some of his friends then went looking for the individual [Edgar Ortiz] that had earlier offended him. When he eventually spotted him, a short time later, Mr. Guzman approached and words were exchanged. Then the individual he had previously argued with struck him in his face a couple of times. "So, I'm trying to block myself [sic] and I really can't do anything because I got a rifle attached to my shoulder and I got a trench coat on. . . "[O]ne of the dudes that was with me - [who] gave me the gun - started . . . trying to get him off me. So one of the other . . . dudes from the other side got involved. So . . . I slid in between the cars and went back and I had a hood on. My hood came off during the scuffle. So I put the hood on, I pull the strings and I open the jacket and I pulled out the rifle. I told the dudes that was jumping my man, I told them to get off him. So when they got off him I told my friend that was with me to get out of the way or he was going to get shot. So when he got out of the way, I shot about four times" (HT,8).

Afterwards, Mr. Guzman and his cohorts ran away. Eventually Mr. Guzman and the unidentified individual who had given him the rifle made their way to the apartment of Petra Rivera, on Union Avenue. Mr. Guzman left the rifle and hood there and departed for home. The next day, according to Mr. Guzman, he got arrested for murder.

Unfortunately, Mr. Guzman's credibility was severely undermined at the hearing - not to mention that his demeanor clearly portrays an individual who is completely unworthy of belief. More particularly, Mr. Guzman admitted that, in his first interview with the police, he had only mentioned the initial verbal confrontation with someone in the other group. "[T]hey [the police] was [sic] accusing me as doing the shooting and I was going to deny it. So I said, no, it wasn't me that was being accused" (HT,22). "I was trying not to get indicted for that killing" (HT,22). In fact, according to the credible testimony of Detective Tebbens - the detective who had been assigned the investigation of the subject shootings and who had conducted the interview with Mr. Guzman - at this hearing, Mr. Guzman never mentioned the name Dice at that time. Nor did the detective mention the name Dice to him.

More significantly, in a subsequent police interview, Mr. Guzman had acknowledged that he had blamed the killing on another individual - whom is known to him as "Freak", a/k/a "Bad Nut". "I tried to blame it on another . . . on the individual that was on the roof getting high" (HT,11). Mr. Guzman conceded that he had told the police that while he was fighting with the other guy, "Freak pulled out a rifle and started shooting. That's what I said" (HT,13).

In addition, during the course of a videotaped interview with an Assistant District [*9]Attorney, Mr. Guzman again denied the killing for which the defendant was found guilty; and in a later conversation with an investigator - working for the defendant's attorney - Mr. Guzman had also told him "Freak" had done the shooting (HT,14). Equally significant, when asked by the Assistant District Attorney if he knows anyone in the subject area by the name of Dice, Mr. Guzman said "nah" (CML-12). When the prosecutor followed up asking Mr. Guzman "[y]ou never heard of a guy by the name of Dice before?", Mr. Guz- man clearly replied "oh, no" (id.).

What is more, on November 5, 1994, Mr. Guzman acknowledged that he had executed an affidavit, wherein he had averred, inter alia, that it was "Freak" who had fired the rifle. Mr. Guzman explained that he "was trying to push my crime on somebody else" (HT,34). However, eleven years later, Mr. Guzman now testifies that that averment was false - a lie (HT,33).

Nor was that the only lie contained in the affidavit. Mr. Guzman also testified that he had falsely averred that "Pepe" had supplied him with the rifle. "I used the word [sic] Pepe just to prevent giving the actual name of the individual" (HT,34). Asked by the prosecutor - during cross-examination at this hearing, who had furnished him with the rifle - Mr. Guzman replied "I will not say" (HT,35).

Accordingly, defendant's motion for a new trial based upon newly discovered evidence (i.e., the testimony of Miguel Guzman) must be denied - as it is clearly "improbable that the new evidence offered by the defendant, if received at trial, would have resulted in a verdict more favorable to him [citation omitted]" (People v Earley, 118 AD2d 868 [2nd Dept 1986], lv denied 68 NY2d 667).

Alternatively, defendant seeks vacatur of his conviction upon the alleged ground that Dr. Akhil Parikh, called by the prosecution, committed perjury when he testified "that he was licensed to practice medicine in New York State, when in fact, he had not been issued a license to practice medicine in New York State" (defendant's moving papers [dated 5/27/04], ¶29, pp 9-10).

In support of this claim, defendant proffered the testimony of Ms. Mary Diane Cenname, a private investigator. Ms. Cenname testified that her recent check of a computer web site revealed that Doctors Akhil Parikh and Stefan Swaurn are not licensed to practice medicine in New York State. However, it was not clear from Ms. Cenname's testimony that Dr. Swaurn was not licensed in February 1989, when he performed the autopsy on Mr. Antonio Gonzalez and, moreover, that Dr. Parikh was not licensed in February 1991, when he testified for the prosecution at trial.

In any event, accepting Ms. Cenname's testimony as credible, the defendant's claim is nonetheless purely devoid of merit. First of all, Dr. Parikh never testified that he was licensed to practice medicine in New York State. Examination of the trial transcript plainly reveals that Dr. Parikh only testified that, at the time of trial, he was licensed to practice medicine at Lincoln Hospital and, in this regard, he worked at Lincoln Hospital for the last one and one-half years.[FN10] In this regard, defendant does not assert that Dr. Parikh, who testified that he received medical training in India, did not have a limited permit which, as a matter of statutory law, "authorized [him] to practice medicine . . . in a public . . . hospital" (Education Law, § 6525 [2]).

More significantly, Dr. Parikh's testimony at trial was limited to a review of Edgar Ortiz's hospital record (People's exhibit No. 19 in evidence). However, "the crime of attempted [*10]murder [in the second degree - PL § 110/125.25 (1)] does not require actual physical injury to a victim at all" (People v Fernandez 88 NY2d 777, 783 [1996], habeas corpus denied 11 FS2d 407 [SDNY]).[FN11] Stated another way, "injury need not be proved in order to convict defendant of the crime of attempted murder in the second degree [citation omitted]" (People v Bonifacio, 228 AD2d 166 [1st Dept 1966], lv denied 89 NY2d 862).[FN12] Thus, it is certainly apparent that even if Dr. Parikh was an unlicensed physician, his testimony caused absolutely no prejudice whatsoever to the defendant - referable to the attempted murder conviction - notwithstanding defendant's claim that "Dr. Parikh's expert testimony was the only medical evidence introduced by the People to sustain their proposition that the injuries Edgar Ortiz had incurred were life threatening" (defendant's moving papers [dated 5/27/04], ¶30, p 10).[FN13]

Lastly, further assuming that Dr. Parikh gave false testimony in regard to his licensing status, defendant has utterly failed to demonstrate "that the prosecutor knew or should have known that the testimony was false . . ." (People v Stern, 226 AD2d 238, 240 [1st Dept 1996], lvs denied 88 NY2d 969, 1072; see also People v Lent, 204 AD2d 855 [3rd Dept 1994], lv denied 84 NY2d 869 [no reversal where "there is no evidence in the record indicating that the prosecutor knew that this testimony or the testimony of any witness was false . . ."]).

Nevertheless, "when false testimony is provided by a government witness without the prosecution's knowledge [footnote omitted], due process is violated only if the testimony was material and the court [is left] with a firm belief that but for the perjured testimony, the defendant would not have been convicted [citations, internal quotation marks and footnote omitted]" (Ortega v Duncan, 333 F3d 102, 108 [2nd Cir 2003]). As noted above, "injury need not be proved in order to convict defendant of the crime of attempted murder in the second degree [citation omitted]" (People v Bonifacio, 228 AD2d at 166). Thus, it is surely unreasonable to conclude that, if not for the alleged false testimony of Dr. Parikh's licensing status, defendant would not have been convicted of the attempted murder of Edgar Ortiz.

Defendant also argues for reversal of his conviction on the alleged ground that the [*11]People should have known that the doctor who performed the autopsy - Dr. Stefan Swaurn - was also never licensed to practice medicine in New York, "and presented Dr. Tamara Bloom in his place for the purposes of withholding this impeachable evidence from the defense, and to mislead the jury" (defendant's moving papers [dated 5/27/04], ¶34, p 11).

However, to constitute "newly discovered evidence", as earlier noted, defendant must establish, inter alia, that " the newly discovered evidence must be such as to probably, not merely possibly, change the result if a retrial is had, and also must not have been discoverable before trial by the exercise of due diligence [citations omitted]'" (People v Rodriguez, 193 AD2d at 365-366).

Here, defendant does not assert that he did not have the autopsy report in advance of trial and, therefore, had no opportunity to ascertain whether Dr. Swaurn was in fact licensed to perform an autopsy under the auspices of the Office of the Chief Medical Examiner of the City of New York. Thus, defendant's allegation, first raised more than 13 years after trial, clearly does not constitute "newly discovered evidence".

In any event, defendant does not contend that Dr. Bloom, too, lacked a license to practice medicine in New York and, in this regard, Dr. Bloom testified that she was present and observed the autopsy performed by Dr. Swaurn on the decedent in this case. Thus, the conclusion is inescapable that any imaginary prejudice caused to the defendant by Dr. Swaurn's alleged lack of a medical license was surely cured by the testimony of Dr. Bloom, who undisputably possessed the requisite license at the time Dr. Bloom observed Dr. Swaurn's performance of the autopsy.

But more importantly, defendant did not argue at trial - nor does he argue now - that the bullets that struck the decedent did not cause his death. Stated another away, defendant does not contend that the decedent died from wholly unrelated causes or that the cause of death is in dispute (see e.g. People v Laraby, 92 NY2d 932, 933 [1998]; People v Griffin, 80 NY2d 723 [1993], cert denied 510 US 821; People v Gray, 300 AD2d 749, 750 [3rd Dept 2002], lv denied 99 NY2d 582). In fact, trial counsel elected not to cross-examine Dr. Bloom about any aspect of the autopsy - as it was clearly not relevant to any theory of the defense, which, as noted above, was predicated upon misidentification.

That branch of the defendant's motion seeking vacatur of his conviction upon the additional ground that he was allegedly deprived of the counsel of his choice to represent him at trial is also denied.

It is not disputed that defendant privately retained Murray Richman, Esq. to try his case within months after his arrest - in February 1989. Nevertheless, after the instant indictment had been pending for two years - and when the case was on the eve of trial and Mr. Richman was not available to proceed to trial in this matter [on February 7, 1991] - Justice Collins "offered [the defense] an adjournment if it was assured this would be Mr. Richman's next trial" (Justice Collins's written decision [dated 2/7/91]). When Mr. Richman's law "firm could not guarantee that request" (id.), Justice Collins sent the case out for trial before Justice Wallace. Defendant thereupon proceeded to trial, represented by another attorney in the employ of Mr. Richman (see also affirmation [dated 1/25/05] of Murray Richman, Esq. - defendant's exhibit A in evidence).

Most significantly, defendant himself voiced no objection - either on the record or by letter - in response to Justice Collins's decision. Nor did the defendant place any objection on the record - at any time - when he appeared before the trial judge (Justice Wallace). In essence, as orally argued by the People at the conclusion of this hearing, defendant, by his inaction, impliedly [*12]consented to proceed to trial with the attorney assigned by Mr. Richman to try this case.

More importantly, CPL § 440.10 [2] [c] mandates denial of this application, as Justice Collins's written decision of February 7, 1991 was plainly a matter of record and thus appealable after defendant's subsequent conviction. In this regard, "[a] CPL 440.10 motion may not be used as a device to take a belated appeal on an issue that appears on the face of the record [citation omitted]" (People v Jackson, 266 AD2d 163 [1st Dept 1999], lv denied 94 NY2d 921; see also People v Watson, 284 AD2d 212, 213 [1st Dept 2001], lv denied 97 NY2d 643; People v Williams, 5 AD3d 407 [2nd Dept 2004, lv denied 3 NY3d 650; People v Saunders, 301 AD2d 869, 870 [3rd Dept 2003], lv denied 100 NY2d 542).

Thus, if the defendant felt aggrieved by Justice Collins's decision to send the case out to trial in the absence of his attorney of choice, his remedy, simply stated, was to challenge the subject ruling on appeal, rather than in a collateral proceeding (see CPL § 440.10 [2] [c]; People v Jackson, 266 AD2d 163, supra ) - more than thirteen years later.

In any event, the Court notes that while "[a] criminal defendant's right to counsel, guaranteed by both the Federal and State Constitutions [citations omitted], includes the right to be represented by counsel of one's choosing [citations omitted]" (People v Childs, 247 AD2d 319, 325 [1st Dept 1998], lv denied 92 NY2d 849, habeas corpus denied 146 FS2d 317 [SDNY]), "this right to counsel choice is not absolute. A criminal defendant does not have a categorical right to insist that a retained . . . attorney continue to represent him. [citations omitted]. Such right, for instance, may not be employed as a means to delay judicial proceedings [citation omitted]" (id. at 325).

Remaining for decision is that branch of the defendant's motion to vacate his conviction, pursuant to CPL § 440.10(1)(h), on the alleged ground that he was denied his right to the effective assistance of trial counsel - under both the State and Federal Constitutions. Specifically, more than thirteen years after his conviction, defendant now principally alleges that trial counsel was ineffective for failing to present an alibi defense. In opposing the defendant's motion, the People have submitted a memorandum of law with their affirmation in opposition [dated 12/22/04] in support of their position that the defendant's assertion completely lacks merit.

Preliminarily, examination of the trial record, discussed above, clearly reveals that Justice Wallace got it right - and said it best - when he noted, as mentioned above, that "[the only thing [trial counsel] didn't do is get rid of the guy who survived the shooting and happened to be there and saw who shot the dead person. There was a witness, [and] a complainant who recovered, fortunately did recover" (ST,5-6). In this regard, it must not be forgotten that the Appellate Division - besides Justice Wallace - had concluded that the evidence of the defendant's guilt was overwhelming (see People v De La Cruz, 223 AD2d 472, supra ); and "[w]here, as here, the evidence of guilt is strong, appellate courts refuse to second-guess the employment of questionable or debatable trial strategies when reviewing a claim of ineffective assistance of counsel [citation omitted]" (People v Wicker, 229 AD2d 602, 602-603 [2nd Dept 1996], lv denied 89 NY2d 931; see also People v Chicas, 293 AD2d 687 [2nd Dept 2002], lv denied 98 NY2d 695 ["Giving due consideration to the overwhelming nature of the evidence against the defendant . . . we conclude that the imperfections in trial counsel's performance complained of on appeal did not rise to the level of ineffectiveness . . ."]).

Of course, the foregoing observations by the Appellate Division and the trial judge only serve as the preface to the analysis of the defendant's belated ineffective assistance counsel [*13]claim. As discussed infra, defendant's motion must be denied - after a court-ordered hearing - as "[the evidence, the law and the circumstances of this case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation' [citations omitted]" (People v McKinney, 302 AD2d 993, 995 [4th Dept 2003], reargument denied 306 AD2d 960, lv denied 100 NY2d 584).

In sum, "the record [unequivocally establishes] that defense counsel made an intentional tactical decision to forego an alibi defense in favor of a claim of misidentification. The fact that counsel's strategy was unsuccessful by no means render[ed] his assistance ineffective [citation omitted]" (People v McDonald, 255 AD2d 688, 688-689 [3rd Dept 1998]).

Said differently, "[c]ounsel's trial strategy, though unsuccessful, did not constitute ineffective assistance of counsel [citations omitted]. Counsel's efforts, including timely objections, detailed cross-examination of the People's witnesses, and the presentation of a viable defense [- mistaken identification -] in a case where the evidence against the defendant was substantial, constituted meaningful representation' [citations omitted]" (People v Scott, 283 AD2d 525, 526 [2nd Dept 2001], lv denied 96 NY2d 907, error coram nobis denied 7 AD3d 546, lv denied 3 NY2d 647).

The People called defendant's trial attorney to testify at this hearing. The Court found his testimony to be completely credible. While portions of the trial attorney's testimony were contradicted by the defendant's testimony at this hearing - as well as that of Ms. Ivette Rodriguez and Mr. Miguel Guzman, called by the defense - the testimony of the defense witnesses was not credible with respect to the material and critical issues raised at this hearing.

The defendant's trial attorney testified that he had been employed by Mr. Richman since 1986, and was assigned to try this case by Mr. Richman about a week before the commencement of jury selection - when Justice Collins, as noted above, directed that the matter proceed to trial. During that time frame, trial counsel - who had never tried a homicide case, but had previously tried about fifteen to twenty felony cases - familiarized himself with the file, interviewed witnesses and went to the crime scene.

In fact, in his review of the file, trial counsel aptly noticed that there was a viable CPL § 710.30 [1][b] issue and promptly moved to preclude the identification testimony of one of the prosecution witnesses.[FN14]

In addition, after noting that the file contained a previously served Notice of Alibi, listing two names - Ms. Ivette Rodriguez (defendant's former wife) and Mr. Miguel Guzman - trial counsel did in fact interview these witnesses.[FN15]

The first witness interviewed by trial counsel was Mr. Guzman. Although Mr. Guzman had come to Mr. Richman's office together with Ms. Rodriguez, trial counsel first

spoke with Mr. Guzman alone. After explaining to Mr. Guzman what the defense of alibi means and, [*14]moreover asking him "what happened here" (i.e., what he was going to say), Mr. Guzman informed trial counsel that I am here to help my friend and will say that the defendant was at home when I knocked on his door (HT,194). When trial counsel explained to Mr. Guzman the concept of suborning perjury, Mr. Guzman made it clear to trial counsel that he was going to lie - "this is what I'm going to say to help my friend".

Consequently, trial counsel concluded that the alibi tendered by Mr. Guzman was false and that ethical precepts precluded him from proffering Mr. Guzman as an alibi witness. Mr. Guzman was "making up a story, that he was not telling me the truth" (HT, 194. "[T]he alibi was false" (HT,194).

At this point, it is critical to point out that Mr. Guzman's own hearing testimony plainly established the falsity of the alibi. It will be recalled that Mr. Alvarez testified that - after his initial encounter with Mr. Edgar Ortiz and the latter's three friends - he walked to the defendant's apartment building and, while standing outside the premises, started calling out for "Dice" [the defendant]. Upon not receiving a response, Mr. Guzman went inside, walked up to the fourth floor and knocked on the defendant's door. Mr. Guzman then testified that when defendant's wife - Ms. Ivette Rodriguez - opened the door, she told him that "DICE" was not home.[FN16] Yet, according to trial counsel's credible hearing testimony, Mr. Guzman was willing to testify that the defendant "was upstairs in [his] apartment at the time of the shooting" (HT, 194).[FN17]

Thus, Mr. Guzman's hearing testimony conclusively proves that he was most eager to proffer a false alibi for the defendant and, moreover, that trial counsel was indeed a shrewd judge of character when he declined to suborn perjury and call Mr. Guzman as an alibi witness - even though the defense now argues that trial counsel was "ineffective" for failing to do so.

In any event, while additional reasons are certainly not required under these circumstances, trial counsel also testified that he had three other independent reasons not to call Mr. Guzman as a witness: (1) Mr. Guzman had a prior criminal record and thus, the Court notes, would subject him to impeachment; (2) trial counsel believed that there was a close relationship between Mr. Guzman and the defendant and, moreover, it was trial counsel's impression that there was a familial relationship between Mr. Guzman and defendant's former wife - Ms. Ivette Rodriguez; and (3) the Assistant District Attorney was a seasoned veteran, who would destroy the alibi defense.

In any case, after speaking with Mr. Guzman, trial counsel next interviewed Ms. Rodriguez. Afterwards, trial counsel concluded that Mr. Guzman's false alibi testimony would pollute or taint Ms. Rodriguez's alibi testimony that the defendant was home with her at the time the [*15]shootings had occurred. "I told her that being that she was part of the alibi that Mr. Guzman told me, that the alibi was false and if the alibi is false, unless you are telling me a different alibi, I can't use you as well . . ." (HT,195). Ms. Rodriguez, according to trial counsel, did not thereafter attempt to sanitize the alibi.[FN18]

Trial counsel further testified that he was cognizant that there were three avenues of defense he could pursue at trial: (1) alibi alone; (2) the dual defenses of alibi and mistaken identification; and (3) mistaken identification alone. But after concluding that the alibi defense was false and would be exposed as weak by the experienced and well respected prosecutor representing the People in this case, trial counsel, in an exercise of professional judgment, opted to advance the sole defense of mistaken identification, testifying that mistaken identification was the only viable defense.

Trial counsel further testified that he subsequently informed the defendant that he could not use the two alibi witnesses and that he would defend the case upon the basis of mistaken identification. Defendant did not voice any disagreement at that time - or any subsequent time during trial - with the defense strategy devised by trial counsel.[FN19]

Nonetheless, defendant alternatively argues that even if trial counsel felt constrained not to present the false alibi testimony proffered by Miguel Guzman, trial counsel was ineffective for not calling the defendant's wife - Ms. Ivette Rodriguez - as an

alibi witness, as well as the defendant. However, firmly established case law - both state and federal - is fatal to the defense argument.

Analysis begins with the well entrenched principle that "[o]ur state standard for effective assistance of counsel has long been whether the defendant was afforded meaningful representation [citations omitted]. In applying this standard [the Court of Appeals] ha[s] emphasized the difference between ineffective representation and losing trial tactics [citation omitted]. Indeed, counsel's performance will not be considered ineffective, even if unsuccessful, as long as it reflects an objectively reasonable and legitimate trial strategy under the circumstances and evidence presented [citation omitted]" (People v Berroa, 99 NY2d 134, 138 [2002] [internal quotation marks omitted]; see also People v Henry, 95 NY2d 563, 565 [2000], habeas corpus granted 409 F3d 48 [2nd Cir]). Further, "[i]n applying this standard, counsel's efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective [citation [*16]omitted]. The Constitution guarantees the accused a fair trial, not necessarily a perfect one [citations omitted]. That a defendant was convicted may have little to do with counsel's performance, and courts are properly skeptical when disappointed prisoners try their former lawyers on charges of incompetent representation' [citation omitted]" (People v Benevento, 91 NY2d 708, 712 [1998] [emphasis added]; see also People v Butler, 273 AD2d 613, 615-616 [3rd Dept 2000], lv denied 95 NY2d 933).

Thus, "[w]here the evidence, the law and the circumstances of a particular case, viewed together and as of the time of representation, reveal that meaningful representation was provided, defendant's constitutional right to the effective assistance of counsel has been satisfied [citation omitted]" (People v Satterfield, 66 NY2d 796, 798-799 [1985] [emphasis added]; see also People v Benevento, 91 NY2d at 712). In this regard, the Court of Appeals "ha[s] clarified meaningful representation' to include a prejudice component which focuses on the fairness of the process as a whole rather than [any] particular impact on the outcome of the case' [citation omitted]" (People v Henry, 95 NY2d at 566; see also People v Schulz, 4 NY3d 521, 530 [2005] ["to sustain a claim of ineffective assistance of counsel, New York courts examine the trial as a whole to determine whether defendant was afforded meaningful representation . . ."]).

Most importantly, " [the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result' (see Strickland v Washington, 466 US 668, 686 [1984]" (People v Schulz, 4 NY3d at 531).

Application of the foregoing well established principles to the case at bar clearly leads to the inexorable conclusion that the defendant's ineffective assistance of counsel claim is wholly untenable. Specifically, "the record [conclusively] demonstrates that defense counsel made appropriate pretrial motions in an effort to suppress [identification] evidence against the defendant; delivered clear and cogent opening and closing statements; conducted meaningful cross-examination of the People's witnesses; lodged objections consistent with the defense theory; highlighted inconsistencies in the witnesses' testimony; [and] moved for a trial order of dismissal at the close of all of the evidence . . ." (People v Mondelus, 233 AD2d 408, 408-409 [2nd Dept 1996], lv denied 89 NY2d 987).

"Taken as a whole, the defendant was provided with meaningful representation [citations omitted]" (id. at 409; see also People v Boyce, 2 AD3d 984, 986 [3rd Dept 2003], lv denied 2 NY3d 796; People v Charles, 309 AD2d 873 [2nd Dept 2003], lv denied 1 NY3d 625; People v Johnson, 303 AD2d 830, 834-835 [3rd Dept 2003], lvs denied 99 NY2d 655, 100 NY2d 583; People v Duke, 292 AD2d 463, 463-464 [2nd Dept 2002]; People v Franklin, 288 AD2d 751, 756 [3rd Dept 2001], lv denied 97 NY2d 728; People v Walker, 259 AD2d 1026, 1027 [4th Dept 1999], lv denied 93 NY2d 1029, habeas corpus denied 262 FS2d 25 [WDNY]), as "[a] review of the record as a whole [i.e., trial and hearing] reflects a performance commensurate with that of a competent attorney who conducted the defense in accordance with a reasoned trial strategy" (People v Butler, 273 AD2d at 615-616, supra ; see also People v Moorehouse, 5 AD3d 925, 927-928 [3rd Dept 2004], lv denied 3 NY3d 644; People v Tomasello, 189 AD2d 903, 904 [2nd Dept 1993]).

Further, the law is well established that "[t]he defendant bears the high burden of demonstrating that he was deprived of a fair trial as the result of counsel's performance [citation omitted], and simple disagreement with strategies and trial tactics will not suffice [citation omitted]" [*17](People v Schreter, 252 AD2d 563 [2nd Dept 1998], lv denied 92 NY2d 951, habeas corpus denied 225 FS2d 249 [EDNY]; see also People v Hobot, 84 NY2d 1021, 1022 [1995], habeas corpus denied 1998 WL 642705 [EDNY]; People v Balbuena, 264 AD2d 424 [1st Dept 1999]).

In this case, it is unquestionable, as the trial - and this hearing - record plainly reveal, that defendant has not overcome the strong presumption that defense counsel rendered effective assistance (see People v Bell, 298 AD2d 398 [2nd Dept 2002], lv denied 99 NY2d 555, habeas corpus denied 2005 WL 1962413 [EDNY]; People v Fernandez, 7 AD3d 730, 731 [2nd Dept 2004], lv denied 3 NY3d 658, error coram nobis denied 19 AD3d 614, lv denied 5 NY3d 828; People v Birch, 284 AD2d 405 [2nd Dept 2001], lv denied 96 NY2d 916).

Defendant has not shown "that his counsel's acts and omissions were inconsistent with a competent legal strategy or seriously compromise[d] [his] right to a fair trial' [citations omitted]" (People v Parker, 305 AD2d 858, 859 [3rd Dept 2003], lv denied 2 NY3d 804 [bracketed material in original]) and, most importantly, affected the result (see People v Harris, 304 AD2d 355 [1st Dept 2003], lv denied 100 NY2d 582). "A defendant is not entitled to error-free representation [[FN20]], and here defendant failed to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged failures' [citation omitted]" (People v Jackson, 4 AD3d 848, 849 [4th Dept 2004], lv denied 2 NY3d 801; see also People v Williams, 24 AD3d 575, 575-576 [2nd Dept 2005], lv denied 6 NY3d 782; People v Nixon, 21 AD3d 1123, 1123-1124 [2nd Dept 2005]; People v Louissant, 8 AD3d 407 [2nd Dept 2004], lv denied 3 NY3d 677).

Clearly, as noted above,"[t]he defendant's disagreement with the strategies and tactics employed by the defense counsel does not amount to a deprivation of effective assistance of counsel [citation omitted]" (People v Morrison, 288 AD2d 494 [2nd Dept 2001], lv denied 97 NY2d 758, error coram nobis denied 300 AD2d 323; see also People v Benn, 68 NY2d 941, 942 [1986]; People v Love, 307 AD2d at 532 ["Disagreement or unhappiness with counsel's strategies does not equal denial of meaningful representation . . ."]; People v Koufomichalis, 2 AD3d 987, 989 [3rd Dept 2003], lv denied 2 NY3d 742; People v Philbert, 267 AD2d 607, 608 [3rd Dept 1999], lv denied 94 NY2d 905) and, in this regard, "[i]neffective assistance of counsel may not be premised upon unsuccessful trial strategy by defense counsel [citation omitted]" (People v Brown, 286 AD2d 687 [2nd Dept 2001], lv denied 97 NY2d 702; see also People v Taylor, 1 NY3d 174, 177 [2003]; People v Jenkins, 300 AD2d 751, 753 [3rd Dept 2002], lv denied 99 NY2d 615 ["Losing trial tactics or strategy . . . do not rise to the level of ineffectiveness"]; People v Washington, 184 AD2d 451, 452 [1st Dept 1992], lv denied 80 NY2d 911, habeas corpus denied 1997 WL 178616 [SDNY] ["A claim of ineffective assistance of counsel will not lie where the purported failures of counsel are the result of a calculated trial strategy which, in the final analysis, does not work . . ."]; People v Walker, 2 AD3d 656, 656-657 [2nd Dept 2003], lv denied 1 NY3d 602; People v Sowizdral, 275 AD2d 473, 476 [3rd Dept 2000], lv denied 95 NY2d 969). [*18]

Indeed, in determining whether a defendant has been afforded meaningful representation, "courts should not confuse true ineffectiveness with losing trial tactics or unsuccessful attempts to advance the best possible defense" (People v Rose, 307 AD2d 270, 271 [2nd Dept 2003]; see also People v Plaisted, 2 AD3d 906, 909 [3rd Dept 2003], lv denied 2 NY3d 744; People v Standard, 273 AD2d 870 [4th Dept 2000], lv denied 95 NY2d 908; People v Smith, 230 AD2d 925 [2nd Dept 1996], lv denied 89 NY2d 930, habeas corpus denied 1999 WL 1007348 [EDNY]).

Moreover, "[a] defendant cannot establish ineffectiveness merely by showing that his attorney employed questionable or debatable trial strategies' [citations omitted]" (People v Gonzalez, 22 AD3d 597, 598 [2nd Dept 2005]). Here, as in Gonzalez, "defense counsel prepared a trial strategy, pursued that strategy during cross-examination of the People's witnesses, made cogent arguments in his summation, and emphasized his contention that the defendant was the victim of misidentification" (id. at 598; see also People v Wallis, 24 AD3d 1029, 1032-1033 [3rd Dept 2005]). Thus, the Court is "unconvinced by defendant's contention that he received the ineffective assistance of counsel" (People v Wallis, 24 AD3d at 1033). In this regard, the Court "view[s] counsel's performance as objectively reasonable and legitimate [citations omitted], and defendant's current arguments as simply second-guessing the defense strategy [citation omitted]" (id. [emphasis supplied]).

Manifestly, "trial counsel interviewed the [alibi] witnesses whom defendant asserts should have been called. Counsel's determination not to call these witnesses was a strategic decision and there is no basis for a finding that this decision constituted ineffective assistance of counsel [citation omitted]" (People v Stewart, 295 AD2d 249, 250 [1st Dept 2002], lv denied 99 NY2d 540, cert denied 538 US 1003), especially since he had accurately assessed the prospective testimony of Mr. Guzman as false, which, in turn, he believed would necessarily taint the alibi testimony of the defendant's wife (see People v Smith, 82 NY2d 731, 733 [1993], habeas corpus denied 1996 WL 191484 [SDNY], affd 113 F3d 1230 [2nd Cir]; see also People v Llanos, 13 AD3d 76, 77 [1st Dept 2004], lv denied 4 NY3d 833 [trial counsel made strategic and legitimate choice in declining to call a witness who was incredible and potentially harmful to the defense]).

Consequently, trial counsel certainly cannot be faulted for failing to use Mr. Guzman as an alibi witness, as "counsel was not obligated to present defenses . . . [that] would have been baseless, spurious or unethical [citations and internal quotation marks omitted]" (People v Ahmed, 303 AD2d 417, 418 [2nd Dept 2003], lv denied 100 NY2d 536). In this regard, "[a]n attorney's ethical duty to advance the interest of his or her client is circumscribed by an equally solemn duty to comply with the law and standards of professional conduct' to prevent and disclose frauds upon the court' [citation omitted]. Thus, a defendant's Sixth Amendment right to the assistance of counsel does not include the right to compel counsel to knowingly assist or participate in the presentation of perjured testimony [citation omitted]" (People v DePallo, 275 AD2d 60, 62 [2nd Dept 2000], affd 96 NY2d 437 [2001]).

But even if there was no Miguel Guzman, the Court notes that, contrary to the defense argument at this hearing, a reasonably competent trial attorney could have wisely concluded that the [*19]alibi testimony of any defendant and his wife is inherently weak and suspect.[FN21] In this regard, this Court did not find the defendant's wife to be a credible witness. She was all too willing to lie for her defendant husband by telling Miguel Guzman he was not at home on the night in question; and now, to meet the exigencies of the situation, she is just as willing to say that he was.

As aptly stated by the Court of Appeals in the seminal case of People v Baldi (54 NY2d 137, 146 [1981]), "i[t] is always easy with the advantage of hindsight to point out where trial counsel went awry in strategy". (See also People v Benevento, 91 NY2d at 712.) However, "[a] difference of opinion with respect to strategies or trial tactics, particularly with the benefit of hindsight, is not sufficient to demonstrate ineffectiveness of counsel [citations omitted]" (People v Philbert, 267 AD2d at 608).

Thus, "[i]t is not for this [C]ourt to second-guess whether [the] course chosen by defendant's counsel was the best trial strategy, or even a good one, [since the] . . . defendant was [unquestionably] afforded meaningful representation" (People v Satterfield, 66 NY2d at 799-800; see also People v Pierce, 303 AD2d 966, 966-967 [4th Dept 2003], lv denied 100 NY2d 565; People v Williams, 273 AD2d 824, 825 [4th Dept 2003], lv denied 95 NY2d 893). Significantly, "[d]efense counsel had a discernible strategy . . ." (People v Barnes, 305 AD2d 1095 [4th Dept 2003], lv denied 100 NY2d 592), as noted at the outset (see also People v Lawton, 134 AD2d 454, 455 [2nd Dept 1987], lv denied 71 NY2d 1029 ["decisions by counsel concerning trial strategy (are matters) which our courts have refused to second-guess on appeal . . ."]) .

In any event, it is familiar law that "[t]o prevail on a claim of ineffective assistance of counsel a defendant must demonstrate the absence of strategic or other legitimate explanations for counsel's failure to pursue colorable claims' [citation omitted]" (People v Garcia, 75 NY2d 973, 974 [1990]; see also People v Benevento, 91 NY2d at 712 [" it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations' for counsel's alleged shortcomings"]; People v Eagleton, 161 AD2d 482 [1st Dept 1990], lv denied 76 NY2d 855; People v Philbert, 267 AD2d at 608) - including the defense of alibi (see People v McDonald, 255 AD2d 688, supra ; People v Cancer, 16 AD3d 835, [3rd Dept 2005], lv denied 5 NY3d 826 ["although defendant claims that defense counsel failed to . . . call an alleged alibi witness, he has failed to demonstrate an absence of strategic or legitimate reasons for counsel's actions in that regard . . ."]). Defendant, however, simply failed to do so; and thus " it will be presumed that counsel acted in a competent manner and exercised professional judgment' [citation omitted] . . ." (People v Taylor, 1 NY3d at 177-178).

"Nor has defendant demonstrated that but for counsel's purported errors, the verdict would have been different [citation omitted]" (People v Styles, 156 AD2d 223, 225 [1st Dept 1989], lvs denied 75 NY2d 872, 76 NY2d 743, habeas corpus denied 1995 WL 326445 [SDNY], affd 101 F3d 684 [2nd Cir], cert denied 519 US 936; see also People v Harris, 304 AD2d at 356; People v Diaz, 157 AD2d 569 [1st Dept 1990], lv denied 76 NY2d 733). In fact, "[e]ven if [the Court] were to find that trial counsel's failure to . . . [call] alibi [witnesses] was neglectful rather than strategic, [*20][the Court] would still find that defendant received meaningful representation [citation omitted]" (People v Brown, 306 AD2d 12, 13 [1st Dept 2003], lv denied 100 NY2d 592), as "there is no proof that defendant suffered actual prejudice as a result of the claimed deficiencies, which is a necessary prerequisite to a finding of ineffective assistance of counsel [citations omitted]" (People v Frascatore, 200 AD2d 860, 861 [3rd Dept 1994]; see also People v Miller, 254 AD2d 627, 628 [3rd Dept 1998]).[FN22]

The case at bar is indistinguishable from People v Rodriguez (132 AD2d 682 [2nd Dept 1987]), where, upon appeal, the defendant argued that defense counsel's failure to pursue an alibi defense was error. In rejecting defendant's ineffective assistance claim - and finding that he was furnished with "meaningful representation" - the Appellate Division noted that "defense counsel cogently presented other theories of defense, and the emphasis of some defenses over others is a matter that will not be second-guessed on appeal [citations omitted]" (id., at 682-683).

Thus, given the uncertain value of the proposed alibi testimony in the case at bar (see People v Nicholson, 269 AD2d 868, 869 [4th Dept 2000], lv denied 95 NY2d 907, error coram nobis denied 289 AD2d 1101), trial counsel's failure to present it - choosing instead to raise misidentification - cannot be faulted, as plainly illustrated by the McDonald (255 AD2d 688, supra ) case - which is certainly the mirror image of this case. As noted above, in McDonald, "defense counsel made an intentional tactical decision to forego an alibi defense in favor of misidentification" (id). Thus, the Appellate Division rejected the defendant's claim of ineffectiveness - notwithstanding the fact that counsel's strategy was unsuccessful.

The case of People v Benjamin (151 AD2d 685 [2nd Dept 1989]) is also instructive. While our defendant belatedly faults trial counsel for failing to call his former wife (Ms. Ivette Rodriguez) and friend (Mr. Miguel Guzman) as alibi witnesses, the Appellate Division in Benjamin, based upon the hearing record, held "that counsel's decision not to call the defendant's best friend, wife and other family members as alibi witnesses was a well-advised trial strategy. The defendant's disagreement with that strategy did not render counsel's representation less than meaningful [citations omitted]" (id. at 686). Here, too, there was clearly no showing that the trial would have had a different outcome had his alibi witnesses been called (see cf. People v Divine, 193 AD2d 562 [1st Dept 1993], lv denied 82 NY2d 717).[FN23]

In essence, trial counsel's "decision not to use an alibi defense, which [trial counsel testified that the very skillful and experienced Assistant] District Attorney was prepared to [destroy], was a matter of trial strategy and cannot be characterized as ineffective assistance of counsel" (People v Villone, 138 AD2d 971 [4th Dept 1988], lv denied 72 NY2d 913). Above all else,"it was not factually demonstrated that defendant had a viable alibi defense and therefore there was no neglect or incompetence on the part of defense counsel in not presenting this defense to the jury" [*21](People v Gross, 171 AD2d 957, 958 [3rd Dept 1991]).[FN24]

Consequently, "[c]onsidering counsel's conduct of the defense as a whole, defendant was not denied meaningful representation [citations omitted]" (People v Parker, 305 AD2d at 859); and, as noted earlier, "defendant did not meet his well-settled, high burden of demonstrating that he was deprived of a fair trial by less than meaningful representation' [citation omitted]" (People v Coleman, 305 AD2d 1031, 1032 [4th Dept 2003], lv denied 100 NY2d 579).

The Court also rejects defendant's claim that his trial attorney deprived him of his right to testify at the trial. In this regard, "there is nothing in the record . . . suggesting that defense counsel prevented' defendant from testifying" (People v Coleman, 296 AD2d 766, 768 [3rd Dept 2002], lv denied 99 NY2d 534). At the hearing, trial counsel credibly testified that, in cases such as this one - i.e., where the defense is mistaken identification - it is his opinion that the defendant should not testify. Accordingly, trial counsel had advised the defendant not to testify, and the defendant accepted his advice without reservation. Defendant's testimony to the contrary was simply not credible.

In any event, had defendant insisted on testifying, trial counsel, who express- ly recognized that the right to do so solely belongs to the defendant, further credibly testified that he would not have prevented him from doing so. Instead, trial counsel testified that he would have made a record - outside the jury's presence - that the defendant was testifying contrary to his recommendation.

Thus, the Court concludes that "[c]ounsel properly discharged [his] responsibility to advise defendant relative to his right to testify and [most importantly] defendant was not prevented by . . . counsel from testifying" (People v Bussey, 276 AD2d 331, 332 [1st Dept 2000], lv denied 96 NY2d 732). Trial counsel's recommendation clearly constituted "a legitimate strategic decision given the avenues available to the People for cross-examination of the defendant if he testified" (People v Coleman, 296 AD2d at 768; see also People v Chung, 276 AD2d 708 [2nd Dept 2000], lv denied 96 NY2d 757 ["failure of the defendant's attorney to call him and various witnesses to testify at the trial was a matter of strategy. . ."]).

Although the defendant had alleged in his moving papers that trial counsel was also ineffective for failing to interview numerous other witnesses, upon oral argument defendant only focused his attention on one particular individual - Allen Ortiz - and made no reference to the others, thus impliedly abandoning his claim as to the other witnesses which he did not address at this hearing.

As to Mr. Allen Ortiz, defendant asserts that trial counsel was ineffective for failing to secure Mr. Ortiz's presence for trial and also for failing to request a missing witness charge. The trial record, however, completely eviscerates the defense argument. More particularly, the trial record conclusively revealed that the prosecutor, who had informed the court that the People would not be calling Mr. Ortiz as a witness, permitted trial counsel to interview him (TT-133-134). While trial counsel - during his testimony at this hearing - did not recall interviewing Mr. Ortiz, the following colloquy from the trial record is most revealing (at TT,134):

A.D.A: I invited defense counsel up to my office to speak with [*22]

Allen Ortiz [and] without getting into the conversation

that we had, the result is that the defense counsel has

had the opportunity to speak to this witness and has

decided not to call him.

Trial Counsel: That is correct.

A.D.A.: And we sent Allen Ortiz home. He doesn't want

to be a witness for either side, He doesn't want

to get involved in this case whatsoever.

Trial Counsel: That is correct.

Thus, under those circumstances, trial counsel's decision not to call Allen Ortiz as a witness is clearly not subject to attack and, therefore, does not constitute ineffective assistance of counsel.

Defendant's further contention that there was a Brady violation (see Brady v Maryland, 373 US 83 [1963]) and that, in any event, trial counsel was ineffective in failing to utilize the information is also palpably without merit. First of all, the defendant did not assert any Brady claim in his moving papers. More importantly, trial counsel never testified, as asserted by the defense on oral argument, that he never saw the subject DD- 5 [prepared 2/4/89] before or during trial. Rather, trial counsel testified that he could not recall if he had previously seen it (HT,242) . But most importantly, the DD-5 does not contain any exculpatory information - when viewed in context with Mr. Guzman's hearing testimony. Specifically, the DD- 5 memorializes the false statements of Miguel Guzman, attributing the shootings to "Freak, a/k/a Bad Nut". Thus, trial counsel cannot fairly be faulted for not utilizing this false information.

Lastly, the defense argues that trial counsel was unprepared, because he had only about six or seven days to prepare for trial after being assigned by Mr. Richman to represent the defendant. In support of his contention, defendant offered the affirmation of Mr. Richman (defendant's exhibit A in evidence [dated 1/25/05]), wherein he states "[i]t is my understanding that [trial counsel] was . . . not fully familiar with the case at the time of his appearance in Judge Collins' court" (¶ 4).

Clearly, the level of trial counsel's familiarity with the case at the time he appeared with the defendant before Justice Collins is simply irrelevant. The relevant issue, of course, is the quality of trial counsel's representation of the defendant at trial. The answer is plainly found in the transcript of the trial itself. This Court's review of the trial record reveals that trial "[c]ounsel demonstrated a reasonable understanding of the principles of criminal law and procedure [citation omitted] and was familiar with the facts and the law bearing on the defendant's case [citation omitted]" (People v Schlageter, 238 AD2d 891, 892 [4th Dept 1997). In this regard, the trial "record reflects that counsel made appropriate motions and objections, effectively cross-examined witnesses, presented sound opening and closing statements and otherwise pursued a cogent defense [citation omitted]" (People v Valderama, 25 AD3d 819, __ [3rd Dept 2006], 806 NYS2d 789, 792-793), as earlier noted. [*23]

Having thus concluded that there was no violation of the defendant's right to effective assistance of counsel under our State Constitution, the Court - mindful of the two recently decided cases of Gersten v Senkowski (426 F3d 588 [2nd Cir 2005], revg 280 AD2d 487) and Henry v Poole (409 F3d 48, 62-63 [2nd Cir 2005], revg 95 NY2d 563) - next examines whether the defendant received effective assistance of counsel under the Federal Constitution [FN25] - even though the New York State Court of Appeals has held that "our state standard . . . offers greater protection [to defendants] than the federal test . . ." (People v Caban, 5 NY3d 143, 156 [2005]; see also People v Turner, 5 NY3d 476, 480 [2005]; People v Casiano, 184 AD2d 206 [1st Dept] 1992], lv denied 80 NY2d 927; People v Parker, 220 AD2d 815, 816 [3rd Dept 1995], lv denied 87 NY2d 1023 .[FN26]

In the seminal case of Strickland v Washington (466 US 668 [1984]), "the Supreme Court established a two-pronged test for determining whether a defendant's Sixth Amendment right to the effective assistance of counsel has been violated. In order to prove such a violation, a convicted defendant must show both (a) that counsel's representation fell below an objective standard of reasonableness . . . under prevailing professional norms' [citation omitted], and (b) that the deficient performance prejudiced the defense' i.e., that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable' [citation omitted]" (Henry v Poole, 409 F3d at 62-63).[FN27] In this regard, it is the defendant who "bears the burden of establishing both deficient performance and prejudice. [Citation omitted]" (Greiner v Wells, 417 F3d 305, 319 [2nd Cir 2005]).

Preliminarily, as applied here, the Court "will limit [its] inquiry in this case to the performance prong. There is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one". [citations and internal quotation marks omitted]" (Greiner v Wells, 417 F3d at 319). Specifically, [*24]the trial evidence revealed and - more importantly - the Appellate Division expressly held that the evidence of the defendant's guilt was overwhelming (see People v De La Cruz, 223 AD2d 472, supra ). Thus, under that particular circumstance, "even if counsel's performance had fallen below an objective standard of reasonableness, Strickland's prejudice prong would not be satisfied" (Thomas v Lord, 396 FS2d 327, 337 [EDNY 2005]), as instructed by Thomas (id. at 337).

Simply stated, the defendant cannot even remotely satisfy the first prong of the Strickland performance test. "In assessing performance, [the federal courts] . . . apply a heavy measure of deference to counsel's judgments'. [Citation omitted.] [Federal courts] will not normally fault counsel for foregoing a potentially fruitful course of conduct if that choice also entails a significantly potential downside'. [Citations omitted.] Thus, [a] lawyer's decision not to pursue a defense does not constitute deficient performance if, as is typically the case, the lawyer has a reasonable justification for the decision', [citation omitted] and [,most significantly,] strategic choices made after a thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, [citation omitted]" (Greiner v Wells, 417 F3d at 319 [emphasis supplied]). "[A]nd even strategic choices made after less than complete investigation do not amount to ineffective assistance - so long as the known facts made it reasonable to believe that further investigation was unnecessary [citation omitted]" (Henry v Poole, 409 F3d at 63).

Here, as discussed above, trial counsel, as a matter of law, cannot be faulted for his failure to pursue a perjurious alibi defense by calling Miguel Guzman, who has plainly proven himself to be lacking in credibility. And, as also earlier noted, a reasonably competent attorney could have certainly concluded that an alibi defense only supported by the defendant and his wife - whom this Court did not find credible - is not only inherently weak, but could also undermine the well conceived defense theory of misidentification. "Thus, [as noted above,] [a] lawyer's decision not to pursue a defense does not constitute deficient performance . . . [when, as is clearly the case here], the lawyer has a reasonable justification for the decision' [citation omitted]" (Greiner v Wells, 417 F3d at 319).

In the end, this Court, relying on the Appellate Division case of (People v McDonald (255 AD2d 688, supra ), holds, as noted at the outset, that "the record [unequiv- ocally established] that defense counsel made an intentional tactical decision to forego an alibi defense in favor of a claim of misidentification [and] [the fact that counsel's strategy was unsuccessful by no means render[ed] his assistance ineffective [citation omitted]" (id. at 688-689). Said differently, trial counsel pursued an objectively reasonable course of action. While defendant argues that his trial attorney should have nonetheless used his wife and himself as alibi witnesses, it must be noted that "[e]ven the best criminal defense attorneys would not defend a particular client in the same way [citation and internal quotation marks omitted]" (Thomas v Lord, 396 FS2d at 335). "Indeed, as the Supreme Court has noted, there are countless ways to provide effective assistance in any given case . . .' [citation omitted]" (id.).

Lastly, the Court's research has failed to reveal that the holding in McDonald "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; . . ." (28 USC § 2254 [d]). Nor has the defense furnished the Court with a decision of the United States Supreme Court - or our own State appellate courts for that matter - that would cast into doubt the continuing validity of McDonald. [*25]

Accordingly, defendant's motion is denied.

Order signed herewith.

Dated: January 26, 2006 ______________________

J.S.C. Footnotes

Footnote 1: The hearing was conducted on November 21st, December 8th and 15th [2005], January 9th and 10th [2006]; the Court heard oral argument by the defense and prosecution on January 19th.

Footnote 2: In view of Mr. Guzman's present - and permanent - confinement in a federal penitentiary in Colorado, the defendant and defense counsel expressly agreed that Mr. Guzman could present his testimony from Colorado via live, closed-circuit television. Consequently, as a result of the modern technology utilized by court personnel, Mr. Guzman's presence in the courtroom was the same as if he had physically entered the courtroom and took the witness stand.

Footnote 3: Of course, the law only requires the People to prove the defendant guilty beyond a reasonable doubt (see CPL § 300.10 [2]) and, as noted above, the Appellate Division previously ruled that the People did so in this case.

Footnote 4: The prosecution and the defense orally stipulated (on the record of January 9th) that the transcribed minutes of the trial are incorporated into evidence for the purpose of this hearing.

Footnote 5: As explained by Mr. Alvarez, the phrase "going to light you up" means "[t]hat you are going to get shot up; kill you" (TT,93).

Footnote 6: Detective Tebbens testified at trial that defendant, who had come to the precinct voluntarily - a few days after the shootings - told him that he uses the alias "Dice" (TT,141-142).

Footnote 7: Mr. Alvarez further testified that when he had earlier seen Miguel [Guzman] that evening, the defendant was not present.

Footnote 8: On cross-examination, Mr. Leon conceded that he had previously told a detective investigating the shootings that he did not see the gunman (TT,166). However, Mr. Leon explained this apparent contradiction by saying he "didn't want to get involved at first" (TT,166). But he conceded at trial that he had indeed told the detective that he did not see the man who did the shooting (TT,167). Mr. Leon further admitted that he had also told a friend or relative of the decedent that he did not see anything (TT,179-180) - referring to the shooting and not the fight between Miguel Guzman and Edgar Ortiz (TT,168).

Footnote 9: Asked, on cross-examination, to describe the man who was having the fistfight with Miguel, Mr. Leon testified "I just know he had like - - a kind of like black curly hair" (TT,168). Next asked if he [referring to Miguel's opponent - Edgar Ortiz] was wearing a tan coat, Mr. Leon said "[t]an complexion. That is all I remember" (TT,168).

Footnote 10: Thus, Dr. Parikh did not commence work at Lincoln Hospital until about six months after Edgar Ortiz had been treated and discharged from the hospital.

Footnote 11: Trial Counsel was apparently aware of this principle of law, as he elected not to cross-examine Dr. Parikh about Edgar Ortiz's injuries - which were plainly irrelevant to his theory of the defense, namely, that the defendant was the victim of mistaken identification.

Footnote 12: In any event, according to the hospital record (People's exhibit # 19 in evidence) the complainant Edgar Ortiz sustained two gunshot wounds: one to the right chest, and the other to the right shoulder TT,62-64). In this regard, Edgar Ortiz testified that he had undergone two or three operative procedures (TT,23), resulting in a two-week hospital stay (id.).

Footnote 13: It should be noted that Edgar Ortiz's hospital records were introduced into evidence (People's exhibit # 19), thus enabling the jury to independently makes its own conclusion as to the seriousness of Mr. Ortiz's injuries.

Footnote 14: While Justice Wallace denied trial counsel's preclusion motion, on appeal the Appellate Division, as noted above, ruled that it was error - albeit harmless error in view of overwhelming evidence of the defendant's guilt - to do so (see People v De La Cruz, 223 AD2d 472, supra ).

Footnote 15: The defense claim at the hearing, that no Notice of Alibi was ever filed by the defendant's trial attorneys - since it is now missing from the court file, 16 years later - is based upon nothing more than sheer speculation and conjecture.

Footnote 16: While Ms. Ivette Rodriguez testified that the defendant was in fact home and, moreover, that the defendant had instructed her to inform Mr. Guzman he was not home, Mr. Guzman did not know that Ms. Rodriguez had lied to him. As far as Mr. Guzman knew - his state of mind - the defendant was NOT home. Yet, he was most willing to commit perjury by testifying at trial that the defendant, his friend, was home when he [Mr. Guzman] came calling.

Footnote 17: Also, in a DD-5, prepared on 2/4/89 by Detective Tebbens - and annexed to the defendant's moving papers [dated 5/27/04] - Mr. Guzman had told Detective Tebbens that when he had knocked on "Dice's" apartment door and asked his girlfriend if "Dice" was home, "she replied no" (¶ 4).

Footnote 18: While Ms. Rodriguez testified that she never had the opportunity to speak to trial counsel about her being an alibi witness and, moreover, trial counsel never asked her about it, this testimony was simply not credible. This is a woman who had no hesitation whatsoever in seeking out the detectives who were holding the defendant at the precinct, a woman, moreover, who, by her own testimony, had attended virtually every pretrial court appearance in this case, making sure she always knew the adjourned date and court part. Yet, incredulously, Ms. Rodriguez somehow became reticent about communicating with trial counsel about the alibi - either during jury selection or at anytime thereafter during trial.

Footnote 19: Trial counsel also testified that, after interviewing the alibi witnesses, he informed Mr. Richman that they were not good. Mr. Richaman, according to trial counsel, replied that you are trying the case and it is your decision.

Footnote 20: "The constitutional right to effective assistance of counsel does not guarantee a perfect trial, but assures the defendant a fair trial' [citation omitted]" (People v Cruz, 300 AD2d 1083, 1085 [4th Dept 2002], lv denied 99 NY2d 627; see also People v Gigliuto, 22 AD3d 890, 892 [3rd Dept 2005] [" effective assistance of counsel does not require perfect representation' . . ."]; People v Wright, 5 AD3d 873, 877 [3rd Dept 2004], lv denied 3 NY3d 651).

Footnote 21: Consequently, a reasonably competent trial attorney could further conclude that if the jury thought that the alibi defense was a sham and an insult to its intelligence, the jury could then be inclined to be unreceptive to the additional defense claim of misidentification.

Footnote 22: As noted above, the "prejudice component . . . focuses on the fairness of the process as a whole rather than [any] particular impact on the outcome of the case' [citation omitted]" (People v Henry, 95 NY2d at 566). Here, examination of the record - trial counsel's perform- ance - readily proclaims the fairness of the "whole process".

Footnote 23: In Divine, trial counsel - unlike defendant's trial counsel - did not even interview a possible alibi witness; yet, the Appellate division concluded that counsel there was not ineffect- ive.

Footnote 24: Trial counsel in Gross - like trial counsel here - raised an identification issue instead.

Footnote 25: "All courts are, of course, bound by the United States Supreme Court's interpretations of . . . the Federal Constitution [citations omitted]" (People v Kin Kan, 78 NY2d 54, 59 [1991], mot for reargument or reconsideration denied 78 NY2d 1008). Yet, while our Court of Appeals has held that the interpretation of a Federal constitutional question by the lower Federal courts is not binding on it (id. at 60), State courts certainly do not have the last word on constitutional issues arising in the context of a state court criminal prosecution (see 28 U.S.C. § 2254). Conse- quently, this Court believes it prudent to determine whether the defendant had received effective assistance of counsel under the well established federal standard [discussed infra] as well.

Footnote 26: The Court of Appeals "has previously recognized the differences between the Federal and State tests for ineffectiveness, and has consistently adhered to the application of [its] mean- ingful representation' test [citations omitted]" (People v Henry, 95 NY2d at 566; see also People v Vilardi, 76 NY2d 67, 74 FN 3 [1990] ["This court has not adopted the Strickland test for determining ineffective assistance of counsel claims . . ."]; People v Turner, 5 NY3d at 480).

Footnote 27: Although twenty-one years has elapsed after the Supreme Court rendered its Strick- land decision, it must still be regarded as the standard for the relevant clearly established federal law in resolving claims of ineffective assistance of counsel (see Thomas v Lord, 396 FS2d 327, 334 [EDNY 2005]).