People v Davis

[*1] People v Davis 2009 NY Slip Op 51994(U) [25 Misc 3d 1207(A)] Decided on September 30, 2009 Supreme Court, Bronx County Sonberg, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 30, 2009
Supreme Court, Bronx County

The People of the State of New York

against

Mark Davis, Defendant.



4686/03



For the People:

HON. ROBERT T. JOHNSON

District Attorney, Bronx County

198 East 161st Street

Bronx, NY 10451

(718) 590-2000

Mary Jo L. Blanchard, Esq.

Of Counsel

For the Defendant:

ROBERT S. DEAN, ESQ,

Center for Appellate Litigation

74 Trinity Place

New York, NY 10006

(212) 577-2523

David J. Klem, Esq.

Of Counsel

Michael R. Sonberg, J.

Defendant moved pursuant to CPL § 440.10 (1) (h) to vacate his conviction for Assault

in the First Degree [PL §120.10 (1)]. This conviction arose from the shooting of Luke Abrahams on April 20, 2003 at the Edenwald Housing Projects at East 229th Street, Bronx County. Defendant claims his conviction should be vacated because he was deprived of his right to effective assistance of counsel, in that trial counsel's cross-examination of the prosecution witness was deficient and he failed to prepare throughout his representation of defendant.

Specifically, defendant claims that trial counsel failed to impeach the complainant effectively by (1) not examining the discovery documents carefully, thereby overlooking [*2]materials that established the complainant was personally familiar with guns and had a history of marijuana use; (2) failing to cross-examine the complainant about his street name; (3) failing to cross-examine the complainant about his "pick and comb,"which, if fully explored, would have further cast doubt on his credibility; (4) failing to conduct an investigation regarding the complainant's place of employment, which, if fully explored, would have uncovered valuable impeachment evidence that he had lied; (5) failing to hire or consult an expert on identification to support the misidentification defense; and (6) failing to prepare defense witnesses adequately before they testified.

The People submitted an affirmation in opposition to defendant's CPL § 440 motion. On December 10, 2007, this court ordered a hearing addressing defendant's claims. An evidentiary hearing was held before me on April 30, May 5, and June 10, 2008. Post-hearing submissions were not completed until June 5, 2009.

The Prosecution's Case at Trial

The evidence at trial established the facts as follows:

On April 20, 2003, at approximately 1:00 AM, Luke Abrahams was shot on the grounds of the Edenwald Housing Projects at East 229th Street, Bronx County. On this date, Abrahams went to the Edenwald Projects after a business meeting in White Plains, with a company called Front Line Marketing, had run later than expected, causing him to miss a 9:30 P.M. hair appointment in Harlem. As a result of having missed the appointment, he called a friend named Deana Renis and asked her to do his hair. She agreed and told him to meet her at the Edenwald Projects. Abrahams drove to Edenwald with his business partner where he met Deana, Deana's sister, Pam, and a third woman whom he did not name, at the driveway. Deana and Pam asked him to take them to the "corner store" so they could buy some juice. He drove them from East 229th Street to a Getty station at the corner of East 233rd Street and Baychester Avenue. He dropped his business partner off there, and then drove back to the Edenwald Projects with Deana and Pam in the back seat.

Once back at Edenwald, Abrahams pulled into a parking spot and continued talking on his cell phone while Deana and Pam exited the car. While still talking on his cell phone, Abrahams got out of the car and walked over to the passenger side to retrieve his pick and comb for the haircut. Although he was not paying attention and was focused on his telephone conversation, he noticed two male black figures standing somewhat in front of the vehicle. One of the men said, "he doesn't like niggers grilling him." Abrahams ignored them because he did not believe the individual was talking to him and continued talking on his cell phone.

Abrahams retrieved his pick and comb from the back seat, passenger side, of the car and finally got off the phone. He closed and locked the car door and walked to the curb. When Abrahams got within ten feet of the closest man, he was able to see his face. As Abrahams walked closer, that person again said he "doesn't like niggers grilling him."

When Abrahams reached the curb, the person reached into the pocket of his hoody, drew a gun and placed the gun against Abrahams' left temple. As a reflex, Abrahams tried to push the gun away from his head. As he did so, the gun went off. A bullet struck Abrahams. He tried running away between two cars while additional shots were fired at him.

Hit in the left hand, both thighs, and the back, Abrahams lost consciousness and fell to the ground. The two black men stood over him and continued talking as he regained [*3]consciousness and "played possum." Deana was soon laying over him crying. He described the shooter as being a male black around 5' 8", 18-19 years old, slim built, with a light mustache and short, closely-cropped hair, wearing a black or blue hoody. Subsequent testimony by a doctor, an expert in medicine and general surgery, determined that Abrahams had been shot in his left hand, left side of his chest and both thighs. Abrahams identified defendant as the shooter.

The Defense Case at Trial

The defense called two witnesses: Violet Ann Grant, the grandmother of defendant's daughter and Samantha Johnson, defendant's neighbor.

Between 2002 and 2003, defendant lived with Violet Ann Grant in Mount Vernon. During the trial, Ms. Grant looked at defendant and stated that he had a "fresh cut," which he did not have in 2002-2003, because he wore braids. Ms. Grant looked at a photograph dated late 2002, which depicted defendant, and asserted that defendant had braids in his hair going towards the back of his head but never had a mustache. Ms. Grant further asserted that as long as she had known defendant, he always had braids or corn rows. Ms. Grant did not know where defendant was on April 18 or 19, 2003.

On cross examination, she testified that she had known defendant since 1998 or 1999 and asserted again that defendant always had braids. After being directed to look at defendant at defense table, who had short hair, Ms. Grant testified that she had never seen him with "hair like that." During the period between 1998 and 2000, she would see defendant once or twice a month and to the best of her recollection, she never saw defendant with short hair. After being shown a picture depicting defendant having short hair in December 1999, Ms. Grant asserted that she did not remember defendant looking like that. Ms. Grant further explained that she did not remember defendant having short hair, but if the picture showed he had short hair, then he had short hair. She went on to say that what defendant did before he moved in with her was a blur. Although Ms. Grant asserted that she remembered defendant's hairstyle two years before trial because she braided it and saw him more frequently since he watched over the children, she referred to her poor memory by disclosing that sometimes she did not remember yesterday. On redirect examination, Ms. Grant viewed a picture depicting defendant in braids, which she said was taken sometime in October 2003.

Samantha Johnson, defendant's neighbor, knew defendant as "Derrick" since 2000 because she lived upstairs, above defendant, in Mount Vernon. After being directed to look at defendant's short hairstyle in court, Ms. Johnson asserted that between 2000 and 2004, she had never seen defendant have a mustache or short hair. She further asserted that defendant always wore "corn braids or regular braids . . . or a big afro," she admitted that she did not see him daily, and sometimes would not see him for weeks at a time. Ms. Johnson stated that the last time she saw defendant was sometime in 2003, but she could not say when. After looking at a photograph depicting defendant in August 2002, Ms. Johnson stated that "his hair was longer than this at any point that I'd seen him." Ms. Johnson was unable to discern whether defendant had braids, but stated "I've always seen his hair longer." Upon viewing a second picture taken that same day of defendant's side profile, Ms. Johnson stated, "it's a little more clear those braids . . . in messed up form." [*4]

The Evidence at the CPL § 440 Hearing

After hearing the testimony presented in connection with the evidentiary hearing in this matter, the court makes the following factual findings:

MARTIN FISHER

Martin Fisher, Esq., was retained to represent defendant at trial. He is also a member of the 18-B Panel of criminal defense attorneys. He had substantial trial experience, having been admitted to the New York State Bar in 1973. At the time of the hearing, he had represented more than one thousand clients and tried over one hundred cases.

Sometime after defendant's arrest, he was contacted by Mr. Davon Jones, a former client whom he had represented successfully in both a civil and a criminal matter. Jones was the driver of the vehicle that defendant was in at the time of his arrest and resided at the same location as the shooting incident. A handwritten retainer agreement was entered into between Fisher, Jones and Cathleen Mabrey, defendant's then-girlfriend. Pursuant to the retainer agreement, Fisher would be paid $5,000 to represent defendant if no trial occurred and would receive an additional $2,500 plus expenses if a hearing and/or trial occurred. Fisher did not recall if he kept track of any expenses and did not keep track of the hours he worked; however no expenses were due unless there was a hearing or trial. He received a total fee of $3,200, which included payment for all court appearances to the end of the trial; he did not cash a $250.00 check from defendant's grandmother. Even though he did not receive his full fee, he remained on the case because he believe that it was not right to abandon defendant. He did not hire an investigator to help establish an alibi or to locate additional witnesses because it would not have been beneficial as this was not the type of case where an investigator was necessary due to the time of the incident (1:40 A.M.), coupled with the delay of nearly six months between the shooting and the arrest. Furthermore, since the defense was misidentification, defendant and his family, particularly Mabrey, defendant's then-girlfriend, were in the best position to help locate possible witnesses. Indeed, Mabrey produced two witnesses: Violet Ann Grant and Samantha Johnson. In Fisher's experience, witnesses are more likely to cooperate when asked to do so by someone they know, rather than a stranger. His decision was not influenced by monetary considerations.

He met with defendant many times in the pens; he never went to Rikers Island to see him. He talked to as many people as possible including, Jones and Mabrey. Mabry, however, was not a witness to the shooting and could not provide much information; Jones disappeared almost immediately and other than seeking payment from him, there was no reason to talk to him. No attempt was made to speak to Deanna Renis, a friend of Abrahams and the first person to see Abrahams after he was shot, because he assumed that she would be uncooperative and would not have been helpful to the defense, as she told the police she had not seen the shooting and provided false contact information. David Reddicks, who was at a tire shop in an unknown location, also denied seeing or hearing anything. As for attempting to interview Abrahams or the confidential informant who identified defendant as the shooter, Fisher believed that would prove futile. In his experience, the identities of confidential informants are fiercely guarded by the police, and victims, aware that they can refuse to talk to defense attorneys or their investigators, only rarely meet with the defense team.

Fisher did not visit the scene at night to see which lights were working or take photographs, in part because the area is dangerous and photographs months afterwards are not [*5]proof of how the area appeared on the night of the shooting. He recalled going there during daylight hours one day with Mabrey, probably to locate Jones, as Jones was the individual who was supposed to pay him. He testified that he asked Jones and Mabrey what the lighting conditions were like. Initially he could not recall, what if anything they told him, but later he testified that they told him that it was bright at night there. Had they told him that it was not very bright there at night, he would have tried to get the records from the Edenwald projects. He testified that he might have gone with Mabrey to the maintenance office, although he did not obtain or subpoena any such records. Based on his conversations with Mabrey, defendant, and/or Jones, he believed that the lighting in the parking lot where the shooing occured was sufficient for Abrahams to see.

Fisher did not consider hiring an expert on eyewitness identification to discuss the principle of confidence versus accuracy and did no legal research on the admissibility on this type of testimony. He testified that he was aware of the then-existing case law, but believed that hiring such an expert was out of the question as he had never heard of an expert testifying on such matters in the Bronx at that time. Furthermore, he testified that the People would have hired their own expert, resulting in dueling experts, which would have been distracting. Fisher's decision not to hire an expert was not influenced by the amount of money he received from Mabrey; he was aware that, just as the court furnished the transcripts, he could obtain funds for an expert.

Fisher's goals in cross-examining Abrahams were to show that he had mistakenly identified defendant and to cast doubt on his credibility in general. Fisher testified that he received the discovery materials from the prosecutor more than nine months before trial, reviewed the materials and took notes, although his case file did not contain Abrahams' medical records. With regard to the 800 pages of medical records, he read through the parts that he thought were germane. He recalled that the discovery materials revealed that Abrahams had received a summons for marijuana and had been arrested for possession of a firearm in Virginia. At trial, the court allowed only limited questions on Abrahams' gun possession charge and Abrahams asserted his Fifth Amendment rights on his marijuana use. He did not try to obtain Abrahams' rap sheet or run a criminal record check. Fisher believed that the firearms case had been dismissed, although he never attempted to investigate why or establish the underlying facts. Fisher did not view the reason for the dismissal as being significant and did not recall doing any legal research on the issue or on the case. He did not recall whether he called the Virginia prosecutor's office but it was possible that he did not.[FN1] [*6]

Fisher did not cross-examine Abrahams on his failure to mention his second job at Front Line Marketing in the Grand Jury because Abrahams had not been directly asked about a second job and therefore it could be easily explained away. Also, he did not want to give the impression of "puffing up" Abrahams' resume in front of the jury. Fisher deemed it inconsequential that Deanna Renis knew Abrahams as "Image." Fisher thought it was best to focus his cross-examination on topics that were most beneficial to his theory of defense and not just about anything upon which a question could be posed. In his experience, the "blunderbuss" approach bores juries; they stop paying attention and "gems" of cross-examination "get lost in the crowd."

Fisher's opening statement fills three pages of the trial transcript. Fisher admitted that his opening was concise and told the jury that the defense was misidentification.

The day before Fisher put on the defense case, Mabrey made her mother, Violet Ann Grant, available as a witness. Fisher spoke on the phone with Grant that day about her proposed testimony and sent a subpoena to ensure her appearance in court. Fisher preferred Grant as a witness, as opposed to defendant and Mabrey, because Grant was not a blood relative, had a respectable job and no arrest record, and could provide a rationale for defendant's flight from the police (she told defendant about an incident where Kadeem Robinson was allegedly beaten by police officers) as well as a description of his hair around the time of the shooting.

Fisher asked Grant to meet him in the Bronx County Bar Association library before her testimony, but instead they met in the hallway (Fisher believed that was because Grant was late). Mabrey was not present for Fisher's discussions with Grant that day. Although Fisher could not recall his preparation of Grant word for word, he was certain that he spoke with her about both goals of her testimony, and learned, in advance, what her answers would be. He also showed her the photographs that he wanted to introduce into evidence through her, and verified that they squared with her recollection of defendant's hairstyle and that she could establish a time frame and foundation for them.

Fisher admitted that while, preparing Grant to testify, he had forgotten about defendant's 1999 photograph (which depicted him with a crew cut), and had made a mistake when his final questions to Grant about defendant's hairstyle were too broadly worded, thereby encompassing more than the relevant time frame of from 2002 to 2003. Because Grant was confronted with the 1999 photograph, however, Fisher convinced the court to reverse a prior ruling and permit the introduction of one more photograph of defendant taken in October 2003, which had the added advantage of showing defendant with his daughter.

VIOLET ANN GRANT

Violet Ann Grant received a bachelor's degree in Forensic Psychology in 2007, had [*7]worked as a forensic psychologist at Valhalla Correctional Facility and as a Clerk for ACS in Family Court. She has known defendant since 1991 and also knows him as "Derrick." Defendant is married to her daughter, Cathleen Mabrey; they have one daughter, Danaysia Davis. In 2000, defendant began living in her home with her daughter and granddaughter. She remembered testifying at defendant's trial in 2005 and recalled that she was asked to by her daughter. On direct examination she testified that while the case was pending, Fisher never contacted her to discuss the case. She met Fisher on the same morning she testified; Fisher had asked her to meet him outside of the courtroom on the benches. While outside the courtroom, she was nervous and Fisher told her to be calm and to try to speak clearly. She met with Fisher for less than five minutes. Fisher did not discuss defendant's hairstyle with her. She assumed that she was being called as a character witness. She remembered testifying at trial to the fact that as long as she had known defendant, he had long hair. When shown defendant's picture by the prosecutor at the trial, she was upset. Had she been shown that picture before being shown it in court it would have allowed her to go back to1998 and would have helped her to remember better. The first time she ever saw the 1999 mug shot of defendant with short hair was when the prosecutor cross-examined her about it on the stand. Had she seen that photograph before she testified it would have triggered her memory. She views defendant, who is now married to her daughter, as a member of the family and frequently visited him both in jail, while he was awaiting trial, and in state prison, often with Danaysia because she wanted her grandchild to have a good relationship with defendant.

On cross-examination she testified that she spoke with Fisher on the phone the day before she was going to testify; she did not pay close attention to what Fisher was saying as she had a lot of things going on. Fisher asked for her fax number at work and faxed her a subpoena. He did not talk to her about the case. She did not recall when she talked to Fisher about Kadeem — whether it was on the phone or in the courthouse — but testified that she recalled telling Fisher to stay out of the projects because these people are crazy. She remembers talking with Fisher and telling him that she did not like the Edenwald Projects. She remembers seeing a photograph of defendant and Danaysia before testifying. Cathleen brought the picture in. The first time she saw the picture was not in court and Fisher did not did not show it to her because she had already seen that picture; she took that picture and it hangs in her house. Cathleen never showed her the picture either. She knew about the picture because Cathleen told her, "Ma, I got the picture of Mark." She never asked Cathleen why she had the pictures. The first time that day she saw the pictures was on the witness stand. She remembers speaking with Mr. Klem and signing an affidavit; however, she never read the affidavit prior to signing it — she just skimmed through it. She did not understand that she was signing the affidavit under threat of perjury and if she had read it thoroughly, she would not have signed it. In her affidavit, she told Mr. Klem that she never spoke to Fisher other than on the day of the trial.

CATHLEEN MABREY

Cathleen Mabrey had been married to defendant since 2005 and has a daughter, Danaysia Davis, with defendant. Mabrey has an eleventh grade education and works two jobs, one with the Office of Mental Retardation and the other in a nursing home. Jones, a friend of Mabrey's, whom Fisher had successfully represented in civil and criminal matters, recommended Fisher.

Fisher told her that it was his job to hire an investigator to investigate the crime scene and [*8]the lighting conditions. She went to the Edenwald projects with Fisher one day after court. Fisher explained to her that he wanted to go to the crime scene to take pictures. She told him that Jones lived in that area. He wanted to see Jones and to go to the housing office to get paperwork on the lighting conditions. She told Fisher that the front of the building is always dark because people would always "bust out" the lights. They went to the housing office and spoke to the receptionist, who told Fisher that he needed a court order for the lighting documents.

Fisher explained to her before the trial that they might need witnesses. She remembered that at the trial, Abrahams testified that defendant's hair was in a caesar, which is a low haircut, while at the time defendant had braids. Fisher explained to her that she could not testify since she had sat through the entire trial. She spoke to Fisher about it before they left the courthouse and Fisher suggested that her mother could come in and explain how defendant's hair was at that time. When she got home she explained to her mother what Abrahams had testified to about defendant's hair. She told her mother that she needed to testify. Her mother told her that she would not mind testifying about defendant's hair.

She also discussed calling Samantha Johnson as a witness with Fisher. Johnson lived upstairs from her during the period from 2000 to 2004. She told Fisher that Samantha would know how defendant's hair was at that time because she had five sons and all of them had braids, as they all liked to have the same hairstyle. Prior to Johnson testifying, she explained to her about the braids so that Johnson would know the subject of her testimony. Fisher never discussed defendant running from the police with her. In April 2003, defendant wore his hair short. She testified that the picture was of her daughter, herself and defendant, that it was a professional picture. In that picture defendant has braids in his hair. She knows Kadeem Robinson and so does her mother. She talked to her mother about the trial while it was proceeding and never told her mother that she was going to be a character witness.

Conclusions of Law

TheNew York standard for the effective assistance of counsel is whether defendant was afforded "meaningful representation," which requires assessing the representation in light of the law and the facts of the case, viewed in their totality at the time of trial. People v Baldi, 54 NY2d 137 (1981); People v Calderon, 884 NYS2d 29 (1st Dept 2009); People v Turner, 5 NY3d 476 (2005); People v Caban, 5 NY3d 143 (2005); People v Benevento, 91 NY2d 708 (1998); People v Baldi, 54 NY2d 137 (1981).

Under the federal standard, defendant's right to effective assistance of counsel is defined by Strickland v Washington, 466US 668 (1984), where the United States Supreme Court adopted a two-prong test for ineffective assistance, holding that a defendant must show first, "that counsel's representation fell below an objective standard of reasonableness (466 US at 688) and, secondly, "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, supra

Here, the burden falls on defendant to establish that he was denied meaningful representation and to "overcome the strong presumption" that he was represented competently. People v Myers, 220 AD2d 461 (2d Dept 1995) lv denied 87 NY2d 905 (1995); People v Cuesta, 177 AD2d 639 (2d Dept 1991) lv denied 79 NY2d 919 (1992). Counsel is "strongly presumed" to have exercised reasonable judgment in all significant decisions. Strickland at 690. [*9]

In reviewing ineffective assistance of counsel claims, care must be taken to "avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis." People v Baldi, 54 NY2d 137 (1981). Thus this Court must not "second-guess [defense counsel's actions] with the clarity of hindsight." Benevento, 91 NY2d at 709. In short, "[t]he Constitution guarantees a defendant a fair trial, not a perfect one." Henry, 95 NY2d at 565. There can be no bright-line test to determine what constitutes effective counsel. People v Baldi, 54 NY2d 137, 146 (1981). "So long as the evidence, the law, and the circumstances of a particular case, viewed in the totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met." People v Baldi, 54 NY2d 137, 146 (1981); see also People v Turner, 5 NY3d 476 (2005); People v Caban, 5 NY3d 143 (2005); People v Henry, 95 NY2d 563 (2000); People v Beneveto, 91 NY2d 708 (1998).

Here, the multiplicity of allegedly incompetent acts and omissions committed by Fisher fall into two basic categories: inadequate investigation and trial preparation and inadequate cross-examination of the prosecution witness. Fisher testified about the basic and reasonable defense strategy of attacking the credibility of the People's witness in order to convince the jury that Abrahams' identification of defendant as the shooter was incorrect. He knew that Abrahams had been arrested for marijuana in the past from his review of the discovery materials. He knew that Edenwald Houses was a drug spot and he knew that Abrahams' girlfriend told the police that he may have gone there to purchase drugs. Fisher testified that he wanted to establish that Abrahams went to the Edenwald Projects to purchase marijuana. The record reveals that when Fisher asked Abrahams if he ever used or ever purchased marijuana, Abrahams pled the Fifth Amendment.

Defendant argues that Fisher did not even ask Abrahams whether he was under the influence of marijuana that night, a question that the prosecutor told him he could ask and that he could have readily discovered by becoming familiar with the discovery materials provided to him months prior to the trial. Here, the record is clear that although the prosecutor suggested that the use question could be limited to the night in question, the court disagreed and would not allow it, despite Fisher's argument that it was relevant to Abraham's credibility. Thus, Fisher's cross-examination on this topic was limited by the court, not by Fisher's lack of diligence, carelessness or ineptitude. Even with the limitations placed on him, Fisher was able to elicit that Abrahams had previously received a summons for marijuana.

Defendant argues that none of Fisher's notes reflect that he even reviewed the medical records because he did not ask any questions of the witness nor did he mentioned them in his opening or closing. Given the court's evidentiary ruling, it is of no moment that Fisher did not question Abrahams about his history of marijuana use as reflected in the medical records. First, as Abrahams relied on the Fifth Amendment, there was no testimony about drug usage to "impeach" with the medical records. Additionally, none of the entries indicated that Abrahams had used marijuana on the date of the shooting. Indeed, each was authored some period of time after the shooting and the reference to marijuana only appeared in a generic "habits" section for the two reports relating to the date of the shooting. Nonetheless, the absence of this line of cross-examination did not deny defendant meaningful representation. Since the medical records did not provide any evidence that Abrahams was impaired by marijuana on the night of the [*10]shooting, they were of marginal value. Moreover, based on Abrahams' acknowledgment of the summons and his assertion of the Fifth Amendment, Fisher still successfully portrayed Abrahams to the jury as an individual who had some experience with marijuana.Defendant further complains about Fisher's deficient cross-examination of Abrahams regarding the gun charge in Virginia. Defendant's argument is not persuasive. Fisher testified that he reviewed the discovery materials and knew from the police paperwork and from his conversations with the Assistant District Attorney that Abrahams had been arrested for a gun charge but that the Virginia prosecutors had declined to prosecute. He further knew that there had not been an acquittal. Fisher believed that he had a good faith basis to inquire about a prior bad act. The record shows that when Fisher began to question defendant about this prior bad act, the Assistant District Attorney objected and an unrecorded sidebar conference took place among the attorneys and the court. Fisher did not recall whether he made any arguments about the propriety of the questions but believed that he informed the court of the questions he wanted to ask and was denied permission. Instead, he was allowed to ask only modified questions, such as whether Abrahams was familiar with guns or if he ever owned a gun. Abrahams denied ever possessing a gun, attributing his familiarity with them to watching television and conversations with doctors after being shot. While Fisher was unsure whether he called the Virginia prosecutor to inquire as to the underlying facts of the gun case, it is clear that Fisher familiarized himself with the discovery materials and understood the parameters of cross-examination with regard to eliciting prior bad acts. It was a reasonable professional decision for Fisher to adhere to the trial court's decision on the matter and not to press objections or to question the propriety of the court's instruction.

Similarly unpersuasive is defendant's claim that Fisher was ineffective because he failed to present expert testimony on eyewitness identification to discuss the confidence/accuracy and weapons effect principles. See People v LeGrand, 8 NY3d 449, 458 (2007); People v Young, 7 NY3d 40, 45 (2006); People v Lee, 96 NY2d 157, 162 (2001). The decision whether to call a witness is tactical [United States v Smith, 198 F3d 377 (2d Cir 1999) cert denied 531 US 864 (2000] and generally will not be disturbed. Pavel v Hollins, 261 F3d 210 (2d Cir 2001). The Second Circuit has held that "counsel's decision as to whether to call specific witnesses — even ones that might offer exculpatory evidence — is ordinarily not viewed as a lapse in professional representation.'" United States v Best, 219 F3d 192 (2d Cir 2000) cert denied 532 US 1007 (2001) quoting United States v Schmidt, 105 F3d 82, 90 (2d Cir 1997). Furthermore, given the fact that Abrahams testified that he never saw the gun but felt it against his temple, Fisher cannot be faulted for not engaging an expert to discuss the principle that eyewitness identifications are less reliable when a weapon in involved because the victim tends to look at the weapon rather than defendant's face. Moreover, Fisher had never heard of an expert testifying in Bronx County on this issue and the LeGrand and Young cases were decided after defendant's trial. Under Baldi, counsel's actions must be viewed in totality and at the time of the representation. Accordingly, in light of the facts and the law available to him at that time, Fisher's conduct with respect to the expert was not constitutionally deficient.

Defendant's remaining arguments concerning the cross-examination of Abrahams about his street name, his second job, and the absence of the pick and comb, are all unavailing. In United States v Nersesian, 824 F2d 1294, 1321 (2d Cir 1987) cert denied 484 US 958 (1987), the [*11]Second Circuit stated that the decisions whether, to what extent and in what matter to cross-examine witnesses are all strategic in nature. If these decisions are reasonably made they cannot constitute the basis for an ineffectiveness claim. The fact the defendant was known to Deanna Renis as "Image" does not impeach Abrahams' account that he went to Edenwald one or two times. Fisher explained that he did not want to "puff up" Abrahams' resume by asking him about a second job. Effective assistance of counsel means meaningful representation received as a totality. See People v Stultz, 2 NY2d 277 (2004); People v Baldi, 54 NY2d 137 (1981); People v Turner, 5 NY3d 476 (2005); People v Caban, 5 NY3d 143 (2005); People v Beneveto, 91 NY2d 708 (1998). An objective evaluation of trial counsel's performance reveals reasonable competence well within constitutional parameters. Defendant's criticism of Fisher for not gathering photographs depicting defendant's hairstyles and locating witnesses to testify about defendant's hairstyle until after the Wade hearing had begun (nine months after receipt of the discovery materials) does not amount to ineffective assistance of counsel. Fisher's explanation for not doing so until the Wade hearing is reasonable and legitimate. Fisher explained that he was aware that the shooter was described as having "short hair" in both the complaint and the discovery materials but did not become aware of what Abrahams meant by "short hair" until the Wade hearing, where Abrahams testified that the shooter had a "crew cut." When Fisher became aware of the discrepancy between Abrahams' "crew cut" description and defendant's hairstyle at the time of the shooting, Fisher began to gather materials he would later use to attempt to cast doubt on Abrahams' identification.

Defendant argues that another example of Fisher's incompetence at trial was that he did not effectively prepare the two defense witnesses. Although Fisher's preparation of the two defense witnesses may have been lacking in some ways, it was not ineffective. It is already established that Fisher's explanation for not locating witnesses to testify about defendant's hairstyle until the Wade hearing is reasonable and legitimate and did not deny defendant his right to effective assistance of counsel. Consequently, it is apparent that Fisher would not have had a lengthy amount of time to prepare these two witnesses.

Additionally, Grant's testimony at the hearing lacks credibility given the contradictions in her testimony. Grant's assertion that Fisher never spoke to her prior to her testimony and that she assumed that she was being called as a character witness is not credible given the fact that she admitted that she spoke to Fisher on the telephone and that he faxed her a subpoena to appear in court. Her hearing testimony was additionally contradicted by her affidavit, where she denied ever speaking to Fisher. Furthermore, Mabrey testified that she never told Grant that she was to be a character witness. Mabrey testified that when she got home from court, she explained to Grant that Abrahams had testified that defendant had a ceasar haircut; she asked her mother to come in and testify to explain how defendant's hair was at that time of the crime.

Fisher candidly admitted that while Grant was on the stand, he "forgot about" a 1999 photograph depicting defendant with a very short hairstyle. Although the introduction of this photograph by the prosecutor may have had some impact on Grant's credibility, Fisher, recognizing the potential impact, moved to introduce a photograph dated much closer to the date of the shooting, depicting defendant with braided hair. The Constitution "guarantees the accused a fair trial, not necessarily a perfect one." People v Beneveto, 91 NY2d 708 (1998) and not every error or mistake made by counsel will constitute ineffective assistance. See People v Fuller, 50 [*12]AD3d 1171, 1176 (3d Dept 2008) lv denied 11 NY3d 788 (2008) (holding that "meaningful representation does not mean representation free of error in every respect"). See also Morris v Garvin, No.98-CV-4661, 2000WL 1692845 at *3 (EDNY Oct. 10, 2000); People v Singh, 16 AD3d 974 (3d Dept 2005), lv denied 5 NY3d 769 (2005); People v Koufomichalis, 2 AD3d 987, 989 (3d Dept 2003), lv denied 2 NY3d 742 (2004). Furthermore, "even if . . . . . trial counsel's actions resulted from error rather than strategy, trial counsel's performance must still be accorded a certain degree of deference, as the Sixth Amendment does not guarantee error-free, perfect representation." Harris v Hollins, 1997WL 633440 at *6 (SDNY Oct 14, 1997). Nor can it be said that this error elevated to the level where a single lapse can constitute ineffectiveness of counsel. See People v Turner, 5 NY3d 476 (2005).

Likewise, defendant has not shown that Fisher's preparation or questioning of Johnson denied defendant meaningful assistance. Defendant's claim that Fisher allowed a 2002 photograph depicting defendant with "messy hair" to impeach Johnson's testimony is speculative. The photograph depicts "messy hair" and does not clearly represent any specific type of hairstyle. The prosecution's attempt to impeach Johnson's testimony by describing the hairstyle to their advantage suggests issues of semantics. That Fisher did not object at the time does not undermine his testimony that he did not perceive the 2002 photograph as inconsistent. As Fisher explained, sometimes he strategically withheld objections to lessen the impact the evidence had on the jury. Applying the presumption of reasonable professional assistance (Strickland, 466 US at 684), defendant has failed to demonstrate that Fisher's preparation of the witnesses was inadequate.

In any event, defendant has failed to demonstrate that Fisher's conduct was so egregious and prejudicial that he did not receive a fair trial. People v Ozuna, 7 NY3d 913 (2006). Nor has he demonstrated a reasonable probability that the verdict would have been different, absent counsel's alleged errors. Absent such a showing, it will be presumed that counsel acted in a competent manner and exercised professional judgment. People v Rivera, 71 NY2d 705 (1998). Nor has he demonstrated the required absence of strategic or other legitimate explanation for counsel's alleged failures. People v Beneveto, 91 NY2d 708 (1998); People v Rivera, 71 NY2d 705 (1998). Disagreements with strategies, tactics or the scope of cross-examination are insufficient. People v Beneveto, supra .

Defendant complains that Fisher failed to interview the confidential informant, Deanna Renis, David Reddicks and Abrahams, the key prosecution witness. While it would have been prudent for Fisher to have interviewed all witnesses, defendant has not demonstrated that conducting these personal interviews would have yielded different testimony or that cross-examination of these witnesses would have yielded a different result in this particular case. Fisher explained that, in his experience, the identities of confidential informants are fiercely guarded and that prosecution witnesses rarely speak to the defense team and, therefore, attempting to interview them would have proven futile. Although counsel has a duty to investigate before making strategic decisions, counsel need not interview every possible witness to have performed proficiently. When there is "reason to believe investigations would be fruitless or even harmful, the failure to conduct the investigations may not be challenged as unreasonable." Greiner v Wells, 418 F3d 305 (2d Cir 2005), cert denied 546 US 1184 (2006) citing Strickland, 466 US at 691.

Finally there is no requirement that an opening statement be of any particular length. In [*13]any event the opening statement was appropriate.

Based on the entire trial record and applying the presumption of reasonable professional assistance (Strickland 466 US at 684), the court concludes that Fisher's overall performance — even though he did not cross-examine the witness about every inconsistency on the record — by no means undermined the defense and did not fall below professionally competent standards.

Accordingly, defendant's motion is denied in its entirety.

This constitutes the decision and order of the court.

Dated: New York, New York

September 30, 2009

______________________________

MICHAEL R. SONBERG, J.S.C. Footnotes

Footnote 1: In defendant's moving papers in support of his CPL § 440 motion, his counsel, David Klem, Esq., stated that he had spoken with the prosecutor in Virginia, Ms. Hoy, who told him that a person named King had borrowed $200 from Abrahams, but had only paid him back $100. She told him that Abrahams went to King's house to collect the remainder of the money from King, got upset, went to his car, retrieved a .45 caliber pistol and fired multiple shots into the same house which was occupied by King and Antoinette Jones. As a result of this incident, Abrahams was indicted by a Virginia Grand Jury for two felonies; however, the case was dismissed because the State was never able to locate Jones and King refused to testify or appear at trial.

In his post-hearing reply memorandum, defendant argues that, prior to the CPL§ 440 hearing, the subject of calling the Virginia prosecutor was discussed at an unrecorded bench conference where both the prosecutor and the court expressed their belief that there was no need for this witness. Defendant now requests that the Virginia prosecutor's statement be added to the record. The People oppose this and argue that their recollection of the bench conference is different and that they never agreed that this testimony was not necessary. The court has no recollection of the bench conference. As defendant bears the burden of proof at a CPL§ 440 hearing [(CPL § 440.30 (6)] and defendant's moving papers are not part of the record of the hearing, this request is denied.