People v Richard R.

[*1] People v Richard R. 2011 NY Slip Op 52163(U) Decided on November 30, 2011 Westchester County Ct Colangelo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2011
Westchester County Ct

The People of the State of New York,

against

Richard R., Defendant.



06-00124



JANET DIFIORE, DISTRICT ATTORNEY

Office of the Westchester County District Attorney

111 Dr. Martin Luther King Jr., Blvd.

White Plains, New York 10601

By: Laurie Sapakoff

Christine Hatfield

NEAL D. FUTERFAS, ESQ.

50 Main Street

Suite 1000

White Plains, New York 10601

Attorney for Defendant

John P. Colangelo, J.

Defendant Richard R. ("Defendant" or "Richard") moves pursuant to Criminal Procedure Law §§ 440.10(1)(f) and (1)(h) to vacate his judgment of conviction on which he was sentenced in June 2007. The charges for which Richard was convicted center around his unlawful sexual contact with his then five year old daughter. Defendant's daughter, age seven at the time of the trial, testified at the trial and was a principal witness for the People. The mother of the child victim, Defendant's ex-wife, also testified for the People. Richard testified on his own behalf and, in essence, denied the charges.

On December 15, 2006, Defendant was convicted after a jury trial of the Class B felony of a Course of Sexual Conduct Against a Child in the First Degree (PL § 130.75), the Class E felony of Incest in the Third Degree (PL § 255.25) and the Class A Misdemeanors of Assault in the Third Degree (PL § 120.00[1[) and Endangering the Welfare of a Child (PL § 260.10[1]). [*2]Richard was sentenced by the Honorable Rory Bellantoni on June 18, 2007 to a determinate term of 20 years in state prison, and remains incarcerated on that judgment.

The thrust of Defendant's motion is his claim that he received ineffective assistance of counsel based upon errors and omissions, prior to and during the trial, of his then attorney, Matthew Mazzamurro ("Mazzamurro" or "Counsel"). Such purported errors and omissions principally pertained to Counsel's alleged failure to consult with or call as witnesses medical experts with an eye toward contradicting the testimony of the People's trial medical experts and to impugn the testimony of the child victim. As the record herein reveals and as both parties concede, the People's evidence at trial consisted primarily of the testimony of the child victim, her mother, and medical experts and their review of their examination of the victim. No direct physical evidence linking Richard to the acts alleged, such as DNA results or third party eyewitness testimony, was adduced.

Defendant initially interposed a post-trial CPL 330.30 motion before Judge Bellantoni to set aside the jury's verdict. In connection with that 330.30 motion, Richard raised, inter alia, a claim of ineffective assistance of counsel. Mazzamurro submitted an affidavit (the "Mazzamurro Affidavit") in support of that motion, in which he indicated that while he did conduct some unspecified "independent research," he did not consult with expert witnesses, and did not call expert witnesses to testify on Richard's behalf.The CPL 330.30 motion was denied in all respects by Judge Bellantoni by decision dated May 30, 2007.

In support of this motion, Defendant submitted his own affidavit and the affidavits of Dr.Lawrence Ricci and Dr. Maggie Bruck. Dr. Ricci, a forensic pediatrician with a practice in the State of Maine, stated in essence that his review of the medical evidence with respect to the victim was exculpatory as to Richard and did not support the conclusion reached by the People's trial medical expert, Dr. Jennifer Canter - - the forensic pediatrician who had examined the victim - - to the effect that the victim's physical condition that Dr. Canter observed was "highly specific" for "blunt force. . . penetrating trauma". In short, Dr. Ricci concluded the victim had not been sexually abused in the manner described at trial by Dr. Canter. In her affidavit, Dr. Bruck - - a forensic psychologist - - disputed much of the testimony offered by the psychiatrist Dr. Anne Meltzer, the People's other medical expert witness who testified with respect to the Child Sexual Abuse Accommodation Syndrome ("CSAAS"). Dr. Bruck contends that Dr. Meltzer's expert testimony was not supported by the current scientific literature, but instead was based upon her subjective clinical opinions, that Dr. Meltzer's theories and conclusions were flawed, and that her testimony would have been easily refuted by a competent expert witness had one been called by the defense. Richard also included the Mazzamurro Affidavit in support of his motion. Aside from this Mazzamurro Affidavit - - which upon examination, appeared somewhat ambiguous with respect to Counsel's approach to the medical expert issue - - no additional affidavit by Mazzamurro was submitted in support of the instant CPL 440 motion.

In addition to Counsel's alleged shortcomings regarding medical experts, Defendant advanced several other grounds for the relief sought. By Decision and Order dated April 12, 2011, this Court denied Defendant's motion with respect to such other grounds, and ordered a hearing only with respect to the grounds pertaining to the medical expert issues. (The "April Decision"). Particularly in light of the ambiguity of the Mazzamurro Affidavit, the Court ordered a hearing limited to examining the issue of trial counsel's conduct with respect to [*3]medical experts, with an eye toward evaluating the manner in which Mazzamurro approached the issue of medical experts and the rationale behind such approach in order to determine whether Defendant had been afforded meaningful representation.

The Hearing.

The hearing was held on June 7 and 14, 2011 (the "Hearing"). Mazzamurro was the sole witness called by Defendant; Defendant choose not to testify, and partially invoked the attorney client privilege which effectively prevented Mazzamurro from testifying with respect to conversations with Richard concerning overarching defense strategy. Richard agreed to waive the privilege only with respect to communications relating to medical experts and his ability to pay for them. (Hearing Transcript, hereinafter the "Tr." pp. 2-4, 106-107). Several exhibits were introduced into evidence at the Hearing, most if not all of which were culled from Mazzamurro's case files.

The Hearing centered around Mazzamurro and his approach to and efforts directed at medical expert testimony. During the Hearing, Mazzamurro chronicled at some length the steps he took - - before and during trial - - to prepare for such expert testimony. While not legion, such efforts cannot be accurately described as insubstantial. And as Mazzamurro - - a private attorney retained by Richard - - emphasized any number of times, such efforts took place against a backdrop of what Defendant could or could not afford to do financially as communicated to and understood by Mazzamurro.

As recounted during the Hearing, Mazzamurro's activities with respect to medical experts and medical expert testimony fell into two general categories: (1) efforts to identify, consult with and possibly retain medical experts to potentially testify on Richard's behalf, and; (2) Counsel's preparation to meet the testimony of the People's medical experts, including preparation and trial strategy that evolved as a result of Defendant's decision to forgo, or his inability to pay for, his own medical experts at trial.

With respect to the first category, Mazzamurro initially made plain that he considered medical experts important, if not vital, to the defense case. (Tr. 28, 77-80). To that end, and in light of what Mazzamurro believed to be his client's limited means, Mazzamurro first applied to Hon. Gerald Loehr for an order pursuant to § 722-c of the County Law for public funds to retain an expert and a private investigator. (Tr. 60-61). Mazzamurro testified that at the time he understood that, as the statute prescribes, public funds available to retain such an expert would be limited to $1,000.00, except under extraordinary circumstances. ( Tr. 60-61). See County

Law § 722-c ("Only in extraordinary circumstances may the court provide for compensation in excess of one thousand dollars per investigator, expert or other service provider.").

Judge Loehr granted Defendant's motion, and a private investigator - - Ellen Shapiro - - was retained to look into matters relating to the child victim's mother and her boyfriend, with Richard spending personal funds for such investigation in addition to the County funds provided. (Tr. 118-119). A medical expert was not retained. With respect to potential medical experts, Mazzamurro stated that either he or his office staff telephoned several medical experts in both of the relevant fields of forensic pediatrics and Child Sexual Abuse Accommodation Syndrome. However, the quoted fee for each, even for a consultation as opposed to trial testimony, exceeded the amount that his client could afford as well as the initial sum that would be available from County funds. Mazzamurro's testimony, although called into question on cross-[*4]examination, stood uncontroverted. (Tr. 29-31, 42-49, 62-63).

On September 7, 2006, shortly before the scheduled trial date, Mazzamurro applied to the assigned trial judge, Hon. Rory Bellantoni , to be relieved as counsel and in his stead have the Court assign an attorney under Article 18-b of the County Law. Mazzamurro testified that his application was actuated, in large part, by his belief that Richard could not afford to retain medical experts for the defense case. (Tr. 28, 118-121). The Court transcript of the proceeding before Judge Bellantoni reflects this concern. Although Richard was not present when Mazzamurro's application was made to the Court, Judge Bellantoni nonetheless relieved Mazzamurro and assigned an attorney from the assigned counsel panel, Barry Warhit. Mr. Warhit, then a well respected and experienced defense attorney, now sits as a Westchester County Court Judge.

One week later, Richard appeared before Judge Bellantoni with Mazzamurro and Mr. Warhit. Mazzamurro testified at the instant Hearing that when Richard was informed that Mazzamurro had been relieved, Richard "begged" him to remain as his attorney, and assured him that sufficient funds would be forthcoming from him and his family to pay Mazzamurro and significantly, to provide for any necessary expert witness fees. (Tr. 110-118). On September 14, 2006 (the "September 14 Bellantoni Conference"), Richard confirmed on the record before Judge Bellantoni that he wished to have Mazzamurro represent him, and Judge Bellantoni proceeded to relieve Mr. Warhit and reinstate Mazzamurro as Defendant's retained counsel. In doing so, Judge Bellantoni stated that "I did indicate to Mr. [Richard] that it appears he does have the ability to retain an attorney and I would allow Mr. Mazzamurro to represent him. In the future if there is a problem, he would have to retain his own attorney and not be assigned an attorney to represent him." ( Bellantoni Conf. Tr., p.8). Both Mazzamurro and Mr. Warhit understood Judge Bellantoni to also mean that in light of Richard's representations to the Court, himself and through counsel, Judge Bellantoni would not only refuse to entertain any future applications to replace Mazzamurro with an assigned counsel, but would also refuse to entertain any application to use public funds for defense experts. (Tr. 118-121). In addition, both Mazzamurro and Mr. Warhit understood that Richard would have the funds available to pay retained counsel and retain any necessary experts. (Bellantoni Conf. Tr., pp. 8-9; Tr. 77-80, 113-121).

Following his reinstatement as Richard's counsel, Mazzamurro continued his search for suitable medical experts. His quest, however, was soon stymied by his realization - - contrary to his understanding at the time of the September 14 Bellantoni Conference - - that sufficient funds for hiring experts would not be forthcoming from Richard or his family. (Tr. 77-80; 118-120).Mazzamurro nonetheless directed his office to make additional inquiries, and he also sought to recruit the child victim's pediatrician, Dr. Schaff, to testify as a defense expert. Dr. Schaff declined to do so. (Tr. 66-68).

As Mazzamurro testified, he and Richard were then faced, in essence, with a Hobson's choice: they had no alternative but to pursue a trial strategy focused on denial - - denial that Richard had committed the acts alleged - - rather than to demonstrate through their own medical expert testimony the unlikelihood that any untoward injury to the child had occurred, whether at the hands of Richard or someone else. Under this strategic rubric, Richard's testimony at trial as well as the cross-examination of the child victim would prove critical to establishing the former, while cross-examination of the People's experts would have to suffice in order to at least raise [*5]questions with respect to the latter. (Tr. 28, 44-45 154-156).

The trial transcript reveals - - as Mazzamurro somewhat heatedly emphasized during the Hearing - - that Mazzamurro's cross-examination of the child victim cannot be described as ineffective. By the conclusion of cross-examination, the child had, in essence, recanted her direct testimony of sexual penetration by her father - - an essential element of the top Count of the Indictment, Course of Sexual Conduct 1° - - and her cross-examination testimony had at least called into question whether any abuse had occurred at the hands of Richard ( Tr. 84-91). And while the cross-examination of the People's experts - - Dr. Canter and Dr. Meltzner - - would likely have benefitted from a preparation enhanced by consultation with defense experts- - as Mazzamurro acknowledged ( Tr. 148) - - the Hearing testimony showed that Mazzamurro did take steps to prepare for the cross-examination of each within the financial constraints in which he operated. He reviewed medical literature, performed on-line research, asked questions of the pediatrician Dr. Sholl and, with respect to Dr. Canter, had the experience of seeing her testify and questioning her during the prior abuse proceeding in Family Court. ( Tr.62-75, 132-137, 145-148).

As to the expert cross-examinations themselves, Mazzamurro did elicit some testimony favorable to his client, including Dr. Meltzer's concession that his general conclusions - - reached without any interaction at all with the child victim - - prove less reliable in situations where a dispute over custody is also involved - - the situation that obtained in Richard's case. His cross-examination of Dr. Canter focused on her inability to specify what, if anything, had penetrated the child victim, and Mazzamurro's attempt through the use of various medical terms and information, to "impeach her credibility." (Tr.142-148). Mazzamurro insisted at the Hearing that the cross-examination of Dr. Canter was vigorous and the best he could do under the circumstances. (Tr.148, "I didn't have the money for the expert so I had to make the best of a bad situation, and just try my best to, you know, impeach her credibility...").

The Parties Post-Hearing Contentions.

Defendant's review of the Hearing record and trial transcript reinforced his view that Mazzamurro failed to provide meaningful representation with regard to medical experts, particularly by his failure to retain and have any meaningful consultation with such experts - -both for the purpose of trial preparation and trail expert testimony on Richard's behalf. Indeed, it is undisputed that no such consultation or retention took place. On the other hand, the People maintain that any wounds suffered at trial by Richard were self-inflicted; he failed to provide promised funds to retain the experts that Mazzamurro knew would be useful - - that is, until such financing appeared post verdict, thereby enabling Richard to retain two experts who opined for purposes of the instant motion. The People argue that under the circumstances, Mazzamurro did the best that he could, before and at trial, in executing a defense strategy that had been virtually imposed on him. As such, Mazzamurro's efforts, while by no means perfect, were thoughtful and diligent, and fell short only in the sense that they ultimately failed to produce a favorable verdict for his client.

This Court previously ruled that in all areas in which Defendant claimed ineffective assistance other than with respect to medical experts, Mazzamurro provided meaningful representation; his trial conduct and strategy, albeit unsuccessful, was diligently pursued and did not amount to ineffective assistance. (April Decision, p. 7).Upon review of the Hearing [*6]testimony and the documents adduced for it, as well as the trial record, the Court reaches the same conclusion with respect to the manner in which Mazzamurro addressed expert witnesses and testimony. For the reasons set forth below, in light of all the circumstances and the constraints under which Mazzamurro operated, the Court cannot reasonably conclude that Defendant has sustained its burden of proving by a preponderance of the evidence that Mazzamurro's assistance of Richard was ineffective under the prevailing law.

Discussion and Conclusions.

Initially, the Court is constrained to address two threshold issues. The first issue pertains to the effect of two pivotal decisions made by Defendant at the Hearing: the decision not to testify and the decision to continue to assert his attorney-client privilege with respect to certain conversations between Richard and Mazzamurro that did not directly pertain to medical experts. These choices effectively precluded testimony - - by Richard or by his former counsel - - which may have shed some light upon any overarching strategic considerations that informed the decision not to retain or call medical experts at trial, the issue that lies at the heart of the instant motion. Defendant maintains that since he may, at some point in the indefinite future, face a retrial of the instant charges, any testimony by him or any waiver of the privilege other than the one narrowly tailored to medical expert issues only might prejudice his future right to a fair trial. On the other hand, the People argue that the decision with respect to medical experts was so bound up with the overall approach to and strategy of the case that Defendant's failure to, at the very least, waive the attorney client privilege regarding such strategic considerations should, without more, result in a denial of the instant motion.

The Court is sympathetic to Defendant's situation, despite the fact that he voluntarily placed himself in this predicament by proceeding here before even his first level of direct appeal had been decided. However, the Court generally concurs with the People that Richard cannot have it all ways. He may not, without consequence, insist on a specific private counsel when an experienced assigned attorney was available, claim the ability then the inability to pay for medical experts and later claim that the decision to forgo calling such expert witnesses was flawed, while at once asserting a privilege that effectively prohibits Counsel from fully explaining the strategic choices made, as well as inhibiting the Court's ability to fully consider the rationale, or lack thereof, underlying such choices.

The Court is not prepared to go so far as to embrace the People's contention that Richard's failure to fully waive the attorney client privilege necessarily leads to a dismissal of his claim of ineffective assistance. After all, the Court appreciates Defendant's concern that he may, one day, face retrial. However, the Court may permissibly take into account Richard's effective "absence" from the proceedings on these strategic issues, and recognize that his Counsel's Hearing testimony and the trial record, along with inferences that may permissibly be drawn from them, stand uncontroverted by Richard. See, e.g., People v. Diggins, 901 N.Y.S.2d 909, 2009 WL 3461616 ( Slip Op., Sup. Ct., NY Co. 2009) ("It is also settled law that a defendant may not by absence alone, waive his right to effective assistance of counsel'... However, a defendant's absence must, of necessity, be taken into consideration on the issue of counsel's effectiveness.' ") ; see also People v. Longtin, 92 NY2d 640 (1998); People v. Ortiz, 76 NY2d 652 (1990). The fact that the Court has been, to some extent, relegated to the reading of tea leaves in order to divine Richard's underlying trial strategy is not of the Court's or the People's [*7]making. Defendant made his own bed by failing to testify or permit Counsel to testify as to what his overall trial strategy was as expressed to Counsel, and how it may have differed from that actually employed by his attorney at trial. Richard must now live with the consequences of that decision.

The second and somewhat related issue lies at the heart of this motion: to what extent does a defendant's insistence - - either directly or by default - - on a particular and ultimately unsuccessful trial strategy affect the determination of whether a defendant was afforded meaningful representation? If a defendant places his own, retained attorney in such a position that certain avenues of defense strategy and tactics are foreclosed, can the defendant ultimately profit from his or her own conduct by claiming that the trial strategy that his or her own actions dictated amounted to ineffective assistance of counsel? In other words, if a defendant insists on, or his actions ineluctably produce a particular strategic approach by his retained attorney, can that defendant be heard to complain that such an approach was unreasonable or constituted ineffective assistance? As the record, including Mazzamurro's Hearing testimony reflects, such a situation may well have obtained in the instant case.

With these considerations in mind, a review of the background and history of Defendant and his trial counsel, Mazzamurro, may prove instructive and shed some light upon the issue of whether the approach at trial to medical experts was indicative of ineffective assistance of counsel, or instead amounted to a reasonable strategic choice under all the circumstances.

Richard's History with Mazzamurro

At the time Defendant claims that the possibly fateful decisions regarding medical experts were made, Mazzamurro was far from a stranger to Richard. Indeed, Defendant had by then chosen Mazzamurro to defend him against essentially the same or similar charges not once, but three times: first in an unsuccessful defense of a claim of child abuse brought in the Putnam County Family Court; for his initial representation in the instant criminal case; and again in this case after Mazzamurro was briefly replaced by experienced assigned counsel. Since Richard decided to neither testify at the Hearing nor fully waive the attorney-client privilege for purposes of the Hearing, the Court may reasonably infer that he knew the following facts about Mazzamurro as testified to by Counsel and reflected in information provided to Judge Bellantoni in the context of Mazzamurro's application to withdraw: that Mazzamurro lacked substantial felony or trial experience; that Richard did not prevail in the Family Court proceeding - - in which he was represented by Mazzamurro; Mazzamurro's approach in the child abuse proceeding with respect to the main adverse medical expert - - Dr. Canter - - who was also the principal medical expert to testify in the criminal case; and that no medical experts were called by Richard as witnesses in the Family Court abuse case. See Bellantoni Sept.7, 2006 transcript pp. 2-4; Tr.18, 145-148.

In addition, Richard must also have been aware of Mazzamurro's initial strategic preference regarding medical experts - - to consult with and possibly call one or more witnesses at trial - - and the change in that strategy - - to refrain from calling experts and instead rely principally upon cross-examination of the child witness and the People's experts. Mazzamurro's uncontroverted testimony at the Hearing - - as well as during his application to withdraw as counsel - - was that he believed medical defense experts were important; he even sought to withdraw as counsel when he thought that Richard could not afford to retain them. Indeed, the [*8]unrefuted evidence adduced at the Hearing indicated that such strategic changes were necessitated, if not instigated, by Defendant himself, beginning with the decisions made soon after Judge Loehr approved County funding for experts and investigators.

Richard makes much of the fact that his attorney obtained an Order from Judge Loehr for County funds to retain experts. (The "Loehr Order", Tr. 60-61). Richard maintains that the mere fact that counsel did not use these funds - - limited at least initially to $1,000.00 - - to retain medical experts, in and of itself, establishes ineffective assistance. However, when that decision by Mazzamurro is viewed in context, Richard's claim rings hollow. Aside from Mazzamurro's uncontroverted hearing testimony to the effect that $1,000.00 would have been woefully inadequate to finance even a consultation, much less a suitable retention of medical experts for trial (Tr. 29-31, 42-47, 62-63 ), the manner in which the defense reacted to the Loehr Order proves instructive with respect to Richard's approach to medical expert testimony.

Shortly after the Loehr Order was issued, Defendant chose to use those available funds - - as well as his own monies (Tr. 5-9, 117-119, 169-172) - - not to retain a medical expert with an eye toward proving that his daughter had not been physically abused, but instead to hire a private investigator, Ellen Shapiro. As Mazzamurro testified, Richard even expended some of his own funds in order to retain her. (Id.). While the nature and purpose of Ms. Shapiro's retention and investigation remains somewhat obscure, thanks in part to Defendant's refusal to fully waive privilege, suffice it to say that investigating whether, from a medical standpoint, injury to the child had taken place was certainly beyond Ms. Shapiro's ken. The only logical conclusion is that she was hired to examine some other aspect of the case and Defendant's approach to it, such as that the claim of abuse was fabricated for some reason, or that some person other than Defendant was responsible for any injury suffered by his daughter - - a conclusion supported by Mazzamurro's testimony that Ms. Shapiro was to investigate Richard's ex-wife and her boyfriend (Tr. 118-119).

This election to first hire a private investigator rather than a medical expert speaks volumes about Richard's trial strategy as far as the importance, or lack thereof, placed upon medical experts is concerned. Moreover, in view of Mazzamurro's uncontroverted Hearing testimony concerning the importance he placed on medical experts, it is difficult for the Court to conclude that such a decision was solely of Mazzamurro's making. Mazzamurro testified that he had long recognized the importance of medical experts to the point where he sought to withdraw as Richard's counsel when it appeared that Richard lacked the funds to retain them. In his appearance before Judge Bellantoni shortly before trial, Mazzamurro so indicated, and he reiterated his position during the instant Hearing. (Tr. 28, 77-80. 188-121). The uncontroverted testimony at the Hearing - - before this Court as well as the conference before Judge Bellantoni - - indicated that only when Mazzamurro was assured that funds for such experts would be forthcoming from Richard did he relent and agree to continue his representation. Shortly thereafter, the decision was made to take another tact - - denial. Through his present counsel's arguments, Defendant now claims that this strategic change was forced upon him because of lack of funds, and places the onus for that lack of funds on Mazzamurro; however, Richard's prior decision taken immediately following Judge Loehr's Order belies that assertion. Such decision may well have been an exemplar of a consistent strategy throughout, a strategy that did not principally rely upon medical evidence or testimony. Such a strategy was apparently pursued by [*9]Richard in the prior Family Court Child Abuse proceeding, where no experts testified on his behalf. (Tr. 36, 145).

At the Hearing, Richard had the opportunity, by his own testimony or by permitting unencumbered testimony of his Counsel, to seek to explain these apparent contradictions and place the responsibility for them squarely on the shoulders of his attorney. The fact that he chose not to do so leaves the Court to infer what seems unstated but apparent: that Richard directed or, at the very least, agreed to a strategy that did not principally include reliance on medical expert testimony until that strategy failed in battle. Only then, after trial, did funds for and the claimed necessity of experts by Richard surface as a priority.

In any event, even assuming arguendo that the decision not to pursue the $1,000.00 in potentially available County supplied funds for medical expert retention was at least in part, based upon Mazzamurro's advice, such a decision, in light of all the circumstances - - including the unlikelihood of finding an expert for such a relatively paltry retainer - - did not deprive Richard of meaningful representation at trial. Indeed, a review of the prevailing case law and its application to the facts adduced at the Hearing through Counsel's uncontroverted testimony, as well as the trial record, leads to the conclusion that Richard was afforded meaningful and effective assistance under the applicable state and federal standards.

The Applicable Law.

Defendant contends that Counsel's performance, before and during his trial, amounted to ineffective assistance of counsel and denied him the right to a fair trial under both New York and federal constitutional standards. Under New York law, the Court must determine whether "the evidence, the law, and the circumstances of [the] particular case, viewed in totality and as of the time of representation, reveal that the attorney provided meaningful representation." (People v. Hull, 71 AD3d 1336, 1338 [3d Dept. 2010], quoting People v. Benevento, 91 NY2d 708, 712 (1998); People v. Baldi, 54 NY2d 137 [1981]). In order to prevail on an ineffective assistance claim under the federal standard, a defendant must prove both that counsel's representation fell below an objective standard of reasonableness measured under prevailing professional norms and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. ( See Strickland v. Washington, 466 U.S. 668 [1984]).

As the People correctly maintain, under both federal and state standards, a defense attorney's mere error in judgment in choosing a particular trial strategy that results in a consequence he or she did not intend - - a guilty verdict - - is not alone sufficient to constitute ineffective assistance of counsel. After all, a defendant is only entitled to meaningful, not invariably successful, representation. The standard of meaningful representation will be met as long as counsel's trial strategy and tactics are objectively reasonable and diligently pursued. As the Court of Appeals stated in the leading New York case of People v. Baldi, 54 NY2d 137, 146-147 (1981), "Our most critical concern in reviewing claims of ineffective counsel is to avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis. It is always easy with the advantage of hindsight to point out where trial counsel went awry in strategy. But trial tactics which terminate unsuccessfully do not automatically indicate ineffectiveness. So long as the evidence, the [*10]law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met." (Emphasis added).

See also Strickland v. Washington, 466 U.S. 668, 689 (1984) (In evaluating a claim of ineffective assistance in the federal context, the Court stated that "[j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after is has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable."); People v. Jackson, 52 NY2d 1027 (1981).

In the instant case, a review of the record reveals that the vast majority of the alleged errors of Mazzamurro as cited by Defendant fall into the category of arguably reasonable trial strategy and tactics gone awry. Based on the papers initially submitted to the Court on the instant motion and the Court's evaluation of the conduct of Counsel before and during the trial, the Court found that Richard was afforded meaningful representation to satisfy both constitutional prescriptions, and no hearing was required except with respect to one area of pre-trial preparation and trial tactics and strategy - - medical expert testimony. (April Decision p. 7). After the Hearing and the Court's review of the testimony and exhibits adduced in it, the Court reaches a similar conclusion with respect to the manner in which Counsel dealt with medical experts and testimony.

In light of the facts, as recounted in Mazzamurro's uncontroverted testimony in the instant case pertaining to the tactical and strategic choices with regard to medical experts made by the defense, at and before trial, the Court of Appeals decision in People v. Benevento, 91 NY2d 708 (1998) is particularly instructive. In Benevento, defendant was convicted of second degree robbery after a jury trial. On direct appeal, defendant claimed ineffective assistance by his trial counsel based upon counsel's strategic decision to, in essence, concede that defendant had engaged in the conduct alleged, but "lacked the requisite intent to deprive the complainant of her property" due to his intoxication at the time. (Id. at 710). Benevento also took issue with counsel's trial tactics when he indicated in his opening statement that defendant would testify as to such lack of intent, but defendant ultimately failed to take the stand.

The Court of Appeals reversed the First Department's Decision which had ordered a new trial, and affirmed Benevento's conviction. In so holding, the Court, as in Baldi, supra, rejected the outcome - determinative approach to evaluating counsel's effectiveness; the Court made clear that as long as the trial strategy and tactics pursued by counsel were reasonable under the circumstances, a 20-20 hindsight disagreement over them will not be held to have deprived a defendant of meaningful representation. Unless there is a total "absence of strategic or other legitimate explanations for counsel's alleged shortenings", a court should not second guess trial tactics or strategy diligently and competently pursued. As the Court stated, "In 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 (see, People v. Satterfield, 66 NY2d 796, 799). The constitution guarantees the accused a fair trial, not necessarily a perfect one (see, People v. Flores, 84 NY2d 184, 187; People v. Ford, 86 NY2d 397, 404 ["The phrase meaningful representation' does not mean perfect [*11]representation' "]; People v. Aiken, 45 NY2d 394, 398 ["representation . . . need not be errorless"]; People v. Modica, 64 NY2d 828, 829 ["the test being reasonable competence', not perfect representation"]). That a defendant was convicted may have little to do with counsel's performance, and the courts are properly skeptical when "disappointed prisoners try their former lawyers on charges of incompetent representation" (People v. Brown, 7 NY2d 359, 361).

"Accordingly, a reviewing court must avoid confusing "true ineffectiveness

with mere losing tactics and according undue significance to retrospective analysis" (People v. Baldi, 54 NY2d, at 146). Rather, "it is incumbent on Defendant to demonstrate the absence of strategic or other legitimate explanations" for counsel's alleged shortcomings (People v. Rivera, 71 NY2d, at 709). Counsel's performance should be "objectively evaluated" (People v. Angelakos, 70 NY2d 670, 673) to determine whether it was consistent with strategic decisions of a "reasonably competent attorney" (People v. Satterfield, 66 NY2d 796, 799,supra; People v. Angelokos,70 NY2d 670, 673 supra). As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance. ... As we have stated, "[t]o prevail on a claim of ineffective assistance, defendants must demonstrate that they were deprived of a fair trial by less than meaningful representation; a simple disagreement with strategies, tactics or the scope of possible cross-examination, weighed long after the trial, does not suffice" (People v. Flores, 84 NY2d 184, 187, supra)." ( Id at 712-713; Emphasis added).

See also, e.g., People v. Lane, 60 NY2d 748 (1983 ); People v. Flores, 84 NY2d 184 ( 1994).

Moreover, in determining whether counsel's strategy and tactics were sufficient to constitute meaningful representation, courts recognize that virtually all counsel, retained or assigned, operate in a world of limited resources - - be it of time, money or otherwise - - and must often make strategic or tactical choices with certain constraints in mind. Thus a choice of one strategy over another possibly more efficacious one will not necessarily be indicative of an absence of meaningful representation; counsel must be afforded the latitude to balance limited resources since it is a rare case where all conceivable strategic options can be practically pursued. The Strickland Court recognized as much when it stated that counsel may, rather than pursue a particular avenue of investigation, permissibly "make a reasonable decision that makes particular investigations unnecessary."(Strickland v. Washington, 466 U.S. 668, 691 (1984).

In Harrington v. Richter, 131 S. Ct. 770 (2011) the Supreme Court applied this reasonable allocation principle to hold that a defense counsel's strategic election to forgo use of experts will not perforce lead to a finding of ineffective assistance.

In Richter, defendant Richter sought to overturn his conviction for murder by claiming ineffective assistance of counsel. Richter based his claim of ineffective assistance on his trial counsel's failure to consult forensic blood experts or introduce expert blood evidence testimony at trial with respect to a pool of allegedly co-mingled blood found at the crime scene. Arguing self defense, defense counsel's strategy - - similar to the strategy ultimately pursued by Mazzamurro here - - instead focused on his cross-examination of the prosecution's experts and [*12]the direct testimony of Richter himself. The Ninth Circuit Court of Appeals reversed the California Supreme Court and Richter's conviction, holding that "because Richter's attorney had not consulted forensic blood experts or introduced expert evidence, the California Supreme Court could not reasonably have concluded counsel provided adequate representation." (Id. at 788). The United States Supreme Court, in turn, held that the Ninth Circuit's "conclusion was erroneous" and determined that defense Counsel's representation had been adequate. (Id.)

In so holding, the Court first cited the Strickland Court's admonition that defense counsel should be permitted to "make a reasonable decision that makes particular investigations unnecessary." The Court reasoned that while in some cases, the only appropriate strategy is to retain and consult with experts, the ways in which to provide effective assistance abound and counsel should be afforded wide latitude in formulating and tactically implementing his or her peculiar trial strategy. As the Court stated, "Criminal cases will arise where the only reasonable and available defense strategy requires consultation with experts or introduction of expert evidence, whether pretrial, at trial, or both. There are, however, "countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." [Strickland] at 689, 104 S. Ct. 2052. Rare are the situations in which the "wide latitude counsel must have in making tactical decisions" will be limited to any one technique or approach. Ibid. It can be assumed that in some cases counsel would be deemed ineffective for failing to consult or rely on experts, but even that formulation is sufficiently general that state courts would have wide latitude in applying it. Here it would be well within the bounds of a reasonable judicial determination for the state court to conclude that defense counsel could follow a strategy that did not require the use of experts regarding the pool in the doorway to Johnson's bedroom." ( Id at 788-799) (Emphasis added).

Moreover, in evaluating whether a counsel's decision to pursue a path toward expert testimony or not was reasonable, a court may take into account the strictures under which counsel operated - - restrictions of time, money or other resources. A reasoned decision to "balance limited resources" and thereby pursue one strategy over another will invariably lead to a finding of effective assistance.

"From the perspective of Richter's defense counsel when he was preparing Richter's defense, there were any number of hypothetical experts - specialists in psychiatry, psychology, ballistics, fingerprints, tire treads, physiology, or numerous other disciplines and subdisciplines - whose insights might possibly have been useful. An attorney can avoid activities that appear "distractive from more important duties." Bobby v. Van Hook, 558 U.S.,-, , 130 S. Ct. 13, 19, 175 L. Ed. 2d 255 (2009) (per curiam). Counsel was entitled to formulate a strategy that was reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies." Id. at 789. (Emphasis added).

The Supreme Court reviewed the record and found that since, under the circumstances that obtained at trial, "a competent attorney might elect not to use" blood expert testimony, Richter could not sustain his claim of ineffective assistance of counsel. Id. at 789. See also [*13]Knowles v. Mirzayance, 129 S. Ct. 1411 (2009); Strickland v. Washington, 466 U.S. 668, 699 (1984).

Thus, as Richter makes plain, a defense attorney's failure to call medical expert witnesses does not, standing alone, constitute ineffective assistance of counsel. As long as such a decision was part of a coherent and reasonable defense strategy diligently pursued, the court will not second guess counsel's decision. This is particularly true when such strategy was instigated by defendant as his own decision and at his direction.See, People v. Baldi, 54 NY2d 137 (1988); Strickland v. Washington, 466 U.S. 668, 689 (1984); People v. Jackson, 52 NY2d 1027 (1981).

Applying these principles to the instant case, it is clear that based on the trial record and the uncontroverted Hearing testimony of Mazzamurro, Counsel's conduct with respect to medical experts, while not perfect, was well within the parameters of meaningful representation. Mazzamurro prepared, as best he could under the circumstances, to meet the direct testimony of the People's medical experts; he reviewed the medical literature and had the benefit of observing Dr. Canter testify in the prior Family Court proceeding. Although consultation with competing experts may well have improved the quality of his cross-examination of the People's experts, his yeoman's efforts did bear some fruit, including, most notably, Dr. Canter's acknowledgment that she could not state with any degree of certainly what, if any, object had penetrated the victim, as well as Dr. Meltzer's concession that in many cases, children testify falsely when an ongoing battle over custody is raging - - as was the case with Richard and the child's mother.

Moreover, the record is clear that here, even more so than the situation that obtained in Richter, the strictures under which defense Counsel was operating as far as medical experts were concerned were not of his own making or choosing. For that, Richard bears responsibility himself. At the hearing, Mazzamurro emphasized, time and time again, that he believed that medical experts were important, and should, if at all possible, be retained and consulted. Indeed, as mentioned above, Mazzamurro went so far as to petition Judge Bellantoni to relieve him as Richard's counsel when he realized that adequate funds for experts might not be forthcoming. Only when he received assurances - - presumably from Richard - - that such funds would be available did Mazzamurro consent to return as Richard's counsel. When Mazzamurro, later and on the eve of the trial, learned that monies to retain experts would not in fact be forthcoming, he had no choice but to, as counsel did in Richter, "formulate a strategy that was reasonable at the time and . . . balance limited resources in accord with effective trial tactics and strategies." (Richter, 131 S.Ct. at 789).

To that end, Mazzamurro then pursued the strategy of seeking to undermine the credibility of the child victim through cross examination. The trial record reflects that he did so with some aplomb, diligence and skill, inducing the child to recant her direct testimony and deny penetration by Richard - - an essential element of the top count of the indictment. Whether his cross examination of the child or of the People's experts, as recounted above, would have been enhanced by prior consultation with defense medical experts, or whether Richard's defense at trial would have benefitted from testimony of defense experts is a matter of speculation and, in light of the applicable legal standards as discussed above, of no moment. Indeed, in light of the trial and uncontroverted Hearing record, Richard's arguments to the contrary amount to an improper attempt by him to profit from his own conduct. The salient and uncontroverted fact remains: as far as medical experts were concerned, Mazzamurro's hands were tied; his strategy [*14]and tactics were perforce dictated by events and circumstances not of his making. The trial and Hearing records reflect that Mazzamurro "did [his] best" (Tr. 58 ) in balancing the "limited resources made available to him." (Richter, supra at 787). Under all the circumstances, the Court cannot reasonably conclude that Mr. Mazzamurro provided inadequate representation.

Thus, in light of the testimony adduced and exhibits placed in evidence at the Hearing, it is now clear that the instant case is readily distinguishable from the Second Circuit's decision in Gersten v. Senkowski, 426 F.3d 588 (2d Cir. 2005) on which this Court relied in the April Decision. In Gersten, trial counsel made no credible effort to even engage in any meaningful investigation of medical issues, much less any attempt to contact or consult with potential experts. (Id. at 605-606.) Here, unlike the situation that obtained in Gersten, Mazzamurro was not blind to the importance of medical evidence or medical expert testimony. On the contrary, he recognized the importance of both; he took steps to research and prepare for the cross-examination of the People's experts and did a credible, albeit not perfect job of questioning them at trial. And of at least equal importance, he understood that consultation with and trial testimony of defense experts could improve his client's chances for success at trial. He was simply frustrated in his efforts to consult with and retain trial medical experts by circumstances beyond his control.

Finally the Court also notes that the mere fact that Mazzamurro did not apply a second time - - to trial judge Bellantoni - - for public funds to retain an expert is not, as a matter of law or logic, necessarily indicative of ineffective assistance of counsel, as defense counsel herein maintains. Instead, such inaction appears to be consistent with a trial strategy foisted upon Mazzamurro. Richard had cried poverty before - - in the motion to Judge Loehr and the application to Judge Bellantoni for Mazzamurro to be relieved. In both instances, the Court acceded to Defendant's pleas and first granted his application for initial expert or investigative fees (Judge Loehr's Order), and then granted assigned counsel so that the County would bear such costs rather then Defendant.

Rather than take advantage of the Court's and the County's largess and hire or consult with medical experts, Richard retained a private investigator. Then, before Judge Bellantoni, Richard changed course and insisted upon counsel of his own choosing - - Mazzamurro - - while also insisting that he could afford both retained counsel and to retain experts for trial. Judge Bellantoni - - evidently concerned with Richard's about-face - - granted his request to reinstate Mazzamurro as counsel, but indicated that in light of the history of the case and Defendant's representation of solvency, the Court would not entertain any further applications for assigned counsel; if in the future, Defendant wished to have new counsel, he, Richard, would have to pay for him or her. While Judge Bellantoni did not specifically address the issue of the prospects of a future application by Richard for county financed expert witnesses, the implications of his ruling were clear: Richard had represented to the Court that he could afford a defense - - both counsel and experts if needed - - and the Court would hold him to his word. Both Mazzamurro and Richard's new, then quickly former, counsel Barry Warhit, certainly came away from the September 2006 hearing before Judge Bellantoni with that impression. (Tr.77-80, 113-121; Bellantoni Conf. Tr. pp. 8-9).

In light of this history and background, Mazzamurro may well have reasonably concluded that to petition Judge Bellantoni yet again for money for experts, after his client's representation [*15]that he could and would pay for them, would fall upon deaf ears and, from a strategic standpoint, carry the risk of alienating the trial judge. Indeed, as the Court of Appeals has held, counsel's decision not to pursue a strategy that is, in all likelihood, doomed to failure does not provide a basis for a claim of ineffective assistance. See People v. Ennis, 11 NY3d 403, 415 (2008) ("[D]efense counsel's failure to preserve a Brady objection during the trial did not amount to ineffective assistance of counsel because an attorney is not deemed ineffective for failure to pursue an argument that had little or no chance of success."); see also Johnstone v. United States, 1999 U.S. Dist. Lexis 13178 (E.D.NY 1999) ("[W]hen a petitioner has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure

to pursue those investigations may not later be challenged as unreasonable'," quoting Strickland v. Washington, 466 U.S. at 691). In view of the history of the Richard proceeding before Judge Bellantoni, Mazzamurro was surely faced with a similar situation herein, and for good measure, on the very eve of trial. In any event, it is difficult to second guess such a decision in view of the back and forth history of the case, largely instigated by Richard himself, and the fact that in order to find ineffective assistance, there must be an absence of a legitimate or reasonable strategic explanation for counsel's approach. See People v. Benevento, 91 NY2d 708, 713 (1998).

In light of all the above circumstances, it is apparent that Richard went into this trial, and saw it through to verdict, with his eyes open. There is nothing in the record - - of this Hearing or of the trial - - to suggest otherwise. No one has raised any issue of lack of mental competency by Richard; he was gainfully employed and remained at liberty throughout the preparation for trial and trial. And based upon his past experience with Mazzamurro, Richard knew - - or the Court can readily infer that he must have known - -his attorney's background and experience, worts and all, and the defense's approach to Richard's case as far as expert witnesses were concerned. After all, the same principal medical expert had testified against Richard at the Family Court child abuse proceeding, and the same approach was taken there as ultimately taken at the criminal trial - - impeachment of Dr. Canter by cross-examination. To be sure, this approach may well have been a tactical error; Richard was indeed convicted. But the relevant standard to apply is not outcome- determinative.

Be that as it may, Richard has nonetheless failed to adduce sufficient facts sustain his burden of proving, by a preponderance of the evidence, that this approach was not part and parcel of a reasonable defense strategy - - a strategy which he either approved or necessitated by his own choices. Put simply, a criminal defendant must live with the consequences of his own decisions, knowingly and intelligently undertaken. Based on the record, this Court cannot conclude that Mazzamurro acted without a reasonable strategy, and there is certainly one if not more "legitimate explanations" for his conduct. People v. Benevento, 91 NY2d 708, 713 (1998) ("As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance."); see also, People v. Lane, 60 NY2d 748 (1983).

Conclusion

Accordingly, under all the circumstances and for all the reasons set forth herein, the Court finds that Defendant has not sustained his burden of proving by a preponderance of the evidence that Mazzamurro's representation of him amounted to ineffective assistance of counsel, and Defendant's CPL 440 motion is denied in all respects. [*16]

The foregoing constitutes the Decision and Order of this Court.

Dated: November 30, 2011

White Plains, New York

Hon. John P. Colangelo

Westchester County Court Judge

*This Decision is sealed and shall not be disclosed unless pursuant to written Order of the Court.