People v Baker

[*1] People v Baker 2012 NY Slip Op 51194(U) Decided on June 27, 2012 Supreme Court, Kings County D'Emic, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 27, 2012
Supreme Court, Kings County

The People of the State of New York

against

Sharod Baker, Defendant.



1987/96



Attorney for the People:

Charles J. Hynes

District Attorney, Kings County

350 Jay Street

Brooklyn, NY 11201

by ADA Victor Barall

Attorney for the Defendant:

Robert Didio, Esq.

80-02 Kew Gardens Road, Suite 307

Kew Gardens, NY 11415

Matthew J. D'Emic, J.

On November 14, 1996, the defendant was convicted by a jury of Murder in the Second Degree, Assault in the First Degree and Criminal Possession of a Weapon in the Second Degree. He was sentenced to a cumulative prison term of 32 1/2 years to life on December 18, 1996. The judgment was affirmed by the Appellate Division (People v Baker, 251 AD2d 592) and leave to appeal to the Court of Appeals was denied (People v Baker, 92 NY2d 922).

After several additional procedural petitions, the defendant now collaterally moves to vacate his conviction on the grounds of ineffective assistance of counsel in that (a) the district attorney's plea offer of 15 years to life was not conveyed to him by his attorney; and (b) his attorney failed to investigate a witness, Greg Camron, who told the police another person committed the crimes (CPL 440.10).

The motion is denied.

To prove ineffective assistance of counsel, the defendant must show that his attorney's performance fell below an objective standard of reasonableness under prevailing professional norms and that but for the attorney's professional failings, the result of his trial would have been [*2]different (Strickland v Washington, 466 US 668). A court reviewing such a claim must not look for a perfect defense, but one which provided reasonable professional assistance.

In this case, the defense was faced with a high hurdle of prejudicial evidence. Three witnesses testified that they were only feet away from the defendant, whom all knew from the neighborhood, when he pulled a gun and rapidly fired several shots at the victims. In addition, the defendant made an inculpatory statement to a detective that he would plead guilty to manslaughter for a sentence of four years.

Faced with this, defense counsel nevertheless attempted to have the trial judge reverse the ruling of the hearing judge, cross-examined each witness thoroughly, eliciting the fact that another eyewitness failed to pick the defendant out of a line-up, and that another person Lamar Lawrence had been arrested in the case having been identified by a witness, presumably Mr. Camron, as the shooter. Furthermore, the court payment voucher attached to the moving papers indicates that counsel reviewed all of the discovery and prepared thoroughly for hearings and trial. Nothing in the conduct of the hearings or trial, or in the preparation of the case, demonstrates a deficiency of effort or talent on the part of counsel.

Moreover, the affidavit submitted by trial counsel supports this conclusion. Although he cannot independently remember after 16 years, he believes he most likely hired an investigator to attempt to find the missing witness Greg Camron, but could not. Based on all of the above, the defendant's claim of ineffective assistance of counsel cannot prevail.

With respect to the plea offer, while an attorney's failure to communicate a plea offer may constitute ineffective assistance (Missouri v Frye, 132 S. Ct. 1399), such a finding must be based on objective evidence beyond the defendant's own "self-serving, post-conviction testimony" that he would have accepted the plea offer had he been properly advised (United States v Gordon, 156 F3d 376 at 380-381) (see also Johnson v Duckworth, 793 F2d 898). In this case, the only evidence that counsel failed in his duty to convey the plea offer is just such self-serving, post-conviction testimony. Contradicting this is the defendant's statement that he would be willing to take four years as well as his insistence to the Department of Probation, post-trial, that he was not at the scene of the shooting, both of which are contradictory to his contention on this application that he would have accepted a sentence of 15 years to life.

Also fatal to the defendant's cause is his trial attorney's affidavit stating that he "can state with complete certainty...that any offer...would have been conveyed to the defendant. I do this with each and every client and I never deviate from this responsibility." This statement is supported by court notes indicating that the attorney was present with the defendant at a court appearance on March 25, 1996 when the offer of 15 years to life was made by the People.

In sum, there is no merit to the defendant's claim of ineffective assistance of counsel.

This constitutes the Decision and Order of the court.

____________________________

Matthew J. D'Emic

J.S.C.