People v Irizarry
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[*1]
People v Irizarry
2015 NY Slip Op 51616(U)
Decided on November 10, 2015
Supreme Court, Bronx County
Price, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2015
Supreme Court, Bronx County
The People of the State of New York, Plaintiff,
against
Alexis Irizarry, Defendant.
3664-1992
Appearances of Counsel:
Defendant, Pro Se
Clara Salzberg
Assistant District AttorneyOffice of the Bronx District Attorney
Richard Lee Price, J.
Upon his conviction of these offenses, defendant was sentenced to an indeterminate term of life imprisonment with a mandatory minimum period of twenty years on the murder charge, and a concurrent indeterminate term of fifteen years imprisonment with a mandatory minimum period of five years on the second-degree weapon charge. These terms of imprisonment were to be served consecutively with concurrent terms of eight and one-third to twenty-five years on one attempted murder charge, eight and one-third to twenty-five years on one firearm use charge, and five to fifteen years on one second-degree weapon charge, which were to run consecutively with additional concurrent terms of eight and one-third to twenty-five years on the other [*2]attempted murder charge, eight and one-third to twenty-five years on the other firearm use charge, and five to fifteen years on the second-degree weapon charge. On the third-degree weapon charge, defendant was sentenced to a term of two and one-third to seven years imprisonment to be served concurrently with all the above-imposed sentences.
On direct appeal, defendant claimed that: (1) the People failed to prove his guilt beyond a reasonable doubt because Richard Bramwell's testimony was incredible as a matter of law; (2) the prosecutor's summation comments deprived him of a fair trial; (3) the trial court's tolerance of Richard Bramwell's disruptive and abusive behavior also deprived him of a fair trial; and (4) the court erroneously denied his motion to suppress his lineup identification as not having been sufficiently attenuated from his illegal detention.
On November 19, 1996, the Appellate Division, First Department, unanimously affirmed defendant's judgment of conviction (see People v Irizarry, 233 AD2d 209 [1st Dept 1996]). Rejecting defendant's claims, the court found that the People presented overwhelming evidence of the defendant's guilt, and that the trial court properly exercised its discretion in denying defendant's belated motion for a mistrial based upon the conduct of the People's witnesses and some of the prosecutor's summation comments. Specifically, the court noted the sufficiency of the trial court's prompt curative actions, and leave to defense counsel to comment in summation regarding inferences that might have been drawn from the witness's conduct. Finally, the court found all defendant's remaining arguments without merit (Irizarry, 233 AD2d at 210).
On December 30, 1996, the Honorable Robert Smith, Associate Judge of the New York Court of Appeals denied defendant's application for leave to appeal (see People v Irizarry, 89 NY2d 924 [1996]).
In July 1996, prior to the Appellate Division affirming defendant's conviction, defendant moved in the Supreme Court, Bronx County, to vacate his judgment of conviction pursuant to Criminal Procedure Law § 440.10, claiming the People failed to comply with his Brady obligations (Brady v Maryland, 373 US 83 [1963]) by allegedly permitting Richard Bramwell, a surviving victim, to falsely deny that he received no deals or promises in connection with an unrelated pending gun case (Indictment Number 1000-1994) in exchange for his testimony against the defendant.
On November 13, 1996, the Supreme Court, Bronx County (Bamberger, J.), denied defendant's CPL 440.10, finding that defendant's factual claims were unsupported by the available evidence. On March 3, 1997, the Appellate Division, First Department, denied defendant's application for leave to appeal from that denial.
In papers received by the United States District Court for the Southern District of New York on March 23, 1998, defendant, represented by Robert J. Boyle, Esq., sought a writ of habeas corpus on the basis that: (1) defendant was convicted upon evidence that was insufficient as a matter of law; (2) during summation, the prosecutor improperly vouched for his witnesses' credibility, commented on matters not in evidence, and "denigrated" the defense; (3) the trial court erroneously refused to grant a mistrial relative to the abusive conduct of Richard Bramwell; (4) defendant was wrongly precluded from viewing the exhibit containing the biographical evidence obtained from Rudolph Edwards; and (5) the prosecutor failed to disclose that its cooperation agreement with Richard Bramwell included a promise that he would not be adjudicated a predicate felon.
In a Report and Recommendation dated December 21, 1998, the Honorable Naomi Reice Buchwald, Magistrate Judge of the United States District Court for the Southern District of New [*3]York, recommended that defendant's petition be denied. On May 4, 1999, the Honorable Deborah A. Batts, United States District Judge, adopted that report and recommendation. On May 17, 2000, the United States Court of Appeals for the Second Circuit denied defendant's pro se motion for a certificate of appealability.
In pro se motion papers dated January 4, 2004, defendant moved a second time to vacate his judgment of conviction pursuant to CPL 440.10, and to set aside his sentence pursuant to CPL 440.20, claiming that: (1) the convictions of criminal possession of a weapon in the second degree should be dismissed because of the conviction of criminal possession of a weapon in the third degree; (2) the imposed sentences violated his constitutional right against double jeopardy; and (3) all the imposed sentences should run concurrently;
On June 22, 2004, the Supreme Court, Bronx County (Bamberger, J.), denied defendant's CPL 440.10 and 440.20 motions in all respects. On August 31, 2004, the Appellate Division, First Department, denied defendant's application for leave to appeal from that denial.
Then, in pro se papers dated May 21, 2008, defendant moved the Appellate Division, First Department, for a writ of error coram nobis, alleging that: (1) he received ineffective assistance of counsel during trial and on appeal for failing to assert evidence insufficiency claims; (2) trial counsel was ineffective for failing to seek application of the Aguilar-Spinelli test to challenge his unlawful arrest; (3) both trial and appellate counsel were ineffective for failing to assert and preserve defendant's confrontation clause violation; and (4) he was entitled to retroactive application of Crawford v Washington (541 US 36 [2004]). In a decision dated January 8, 2009, the Appellate Division, First Department, denied defendant's coram nobis application.
Now, in pro se motion papers dated September 3, 2014, defendant, for the third time, moves to vacate the judgment of conviction pursuant to CPL 440.10. In his panoply of claims, defendant asserts that: (1) various evidentiary and legal issues occurred, specifically, (a) the trial court inaccurately indicated that the jury's request to hear Mr. Bramwell's testimony was in the first jury note rather than the second, (b) the prosecutor improperly vouched for Mr. Bramwell's credibility in his summation, (c) the defendant is actually innocent because Mr. Bramwell's photo identification and subsequent in-court identification were incredible, (d) the court should have permitted certain unspecified expert testimony; and (2) trial counsel, Michael F. Buchicchio, rendered ineffective assistance of counsel in that he (a) failed to pursue an alibi defense, (b) failed to object and move to inspect and dismiss the indictment, and (c) failed to object to the court's charge instructing jurors that they had the right to reject or accept the evidence of the anonymous informants. Defendant further moves pursuant to CPL 440.30 (1-a) for an order compelling all evidence in this case not previously tested for DNA be located and tested.
Notwithstanding defendant's excessive and inexcusable delay, this court notes that aside from whatever general liberty interest he has in pursuing DNA testing, there is no substantive constitutional right to obtain DNA evidence in the post-conviction context District Attorney's Office for Third Judicial Dist. v Osborne, 557 US 52 [2009]). Statutorily, however, New York provides for the right to discovery in post-conviction proceedings (CPL § 440.30 [1-a] [a] [1]). Indeed, it is available to those seeking such access to evidence for DNA testing. But this right is neither automatic nor absolute. In fact, given the procedures available in CPL 440.30 to access evidence for DNA testing, denial of an application that fails to satisfy its requirements presents no due process violation (Osborne, 557 US at 52).
Regarding post-conviction applications for DNA testing, CPL 440.30 (1-a) provides that a court "shall grant" a defendant's request for "the performance of a forensic DNA test on specified evidence" upon a finding "that if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant" (CPL § 440.30 [1-a] [a] [1]). While there is no time limit within which a request DNA testing must be made, upon doing so "the People, as the gatekeeper of the evidence, [] must show what evidence exists and whether the evidence is available for testing" (People v Pitts, 4 NY3d 303, 311 [2005]). Such a request, however, should only be granted when the results of the DNA testing "could have led to a more favorable verdict" for the defendant (Pitts, 4 NY3d at 311 [lower court properly denied a motion for DNA testing in the absence of where, despite receiving medical attention after having been raped, no physical evidence recovered because "there [was] no reasonable probability that DNA testing could have led to a more favorable verdict"]).
Here, despite defendant's proclamation that there is a "reasonable probability that the verdict would have been more favorable" to him had the items recovered from the crime scene been tested and the results admitted at trial, this court is perplexed as to precisely what would be gleaned by such testing. To begin with, a jury found that the People proved defendant's guilt beyond a reasonable doubt, a finding the Appellate Division affirmed citing the overwhelming evidence against him. Such evidence included testimony that the defendant and his accomplices unleashed a fusillade of bullets leaving the victim dead, and inflicted life threatening injuries upon two other victims including Mr. Bramwell.
As for physical evidence, investigating officers found the victim's bullet-ridden body lying on the kitchen floor against the cabinet, his apartment full of bullet holes, deformed bullets, shell casings, and marijuana, and his bedroom ostensibly ransacked. A latent fingerprint lifted from the telephone matched co-defendant Lewin's left index finger, and a print lifted from the stove top matched co-defendant Palmer's left index finger. Moreover, two black males were observed leaving the location, and enter the rear passenger side of a white vehicle with the license plate "8FW343" that authorities later learned was "F8W343," which belonged to a white Ford Escort. Led to that vehicle, police found co-defendant Lewin inside, and arrested him. Finally, notwithstanding defendant's subsequently changed appearance, Mr. Bramwell identified defendant as one of his assailants in a lineup conducted more than a year later.
Other than the ballistics evidence, the items recovered from the crime scene all had "possible blood" on them. Since there was no testimony that defendant was injured during the attack, however, it would not be surprising to learn that none of it matched defendant's DNA. Rather, the likely sources of that blood were the victims, who had been riddled with bullet wounds. There is, therefore, no "reasonable possibility" that the results of a DNA test of the items recovered at the crime scene would cast doubt on the jury verdict (see People v Figueroa, 36 AD3d 458, 459 [1st Dept 2007] [lower court properly denied defendant's request to perform a DNA test on blood found on the street near victim's body because "there was no basis upon which to suspect that such blood came from anyone but [the] victim," and the defendant's stated theory that another perpetrator may have left his blood at the scene after killing the victim was "highly speculative"]; see also People v Brown, 36 AD3d 961, 962 [3rd Dept 2007] [upholding lower court's denial of a defendant's request for DNA testing, noting that "any possible DNA evidence" gleaned from a hair recovered from the victim's sweater "would not have tended to exonerate [the] defendant," since the hair "could [also] have belonged to his codefendant, one of several people who were in the apartment where defendant carried out his 7 crimes and required the victim to undress, or anyone the victim encountered in the hours before the crimes occurred"]).
Given the overwhelming evidence of defendant's guilt, and the futility of any prospective DNA testing, there is no "reasonable probability" that the results of DNA testing on the physical evidence would have changed the verdict at trial. Defendant's request for DNA testing of the physical evidence recovered from the crime scene is therefore denied.
Record-Based Claims
Regarding defendant's various evidentiary and legal claims, CPL 440.10 [2] [a] provides that "[a] court must deny a motion to vacate a judgment" when "[t]he ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment." A court must also deny a motion to vacate a judgment of conviction when:
Although sufficient facts appear on the record of the proceedings underlying the judgment . . . no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him (CPL § 440.10 [2] [c]).
In other words, where a defendant previously asserted certain record-based issues on direct appeal, or sufficient facts appear in the record to permit adequate appellate review, such issues are otherwise procedurally barred from collateral review (CPL § 440.10 [2]; People v Hall, 256 AD2d 139 [1st Dept 1998]). The purpose of CPL § 440.10 [2] is simple: to prevent post-judgment motions from being utilized as substitutes for direct appeal, and courts have repeatedly held that such motions must be denied (People v Cuadrado, 9 NY3d 362 [2007]; People v Cooks, 67 NY2d 100, 103 [1986]).
To the extent defendant's record-based claims relating to the trial court's reference to certain jury notes, its admission of the defendant's identification proceedings, its refusal to permit expert testimony, and the People's summation comments concerning the credibility of their witnesses were asserted on direct appeal, they must be precluded here. To the extent such [*5]claims could have and should have been raised on direct appeal, his failure to do so in the absence of any justifiable explanation for such failure constrains this court to bar review now.
Prosecution's Summation Comments
Defendant's assertion that the prosecutor's summation remarks concerning Mr. Bramwell warrants reversal is without merit. While it is clear that a prosecutor may neither act as an unsworn witness nor attempt to bolster the People's case with his or her own veracity, nothing prohibits a prosecutor from commenting on the evidence presented (see People v Moye, 12 NY3d 743 [2009]). In Moye, two witnesses provided conflicting testimony in connection with a re-enactment of the drug arrest purporting to illustrate the officer's vantage point from his observation post. During summation, the prosecutor, who was present during the re-enactment impermissibly "interjected his personal integrity and the veracity of the District Attorney's office . . . to support the credibility of [a]witness."
Here, however, defendant argues that the prosecutor's mere use of "in my own mind" transformed him into an unsworn witness. He is wrong. That phrase, by itself, in no way "interjected his personal integrity and the veracity of the District Attorney's office . . . to support the credibility of [a] witness." Taken in context, it is patently obvious that the prosecutor's use of such phrase was in reference to the material facts and evidence presented at trial.
In a transparent attempt to connect this fictitious claim to his so-called actual innocence claim, defendant argues that "the improper conduct, in connection with the claim of actual innocence, and the cumulative effects of trial counsel . . . including the shady single witness, presented by the people" warrant reversal. In so doing, he relies, improperly, on People v Ortiz (33 AD3d 432 [2006]), where the prosecutor repeatedly characterized defendant as a liar, compelled him to accuse the prosecution witnesses of lying, and confronted defendant with the question of why two key prosecution witnesses, a detective, and the judge would lie. Moreover, the prosecutor continued to engage in such tactics even after having been instructed to cease, and repeatedly vouched for his witnesses' credibility (Ortiz, 33 AD3d at 433 [granting defendant's motion where the cumulative effect of prosecution's misconduct compounded by court's failure to provide instruction as to credibility of testimony was prejudicial to defendant].
Here, defendant points to the ostensible inconsistencies in Mr. Bramwell's trial testimony, and retrospectively uses the prosecutor's summation as proof that he vouched for Mr. Bramwell's credibility. As noted, however, the prosecutor did no such thing. And, unlike Ortiz, Mr. Bramwell was not a law enforcement official. Simply put, there is nothing to indicate that the prosecutor prejudiced the defendant by unfairly or otherwise improperly responding to the defense. More poignantly, the defense lodged no objection during the prosecution's summation. Defendant's claim, then, is hardly persuasive.
[*6]Actual Innocence
As noted, defendant frames his criticism of Mr. Bramwell's identification as an actual innocence claim. Specifically, he asserts that Mr. Bramwell's identification was unreliable because "Detective Aiello admitted at the time of the defendant's arrest that Mr. Bramwell never identified Mr. Irizarry . . . failed to describe or identify the defendant on any occasion prior to the defendant's arrest" and was instead "identified by an alleged un-identified anonymous source."
Regarding defendant's claim of actual innocence, a court may, in its discretion, entertain such a claim notwithstanding a defendant's failure to raise it in a previous post-conviction motion (see CPL § 440.10 [3] [c]). That, however, presupposes the defendant's moving papers make a "prima facie showing" of innocence (People v Hamilton, 115 AD3d 12, 27 [2nd Dept 2014]). A prima facie showing of actual innocence is satisfied when there is "a sufficient showing of possible merit to warrant a fuller exploration" by the court (Hamilton, 115 AD3d at 27). Such a claim must also be based upon reliable evidence not presented at trial (Hamilton at 23, citing Schlup v Delo, 513 US 298, 324 [1995]). But this requires something far beyond a repetition of claims that were asserted and rejected at trial (see e.g. People v Jimenez, 46 Misc 3d 1220[A], *3-9 [Sup Ct Bronx County 2015, Newman, J.] [affidavits containing the recantation of one of two eyewitnesses, and statements of two alibi witnesses, were untrustworthy and insufficient to warrant a hearing on the defendant's actual innocence claim]). To prevail, then, a defendant must, by factual presentation, demonstrate with clear and convincing evidence that what is presented establishes defendant's actual innocence (Jimenez, 46 Misc 3d 1220[A] at *3). Here, defendant fails to present any such factual allegations.
Perhaps such abject failure is best explained by the jury's rejection of defendant's argument that Mr. Bramwell's identification was unreliable as having only been made subsequent to an anonymous telephone call, which the Appellate Division solidified by finding "overwhelming evidence" of his guilt (Irizarry, 233 AD2d at 209). It is hardly surprising, then, that his actual innocence claim conspicuously lacks any new evidence or novel insight.
Instead, all defendant proffers for support is an article documenting Detective Thomas Aiello's use of tainted eyewitness testimony in an unrelated proceeding (see Defendant's Exhibit H). Notwithstanding the merits of that matter, both the City and State of New York settled it without any acknowledgement of fault. More significantly, however, defendant's allegation that Detective Aiello's conduct in that case, by itself, necessarily constitutes a "continuous pattern" of impropriety such that it renders Mr. Bramwell's identification of the defendant defies logic.
Simply put, defendant is incapable of constructing a legally cogent argument contradicting Mr. Bramwell's identification. Thus, while he decries the various credibility determinations that have been settled for the better part of two decades, he cannot possibly demonstrate "a sufficient showing of possible merit to warrant a fuller exploration by [this] court" (Jimenez, 46 Misc 3d 1220[A] at *27). As such, [*7]this court has no basis upon which to do so.
Expert Testimony
Defendant's final trial-related claim, that he should have been permitted to introduce expert testimony "concerning factors that may influence the perception and memory of eyewitness [sic] and the reliability of their identification," is entirely without merit. Aside from being too vague and generalized to merit review (see CPL § 440.30 [1] [a]), defendant made no attempt at trial to admit such testimony (see CPL § 440.10 [30] [a]). Thus, whether it is because of his failure to provide particularized sworn allegations of fact detailing the substance of the expert testimony that he seeks to introduce, or his unjustifiable failure to properly address the issues at trial or on direct appeal, he must be precluded from asserting it now.
Regardless, to the extent defendant wishes to now discredit the reliability of Mr. Bramwell's lineup identification through expert testimony, the law does not otherwise permit him to do so. Notwithstanding his reliance on People v LeGrand (8 NY3d 449 [2007]) as a recent change in the law on this issue, the fact is that expert testimony relating to the reliability of eyewitness identification was admissible on a case-by-case basis in New York well before his 1994 trial (see e.g. People v Beckford, 141 Misc 2d 71 [Sup Ct, Kings County 1988, Miller, J.]; People v Lewis, 137 Misc 2d 84 [County Ct, Monroe Court 1987, Connell, J.]; People v Brooks, 128 Misc 2d 608 [County Ct, Westchester County 1985, Lange, J.]). But, as noted, one must have initially attempted to do so. Since defendant never sought to introduce expert testimony to discredit Mr. Bramwell's identification testimony at trial, he cannot now, twenty years hence, claim he should be afforded that opportunity.
Defendant's Burden to Allege Issues of Fact
As a preliminary matter, defendant's motion is denied because he fails to allege sufficient issues of fact. CPL § 440.30 (4) provides that a court may, upon considering the merits of such a motion, deny it without a hearing if: the motion is based upon essential facts without sworn allegations substantiating or tending to substantiate them (see CPL § 440.30 [4] [b]); an allegation of fact essential to support the motion is either contradicted by a court record or other official document; or, an allegation of fact made solely by the defendant is unsupported by any other affidavit or evidence, and there is no reasonable possibility that such allegation is true (see CPL § 440.30 [4] [d] [i], [ii]).
Generally, a judgment of conviction is presumed valid, and a defendant moving to vacate his conviction bears the "burden of coming forward with sufficient allegations to create an issue of fact" (People v Session, 34 NY2d 254, 255-256 [1974]; People v Braun, 167 AD2d 164, 165 [1st Dept 1990]; see CPL § 440.30 [4] [b], [d] [i], [ii]). The People maintain that defendant's claim should be denied because his moving papers do not contain sufficient allegations tending to substantiate them (see CPL 440.30 [4] [b], [d]). Specifically, the People argue defendant's failure to provide an affidavit from Mr. Watts counsel warrants summary denial of defendant's motion because absent any other evidence that counsel failed to investigate and advance an alibi defense, he is unable to "substantiate all the essential facts" (see CPL § 440.30 [4] [b]; see People v Morales, 58 NY2d 1008 [1983], citing People v Scott, 10 NY2d 380 [1961] [failure to supply attorney's affirmation warranted summary denial of motion collaterally attacking conviction based on attorney's alleged conduct]; People v Johnson, 292 AD2d 284 [1st Dept 2002] [court denied defendant's motion to vacate his judgment of conviction alleging ineffective assistance of counsel based on defendant's failure to obtain an affidavit from trial counsel or his efforts to obtain one]; People v Gil, 285 AD2d 7 [1st Dept 2001] [defendant must provide an "affidavit from trial counsel explaining his or her trial tactics" or an explanation to obtain an affidavit from trial counsel or his efforts to obtain one]). The People are correct.
Absence of an attorney's affidavit by itself, however, is not dispositive (see Morales, 58 NY2d 1008). In fact, an affidavit of counsel is not necessarily required where the defendant raises an ineffective assistance claim based on alleged error or omission of trial counsel (People v Radcliffe, 298 AD2d 533 [2nd Dept 2002]). "The defendant's application is adverse and hostile to his trial attorney. To require the defendant to secure an affidavit, or explain his failure to do so, is wasteful and unnecessary" (Radcliffe at 534).
Here, however, defendant indeed attempted to obtain affidavits from both [*9]counsels. Regarding Mr. Watts, his first attorney, he was unable procure one. Yet, it must be noted that Mr. Watts represented the defendant through the preliminary stages only; he did not represent him during the pretrial evidentiary hearings or trial. It would not, therefore, be surprising to learn that he neither fully investigated nor advanced defendant's alibi defense.
Conversely, Mr. Buchicchio, defendant's hearing and trial counsel, provided an affirmation. It does not, however, corroborate defendant's alibi claim. Rather, it indicates that Mr. Buchicchio "ha[s] no independent recollection of any alibi witness in this case" (see People v Alicea, 229 AD2d 80, 88 [1st Dept 1997] [when defense counsel stated only that he "could not recall . . . what his trial strategy was," defendant could not use that statement to show that a failure to bring out certain information during cross-examination of the People's witness was ineffective).
Simply stated, there is no reasonable possibility that two experienced attorneys, upon having been informed by their client of a viable alibi defense, would have failed to investigate it, and if credible, pursue it. Indeed, Mr. Buchicchio affirmed that
while I have no specific recollection of any alibi witnesses in this case, it was my general practice to fully investigate alibi claims made by his clients. If Mr. Irizarry had identified potential alibi witnesses, I would have made every effort to locate them and question them. Had I determined that their testimony would credibly corroborate defendant's alibi claim, I would have called them to testify on his behalf.
Given the absence of an affidavit from Mr. Watts, his limited defense role, and the lack for corroboration by Mr. Buchicchio as to all of defendant's assertions, this court is otherwise constrained to rely entirely on defendant's personal affidavit, which fails to demonstrate that either attorney provided ineffective assistance of counsel. Defendant's unsubstantiated claims, then, without further evidence, are insufficient to meet his burden of proving that counsel's performance was ineffective (CPL 440.30 [4] [d] [i], [ii]).
Ineffective Assistance Standard
Under the Sixth Amendment of the United States Constitution, a claim of ineffective assistance of counsel is evaluated under the two-part test set forth in (Strickland v Washington, 466 US 668 [1984]). To prevail, a defendant must (1) show that his counsel's performance fell below an "objective standard of reasonableness" judged by "prevailing professional norms" (the performance prong), and (2) "affirmatively prove prejudice" by demonstrating that, but for counsel's unprofessional errors, the result of the proceeding would have been different (the prejudice prong) (Strickland, 466 US at 687-88, 693).
To establish counsel's performance was deficient, a defendant must show that "in light of all the circumstances, the identified acts or omissions were outside the [*10]wide range of professionally competent assistance" (Pavel v Hollins, 261 F3d 210, 216 [2d Cir 2001]). This standard is "rigorous" (Lindstadt v Keane, 239 F3d 191, 199 [2d Cir 2001]), and "highly demanding" (Kimmel v Morrison, 477 US 365, 382 [1986]). To demonstrate prejudice, a defendant must show there is a "reasonable probability" that the ineffective performance rendered the proceeding fundamentally unfair or produced an unreliable result (Missouri v Frye, 132 S Ct 1399 [2012]; Lafler v Cooper, 132 S Ct 1376 [2012]; Premo v Moore, 131 S Ct 733 [2011]; Padilla v Kentucky, 559 US 356 [2010]; Roe v Flores-Ortega, 528 US 470 [2000]; Lockhart v Fretwell, 506 US 364 [1993]; Hill v Lockhart, 474 US 52 [1985]; Strickland at 694-695).
Success of an ineffective assistance of counsel claim under Article I, § 6 of the New York State Constitution rests on whether " the evidence, the 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'" (People v Henry, 95 NY2d 563, 565 [2000], quoting People v Baldi, 54 NY2d 137, 146-47 [1981]; see also People v Lane, 60 NY2d 748, 750 [1983]). Generally, trial counsel is presumed to have provided competent representation unless defendant demonstrates the absence of a "strategic or other legitimate explanations" for the allegedly deficient conduct (People v Benevento, 91 NY2d 708, 712 [1998]; People v Rivera, 71 NY2d 705, 709 [1988]). An attorney's performance "will not be considered ineffective, even if unsuccessful, as long as it reflects an objectively reasonable and legitimate trial strategy under the circumstances and evidence presented" (People v Berroa, 99 NY2d 134, 138 [2002]). "It is not for this court to "second-guess whether a course chosen by defendant's counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation" (People v Satterfield, 66 NY2d 796, 799-800 [1985]). Rather, a defendant need only establish that he did not receive meaningful representation (Baldi, 54 NY2d at 147; see People v Caban, 5 NY3d 143, 155-56 [2005]).
To be clear, then, meaningful representation does not mean preferred or perfect representation (Benevento, 91 NY2d at 712; People v Modica, 64 NY2d 828 [1985]; Baldi at 146). As such, "the claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case" (Benevento at 714).
Consistent with this notion, it is irrelevant whether the attorney's conduct had a particular impact on the outcome of the case (Caban, 5 NY3d at 156). Rather, New York is "ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case" (Benevento, 91 NY2d at 714). In New York, the only "question is whether the attorney's conduct constituted egregious and prejudicial' error such that defendant did not receive a fair trial" (Benevento at 713). Thus, a defendant need not prove that the outcome of the case would have been different but for such errors, rather only that he was deprived of a fair trial overall (Caban at 155-56). Indeed, if there is an apparent contradiction, it is this: "[f]undamental fairness analysis by its nature must always [*11]encompass prejudice" such that under the New York standard the "prejudice" prong in Strickland is effectively redundant (Rosario v Ercole, 601 F3d 118, 124 [2d Cir 2010]). Regardless, the former, by its nature, encompasses the latter (see Rosario, 601 F3d at 118). Ultimately,
"[t]he intellectually disciplined dispositional path of this case must not veer from this Court's long-standing, well-settled ineffective assistance of counsel analysis and authorities . . . when reviewing a claim of ineffective assistance of counsel, care should be taken to avoid both confusing true ineffectiveness [of counsel] with mere losing tactics and according undue significance to retrospective analysis' " (Flores, 84 NY2d at 186, quoting Baldi, 54 NY2d at 146).
Notwithstanding the absence of a specific prejudice requirement, New York's "meaningful representation" in totality standard is not contrary to the Strickland standard (Rosario at 124; Eze v Senkowski, 321 F3d 110, 124 [2d Cir 2003]); Lindstadt, 239 F3d at 198). This is particularly true since any analysis of an ineffective assistance of counsel under the New York standard inherently considers whether trial counsel engaged in "an inexplicably prejudicial course" (People v Zaborski, 59 NY2d 863, 865 [1983]; Benevento at 713). The New York Court of Appeals observed that the State constitutional standard is indeed satisfied when " prejudice' is examined more generally in the context of whether defendant received meaningful representation" (Benevento at 713).
[I]t is hard to envision a scenario where an error that meets the prejudice prong of Strickland would not also affect the fundamental fairness of the proceeding. The very opinion from which the troublesome phrase was drawn—Benevento—affirmatively stated that even a harmless error' could undermine the fairness of the process in such a way that violates the state's constitutional guarantee of effective assistance [citation omitted]. What case, then, could present the converse, an error so egregious that it most likely influenced the outcome of the trial, but did not cripple the fundamental fairness of the proceedings? We can think of none. Fundamental fairness analysis by its nature must always encompass prejudice (Rosario at 125).
Finally, since the performance and prejudice elements set forth in Strickland [*12]may be addressed in either order, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . [I]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed" (Strickland, 466 US at 697). Here, however, since the defendant abjectly fails to establish a prima facie claim that trial counsel's performance was constitutionally ineffective, this court will first address the performance aspect of defendant's claim.
Regarding trial counsel's performance, all this court must do is determine whether it performance fell below an "objective standard of reasonableness" (Strickland, 466 US at 697-98; see Benevento at 708). In considering defendant's claim under both the Baldi-Benevento and Strickland performance standards, however, it is crucial to distinguish between "true ineffectiveness with mere losing tactics" and "according undue significance to retrospective analysis" (Baldi, 54 NY2d at 147). To prevail on a claim of ineffective assistance, a defendant must demonstrate that he was "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" (Flores, 84 NY2d at 187).
The record unequivocally reflects that both attorneys meaningfully and effectively represented the defendant. Mr. Watts, retained immediately after defendant's arrest, attended and observed the lineup proceeding, then recused himself in order to serve as a witness at both the suppression hearing and trial. And, as noted, his testimony ultimately formed the basis for defendant's identification defense at trial.
As for defendant's trial, Mr. Buchicchio faced the challenging task of creating reasonable doubt in the wake of the overwhelming evidence of his guilt. Nevertheless, he managed to mount a formidable defense. He challenged the lineup proceeding by litigating it during a Wade hearing. And, when it became clear that an independent source for the identification was available, he sought an application from the court to exclude Mr. Bramwell's identification of defendant as a "sanction" against purported police misconduct. Additionally, in his opening statement, Mr. Buchicchio bluntly framed his "total lack of evidence" defense by noting that none of the three jackets found at the crime scene belonged to defendant, the getaway car was not registered to defendant, and he was "in the wrong place at the wrong time" when he was arrested. He also asserted that there was "not one piece of physical evidence" tying defendant to the murder, including fingerprints, a gun, or a statement.
Mr. Buchicchio also focused on discrediting the surviving complaining witnesses' identification of the defendant by challenging the strength of the descriptions they provided immediately after the crime, questioning the arrest of [*13]two suspects who were later released, and discrediting the lineup proceeding. He then carried these themes throughout the trial, particularly in an exhaustive cross-examination of Mr. Bramwell. In his closing argument, Mr. Buchicchio began by minimizing the People's evidence, and focused on defendant's identification defense by emphasizing that Mr. Edwards never identified him.
With regard to defendant's alibi claim, Mr. Watts represented the defendant from his arrest through the preliminary stages of the prosecution before recusing himself, which was precipitated by his attendance at the lineup proceeding. As such, it is neither surprising nor reasonable to expect that he would have fully investigated any potential alibi defense prior to such recusal. More significantly, in his affidavit of February 11, 2015, defendant admits that during his initial meeting with Mr. Buchicchio, he provided the names and addresses of the alibi witnesses. Thus, even if Mr. Watts had been aware of and investigated those witnesses but neglected to inform Mr. Buchicchio, such neglect would been of no moment. Mr. Watts' representation, then, cannot possibly be construed as having been anything less than meaningful.
To the extent that Mr. Buchicchio was aware of defendant's so-called alibi witnesses, however, it defies credulity that he ignored them without reason. It is far more plausible that Mr. Buchicchio was unable to locate them given the inaccurate information defendant provided concerning their identities. Defendant acknowledges he provided the name "Quin Quartermane," when his name is in fact "Quenton Quartmenn." He also provided vague information as to their residences, stating that Mr. Quartermane lived in the Bronx River Housing Projects on 174th Street, and that Mr. Brimmas, lived with his parents in a private house on Noble Avenue between 174th and 172nd Street.
Still, it is equally plausible that despite defendant's vague and inaccurate information concerning these potential witnesses, Mr. Buchicchio managed to locate and interview them, and after assessing their credibility determined it was not in defendant's best interests to present them at trial. It is interesting to note, however, that the defendant, in a video statement taken four days after the murder, stated he was with his girlfriend, Eva Hunter, throughout the entire day on which the murder occurred. He further said that in the afternoon, they were riding in his Jeep with two friends, Michael Gilmore and "Hamilton." Conspicuously absent from that video statement was any mention of Mr. Brimmas or Mr. Quatermane. Also telling is that his current claim omits any assertion that he provided either Mr. Watts or Mr. Buchicchio with the Hunter's, Gilmore's or Hamilton's name. Given the juxtaposition of such ostensibly paltry information, it is even more unlikely that Mr. Buchicchio would have found either of his competing alibi claims credible.
Under these circumstances, Mr. Buchicchio likely made a tactical decision not to pursue an alibi defense at trial. Considering defendant's credibility-challenged alibi claims, his acknowledgement that any alibi witnesses are now deceased, and Mr. Buchicchio's inability to recall the existence of such witnesses, he simply cannot "demonstrate the absence of strategic or other legitimate [*14]explanations" for Mr. Buchicchio's decision not to have these witnesses testify at trial (Benevento, 91 NY2d at 712).
Defendant's remaining claims, that Mr. Buchicchio failed to object and file a motion to inspect and dismiss the grand jury indictment, and failed to object to the jury charge instructing them that they had a right to reject or accept the evidence of the anonymous informants, must be denied pursuant to CPL § 440.10 (2) (c). Both are record-based, and neither were asserted on direct appeal. As such, they cannot be raised now. They are also entirely without merit.
As for the motion defendant claims Mr. Buchicchio failed to make, in papers dated August 24, 1992, Mr. Watts moved for an order "[g]ranting inspection of the Grand Jury minutes and Dismissal of the indictment and any lesser included offense if the evidence presented to the Grand Jury is insufficient to support the charges or any lesser included offense or if exculpatory evidence was not presented to the Grand Jury." Given that Mr. Watts litigated this issue, it would have been improper and pointless for Mr. Buchicchio to do so as well.
Regarding the anonymous informant, the jury instruction to which defendant complains Mr. Buchicchio failed to object is as follows:
You have heard the testimony about anonymous informants and what they told the police. The police are permitted to use information from anonymous informers in their investigation and there is nothing wrong with that. The testimony about information from anonymous informants is before you to explain how the police conducted their investigation and you may use the evidence in evaluating the police credibility and conduct. It is however the information given by the witnesses here in the courtroom that you use to determine if the defendants are guilty beyond a reasonable doubt.
This instruction was entirely proper (see People v Tosca, 98 NY2d 660, 661 [2002] [testimony of an anonymous informant was properly "admitted not for its truth, but to provide background information as to how and why the police pursued and confronted defendant"], citing People v Till, 87 NY2d 835, 837 [1995]). As such, Mr. Buchicchio was under no duty to record a patently meritless objection.
By either standard, then, defendant failed to demonstrate that his counsel provided anything other than meaningful representation. As the People correctly observe, he faced the daunting task of creating a reasonable doubt in the face of overwhelming evidence of defendant's guilt. That, in and of itself, is evidence that defendant received effective assistance (see People v Taylor, 1 NY3d 174, 176-77 [2003] [defense counsel was not ineffective just because her efforts to discredit the eyewitness proved futile where counsel cross-examined witnesses, and gave a detailed summation highlighting potential infirmities in the People's evidence]); People v Hutchinson, 57 AD3d 1013 [3d Dept 2008] [defendant failed to demonstrate the absence of strategic or other legitimate explanations for his attorney's actions or that he failed to provide meaningful representation]).
As noted, losing or disagreeable tactics must not be conflated with [*15]ineffectiveness. Rather, the representation need only be meaningful. But here, both Mr. Watts' and Mr. Buchicchio's tactics and performance were strategically employed to the best of their ability as a seasoned and experienced advocate. Moreover, Mr. Buchicchio ably represented defendant throughout the pre-trial hearings, trial, and sentencing proceedings. And, despite his claims to the contrary, defendant, in a letter to Mr. Buchicchio that he submitted to this court, admitted as much stating that his defense was skillfully presented. In light of such sentiment, the litany of perceived ills he now asserts is perplexing, and their merit is dubious at best. Clearly, defendant has failed to establish that Mr. Buchicchio provided anything other than competent counsel. His motion in this regard must therefore be denied.
a. Federal Standard
Having failed to establish that counsel's performance was ineffective, this court need not consider whether defendant suffered any prejudice as a result. That said, it is worth noting that with regard to defendant's claims, especially his alibi defense, defendant proffers no evidence demonstrating it would have affected the jury. Indeed, he fails to show how it had any effect on the trial.
b. New York Standard
Here, faulting counsels as defendant does simply means that in hindsight he disagrees with counsel's strategic tactics. But disagreement is a far cry from prejudice, and defendant conspicuously makes no allegation, suggestion or inference that he suffered any prejudice from counsels' decisions. Thus, even assuming counsels committed the perceived ills he claims occurred, they nevertheless fail [*16]given his complete failure to demonstrate that he suffered an iota of prejudice.
The absence of prejudice in conjunction with the overwhelming evidence against him precludes defendant from establishing that the totality of the circumstances counsel's conduct was so egregious it deprived him of a fair trial (see People v Jiang, 62 AD3d 515, 516 [1st Dept 2009]). In short, while the defendant would have this court believe otherwise, such a result defies logic, and renders defendant's argument entirely without merit.
Dated: November10, 2015
Decided on November 10, 2015
Supreme Court, Bronx County
The People of the State of New York, Plaintiff,
against
Alexis Irizarry, Defendant.
3664-1992
Appearances of Counsel:
Defendant, Pro Se
Clara Salzberg
Assistant District AttorneyOffice of the Bronx District Attorney
Richard Lee Price, J.
By motion submitted June 26, 2015, defendant pro se moves this court for an order compelling DNA testing and vacating the judgment of conviction pursuant to Criminal Procedure Law §§ 440.30 (1-a) and 440.10 (1) (b), (c), (d), (f), and (h), contending that he is actually innocent, and received ineffective assistance of counsel in violation the Sixth Amendment of the United States Constitution and article I, § 6 of the New York State Constitution. After review of the motion papers, papers on file with the court, and prior court proceedings, defendant's motion is denied in its entirety.
I. Background and Procedural History
On July 6, 1994, judgment was entered against the defendant in Supreme Court, Bronx County (Bamberger, J.), upon his conviction after a jury trial of murder in the second degree (Penal Law § 125.25), two counts of attempted murder in the second degree (Penal Law §§ 110/125.25 [1]), two counts of criminal use of a firearm in the first degree (Penal Law § 265.09 [1]), three counts of criminal possession of a weapon in the second degree (Penal Law § 265.03), and criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]).
Upon his conviction of these offenses, defendant was sentenced to an indeterminate term of life imprisonment with a mandatory minimum period of twenty years on the murder charge, and a concurrent indeterminate term of fifteen years imprisonment with a mandatory minimum period of five years on the second-degree weapon charge. These terms of imprisonment were to be served consecutively with concurrent terms of eight and one-third to twenty-five years on one attempted murder charge, eight and one-third to twenty-five years on one firearm use charge, and five to fifteen years on one second-degree weapon charge, which were to run consecutively with additional concurrent terms of eight and one-third to twenty-five years on the other [*2]attempted murder charge, eight and one-third to twenty-five years on the other firearm use charge, and five to fifteen years on the second-degree weapon charge. On the third-degree weapon charge, defendant was sentenced to a term of two and one-third to seven years imprisonment to be served concurrently with all the above-imposed sentences.
On direct appeal, defendant claimed that: (1) the People failed to prove his guilt beyond a reasonable doubt because Richard Bramwell's testimony was incredible as a matter of law; (2) the prosecutor's summation comments deprived him of a fair trial; (3) the trial court's tolerance of Richard Bramwell's disruptive and abusive behavior also deprived him of a fair trial; and (4) the court erroneously denied his motion to suppress his lineup identification as not having been sufficiently attenuated from his illegal detention.
On November 19, 1996, the Appellate Division, First Department, unanimously affirmed defendant's judgment of conviction (see People v Irizarry, 233 AD2d 209 [1st Dept 1996]). Rejecting defendant's claims, the court found that the People presented overwhelming evidence of the defendant's guilt, and that the trial court properly exercised its discretion in denying defendant's belated motion for a mistrial based upon the conduct of the People's witnesses and some of the prosecutor's summation comments. Specifically, the court noted the sufficiency of the trial court's prompt curative actions, and leave to defense counsel to comment in summation regarding inferences that might have been drawn from the witness's conduct. Finally, the court found all defendant's remaining arguments without merit (Irizarry, 233 AD2d at 210).
On December 30, 1996, the Honorable Robert Smith, Associate Judge of the New York Court of Appeals denied defendant's application for leave to appeal (see People v Irizarry, 89 NY2d 924 [1996]).
In July 1996, prior to the Appellate Division affirming defendant's conviction, defendant moved in the Supreme Court, Bronx County, to vacate his judgment of conviction pursuant to Criminal Procedure Law § 440.10, claiming the People failed to comply with his Brady obligations (Brady v Maryland, 373 US 83 [1963]) by allegedly permitting Richard Bramwell, a surviving victim, to falsely deny that he received no deals or promises in connection with an unrelated pending gun case (Indictment Number 1000-1994) in exchange for his testimony against the defendant.
On November 13, 1996, the Supreme Court, Bronx County (Bamberger, J.), denied defendant's CPL 440.10, finding that defendant's factual claims were unsupported by the available evidence. On March 3, 1997, the Appellate Division, First Department, denied defendant's application for leave to appeal from that denial.
In papers received by the United States District Court for the Southern District of New York on March 23, 1998, defendant, represented by Robert J. Boyle, Esq., sought a writ of habeas corpus on the basis that: (1) defendant was convicted upon evidence that was insufficient as a matter of law; (2) during summation, the prosecutor improperly vouched for his witnesses' credibility, commented on matters not in evidence, and "denigrated" the defense; (3) the trial court erroneously refused to grant a mistrial relative to the abusive conduct of Richard Bramwell; (4) defendant was wrongly precluded from viewing the exhibit containing the biographical evidence obtained from Rudolph Edwards; and (5) the prosecutor failed to disclose that its cooperation agreement with Richard Bramwell included a promise that he would not be adjudicated a predicate felon.
In a Report and Recommendation dated December 21, 1998, the Honorable Naomi Reice Buchwald, Magistrate Judge of the United States District Court for the Southern District of New [*3]York, recommended that defendant's petition be denied. On May 4, 1999, the Honorable Deborah A. Batts, United States District Judge, adopted that report and recommendation. On May 17, 2000, the United States Court of Appeals for the Second Circuit denied defendant's pro se motion for a certificate of appealability.
In pro se motion papers dated January 4, 2004, defendant moved a second time to vacate his judgment of conviction pursuant to CPL 440.10, and to set aside his sentence pursuant to CPL 440.20, claiming that: (1) the convictions of criminal possession of a weapon in the second degree should be dismissed because of the conviction of criminal possession of a weapon in the third degree; (2) the imposed sentences violated his constitutional right against double jeopardy; and (3) all the imposed sentences should run concurrently;
On June 22, 2004, the Supreme Court, Bronx County (Bamberger, J.), denied defendant's CPL 440.10 and 440.20 motions in all respects. On August 31, 2004, the Appellate Division, First Department, denied defendant's application for leave to appeal from that denial.
Then, in pro se papers dated May 21, 2008, defendant moved the Appellate Division, First Department, for a writ of error coram nobis, alleging that: (1) he received ineffective assistance of counsel during trial and on appeal for failing to assert evidence insufficiency claims; (2) trial counsel was ineffective for failing to seek application of the Aguilar-Spinelli test to challenge his unlawful arrest; (3) both trial and appellate counsel were ineffective for failing to assert and preserve defendant's confrontation clause violation; and (4) he was entitled to retroactive application of Crawford v Washington (541 US 36 [2004]). In a decision dated January 8, 2009, the Appellate Division, First Department, denied defendant's coram nobis application.
Now, in pro se motion papers dated September 3, 2014, defendant, for the third time, moves to vacate the judgment of conviction pursuant to CPL 440.10. In his panoply of claims, defendant asserts that: (1) various evidentiary and legal issues occurred, specifically, (a) the trial court inaccurately indicated that the jury's request to hear Mr. Bramwell's testimony was in the first jury note rather than the second, (b) the prosecutor improperly vouched for Mr. Bramwell's credibility in his summation, (c) the defendant is actually innocent because Mr. Bramwell's photo identification and subsequent in-court identification were incredible, (d) the court should have permitted certain unspecified expert testimony; and (2) trial counsel, Michael F. Buchicchio, rendered ineffective assistance of counsel in that he (a) failed to pursue an alibi defense, (b) failed to object and move to inspect and dismiss the indictment, and (c) failed to object to the court's charge instructing jurors that they had the right to reject or accept the evidence of the anonymous informants. Defendant further moves pursuant to CPL 440.30 (1-a) for an order compelling all evidence in this case not previously tested for DNA be located and tested.
II. DNA Testing
Defendant's application for access to "all tests performed" on the items retrieved from the crime scene, and testing of "all evidence that [was] not tested . . . for new DNA results" pursuant to CPL 440.30 (1-a) is denied. Preliminarily, the People correctly state that CPL 440.10 (3) (c) permits a court to "deny a motion to vacate a judgment" where "upon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so" (CPL § 440.10 [3] [c]; see also CPL § 440.30 [2]). As noted, defendant previously brought CPL 440.10 motions in 1996 and 2004 yet failed to [*4]include his request for DNA testing in either. Given the relatively recent proliferation of DNA testing and contemporary New York jurisprudence, this court can certainly overlook such failure in 1996. In 2004, however, not so much. And, defendant offers no reason for such failure, nor does he explain why he waited nearly twenty years before eventually doing so. One can only conclude that it is because he had little, if any, expectation such DNA testing would yield value.
Notwithstanding defendant's excessive and inexcusable delay, this court notes that aside from whatever general liberty interest he has in pursuing DNA testing, there is no substantive constitutional right to obtain DNA evidence in the post-conviction context District Attorney's Office for Third Judicial Dist. v Osborne, 557 US 52 [2009]). Statutorily, however, New York provides for the right to discovery in post-conviction proceedings (CPL § 440.30 [1-a] [a] [1]). Indeed, it is available to those seeking such access to evidence for DNA testing. But this right is neither automatic nor absolute. In fact, given the procedures available in CPL 440.30 to access evidence for DNA testing, denial of an application that fails to satisfy its requirements presents no due process violation (Osborne, 557 US at 52).
Regarding post-conviction applications for DNA testing, CPL 440.30 (1-a) provides that a court "shall grant" a defendant's request for "the performance of a forensic DNA test on specified evidence" upon a finding "that if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant" (CPL § 440.30 [1-a] [a] [1]). While there is no time limit within which a request DNA testing must be made, upon doing so "the People, as the gatekeeper of the evidence, [] must show what evidence exists and whether the evidence is available for testing" (People v Pitts, 4 NY3d 303, 311 [2005]). Such a request, however, should only be granted when the results of the DNA testing "could have led to a more favorable verdict" for the defendant (Pitts, 4 NY3d at 311 [lower court properly denied a motion for DNA testing in the absence of where, despite receiving medical attention after having been raped, no physical evidence recovered because "there [was] no reasonable probability that DNA testing could have led to a more favorable verdict"]).
Here, despite defendant's proclamation that there is a "reasonable probability that the verdict would have been more favorable" to him had the items recovered from the crime scene been tested and the results admitted at trial, this court is perplexed as to precisely what would be gleaned by such testing. To begin with, a jury found that the People proved defendant's guilt beyond a reasonable doubt, a finding the Appellate Division affirmed citing the overwhelming evidence against him. Such evidence included testimony that the defendant and his accomplices unleashed a fusillade of bullets leaving the victim dead, and inflicted life threatening injuries upon two other victims including Mr. Bramwell.
As for physical evidence, investigating officers found the victim's bullet-ridden body lying on the kitchen floor against the cabinet, his apartment full of bullet holes, deformed bullets, shell casings, and marijuana, and his bedroom ostensibly ransacked. A latent fingerprint lifted from the telephone matched co-defendant Lewin's left index finger, and a print lifted from the stove top matched co-defendant Palmer's left index finger. Moreover, two black males were observed leaving the location, and enter the rear passenger side of a white vehicle with the license plate "8FW343" that authorities later learned was "F8W343," which belonged to a white Ford Escort. Led to that vehicle, police found co-defendant Lewin inside, and arrested him. Finally, notwithstanding defendant's subsequently changed appearance, Mr. Bramwell identified defendant as one of his assailants in a lineup conducted more than a year later.
Other than the ballistics evidence, the items recovered from the crime scene all had "possible blood" on them. Since there was no testimony that defendant was injured during the attack, however, it would not be surprising to learn that none of it matched defendant's DNA. Rather, the likely sources of that blood were the victims, who had been riddled with bullet wounds. There is, therefore, no "reasonable possibility" that the results of a DNA test of the items recovered at the crime scene would cast doubt on the jury verdict (see People v Figueroa, 36 AD3d 458, 459 [1st Dept 2007] [lower court properly denied defendant's request to perform a DNA test on blood found on the street near victim's body because "there was no basis upon which to suspect that such blood came from anyone but [the] victim," and the defendant's stated theory that another perpetrator may have left his blood at the scene after killing the victim was "highly speculative"]; see also People v Brown, 36 AD3d 961, 962 [3rd Dept 2007] [upholding lower court's denial of a defendant's request for DNA testing, noting that "any possible DNA evidence" gleaned from a hair recovered from the victim's sweater "would not have tended to exonerate [the] defendant," since the hair "could [also] have belonged to his codefendant, one of several people who were in the apartment where defendant carried out his 7 crimes and required the victim to undress, or anyone the victim encountered in the hours before the crimes occurred"]).
Given the overwhelming evidence of defendant's guilt, and the futility of any prospective DNA testing, there is no "reasonable probability" that the results of DNA testing on the physical evidence would have changed the verdict at trial. Defendant's request for DNA testing of the physical evidence recovered from the crime scene is therefore denied.
III. Trial
Related Issues
Record-Based Claims
Regarding defendant's various evidentiary and legal claims, CPL 440.10 [2] [a] provides that "[a] court must deny a motion to vacate a judgment" when "[t]he ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment." A court must also deny a motion to vacate a judgment of conviction when:
Although sufficient facts appear on the record of the proceedings underlying the judgment . . . no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him (CPL § 440.10 [2] [c]).
In other words, where a defendant previously asserted certain record-based issues on direct appeal, or sufficient facts appear in the record to permit adequate appellate review, such issues are otherwise procedurally barred from collateral review (CPL § 440.10 [2]; People v Hall, 256 AD2d 139 [1st Dept 1998]). The purpose of CPL § 440.10 [2] is simple: to prevent post-judgment motions from being utilized as substitutes for direct appeal, and courts have repeatedly held that such motions must be denied (People v Cuadrado, 9 NY3d 362 [2007]; People v Cooks, 67 NY2d 100, 103 [1986]).
To the extent defendant's record-based claims relating to the trial court's reference to certain jury notes, its admission of the defendant's identification proceedings, its refusal to permit expert testimony, and the People's summation comments concerning the credibility of their witnesses were asserted on direct appeal, they must be precluded here. To the extent such [*5]claims could have and should have been raised on direct appeal, his failure to do so in the absence of any justifiable explanation for such failure constrains this court to bar review now.
Prosecution's Summation Comments
Defendant's assertion that the prosecutor's summation remarks concerning Mr. Bramwell warrants reversal is without merit. While it is clear that a prosecutor may neither act as an unsworn witness nor attempt to bolster the People's case with his or her own veracity, nothing prohibits a prosecutor from commenting on the evidence presented (see People v Moye, 12 NY3d 743 [2009]). In Moye, two witnesses provided conflicting testimony in connection with a re-enactment of the drug arrest purporting to illustrate the officer's vantage point from his observation post. During summation, the prosecutor, who was present during the re-enactment impermissibly "interjected his personal integrity and the veracity of the District Attorney's office . . . to support the credibility of [a]witness."
Here, however, defendant argues that the prosecutor's mere use of "in my own mind" transformed him into an unsworn witness. He is wrong. That phrase, by itself, in no way "interjected his personal integrity and the veracity of the District Attorney's office . . . to support the credibility of [a] witness." Taken in context, it is patently obvious that the prosecutor's use of such phrase was in reference to the material facts and evidence presented at trial.
In a transparent attempt to connect this fictitious claim to his so-called actual innocence claim, defendant argues that "the improper conduct, in connection with the claim of actual innocence, and the cumulative effects of trial counsel . . . including the shady single witness, presented by the people" warrant reversal. In so doing, he relies, improperly, on People v Ortiz (33 AD3d 432 [2006]), where the prosecutor repeatedly characterized defendant as a liar, compelled him to accuse the prosecution witnesses of lying, and confronted defendant with the question of why two key prosecution witnesses, a detective, and the judge would lie. Moreover, the prosecutor continued to engage in such tactics even after having been instructed to cease, and repeatedly vouched for his witnesses' credibility (Ortiz, 33 AD3d at 433 [granting defendant's motion where the cumulative effect of prosecution's misconduct compounded by court's failure to provide instruction as to credibility of testimony was prejudicial to defendant].
Here, defendant points to the ostensible inconsistencies in Mr. Bramwell's trial testimony, and retrospectively uses the prosecutor's summation as proof that he vouched for Mr. Bramwell's credibility. As noted, however, the prosecutor did no such thing. And, unlike Ortiz, Mr. Bramwell was not a law enforcement official. Simply put, there is nothing to indicate that the prosecutor prejudiced the defendant by unfairly or otherwise improperly responding to the defense. More poignantly, the defense lodged no objection during the prosecution's summation. Defendant's claim, then, is hardly persuasive.
[*6]Actual Innocence
As noted, defendant frames his criticism of Mr. Bramwell's identification as an actual innocence claim. Specifically, he asserts that Mr. Bramwell's identification was unreliable because "Detective Aiello admitted at the time of the defendant's arrest that Mr. Bramwell never identified Mr. Irizarry . . . failed to describe or identify the defendant on any occasion prior to the defendant's arrest" and was instead "identified by an alleged un-identified anonymous source."
Regarding defendant's claim of actual innocence, a court may, in its discretion, entertain such a claim notwithstanding a defendant's failure to raise it in a previous post-conviction motion (see CPL § 440.10 [3] [c]). That, however, presupposes the defendant's moving papers make a "prima facie showing" of innocence (People v Hamilton, 115 AD3d 12, 27 [2nd Dept 2014]). A prima facie showing of actual innocence is satisfied when there is "a sufficient showing of possible merit to warrant a fuller exploration" by the court (Hamilton, 115 AD3d at 27). Such a claim must also be based upon reliable evidence not presented at trial (Hamilton at 23, citing Schlup v Delo, 513 US 298, 324 [1995]). But this requires something far beyond a repetition of claims that were asserted and rejected at trial (see e.g. People v Jimenez, 46 Misc 3d 1220[A], *3-9 [Sup Ct Bronx County 2015, Newman, J.] [affidavits containing the recantation of one of two eyewitnesses, and statements of two alibi witnesses, were untrustworthy and insufficient to warrant a hearing on the defendant's actual innocence claim]). To prevail, then, a defendant must, by factual presentation, demonstrate with clear and convincing evidence that what is presented establishes defendant's actual innocence (Jimenez, 46 Misc 3d 1220[A] at *3). Here, defendant fails to present any such factual allegations.
Perhaps such abject failure is best explained by the jury's rejection of defendant's argument that Mr. Bramwell's identification was unreliable as having only been made subsequent to an anonymous telephone call, which the Appellate Division solidified by finding "overwhelming evidence" of his guilt (Irizarry, 233 AD2d at 209). It is hardly surprising, then, that his actual innocence claim conspicuously lacks any new evidence or novel insight.
Instead, all defendant proffers for support is an article documenting Detective Thomas Aiello's use of tainted eyewitness testimony in an unrelated proceeding (see Defendant's Exhibit H). Notwithstanding the merits of that matter, both the City and State of New York settled it without any acknowledgement of fault. More significantly, however, defendant's allegation that Detective Aiello's conduct in that case, by itself, necessarily constitutes a "continuous pattern" of impropriety such that it renders Mr. Bramwell's identification of the defendant defies logic.
Simply put, defendant is incapable of constructing a legally cogent argument contradicting Mr. Bramwell's identification. Thus, while he decries the various credibility determinations that have been settled for the better part of two decades, he cannot possibly demonstrate "a sufficient showing of possible merit to warrant a fuller exploration by [this] court" (Jimenez, 46 Misc 3d 1220[A] at *27). As such, [*7]this court has no basis upon which to do so.
Expert Testimony
Defendant's final trial-related claim, that he should have been permitted to introduce expert testimony "concerning factors that may influence the perception and memory of eyewitness [sic] and the reliability of their identification," is entirely without merit. Aside from being too vague and generalized to merit review (see CPL § 440.30 [1] [a]), defendant made no attempt at trial to admit such testimony (see CPL § 440.10 [30] [a]). Thus, whether it is because of his failure to provide particularized sworn allegations of fact detailing the substance of the expert testimony that he seeks to introduce, or his unjustifiable failure to properly address the issues at trial or on direct appeal, he must be precluded from asserting it now.
Regardless, to the extent defendant wishes to now discredit the reliability of Mr. Bramwell's lineup identification through expert testimony, the law does not otherwise permit him to do so. Notwithstanding his reliance on People v LeGrand (8 NY3d 449 [2007]) as a recent change in the law on this issue, the fact is that expert testimony relating to the reliability of eyewitness identification was admissible on a case-by-case basis in New York well before his 1994 trial (see e.g. People v Beckford, 141 Misc 2d 71 [Sup Ct, Kings County 1988, Miller, J.]; People v Lewis, 137 Misc 2d 84 [County Ct, Monroe Court 1987, Connell, J.]; People v Brooks, 128 Misc 2d 608 [County Ct, Westchester County 1985, Lange, J.]). But, as noted, one must have initially attempted to do so. Since defendant never sought to introduce expert testimony to discredit Mr. Bramwell's identification testimony at trial, he cannot now, twenty years hence, claim he should be afforded that opportunity.
IV. Ineffective Assistance of Counsel
Defendant asserts several ineffective assistance claims, the most salient of which is that both attorneys, Michael F. Buchicchio and Patrick Watts, provided ineffective assistance of counsel for failing to investigate his alibi claim. First, defendant claims he told his first attorney, Patrick Watts, that he was "with friends riding around in my jeep" at the time of the shooting, and provided him with their names and addresses. But according to the defendant, Mr. Quartermane was never contacted. This, along with the tenuous supposition that "there is no room to doubt that counsel was informed about these witnesses . . . because in Defendant's video statement he made clear that he was with friends, riding in his vehicle during the time of the crime" is the sole basis upon which he concludes Mr. Watts was ineffective. Additionally, defendant alleges he informed Mr. Buchicchio that two alibi witnesses, "Nagil Brimmas and Quin Quatermane," were willing to testify on his behalf, yet he neglected to call them at trial. Regarding defendant's other ineffective assistance claims, he asserts that Mr. Buchicchio failed to object and [*8]move to inspect and dismiss the indictment, and failed to object to the court's charge instructing jurors that they had the right to reject or accept the evidence of the anonymous informants.
Defendant's Burden to Allege Issues of Fact
As a preliminary matter, defendant's motion is denied because he fails to allege sufficient issues of fact. CPL § 440.30 (4) provides that a court may, upon considering the merits of such a motion, deny it without a hearing if: the motion is based upon essential facts without sworn allegations substantiating or tending to substantiate them (see CPL § 440.30 [4] [b]); an allegation of fact essential to support the motion is either contradicted by a court record or other official document; or, an allegation of fact made solely by the defendant is unsupported by any other affidavit or evidence, and there is no reasonable possibility that such allegation is true (see CPL § 440.30 [4] [d] [i], [ii]).
Generally, a judgment of conviction is presumed valid, and a defendant moving to vacate his conviction bears the "burden of coming forward with sufficient allegations to create an issue of fact" (People v Session, 34 NY2d 254, 255-256 [1974]; People v Braun, 167 AD2d 164, 165 [1st Dept 1990]; see CPL § 440.30 [4] [b], [d] [i], [ii]). The People maintain that defendant's claim should be denied because his moving papers do not contain sufficient allegations tending to substantiate them (see CPL 440.30 [4] [b], [d]). Specifically, the People argue defendant's failure to provide an affidavit from Mr. Watts counsel warrants summary denial of defendant's motion because absent any other evidence that counsel failed to investigate and advance an alibi defense, he is unable to "substantiate all the essential facts" (see CPL § 440.30 [4] [b]; see People v Morales, 58 NY2d 1008 [1983], citing People v Scott, 10 NY2d 380 [1961] [failure to supply attorney's affirmation warranted summary denial of motion collaterally attacking conviction based on attorney's alleged conduct]; People v Johnson, 292 AD2d 284 [1st Dept 2002] [court denied defendant's motion to vacate his judgment of conviction alleging ineffective assistance of counsel based on defendant's failure to obtain an affidavit from trial counsel or his efforts to obtain one]; People v Gil, 285 AD2d 7 [1st Dept 2001] [defendant must provide an "affidavit from trial counsel explaining his or her trial tactics" or an explanation to obtain an affidavit from trial counsel or his efforts to obtain one]). The People are correct.
Absence of an attorney's affidavit by itself, however, is not dispositive (see Morales, 58 NY2d 1008). In fact, an affidavit of counsel is not necessarily required where the defendant raises an ineffective assistance claim based on alleged error or omission of trial counsel (People v Radcliffe, 298 AD2d 533 [2nd Dept 2002]). "The defendant's application is adverse and hostile to his trial attorney. To require the defendant to secure an affidavit, or explain his failure to do so, is wasteful and unnecessary" (Radcliffe at 534).
Here, however, defendant indeed attempted to obtain affidavits from both [*9]counsels. Regarding Mr. Watts, his first attorney, he was unable procure one. Yet, it must be noted that Mr. Watts represented the defendant through the preliminary stages only; he did not represent him during the pretrial evidentiary hearings or trial. It would not, therefore, be surprising to learn that he neither fully investigated nor advanced defendant's alibi defense.
Conversely, Mr. Buchicchio, defendant's hearing and trial counsel, provided an affirmation. It does not, however, corroborate defendant's alibi claim. Rather, it indicates that Mr. Buchicchio "ha[s] no independent recollection of any alibi witness in this case" (see People v Alicea, 229 AD2d 80, 88 [1st Dept 1997] [when defense counsel stated only that he "could not recall . . . what his trial strategy was," defendant could not use that statement to show that a failure to bring out certain information during cross-examination of the People's witness was ineffective).
Simply stated, there is no reasonable possibility that two experienced attorneys, upon having been informed by their client of a viable alibi defense, would have failed to investigate it, and if credible, pursue it. Indeed, Mr. Buchicchio affirmed that
while I have no specific recollection of any alibi witnesses in this case, it was my general practice to fully investigate alibi claims made by his clients. If Mr. Irizarry had identified potential alibi witnesses, I would have made every effort to locate them and question them. Had I determined that their testimony would credibly corroborate defendant's alibi claim, I would have called them to testify on his behalf.
Given the absence of an affidavit from Mr. Watts, his limited defense role, and the lack for corroboration by Mr. Buchicchio as to all of defendant's assertions, this court is otherwise constrained to rely entirely on defendant's personal affidavit, which fails to demonstrate that either attorney provided ineffective assistance of counsel. Defendant's unsubstantiated claims, then, without further evidence, are insufficient to meet his burden of proving that counsel's performance was ineffective (CPL 440.30 [4] [d] [i], [ii]).
Ineffective Assistance Standard
Under the Sixth Amendment of the United States Constitution, a claim of ineffective assistance of counsel is evaluated under the two-part test set forth in (Strickland v Washington, 466 US 668 [1984]). To prevail, a defendant must (1) show that his counsel's performance fell below an "objective standard of reasonableness" judged by "prevailing professional norms" (the performance prong), and (2) "affirmatively prove prejudice" by demonstrating that, but for counsel's unprofessional errors, the result of the proceeding would have been different (the prejudice prong) (Strickland, 466 US at 687-88, 693).
To establish counsel's performance was deficient, a defendant must show that "in light of all the circumstances, the identified acts or omissions were outside the [*10]wide range of professionally competent assistance" (Pavel v Hollins, 261 F3d 210, 216 [2d Cir 2001]). This standard is "rigorous" (Lindstadt v Keane, 239 F3d 191, 199 [2d Cir 2001]), and "highly demanding" (Kimmel v Morrison, 477 US 365, 382 [1986]). To demonstrate prejudice, a defendant must show there is a "reasonable probability" that the ineffective performance rendered the proceeding fundamentally unfair or produced an unreliable result (Missouri v Frye, 132 S Ct 1399 [2012]; Lafler v Cooper, 132 S Ct 1376 [2012]; Premo v Moore, 131 S Ct 733 [2011]; Padilla v Kentucky, 559 US 356 [2010]; Roe v Flores-Ortega, 528 US 470 [2000]; Lockhart v Fretwell, 506 US 364 [1993]; Hill v Lockhart, 474 US 52 [1985]; Strickland at 694-695).
Success of an ineffective assistance of counsel claim under Article I, § 6 of the New York State Constitution rests on whether " the evidence, the 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'" (People v Henry, 95 NY2d 563, 565 [2000], quoting People v Baldi, 54 NY2d 137, 146-47 [1981]; see also People v Lane, 60 NY2d 748, 750 [1983]). Generally, trial counsel is presumed to have provided competent representation unless defendant demonstrates the absence of a "strategic or other legitimate explanations" for the allegedly deficient conduct (People v Benevento, 91 NY2d 708, 712 [1998]; People v Rivera, 71 NY2d 705, 709 [1988]). An attorney's performance "will not be considered ineffective, even if unsuccessful, as long as it reflects an objectively reasonable and legitimate trial strategy under the circumstances and evidence presented" (People v Berroa, 99 NY2d 134, 138 [2002]). "It is not for this court to "second-guess whether a course chosen by defendant's counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation" (People v Satterfield, 66 NY2d 796, 799-800 [1985]). Rather, a defendant need only establish that he did not receive meaningful representation (Baldi, 54 NY2d at 147; see People v Caban, 5 NY3d 143, 155-56 [2005]).
To be clear, then, meaningful representation does not mean preferred or perfect representation (Benevento, 91 NY2d at 712; People v Modica, 64 NY2d 828 [1985]; Baldi at 146). As such, "the claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case" (Benevento at 714).
Consistent with this notion, it is irrelevant whether the attorney's conduct had a particular impact on the outcome of the case (Caban, 5 NY3d at 156). Rather, New York is "ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case" (Benevento, 91 NY2d at 714). In New York, the only "question is whether the attorney's conduct constituted egregious and prejudicial' error such that defendant did not receive a fair trial" (Benevento at 713). Thus, a defendant need not prove that the outcome of the case would have been different but for such errors, rather only that he was deprived of a fair trial overall (Caban at 155-56). Indeed, if there is an apparent contradiction, it is this: "[f]undamental fairness analysis by its nature must always [*11]encompass prejudice" such that under the New York standard the "prejudice" prong in Strickland is effectively redundant (Rosario v Ercole, 601 F3d 118, 124 [2d Cir 2010]). Regardless, the former, by its nature, encompasses the latter (see Rosario, 601 F3d at 118). Ultimately,
"[t]he intellectually disciplined dispositional path of this case must not veer from this Court's long-standing, well-settled ineffective assistance of counsel analysis and authorities . . . when reviewing a claim of ineffective assistance of counsel, care should be taken to avoid both confusing true ineffectiveness [of counsel] with mere losing tactics and according undue significance to retrospective analysis' " (Flores, 84 NY2d at 186, quoting Baldi, 54 NY2d at 146).
Notwithstanding the absence of a specific prejudice requirement, New York's "meaningful representation" in totality standard is not contrary to the Strickland standard (Rosario at 124; Eze v Senkowski, 321 F3d 110, 124 [2d Cir 2003]); Lindstadt, 239 F3d at 198). This is particularly true since any analysis of an ineffective assistance of counsel under the New York standard inherently considers whether trial counsel engaged in "an inexplicably prejudicial course" (People v Zaborski, 59 NY2d 863, 865 [1983]; Benevento at 713). The New York Court of Appeals observed that the State constitutional standard is indeed satisfied when " prejudice' is examined more generally in the context of whether defendant received meaningful representation" (Benevento at 713).
Accordingly, because New York's concept of prejudice focuses on the quality of representation provided and not simply the "but for" causation chain, the distinction between Baldi and Strickland is that New York "refuse[s] to apply the harmless error doctrine in cases involving substantiated claims of ineffective assistance" (Benevento at 714). As a practical matter, then, New York has " adopt[ed] a rule somewhat more favorable to defendants,' (Ozuna, 7 NY3d at 915, quoting People v Turner, 5 NY3d 476, 480 [2005]), because its prejudice component focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case'" (Ozuna at 915 quoting Caban at 156).
Commenting on this ostensible dichotomy, the Second Circuit noted:
[I]t is hard to envision a scenario where an error that meets the prejudice prong of Strickland would not also affect the fundamental fairness of the proceeding. The very opinion from which the troublesome phrase was drawn—Benevento—affirmatively stated that even a harmless error' could undermine the fairness of the process in such a way that violates the state's constitutional guarantee of effective assistance [citation omitted]. What case, then, could present the converse, an error so egregious that it most likely influenced the outcome of the trial, but did not cripple the fundamental fairness of the proceedings? We can think of none. Fundamental fairness analysis by its nature must always encompass prejudice (Rosario at 125).
Finally, since the performance and prejudice elements set forth in Strickland [*12]may be addressed in either order, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . [I]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed" (Strickland, 466 US at 697). Here, however, since the defendant abjectly fails to establish a prima facie claim that trial counsel's performance was constitutionally ineffective, this court will first address the performance aspect of defendant's claim.
1. Performance
Regarding trial counsel's performance, all this court must do is determine whether it performance fell below an "objective standard of reasonableness" (Strickland, 466 US at 697-98; see Benevento at 708). In considering defendant's claim under both the Baldi-Benevento and Strickland performance standards, however, it is crucial to distinguish between "true ineffectiveness with mere losing tactics" and "according undue significance to retrospective analysis" (Baldi, 54 NY2d at 147). To prevail on a claim of ineffective assistance, a defendant must demonstrate that he was "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" (Flores, 84 NY2d at 187).
The record unequivocally reflects that both attorneys meaningfully and effectively represented the defendant. Mr. Watts, retained immediately after defendant's arrest, attended and observed the lineup proceeding, then recused himself in order to serve as a witness at both the suppression hearing and trial. And, as noted, his testimony ultimately formed the basis for defendant's identification defense at trial.
As for defendant's trial, Mr. Buchicchio faced the challenging task of creating reasonable doubt in the wake of the overwhelming evidence of his guilt. Nevertheless, he managed to mount a formidable defense. He challenged the lineup proceeding by litigating it during a Wade hearing. And, when it became clear that an independent source for the identification was available, he sought an application from the court to exclude Mr. Bramwell's identification of defendant as a "sanction" against purported police misconduct. Additionally, in his opening statement, Mr. Buchicchio bluntly framed his "total lack of evidence" defense by noting that none of the three jackets found at the crime scene belonged to defendant, the getaway car was not registered to defendant, and he was "in the wrong place at the wrong time" when he was arrested. He also asserted that there was "not one piece of physical evidence" tying defendant to the murder, including fingerprints, a gun, or a statement.
Mr. Buchicchio also focused on discrediting the surviving complaining witnesses' identification of the defendant by challenging the strength of the descriptions they provided immediately after the crime, questioning the arrest of [*13]two suspects who were later released, and discrediting the lineup proceeding. He then carried these themes throughout the trial, particularly in an exhaustive cross-examination of Mr. Bramwell. In his closing argument, Mr. Buchicchio began by minimizing the People's evidence, and focused on defendant's identification defense by emphasizing that Mr. Edwards never identified him.
With regard to defendant's alibi claim, Mr. Watts represented the defendant from his arrest through the preliminary stages of the prosecution before recusing himself, which was precipitated by his attendance at the lineup proceeding. As such, it is neither surprising nor reasonable to expect that he would have fully investigated any potential alibi defense prior to such recusal. More significantly, in his affidavit of February 11, 2015, defendant admits that during his initial meeting with Mr. Buchicchio, he provided the names and addresses of the alibi witnesses. Thus, even if Mr. Watts had been aware of and investigated those witnesses but neglected to inform Mr. Buchicchio, such neglect would been of no moment. Mr. Watts' representation, then, cannot possibly be construed as having been anything less than meaningful.
To the extent that Mr. Buchicchio was aware of defendant's so-called alibi witnesses, however, it defies credulity that he ignored them without reason. It is far more plausible that Mr. Buchicchio was unable to locate them given the inaccurate information defendant provided concerning their identities. Defendant acknowledges he provided the name "Quin Quartermane," when his name is in fact "Quenton Quartmenn." He also provided vague information as to their residences, stating that Mr. Quartermane lived in the Bronx River Housing Projects on 174th Street, and that Mr. Brimmas, lived with his parents in a private house on Noble Avenue between 174th and 172nd Street.
Still, it is equally plausible that despite defendant's vague and inaccurate information concerning these potential witnesses, Mr. Buchicchio managed to locate and interview them, and after assessing their credibility determined it was not in defendant's best interests to present them at trial. It is interesting to note, however, that the defendant, in a video statement taken four days after the murder, stated he was with his girlfriend, Eva Hunter, throughout the entire day on which the murder occurred. He further said that in the afternoon, they were riding in his Jeep with two friends, Michael Gilmore and "Hamilton." Conspicuously absent from that video statement was any mention of Mr. Brimmas or Mr. Quatermane. Also telling is that his current claim omits any assertion that he provided either Mr. Watts or Mr. Buchicchio with the Hunter's, Gilmore's or Hamilton's name. Given the juxtaposition of such ostensibly paltry information, it is even more unlikely that Mr. Buchicchio would have found either of his competing alibi claims credible.
Under these circumstances, Mr. Buchicchio likely made a tactical decision not to pursue an alibi defense at trial. Considering defendant's credibility-challenged alibi claims, his acknowledgement that any alibi witnesses are now deceased, and Mr. Buchicchio's inability to recall the existence of such witnesses, he simply cannot "demonstrate the absence of strategic or other legitimate [*14]explanations" for Mr. Buchicchio's decision not to have these witnesses testify at trial (Benevento, 91 NY2d at 712).
Defendant's remaining claims, that Mr. Buchicchio failed to object and file a motion to inspect and dismiss the grand jury indictment, and failed to object to the jury charge instructing them that they had a right to reject or accept the evidence of the anonymous informants, must be denied pursuant to CPL § 440.10 (2) (c). Both are record-based, and neither were asserted on direct appeal. As such, they cannot be raised now. They are also entirely without merit.
As for the motion defendant claims Mr. Buchicchio failed to make, in papers dated August 24, 1992, Mr. Watts moved for an order "[g]ranting inspection of the Grand Jury minutes and Dismissal of the indictment and any lesser included offense if the evidence presented to the Grand Jury is insufficient to support the charges or any lesser included offense or if exculpatory evidence was not presented to the Grand Jury." Given that Mr. Watts litigated this issue, it would have been improper and pointless for Mr. Buchicchio to do so as well.
Regarding the anonymous informant, the jury instruction to which defendant complains Mr. Buchicchio failed to object is as follows:
You have heard the testimony about anonymous informants and what they told the police. The police are permitted to use information from anonymous informers in their investigation and there is nothing wrong with that. The testimony about information from anonymous informants is before you to explain how the police conducted their investigation and you may use the evidence in evaluating the police credibility and conduct. It is however the information given by the witnesses here in the courtroom that you use to determine if the defendants are guilty beyond a reasonable doubt.
This instruction was entirely proper (see People v Tosca, 98 NY2d 660, 661 [2002] [testimony of an anonymous informant was properly "admitted not for its truth, but to provide background information as to how and why the police pursued and confronted defendant"], citing People v Till, 87 NY2d 835, 837 [1995]). As such, Mr. Buchicchio was under no duty to record a patently meritless objection.
By either standard, then, defendant failed to demonstrate that his counsel provided anything other than meaningful representation. As the People correctly observe, he faced the daunting task of creating a reasonable doubt in the face of overwhelming evidence of defendant's guilt. That, in and of itself, is evidence that defendant received effective assistance (see People v Taylor, 1 NY3d 174, 176-77 [2003] [defense counsel was not ineffective just because her efforts to discredit the eyewitness proved futile where counsel cross-examined witnesses, and gave a detailed summation highlighting potential infirmities in the People's evidence]); People v Hutchinson, 57 AD3d 1013 [3d Dept 2008] [defendant failed to demonstrate the absence of strategic or other legitimate explanations for his attorney's actions or that he failed to provide meaningful representation]).
As noted, losing or disagreeable tactics must not be conflated with [*15]ineffectiveness. Rather, the representation need only be meaningful. But here, both Mr. Watts' and Mr. Buchicchio's tactics and performance were strategically employed to the best of their ability as a seasoned and experienced advocate. Moreover, Mr. Buchicchio ably represented defendant throughout the pre-trial hearings, trial, and sentencing proceedings. And, despite his claims to the contrary, defendant, in a letter to Mr. Buchicchio that he submitted to this court, admitted as much stating that his defense was skillfully presented. In light of such sentiment, the litany of perceived ills he now asserts is perplexing, and their merit is dubious at best. Clearly, defendant has failed to establish that Mr. Buchicchio provided anything other than competent counsel. His motion in this regard must therefore be denied.
2. Prejudice
a. Federal Standard
Having failed to establish that counsel's performance was ineffective, this court need not consider whether defendant suffered any prejudice as a result. That said, it is worth noting that with regard to defendant's claims, especially his alibi defense, defendant proffers no evidence demonstrating it would have affected the jury. Indeed, he fails to show how it had any effect on the trial.
To succeed on an ineffective assistance of counsel motion under the federal standard, the defendant must "affirmatively prove prejudice" by establishing a "reasonable probability" that, but for such allegedly deficient conduct, the result of the proceeding would have been different (Strickland, 466 US at 693; Lafler, 132 S Ct at 1384-85). Clearly, as noted, defendant abjectly fails to do so. And, it is not lost on this court that most of defendant's claims, particularly those relating to his ineffective assistance of counsel theory, were rejected by the Appellate Division when asserted on direct appeal. As such, they are not only entirely without merit, they are also properly denied under CPL § 440.10 [3] [b].
b. New York Standard
As indicated, New York, unlike Strickland, relies on the "meaningful representation" standard (Henry, 95 NY2d at 565). Under this standard, a defendant must establish that given the totality of the circumstances counsel's conduct was so egregious it deprived him of a fair trial (Benevento, 91 NY2d at708, 713; People v Hobot, 84 NY2d 1021, 1022 [2005]; People v Flores, 84 NY2d 184, 187 [1994]). A defendant need not, however, prove that the result would have been different but for counsel's allegedly deficient conduct (Caban, 5 NY3dat 155-56).
Here, faulting counsels as defendant does simply means that in hindsight he disagrees with counsel's strategic tactics. But disagreement is a far cry from prejudice, and defendant conspicuously makes no allegation, suggestion or inference that he suffered any prejudice from counsels' decisions. Thus, even assuming counsels committed the perceived ills he claims occurred, they nevertheless fail [*16]given his complete failure to demonstrate that he suffered an iota of prejudice.
The absence of prejudice in conjunction with the overwhelming evidence against him precludes defendant from establishing that the totality of the circumstances counsel's conduct was so egregious it deprived him of a fair trial (see People v Jiang, 62 AD3d 515, 516 [1st Dept 2009]). In short, while the defendant would have this court believe otherwise, such a result defies logic, and renders defendant's argument entirely without merit.
V. Conclusion
For the reasons stated above, this court finds that defendant's claims are procedurally barred, that he received effective assistance of counsel at all stages of the proceedings as guaranteed in the Sixth Amendment of the United States Constitution and article I, § 6 of the New York State Constitution (Strickland, 466 US at 668; Benevento, 91 NY2d at 708; Baldi, 54 NY2d at 137), and that he is not entitled to DNA testing. Defendant's motion for an order compelling DNA testing and vacating his judgment of conviction pursuant to Criminal Procedure Law §§ 440.30 (1-a) and 440.10 (1) (b), (c), (d), (f), and (h) are therefore summarily denied in all respects.
This constitutes the decision and order of the court.
The clerk of the court is directed to forward a copy of this decision to the defendant at his place of incarceration.
Dated: November10, 2015
E N T E R
__________________________________Richard Lee Price, J.S.C.
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