People v Samuels

Annotate this Case
[*1] People v Samuels 2006 NY Slip Op 52572(U) [14 Misc 3d 1230(A)] Decided on December 21, 2006 Supreme Court, Bronx County Sonberg, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 21, 2006
Supreme Court, Bronx County

The People of the State of New York

against

Kenneth Samuels, Defendant.



7571/94



APPEARANCES:

For the People:

ROBERT T. JOHNSON

District Attorney

Bronx County

198 East 161st Street

Bronx, NY 10451

(718) 590-2000

Christopher John Blira-Koessler

Of Counsel

For the Defendant:

LYNN CALVACCA

165-05 Horace Harding Expressway

Flushing, NY 11365

(718) 961-5550

Michael R. Sonberg, J.

Defendant moved pursuant to CPL §§ 440.10 (1) (f), (g) and (h) to vacate his conviction for Murder in the Second Degree [PL§125.25 (1)]. This conviction arose from the shooting death of Leslie Green on October 6, 1994 at 130 Featherbed Lane, Bronx County. Defendant claims his conviction should be vacated because: (1) the People failed to disclose exculpatory material evidence by withholding a picture of, and personal information concerning, an individual who, according to one of the trial witnesses, was allegedly present during the shooting; (2) the prosecutor committed misconduct by misrepresenting the witnesses' testimony during her summation; (3) the trial court erred in its instruction regarding its response to a jury note; and (4) he was deprived of his right to effective assistance of counsel because of trial counsel's failure to object during the prosecutor's summation, to consult with him before requesting that the court dismiss the manslaughter counts and due to remarks during his summation that the prosecutor [*2]had proven intentional murder. He also claimed that trial counsel was ineffective because counsel failed to: (a) call certain alibi witnesses including defendant's two sisters, (b) seek an adjournment to investigate the alibi and (c) make diligent efforts to locate a particular alibi witness.

Additionally, defendant requests post-conviction discovery and "seeks production of material which will substantiate his claims and lead to other evidence need to locate unnamed eyewitnesses in further support of his innocence."

The People submitted an affirmation in opposition to defendant's CPL § 440 motion. On May 3, 2005, Justice John Byrne ordered a hearing to address the myriad of defendant's claims including (but not limited to) the issue of why defense counsel never called the purported alibi witnesses to testify at trial. An evidentiary hearing was conducted before me on May 30, 31, June 7 and June 8, 2006. Defendant called seven witnesses to testify.

Procedural History

On October 14, 1994, defendant was indicted by a Bronx County Grand Jury for Murder in the Second Degree [PL§§ 125.25 (1) and (2)], Manslaughter in the First Degree (PL §125.20), Criminal Use of a Firearm in the First Degree [PL§ 265.09 (1)], Criminal Possession of a Weapon in the Second Degree (PL§ 265.03) and Criminal Possession of a Weapon in the Third Degree [PL§ 265.02 (4)].

On October 2, 1996, a pre-trial Wade hearing was conducted before the Hon. Frank Torres.[FN1] Defendant was represented by Edward Dudley, Esq., after having been represented at the start of the case by Daryl Semple, Esq. At that hearing, NYPD Detective Christine Fortune testified that an eyewitness, later identified to be Donna Clark, viewed approximately 400 photographs at the Bronx Catch Unit and picked out two photographs: one of the shooter (defendant) and one photograph of a person who was possibly present during, but uninvolved in, the shooting. The Court denied defendant's application for a copy of the photograph. Following the hearing testimony and oral arguments by both sides, Justice Torres denied defendant's motion to suppress identification testimony, finding that the procedures used in the photographic and lineup identification procedures of defendant were neither tainted nor unduly suggestive. Justice Torres also credited the testimony of all three police witnesses who testified at the hearing, finding that their testimony was credible, acceptable and reliable.

On October 3, 1996, after the Wade hearing, the prosecutor informed the court and defendant that one of the People's witnesses, later revealed to be Donna Clark, was the subject of two felony cases pending in Bronx County and was represented in a separate and unrelated matter by Mr. Semple. Mr. Semple had previously been retained by defendant but was relieved because defendant could not pay him. The People informed the court that there was no conflict as Mr. Semple no longer represented defendant. On October 25, 1996, following a jury trial in Supreme Court, Bronx County, defendant was convicted of Murder in the Second Degree. Justice Torres sentenced defendant on December 3, 1996, to an indeterminate term of twenty-five years to life imprisonment. Defendant is currently serving that sentence.

On or about February 22, 2000, defendant submitted an appellate brief claiming that he was denied his right to conflict-free counsel when the court permitted an attorney who had [*3]represented him in pretrial stages of the case to represent the prosecution's principal eyewitness solely in her capacity as a defendant in two unrelated cases, while appointing another attorney to represent her when she testified.

On October 10, 2000, the Appellate Division, on defendant's direct appeal, unanimously affirmed the judgment of conviction, holding that defendant had failed to show that his prior attorney's representation of the eyewitness, commenced subsequent to that attorney's withdrawal as defendant's counsel, had any effect on the conduct of the trial. 276 AD2d 302 (1st Dept. 1999).On January 22, 2001, the Court of Appeals denied defendant leave to appeal. 96 NY2d 738 (2001).

On April 15, 2002, defendant moved through counsel for a hearing, pursuant to CPL § 440.30 (5), to determine whether his conviction should be vacated pursuant to CPL §§ 440.10 (1) (f) and (h). Specifically, defendant alleged that the prosecutor at trial (a) knowingly used false testimony at trial when Clark testified that she was receiving nothing for her testimony against defendant and (b) withheld "exculpatory" information, despite defendant's specific request, that the prosecutor should have disclosed under its Brady obligation, namely that Clark was being "very cooperative," regardless of whether she had entered into a formal cooperation agreement.

On October 30, 2002, Justice Byrne summarily denied defendant's motion. The Court held that the Brady issue could have been raised on direct appeal and based on the credible affidavit of the prosecutor who tried the case, that no such bargain existed and that the favorable plea was in no way the result of a promise to the witness.

The Prosecution's Case at Trial

The evidence at trial established the facts as follows:

On October 5, 1994, at approximately 11:00 P.M., Donna Clark,[FN2] 29 years old, theprosecution chief witness, left her friend's apartment on 174th Street and Grand Avenue, met her male friend Leslie Green, and the two of them went to a bodega at 174th Street and Grand Avenue, where they bought vodka and crack/cocaine. Green and Clark then went to an apartment located on 174th Street between Montgomery and University Avenues, where they drank the vodka, smoked the crack, had sex, and then took a shower. After they left the apartment they stopped at a bodega at 130 Featherbed Lane because Green wanted to buy a beer.

They arrived at the bodega between 2:30 and 2:35 A.M. on October 6, 1994. At that hour, customers were not allowed to enter the bodega. Instead, customers had to go to a window while the employees in the bodega would get the items for them. Green was on line behind Griselle Claudio, whose husband, Walter Luna, was waiting for her at a nearby public telephone. When Green and Clark arrived, Luna moved toward his wife, while Clark waited for Green near the telephone.

At approximately 3:15 A.M., defendant and two other unidentified individuals approached the bodega from University Avenue. Defendant leaned against the glass of the bodega while the other individuals stood about 2-3 feet away on the same side of the line and the other individual stood behind Green; none of these men stood on line. Green said to defendant [*4]and the other two individuals, " Peace my black brothers . . . what's happening?" Defendant responded "Yo, what's up man?" Green, defendant and the two other individuals began talking about "how it is around the way and how things should be." Green then placed his order and, as he was waiting for the clerk to get it, said to Donna Clark, "Yo, Dee, if I told you to shoot a nigger, would you shoot him?" Clark said, "Yo man, come on," and started laughing. Green then lifted up his shirt and showed her a .357 air pistol that he had in his waistband and told her it was not real.

Defendant then shoved Green in the shoulder, pulled off his hood, put his hand in his black sleeveless winter vest and pulled out a black 9 mm pistol from his waistband. With his right hand, defendant cocked the gun and said, "Yo, you want to see a real gun," then he pointed the gun at Green's chest and shot Green twice. As defendant started shooting, and as Green was falling back, Green shouted to Clark, "Yo, Dee, run" which she did. Clark ran upon the firing of the second shot.

Subsequent testimony by the Medical Examiner established that Green sustained eleven additional bullet entry wounds. After defendant finished shooting Green, he put the pistol back in the left hand side of his waistband, zipped up his vest and walked back in the direction that he came from, while the two other individuals followed him. Defendant then looked directly at Luna and Claudio, and, after he and the two other individuals were approximately nineteen feet away from the bodega, they began running in the direction of University Avenue. Once defendant and the two individuals left the area, Claudio and Luna ran over to Green and then called 911.

Police Officers Kehoe and Agnelli arrived at the scene shortly thereafter. When they arrived, Green was on the ground. He was taken by ambulance to Lincoln Hospital, where he died.

Detective Thomas Shaw of the Crime Scene Unit responded to the crime scene and recovered approximately ten empty 9 mm caliber cartridge casings from the area around Green's blood.

Detective Berberich picked up Clark from her friend's house and interviewed her at the 46th Precinct, where she gave a description of the shooter. She was then taken to the Catch Unit at the 48th Precinct, where Detective Fortune showed Clark approximately 400 photographs which were similar to the description of the shooter she had given to the police. Clark positively identified the defendant as the shooter, from his picture. In addition, she stated that another individual, whose photograph she viewed, was possibly one of the two men who accompanied defendant at the time of the shooting; she was, however, unable to make a positive identification of this second man.

At approximately 9:00 P.M., while in the back seat of Detective Berbich's police car, Mr. Luna and Ms. Claudio were separately shown twelve pictures, one of which was a Polaroid photograph of defendant. Mr. Luna stated that the picture of defendant looked a lot like the shooter, but he could not make a positive identification.

At approximately 10:00 P.M., Detective Berberich arrested defendant in front of 1966 University Avenue, defendant's residence, five blocks from the scene of the murder and less than a block from 1875 University Avenue, where Green had lived prior to his death. Later in the evening, Clark was picked up from her home and taken to the 48th Precinct to view a lineup in [*5]which defendant stood; she positively identified defendant as the shooter.

On October 7, 1994, Dr. Heda Jindrak performed an autopsy on Green's body. One of the bullets that entered Green's arm perforated his thorax from side to side, went through his left lung, spine, vertebral column and right lung, and exited through his thoracic cavity. Dr. Jindrack testified that that bullet by itself caused a mortal wound. A toxicology report performed indicated the presence of crack/cocaine and alcohol in Green's bloodstream.

In late October 1994, Detective Anthony Tota of the NYPD Ballistics Squad examined the ballistics evidence recovered from the crime scene. The ten 9 mm shell casings recovered by Detective Shaw from 130 Featherbed Lane were all determined to be fired from the same semi-automatic 9 mm pistol. In addition, the spent bullets recovered from Mr. Green's body and his clothing were all found to be consistent with the shell casings, meaning that they came from the same 9 mm pistol. In addition, two of the four spent bullets recovered from Mr. Green's body at the Medical Examiner's Office were also found to be consistent with the round recovered from Mr. Green's body and the recovered shell casings. The other two rounds could only be identified as coming from a 9 mm semi-automatic pistol, because they did not have enough individual characteristics to allow Det. Tota to render a conclusive opinion.

The Defense Case at Trial

Vincent Garrett, a private investigator for defendant, testified that six days prior to his testimony in October 1996, he took photographs at the JM&N Grocery Store, located at 1955 University Avenue. This is across the street from 1966 University Avenue and 8/10 of a mile from the scene of the murder on Featherbed Lane. Garrett testified that one of the photographs he had taken, depicting a pool table, was a photograph of the back room of the store. Garrett also testified that there were two pool tables standing upright in the basement of the store, but the employees would not give him permission to take photographs of this area. Garrett acknowledged that he was never in the store in October 1994, that he did not know what the store looked like in 1994, and that he was told by an unnamed individual that the current owner of the store was different from the owner of the store in October 1994.

Duval Buford, 27 years old, was a close friend and neighbor who had known defendant for approximately five years. They both lived in the same building. On October 5, 1994, he awoke between 9:00 and 10:00 A.M, but did not go to work because he was lazy and because he had a doctor's appointment. Buford testified that he left his apartment for his doctor's appointment at 12:00 Noon, because his appointment was between 1:00 and 2:00 P.M. However, during his October 12, 1994, Grand Jury testimony, he had testified that his doctor's appointment was at 4:00 P.M.

Buford stated that he watched television at defendant's apartment from approximately 7:00 to between 9:00 and 9:30 P.M. Then he and defendant went outside to get some fresh air and, while outside, they were joined by Steven Resto. At approximately 10:00 P.M., he, defendant and Resto all went over to the bodega across the street and played pool in the basement of the store. However, in the Grand Jury, Buford had testified that Resto was already in the pool hall when he and defendant got there; that he and defendant had walked over to the pool hall alone and not with Resto. After being confronted with his Grand Jury testimony, Buford stated that he arrived approximately five minutes after defendant and Resto because he might have bought either soda or candy. [*6]

When the pool hall closed, Buford, defendant and Resto all went back across the street, stayed outside for a while and then went home. Although at trial, Buford initially stated that they left the pool hall at approximately 3:30 A.M., he had earlier told an Assistant District Attorney, during a sworn stenographic statement on October 12, 1994, that they left the pool hall between 2:30 and 3:00 A.M., and he had also told the Grand Jury on that same date that they left the pool hall at 2:30 A.M.. After being confronted with these prior statements, he stated that they could not have left the pool hall before 3:00 A.M.

Buford testified that they stayed outside their apartment building for approximately one- half hour before they went inside and pitched quarters. However, Buford stated in his October 12, 1994 stenographic statement and later in the Grand Jury, that he, defendant and Resto were outside for only fifteen minutes, and afterwards they went directly home to their respective apartments.

Buford testified that they went inside at approximately 4:00 A.M.; he knew that it was at least 4:00 because when he turned on his television, the show Sports News on Channel 1 was already on and it began at 4:00 A.M. However, Buford previously told the Grand Jury that he was sure that he arrived home before 4:00 A.M., because Sports News on Channel 1 had not yet started.

Buford testified that although he had talked to defendant for approximately 15 minutes two weeks prior to trial and at least ten times since his arrest, they had not discussed his case. Buford also testified that although he had spoken with Resto about the case, they did not discuss the facts of the case. Additionally, Buford testified that prior to talking to an Assistant District Attorney on October 12, 1994, he had not known that defendant was arrested for murder. Buford also testified that he did not remember what anyone was wearing on the day of the murder.

Steven Resto, then 19 years old, lived in the same building as defendant and Buford. On October 5, 1994, at approximately 8:00 P.M., he walked over to 181st Street and Morris Avenue to pick up his girlfriend, Gladys Diaz, from her mother's house; they returned to his apartment at approximately 8:30 P.M. He then walked his mother's dogs for approximately 10 minutes and returned home at approximately 9:00 P.M. He saw defendant outside, Buford arrived later and all three of them went together to Juan's Meat Market, a bodega located across the street. He and defendant went downstairs to the pool table, while Buford was upstairs buying something in the bodega and came down later. However, Resto had, on October 12, 1994, told an Assistant District Attorney, as well as the Grand Jury, that only he and defendant went into the bodega, and not Buford.

They all played pool until the store closed, which was a little before 4:00 A.M. He, defendant and Buford then stayed outside of their apartment building for approximately 15 minutes, pitched quarters in the hallway and then went home. However, he had told the Grand Jury that they went directly home after being outside for fifteen minutes, and did not mention pitching quarters in the hallway. Resto testified that after he went into his apartment, he turned on the cable box for the television, which indicated that it was no later than 4:15 A.M.

Resto also testified that he did not remember what he, Buford or defendant were wearing on October 6, 1994, at what time he had woken up, if he had gone to work that day, or anything else that occurred before 8 P.M. on October 5, 1994.

Resto initially stated that he did not remember if he talked to anyone about defendant's [*7]case from October 6 to October 8, 1994. He first stated that he knew for a fact he had not talked to defendant before he went to the District Attorney's Office. After he was shown defendant's phone records from Rikers Island Correctional Facility, which showed multiple calls from defendant to Resto's home, he later admitted that he may have talked to defendant more than ten times while defendant was in prison before he went to the District Attorney's Office. Resto later admitted he may have talked to defendant 76 times after defendant was arrested, but insisted they never talked about the facts of defendant's case. Resto also testified that the night before he and Buford went to the District Attorney's office, defendant's mother told both of them that defendant was arrested for murder, and also, that night, he and Buford discussed defendant's murder case.

The Evidence at the CPL§ 440 Hearing

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

MITCHELL BRISKEY, Esq.

Mitchell Briskey, Esq., a criminal defense attorney for 20 years, is employed by the Criminal Appeals Bureau of The Legal Aid Society and testified regarding his representation of defendant in the appeal after his conviction. First, there was a lengthy correspondence and consultation with defendant and a review of the court papers and relevant transcripts. His usual practice is to request the file from trial counsel, although he did not have a specific recollection of requesting the file from Dudley. He also spoke with defendant's former trial counsel and subsequently filed a direct appeal to the Appellate Division, First Department. The principal issue argued on appeal was the purported conflict of interest, on both state and federal grounds, of defendant's prior retained counsel, Daryl Semple, who also represented Donna Clark. The Appellate Division rejected those claims on the merits. He subsequently brought a leave application to the Court of Appeals, which denied leave to appeal.

Thereafter, he learned that after defendant was sentenced, Clark, who had two pending felony cases, was allowed to plead guilty to a misdemeanor charge and was sentenced to time served of a few months, as a reward for her cooperation in testifying against defendant. Briskey then brought a CPL§ 440 motion, asking for a hearing on the question whether there were inducements to Clark or whether there was tacit cooperation of some type. This motion was denied by Justice Byrne. He then filed a federal habeas corpus action raising both sets of claims, i.e., the conflict of interest claim and the undisclosed inducement for cooperation, requesting an evidentiary hearing and discovery. These applications have not yet been ruled upon. He did not include anything with regard to the claim of ineffective assistance of counsel in either the 440 or the habeas corpus applications. However, after interviewing the alibi witnesses, and given changes in the law, he would now probably have included an ineffective assistance of counsel claim in the CPL § 440 motion.

Briskey had the opportunity to read the trial testimony of defendant's two alibi witnesses, Resto and Buford, prior to filing his CPL § 440 motion, and opined that their testimony showed a lack of preparation by trial counsel. In 2005, he also interviewed the uncalled alibi witnesses. He spoke to Gladys Diaz by telephone on several occasions and met with Jose Porras in person on two occasions and talked to him on the telephone once or twice. He interviewed Juna and Patrice Samuels, two to three times, at considerable length. They all provided defendant with an [*8]alibi for the time period in question.

EDWARD DUDLEY

Edward Dudley, Esq., has had substantial trial experience, having been admitted to the New York State bar in 1968. He has represented thousands of defendants and tried hundreds of cases. He testified truthfully about the manner in which he conducted defendant's trial and about the strategic considerations that informed his recommendations to his client and their joint decisions. While he candidly admitted a lack of full recollection, on the critical issues his testimony was full and credible.

Prior to the trial in this case, he spoke to defendant a minimum of four to five times in the pens. He might also have gone to Rikers Island to see defendant, although he did not have a specific recollection of doing so. Dudley testified that defendant was very involved in his defense and professed his innocence. Other than defendant's effort to fire him on one occasion, either before or during the trial, defendant never expressed any dissatisfaction with his performance. Dudley noted that he took over defendant's case from another attorney whom defendant had retained to represent him.

At the time of defendant's trial, Buford and Resto were the two best alibi witnesses available. They were both were very cooperative and Resto even tried to help him and the investigator, Garrett, find the manager of the pool hall. Dudley recalled that Daryl Semple, defendant's first counsel, thought so highly of the both Resto and Buford as alibi witnesses that Semple proferred them to the District Attorney in the hope that the alibi would be investigated by the People and the case dismissed early in the proceedings. He recalled that Resto was one of the alibi witnesses from whom the District Attorney had taken a twenty-five page question and answer statement, when Semple was the attorney, and that both Resto and Buford testified in the Grand Jury. Before the trial he was able to get a copy of Resto and Buford's statements from the District Attorney and spent at least two or three hours going over their statements and preparing them for cross examination, as there were some "problems" with the statements.

After defendant informed him that there were at least four potential alibi witnesses, a decision was made to assert that defense at trial. On June 7, 1996, he served and filed a notice of alibi on the District Attorney's Office with regard to four alibi witnesses (Buford, Resto and Juna and Patrice Samuels) within the required statutory period. In this notice of alibi was information that he was trying to locate two additional witnesses. Although the does not recall the names of the two additional witnesses, they might have been Gladys Diaz, Jose Porras or Nikki Mack. He never interviewed these witnesses.

He was also trying to locate the owner/manager of the pool hall who had a Hispanic name; it might have been Perez. He vaguely recalled that Resto alerted him to another individual who worked in the bodega. He told his investigator to focus his attention on this witness because he felt that this would be an independent witness who was neither a friend of nor related to defendant. He additionally tried to locate this witness once or twice during the pendency of the trial and his investigator went to the bodega several times. Dudley also went to the bodega himself, in the evening, to look for this witness, to no avail.

He recalled speaking to Juna and Patrice Samuels in the courthouse about defendant's case, but decided not to call them because they told him they had left prior to the time of the murder and thus could not provide an alibi; thereafter he told them that they could come into the [*9]courtroom. Additionally, he decided not to call them because they were family members, there were discrepancies and inconsistencies between their version of events and the pretrial statements of Buford and Resto and, as a result, he did not think that their testimony would be helpful. He did not have an independent recollection of informing defendant why his sisters would not be testifying, but remembers deciding not to use them as alibi witnesses.

As to the testimony of Gladys Diaz, Dudley recalled that she was Resto's ex-girlfriend and, at the time of the trial, there was a problem in locating her. He did not have an independent recollection as to whether Nikki Mack was Buford's girlfriend and did not recall whether he ever had the opportunity to speak with Nikki Mack or Jose Porras prior to the trial.

It was his usual practice to keep daily activity logs and his usual practice was to file these logs with his closed files. While these files were kept for a while, he could not find the logs; they might have been destroyed, as it was his practice to destroy them after a certain time. He did, however, turn over a lot of documents to either defendant or to prior counsel. He also submitted vouchers which were required pursuant to the Assigned Counsel Plan; however, the vouchers were destroyed after a certain time. He recalled being asked to prepare an affidavit by the Assistant District Attorney (Defense Exhibit 1), which he did.

Dudley retained the services of an appointed investigator, Vincent Garrett, who passed away a few years ago; he had no idea as to where Garrett's files would be or whether they were destroyed.

During the pre-summation charge conference, he was concerned that there might be a possible compromise verdict and felt that defendant had a better chance of being acquitted if he just "went murder." He therefore conceded in his summation that the evidence showed intentional murder not, however, that the defendant was the murderer. When Dudley was asked whether he recalled that the prosecutor, in her summation, indicated that the witness identified defendant rather than identifying the shooter, he did not recall, but assumed that he objected.

Mr. Dudley was asked about two individuals who identified another person regarding the shooting. He testified that he recalled asking for the "Catch Unit" pictures.

He was also asked about whether he was aware of the alleged conflict of interest between Darryl Semple, defendant's first attorney and Semple's representation of the cooperating witness. He recalled asking Judge Torres that Mr. Semple be recused from the case or from representing that witness.

He vaguely recalled the name of Ralph Mercado, who was a possible eye witness to the crime. He did not recall interviewing him, nor did he ever find an eyewitness.

CATHERINE DAVIS

Catherine Davis, currently employed as an Assistant District Attorney in the Bronx District Attorney's Office, was assigned to the homicide trial in 1996. Prior to the trial, she spoke to Clark more than ten times. Because Clark had two pending felony narcotics cases, she had to speak to Clark through her attorney. From the beginning, Clark was cooperative; she had been in love with the deceased and did not want any deal in exchange for her testimony. She never told Clark that it would be in her best interest to cooperate and testify at trial nor did she ever discussed any deal with her.

When the trial was over she made a telephone call and spoke to the Assistant District [*10]Attorney assigned to prosecute Clark's narcotics cases. She told that Assistant District Attorney that Clark had been extremely cooperative and that she was a good person who was trying to turn her life around. She called the Assistant District Attorney because she felt that Clark was trying to turn her life around and had been extremely cooperative during the course of the trial and she felt that the Assistant should know that. However, at no time was she was trying to influence a plea.

PATRICE SAMUELS

Patrice Samuels, now 25 years old, testified that she is defendant's sister and was 14 years old at the time of defendant's trial. Although she did not recall what year her brother was on trial, she attended the trial on one or two days and was there for the verdict, but could not recall if she was present for the sentence. Her mother attended the trial every day. Dudley did not call her to testify at the trial and gave her no reason or explanation for not calling her. Although she first testified that she never spoke to Dudley and, as far as she was aware, neither her mother nor her sisters had a conversation with him, she subsequently testified that she did speak to Dudley and said, "Hi, I'm Patrice Samuels and I'm the sister of Kenneth Samuels and we was together that night." Dudley told her who he was and and went back into the courtroom. Her conversation with Dudley lasted for a couple of seconds. She was under the impression that both she and her sister Juna would be called as alibi witnesses at the trial, as they was told to leave the courtroom during the trial. At no time did Dudley speak to her concerning the possibility of her testifying as an alibi witness for her brother, even though she told him that they were all together that night. At some point prior to the verdict, Dudley told her she was not allowed to go into the courtroom to hear the testimony of Resto and Buford.

When the jury reached a verdict, a court officer informed her that she could enter into the court room. She never asked for Dudley's telephone number and never told her brother that she tried to speak to Dudley or attempted to speak to him. She never asked Dudley why she was not called as a witness.

She was aware that Buford and Resto testified in the Grand Jury but was not aware that they gave statements to the District Attorney's Office. She never contacted the police, the court or the prosecutor to tell them that she had information about defendant's case.

She never went to Rikers Island to see her brother and had no communication with him while he was incarcerated. When defendant called from Rikers Island he would speak to Resto, who lived on the fourth floor in the same building.

In 2004, she hand wrote an affidavit and sent it to her brother. He typed it and corrected her misspellings. Although no one asked her to make out the affidavit, it was her mother's idea. Her brother never contacted her to make an affidavit. When they were all together she figured she should put the truth on paper.

On October 5, 1994, she was attending junior high school, came home around 3:30 P.M., met with her friends between 9:30 and 10:00 P.M. She, Juna, Gladys Diaz and Nikki Mack were the first four people in the pool hall. She was friends with Gladys Diaz, Jose Porras, Nikki Mack and Steven Resto. They all lived in the same building, hung out together and played pool every day. The pool hall was open from the time the store opened and closed when the store closed, at about 3:00 A.M. She stayed in the pool hall until closing at 3:00 A.M. At some time after the four women arrived, Resto and defendant arrived. Buford came a minute or two later. They all [*11]played pool until the manager of the store said that would be the last game and he was closing the store, which was about 3:00-3:15 A.M.

Her brother's friend was named Chino and Chino's father was Jose Porras. Jose Porras came to the pool hall looking for his son, between 12:30 and 1:00 A.M. and asked defendant if he had seen Chino. Defendant said no and Porras left. Everyone left the pool hall together at around 3:00 A.M. After leaving the pool hall, they all went across the street where they lived, sat outside for a little while and talked, pitching quarters. At about 4-4:30 A.M, they all said goodnight and went to their respective apartments. Her mother, now deceased, was at the window and told them what time it was.

KENNETH SAMUELS

Defendant, currently incarcerated at Rikers Island, testified that at the time of his trial in 1994, he was 19 years old. After he was arrested, he retained Daryl Semple as his attorney; thereafter, when he could no longer afford to pay Semple, Dudley was assigned to represent him. He claimed that Dudley was unprepared at the beginning of the trial; Dudley told the trial judge that he had not had an opportunity to look at defendant's case file as he was engaged in a previous trial. Before the trial started, defendant told the judge that he wanted Dudley relieved because Dudley could not answer his questions.

He told Dudley that he had alibi witnesses who needed to be interviewed. He insisted that he had expected Dudley to call these witnesses to establish an alibi defense and it was his belief that Dudley interviewed the witnesses. His belief was reinforced when he saw that these witnesses were asked to leave the courtroom during the trial. Jose Porras was also there everyday, as defendant would see him in the hallway when he was being brought into the courtroom. That made him believe that Dudley had interviewed him and would call him as a witness. In response to his question as to who was slated to testify for the defense, Dudley told defendant not to worry about it because the prosecution witness, Clark, was a "crack head." Defendant told Dudley that Resto had located a witness named "Ramon" whom he wanted Dudley to interview and he gave the telephone number to Dudley. When he asked Dudley about it, Dudley told him that the number had been disconnected. With respect to the concession of the intentional murder charge, Dudley never consulted him and never consulted with him before he rested in the trial.

Dudley continued representing him on a felony robbery and assault matter and tried to get him to plead guilty. He tried to fire Dudley from his robbery case, but the judge would not allow it. The judge told him if he pled guilty, he would get the paperwork for both cases. He pled guilty to a misdemeanor on that matter. He asked Dudley for his file. He sent Dudley letters and even sent his girlfriend to his office to get the files from him. He recalled testifying in the Grand Jury and telling them the people who were with him at the time of the incident.

It was his idea to file the CPL § 440 motion, not his mother's. He told his mother about the idea in 2003 and asked her to talk to his sisters, write down anything they remembered and send it to him, because he was going to make an affidavit. It was not until 2003 that he contemplated arguing ineffective assistance. He received a file from Briskey in 2006. He also tried to get information from the District Attorney's Office.

Dudley never came to see him at Rikers Island. During the pendency of the trial, outside of the courtroom, they spoke in person in the pens and by telephone about three or four times. [*12]

He was making daily telephone calls to Resto because he was close to Resto as they grew up together. He called Buford two to five times. He spoke to his sister Juna but not Patrice. Juna came to see him at Rikers Island about twice a year, but Patrice never did. Jose Porras came to see him twice. He communicated with his family from jail by calling Resto, who had a telephone, because his family did not have a telephone.

On October 5, 1994, he arrived at the pool hall around 10:30 P.M. with Resto and Buford, after meeting them in front of his building. Buford came into his house around 8 P.M. He got to the pool hall around 10:30 P.M. and Gladys Diaz, Nikki Mack, and his sisters were already there when he arrived. He left the pool hall after 3 A.M. with Resto, Buford, Juna and Patrice Samuels and Nikki Mack. After they left the pool hall, they went to his building and pitched quarters. After that they went home. When he was in front of his building, he saw Jose Porras on the corner of University and Andrews Avenue; he had seen him earlier that night as well, at about 1:00 AM., when he came into the pool hall and asked him about his son, Chino.

GLADYS DIAZ

Gladys Diaz testified that she currently works at an accounting firm and has been employed there for the past two years. She is also trying to become a police officer. In October 1994, she was 18 years old. She knew defendant because he lived in her building. On October 5-6, 1994, she was with Resto, defendant's sisters Juna and Monique (Patrice), and Chino. At that time, she was living with Resto at 1996 University Avenue. On that day, she was in a store across the street, which had a pool hall downstairs. She stayed in the pool hall from 10 P.M. until 4 A.M. The group left together and went across the street to their building, where defendant went inside with his sisters. Defendant and his sisters lived on the first floor and Diaz lived on the fourth floor. Jose Porras (senior) had come into the pool hall looking for his son.

She knew that Resto testified on behalf of defendant, as he had told her. She had assumed that she would be called to testify at defendant's trial. She does not know an attorney named Dudley; he never called her or spoke to her. She had the same telephone number and lived at the same address from 1994 to1996. Defendant would call her home often when he was in jail because defendant's family did not have a telephone. She never attended defendant's trial as she was at home taking care of her daughter. She was still living with Steven Resto at the time he testified at the trial. They broke up in 2001. They had been together for 10 years.

In 2004, defendant asked her, by phone, to prepare an affidavit telling what had happened that night. She had visited defendant at Rikers Island once. She did not contact the District Attorney's Office letting them know that she had information concerning an alibi. She did not try to contact defendant's lawyer because she assumed that they had all the witnesses and they never asked her.

JUNA SAMUELS

Juna Samuels, defendant's sister, was 17 years old in 1994. On the date of the incident, she was with her sister Patrice Samuels, Steven Resto, Gladys Diaz and Nicole Mack. She arrived at the pool hall with Patrice Samuels, Gladys Diaz and Nicole Mack, and they all left the pool hall around 3:30 A.M. After the pool hall closed they all went to the building where they lived and they stayed in the hallway throwing quarters.

In May 1995, she and the rest of her family moved from the Bronx to 130 Baruch Place in lower Manhattan. They were living there at the time of defendant's trial. That apartment had a [*13]telephone, although they could not accept collect calls.

She never spoke with Resto, Buford, Diaz or Mack about the case. She went to the trial, not every day but more often than not, with her mother and sister. They sat in the courtroom, behind her brother's table, with Resto and Buford. Dudley asked them all to leave when either Resto or Buford was about to testify. She specifically recalled being in the courtroom for a portion of the prosecution case and hearing a husband and his wife testify about the shooting; that was the only time she was in the courtroom. The first time she knew her brother was charged with murder was when she went to Supreme Court.

Dudley never spoke to her or interviewed her. At defendant's trial, she was in the courtroom and Dudley told her to leave the courtroom in case he needed to call her as a witness. That was the only conversation she had with Dudley. She made out an affidavit in this case at the request of defendant, communicated through her mother. She hand wrote the affidavit and defendant typed it.

CONCLUSIONS OF LAW

At a hearing conducted pursuant to CPL § 440.10, defendant has the burden of proving by a preponderance of the evidence every essential fact of the motion. CPL § 440.30 (6). To the extent that defendant raises issues that were litigated on direct appeal, they must be dismissed. Similarly, issues that could have been raised on appeal but were not are procedurally barred, unless defendant can demonstrate either cause for failing to raise the issue and prejudice resulting therefrom, or actual innocence.

Several issues raised by defendant were matters of record and could have been raised on direct appeal. Defendant has not done so, therefore these claims are procedurally barred. [CPL § 440.10 (2) (c)]. They include defendant's claims that (1) the People failed to disclose exculpatory material evidence of an individual who was allegedly present during the shooting, (2) the prosecutor committed misconduct by misrepresenting the witnesses' testimony during her summation, (3) the trial court mishandled its response to a jury note, (4) his trial counsel rendered ineffective assistance by failing to object during the prosecutor's summation, failing to consult with him before requesting that the court dismiss the manslaughter counts and telling the jury during his summation that the prosecutor had proven intentional murder.

In the reply memorandum submitted by defendant's counsel, defendant discussed three claims of ineffectiveness of defendant's trial counsel. As there was no evidence elicited at the hearing with regard to any other claims and as defendant has not addressed any of these claims in his post-hearing brief, they are deemed abandoned and will not be addressed by this court.

In support of his motion alleging ineffectiveness of counsel regarding the uncalled alibi witnesses, defendant submitted his own affidavit, those of his two sisters, Juna and Patrice Samuels, as well as that of Gladys Diaz, all of whom stated, in sum and substance, that defendant was with them at the pool hall. He also submitted the affidavit of Jose Porras, who stated that he saw defendant at about 1:30 A.M. at the pool hall and at about 3 A.M. on University Avenue, in front of his building. Defendant also argues that another witness, Nikki Mack, would have supported his alibi and that counsel failed to call her. As defendant did not submit an affidavit from Ms. Mack and failed to call her to testify at the hearing, his claim as to Ms. Mack is summarily rejected because his moving papers "do not contain sworn allegations substantiating or tending to substantiate all the essential facts . . ." and is otherwise "unsupported by any other [*14]affidavit or evidence . . ." CPL §§ 440.30 (4) (b), (d).[FN3] A judgment of conviction is presumed valid, and a defendant moving to vacate a judgment of conviction has the burden "of coming forward with allegations sufficient to create an issue of fact. People v. Braun, 167 AD2d 164, 165 (1st Dept. 1990), citing People v. Session, 34 NY2d 254 (1974).

In order to prevail on his claim that he was denied effective assistance of counsel, defendant must demonstrate that his attorney failed to provide meaningful representation in light of the circumstances of a particular case, viewed in totality. People v. Turner, 5 NY3d 476 (2005); People v. Caban, 5 NY3d 143 (2005); People v. Benevento, 91 NY2d 708 (1998); People v. Baldi, 54 NY2d 137 (1981).

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

The New York standard calls for a flexible analysis of each case for the existence of a "basic meaningful representation." In New York, a claim of ineffective assistance of counsel is measured by whether the defendant received meaningful representation based on the totality of the circumstances of the case, and whether the defendant had shown "prejudice [based] on the fairness of the process as a whole rather than [any] particular impact on the outcome of the case.'" People v. Henry, 95 NY2d 563, 566 (2000), quoting People v. Benevento, supra. The difference between the Strickland and the New York standards is that, under Strickland, when counsel's performance has been judged unreasonably deficient, an ineffective assistance claim is established if the court concludes that "but for counsel's unprofessional errors, there is a "reasonable probability" that the outcome of the proceedings would have been different," Henry at 566 n.*, whereas the New York standard's prejudice component focuses on the "fairness of the process as a whole rather than [any] particular impact on the outcome of the case." People v. Benevento, supra, 91 NY2d at 714.

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

Defendant's claim that trial counsel rendered ineffective assistance by his failure to investigate and present the alibi testimony of his sisters, Juna and Patrice Samuels, is not supported by the record. Indeed, defendant cannot show failure to investigate, let alone deficient performance, with respect to potential alibi witnesses Juna and Patrice Samuels. Dudley's testimony at the hearing was credible and there is strong support in the record that both sisters [*15]did, in fact, speak with Dudley, and that Dudley's decision not to call them was strategic rather than neglectful.

First, defendant's claim that trial counsel failed to interview his sisters was directly rebutted by Dudley's affidavit and his credible hearing testimony. At the hearing, Dudley testified that he spoke to the Samuels sisters in the court house and indicated the reasons for his decision not to call them. Counsel's determination not to call these witnesses was a strategic decision and there is no basis for a finding that this decision constituted ineffective assistance of counsel. People v. Stewart, 295 AD2d 249 (1st Dept. 2002), lv. denied 99 NY2d 540, cert. denied 538 US 1003. Counsel assessed the prospective testimony of the Samuels sisters, which he believed would necessarily taint the alibi testimony of Resto and Buford. See People v. Llanos, 13 AD3d 76,77 (1st Dept. 2004), lv. denied 4 NY3d 833 [trial counsel made a strategic and legitimate choice in declining to call a witness who was incredible and potentially harmful to the defense].

In reviewing ineffective assistance of counsel claims, care must be taken to "avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis." People v. Baldi, 54 NY2d 137 (1981). Thus this Court must not "second-guess [defense counsel's actions] with the clarity of hindsight." Benevento, 91 NY2d at 709. In short, "[t]he Constitution guarantees a defendant a fair trial, not a perfect one." Henry, 95 NY2d at 565.

While Dudley candidly admitted a lack of full recollection, he credibly described his cogent and compelling reasons for abandoning the Samuels sisters' alibi defense he had originally intended to present. It is defense counsel alone who has the prime responsibility for making strategic judgments and executing what he believes will be an effective strategy. Counsel is an experienced criminal defense attorney and can be presumed to understand who is an alibi witness. He clearly made efforts to investigate and present the alibi. It seems highly unlikely that Dudley would proffer these witnesses and then choose not to have them testify in court if he thought they would advance his client's cause, especially given the significance of at least two potential corroborating alibi witnesses who would lend credibility to the defense story.

The record reveals that trial counsel followed proper norms of advocacy and made a specific request to the People pursuant to CPL§ 250.20 for purposes of asserting an alibi defense. In this notice of alibi on June 7, 1996 (People's Exhibit 1), he served notice of his intention to present Patrice and Juna Samuels as corroborative alibi witnesses. Failure to file this notice could have resulted in the preclusion of alibi testimony at trial.[FN4] This is especially important since defendant asserted an alibi defense throughout the pretrial period.

Even though both Juna and Patrice testified that they never spoke to Dudley about the case, their testimonies were of doubtful credibility and accuracy. Patrice's admission that she had [*16]contact with Dudley and that words were passed between them, corroborates Dudley's testimony that they spoke. Dudley's actions in asking Patrice and Juna to leave the courtroom suggests that, at the very least, he considered calling defendant's sisters as witnesses. Both Juna and Patrice admitted that they attended defendant's trial at various times and were present for the verdict. Patrice confirmed that she attended the trial "in order to speak with Dudley concerning [her] possible testimony" (H.157), and that at one point, she approached Dudley and told him, "[W]e were all together that night" (H.103-04, 128-30). Patrice testified that in response, Dudley "told [her] who he was, "went back into the courtroom," and "never asked [her] anything" (H.103, 130). Patrice also admitted that Dudley told the two of them that they could not go inside the courtroom, leading her to believe that they would be called as witnesses at trial (H.104-05). Juna confirmed that Dudley told her and Patrice that they had to leave the courtroom "[i]n case he called us as a witness" (H. 266-67). Defendant testified that Dudley told the court that Resto, Buford, Juna, Patrice, Diaz and Porres were going to testify. By defendant's own admission, he testified that he saw all of these witnesses in the courtroom or in the hallway during his trial (H.167-68, 190-97).[FN5]

I find the testimony of Juna and Patrice Samuels as to the events of October 5-6, 1994, not to have been credible and to have been orchestrated to present a uniform story with the testimony presented at his trial. I make this finding not because of their testimony with respect to the events of that night but because of their testimony with respect to subsequent events. Defendant and Juna Samuels both testified that Juna and Patrice attended the seven-day trial (October 11, 16, 17, 18, 21, 23, 24 and 25, 1996) "more often than not" (Juna - H. 282) or "every other day" (Defendant - H. 168). Patrice, after testifying on direct examination that she was there "mostly during the trial," although not every day (H.101), on cross-examination, more than a week later, testified that she was only at the trial on the day she spoke with Dudley, when she was excluded from the courtroom, and at the verdict (H. 132-33). Juna, on the other hand, claimed to be present in the courtroom on the day of the testimony of a man and his wife (H. 298-99) presumably Ms. Claudio and Mr. Luna yet Ms. Claudio testified on October 16, 1996 and Mr. Luna testified on October 17, 1996. Although Juna testified that she, Patrice, Buford and Resto had been present in the courtroom during testimony and that all of them, except Buford, had to leave the courtroom when Buford was about to testify (H. 266, 283), the trial transcript indicates that Buford was outside the courtroom when he was called on October 21, 1996 (T. 553) and that he was the second defense witness that day, following Vincent Garrett. It is just not credible that defense alibi witnesses would be permitted to sit through the People's case and part of the defense case before exclusion from the proceedings.

Based on this record it is reasonable to conclude that Dudley did in fact interview the Samuels sisters. The record also supports Dudley's testimony that he declined to call them for strategic reasons. A lawyer interviews a witness because only that lawyer can rely on his or her own assessment of the witnesses' credibility, effectiveness and value, factors which this court is not in a position to second guess. Here, Dudley made an assessment of the witnesses and made a tactical decision as to whether they should be called to testify. As a result, his failure to call [*17]defendant's sisters as witnesses should be entitled to the deference normally accorded informed trial strategy. The decision whether to call a witness is tactical [United States v. Smith, 198 F.3d 377 (2nd Cir. 1999)] and generally will not be disturbed. Pavel v. Hollins, 261 F.3d 210 (2nd Cir. 2001). The Second Circuit has held that "counsel's decision as to whether to call specific witnesses even ones that might offer exculpatory evidence is ordinarily not viewed as a lapse in professional representation.'" United States v. Best, 219 F.3d 192 (2nd Cir. 2000) quoting United States v. Schmidt, 105 F3d 82, 90 (2nd Cir.) cert. denied, 522 U.S. 846 (1997).

Defendant's position that Dudley's failure to call the Samuels sisters constitutes ineffective assistance is without merit. It is defense counsel alone who has the responsibility for making strategic judgments and executing what he believes will be an effective strategy. As the hearing before this court has made evident, counsel credibly described his reasons for not calling certain witnesses. Counsel testified that he spoke to Juna and Patrice about defendant's case in the courthouse but decided not to call them because they left prior to the time of the occurrence of the murder and thus could not provide an alibi for defendant for the time period.[FN6] Second, they were family members. Third, there were discrepancies and inconsistencies between their testimony and the pre-trial statements of Buford and Resto. Dudley testified that Buford and Resto were the best available alibi witnesses. This opinion is corroborated by defendant's former trial counsel, who apparently thought so highly of these two alibi witnesses that he proferred them to the District Attorney's Office in the hope that defendant's case could be disposed of earlier in the proceedings.

Counsel was entitled to concentrate his efforts on the available alibi witnesses who might best undermine the People's case. As Dudley recognized, the Samuels sisters' alibi testimony would have been weak and perhaps damaging to defendant. Counsel's decision not to present the testimony of Juna and Patrice must be interpreted in light of his general knowledge of their possible testimony and in light of the inherent pitfalls of such evidence. It was not unreasonable for counsel to forgo presenting witnesses who would give unpredictable, contradictory and possibly damaging testimony about critical aspects of the alleged encounter. Counsel had enough of a problem given the discrepancy between Buford's pre-trial statements, which had them leaving the pool hall before 3 A.M. and Resto's, which had them leaving shortly before 4 A.M. Even if Juna and Patrice's trial testimony was to conform with the later hour,[FN7] the fact that it came from the defendant's sisters would have, at best, added little weight and, at worst, emphasized the possibility of collusion.

Also unsupported by the record is defendant's argument that had counsel called all the alibi witnesses (not just Resto and Buford), the testimony of the People's eyewitness concerning the shooting would have been severely undermined. Indeed, that argument appears untenable or at least a jury could have found it so. The record reveals that Dudley presented the two best alibi witnesses he had available, namely, Resto and Buford. They both came forward days after the homicide, gave statements to the District Attorney's Office and testified in the Grand Jury that [*18]they were playing pool with defendant at the time of the murder.

Another reason Dudley might not have wanted them as witnesses is because neither Juna, Patrice nor Ms. Diaz gave any statements or testimony prior to trial concerning defendant's whereabouts on the night of the murder. Based on their failure to come forward, their testimony might be readily assailable on cross-examination to impeach their credibility at trial.[FN8] Had counsel decided to present an alibi defense with the uncalled witnesses, he would have risked inviting jurors to focus on these weaknesses in defendant's case at the possible expense of having them focus on the weaknesses of the prosecution case. Presenting readily impeachable witnesses would lead the jury to conclude defendant was manipulating witnesses. This would also suggest that the other alibi witnesses had colluded to protect defendant.

Additionally, regardless of whether counsel interviewed Diaz, he could reasonably have concluded that Diaz would have mentioned anything she knew that might have helped defendant, including any possible alibi, earlier in the proceedings. She was Resto's girlfriend and lived with him at 1966 University Avenue, the same building in which defendant's family, including Juna and Patrice, and Buford lived. Plainly Ms. Diaz was not hard to find and was known to defendant's family and friends. It is also clear that a cooperative witness like Resto would have made sure that his girlfriend was available to testify at trial if she had anything relevant to offer, including any possible alibi. Although counsel has a duty to investigate before making strategic decisions, counsel need not interview every possible witness to have performed proficiently. Indeed, interviewing witnesses whose testimony is "generally known to counsel," for example, may be unnecessary. Strickland v. Washington, 466 U.S. 668 (1984).

Of substantial importance as well is that Diaz testified that she knew that Resto was going to testify in the Grand Jury before he did so and that the two of them discussed his testimony (H. 239-40). The fact that she did not testify in the Grand Jury suggests that she could not vouch for defendant's whereabouts at the time of the murder. At the hearing, Diaz could not remember when the murder took place, whether October 5, 1994 was a weekend or a weekday, the name of the person who managed the pool hall, whether this person was a man or woman or when the pool hall first opened. Furthermore, her hearing testimony was inconsistent with her sworn affidavit. In her affidavit she stated that "Ramon" is "the guy who runs the store" and that "on October 5, 1994, I along with three of my friends, Nicky, Juna and Monique [FN9] decided to play some pool so we went across the street to the grocery store which has a number of pool tables. Shortly thereafter, Steven and Donald [FN10] arrived. After five minutes, Duval arrived." At the hearing, however, Diaz testified that she, defendant and Resto arrived at the pool hall together, that Juna and Patrice were the next to arrive, that Buford arrived last and that no one else arrived after him. [*19]

Diaz's hearing testimony was also inconsistent with the trial testimony of Resto and Buford. At trial, they testified that they went to the pool hall with defendant and that defendant's sisters, Ms. Diaz and Ms. Mack arrived separately (T. 593-96, 642, 673). It was also inconsistent with the hearing testimony of Juna, Patrice and defendant, who each testified that the four women arrived first and the men arrived after them.

Diaz's hearing testimony conflicted in additional ways with her pre-hearing affidavit, the trial witnesses and the other hearing witnesses. In her affidavit, Diaz stated that after she and the others left the pool hall, "we then went back across the street in front of our building and started pitching quarters (a game we played with quarters). After about half an hour or so, we all decided to go home." In her hearing testimony however, Diaz testified that she and the others went directly to their apartments (H. 237-38). The time spent pitching quarters was crucial in keeping defendant together with the others at the time of the murder. Ms. Diaz was living with Resto at the time of the crime. He told her that defendant had been arrested and she was aware that Resto and Buford were going to testify in the Grand Jury before they did so (H. 227, 239-42, 244, 255). Clearly, she recognized that defendant was facing serious criminal charges and she had the motive, means and opportunity to come forward with false testimony, rendering her account of doubtful credibility and accuracy. Simply stated, there was a real and substantial risk that introducing the alibi testimony of Juna, Patrice and Diaz would undermine the veracity of the other witnesses. At the very least, their powers of recollection would have been called in serious question. Similarly, Diaz's significantly different account demonstrates just how tangled up a defense could become in trying to conform all the different alibi accounts to each other. That the alibi witnesses were attempting to tailor their accounts would be evident. A prosecutor would have subjected them to a brutal cross-examination had they all testified at trial.

Although counsel has a duty to investigate before making strategic decisions, counsel need not interview every possible witness to have performed proficiently. Additionally, the testimony was already "generally known to counsel." Strickland at 691. Defense counsel has a duty to investigate, which "requires counsel to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Greiner v. Wells, 417 F.3d at 320-21 (2005) (citing Strickland, 466 U.S. at 691). "It does not, however, compel defense to investigate comprehensively every lead or possible defense." Greiner, supra at 321. Where there is "reason to believe investigations would be fruitless or even harmful,' the failure to conduct the investigation may not be challenged as unreasonable. Greiner (citing Strickland, 466 U.S. at 691). A failure to investigate may be more properly characterized as a claim that a particular witness should have been called to testify at trial. "The decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial." United States v. Smith, 198 F.3d 377, 386 (2nd Cir. 1999). The reasonableness of such a tactical decision is judged "in terms of the adequacy of the investigations supporting it." Gersten v. Senkowski, 426 F.3d 588, 609 (2nd Cir. 2005), citing Wiggins v. Smith, 539 U.S. 510. 521 (2003). "Strategic choices made after through investigation of law and facts relevant to plausible options are virtually unchallengeable, and even strategic choices made after less than complete investigation do not amount to ineffective assistance so long as the known facts made it reasonable to believe that further investigation was unnecessary." Henry v. Poole, 409 F.3d 48, 63 (2nd Cir. 2005) (citing Strickland, 466 U.S. at [*20]690-91). On the other hand, an attorney's failure to "make conscious, reasonably informed decisions for the benefit of the criminal defendant may at times be sufficient to overcome the presumption of effectiveness." Greiner, supra, at 325.

At best, the additional witnesses would have offered testimony cumulative and duplicative of the sworn testimony of Resto and Buford. See People v. Crippen, 196 AD2d 548 (2nd Dept. 1993); People v. Hernandez, 191 AD2d 511, 512 (2nd Dept. 1993). Thus, defendant suffered no significant prejudice as a result of the defense counsel's failure to call these witnesses. It is well settled that courts should not second-guess the trial tactics employed by defense attorneys. People v. Lane, 60 NY2d 748 (1983); People v. Aiken, 45 NY2d 394 (1978); People v. Morris, 100 AD2d 630 (1984). Counsel's ultimate decision not to present all of defendant's alibi witnesses reflects the existence of a trial strategy that might well have been pursued by a reasonably competent attorney. People v. Holmes, 36 AD2d 782 (3rd Dept. 1971). Even assuming that counsel's alleged errors brought his overall representation below an objectively reasonable standard, defendant has not shown a reasonable probability that he would have acquitted but for those errors. He must show that, but for counsel's allegedly deficient performance, the outcome would have been different. People v. Divine, AD2d 562 (1st Dept. 1993) lv. denied 82 NY2d 717 (1993); People v. Diaz,157 AD2d 569 (1st Dept. 1990).

As the hearing revealed, both Juna and Patrice would have been weak witnesses, even without the added burden of contradicting each other. The record also revealed that counsel prepared for trial properly with the intention of presenting an alibi defense and that in fact he did present an alibi defense with the two best alibi witnesses that he had available. Even though Juna, Patrice and Diaz testified that they never spoke to Dudley about the case, the testimony of the Samuels sisters is not credible. Both testified that they attended defendant's trial and were present for the verdict.

While defendant argues that with respect to the material facts, the testimony of the Samuels sisters and Diaz was consistent, this could also suggest that the three of them had colluded to protect defendant by stating that they were with him at the time of the crime. Here counsel may not have want to foreclose a strong line of defense that could have been submitted to the jury in tandem with a misidentification defense, or might have supplanted the claim of misidentification altogether. This was a tactical decision where defense counsel may have reasonably felt those factors were strong enough and the addition of other witnesses might actually have prejudiced his client. Actions or omissions by counsel that might be considered sound trial strategy do not constitute ineffective assistance. Only where the single failure is of such prejudicial magnitude that there exists a reasonable likelihood of a different outcome is defendant deprived of his or her constitutional rights. People v. Caban, 5 NY3d 143 (2005). Further, true ineffectiveness must not be confused with losing tactics; instead, defendant must demonstrate the absence of strategic or otherwise legitimate explanations for counsel's allegedly deficient conduct. Caban, supra, quoting People v. Rivera, 71 NY2d 705 (1988); People v. Henry, 95 NY2d 563 (2001).

Defendant argues that "in a unilateral and unexplained decision" counsel did not call the witnesses to testify at trial. Defendant's arguments are unsupported by the record. Moreover, if defendant was not content with counsel's actions, he could easily have made a record at trial. People v. Holmes, 36 AD2d 782 (3rd Dept. 1971) (defendant failed to complain at trial that [*21]counsel failed to call witnesses and in any event, that decision was one of trial tactics and afforded no basis for post-conviction relief).

Additionally, Dudley made other efforts in support of the planned alibi defense. He attempted to locate the eyewitness mentioned by defendant, whom he believed could assist the defense. This would have been a critical witness whose testimony would have lent additional credibility to defendant's defense. Despite appropriate efforts, Dudley was never able to locate this eyewitness. Under such circumstances, defense counsel's actions were a reasonable strategy that did not fall below the level of constitutional sufficiency. Moreover, even if the eyewitness could have been found, defendant does not show that he would have testified at defendant's trial to defendant's alibi.

Defendant's argument that Dudley's notes and his 18 B vouchers were either lost or destroyed and that this should be considered Rosario materials because he produced no documentary evidence, i.e., submitted vouchers to the Assigned Counsel Plan memorializing his investigation, lacks merit. Defendant argues that if Dudley was a police officer, he would either be sanctioned, his testimony precluded, or a jury would be given an adverse inference instruction. It is well settled that where the material sought is in the possession of a person or agency other than a law enforcement agency, the test of the People's obligation to produce is whether the items sought are in the control of the People. People v. Washington, 86 NY2d 189 (1995). Since neither Dudley nor the Assigned Counsel Plan are law enforcement entities, neither is under the People's control. Furthermore, there are no discovery provisions under the Criminal Procedure Law for motions under § 440 of the Criminal Procedure Law.

Defendant dose not show that he was prejudiced by counsel's failure to present the additional alibi witnesses. Consideration of the totality of the case the evidence presented, the law governing, the context of the extant circumstances is what reveals if meaningful representation was provided. Viewed objectively and together, a defendant's constitutional right to such assistance may well have been satisfied. People v. Satterfield, 66 NY2d 796 (1985). Indeed, review of the record reveals that counsel made appropriate motions, conducted a meaningful voir dire of the prospective jurors, made cogent opening and closing statements, effectively cross-examined witnesses, interjected appropriate objections and presented evidence in support of the best possible defense.

Based on the above factors, defendant has failed to carry his burden of establishing that counsel's conduct amounted to ineffective assistance of counsel.

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

This constitutes the decision and order of the Court.

Dated: Bronx, New York

December 21, 2006

_______________________________

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

Footnote 1: Justice Torres is now retired.

Footnote 2: Clark was incarcerated at the time of trial on two open drug sale cases. Appearing withnew counsel, she invoked her Fifth Amendment rights in front of the jury and refused to answer how she paid for her admitted drug habit or to discuss her two open sale cases. (T. 386, 447, 477).

Footnote 3:While there was testimony about the presence of Jose Porras, both at the pool hall and later on the street and defendant filed an affidavit from him, defendant failed to call him as a witness and failed to argue ineffective assistance of counsel with respect to him in his post-hearing memorandum. Any claim relating to him is likewise summarily rejected.

Footnote 4:New York Criminal Procedure Law § 250.20 provides that the People may serve upon the defense, up to 20 days after arraignment, a demand that the defense identify any witness who intends to testify that "at the time of the commission of the crime charged [the defendant] was at some place or places other than the scene of the crime." NY Crim. Proc. L. Sec. 250.20. The defense has eight days to respond as circumstances and intentions change throughout the trial process, or risks sanction of exclusion for failure to comply.

Footnote 5:Diaz testified credibly that she never attended the trial, thereby impeaching defendant's testimony on this point.

Footnote 6:Although their hearing testimony has them with defendant at the time of the murder, it was Dudley's recollection that the interviews he conducted with them did not.

Footnote 7:At the hearing, Patrice testified that they left around 3 A.M., Juna saying that it was around 3:30 A.M.

Footnote 8: A Dawson hearing is held to determine whether the prosecutor may cross-examine a witness about the witness' failure to relay exculpatory information to law enforcement officials. People v. Dawson, 50 NY2d 311 (1980).

Footnote 9:Patrice is also known as Monique.

Footnote 10:Defendant is also known as Donald.