People v Whiting

[*1] People v Whiting 2008 NY Slip Op 52311(U) [21 Misc 3d 1131(A)] Decided on November 18, 2008 Supreme Court, Kings County Goldberg, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2008
Supreme Court, Kings County

The People of the State of New York

against

James Whiting, Defendant.



1260/03



For the Defendant:

Myron Beldock, Esq.

Beldock, Levine & Hoffman, LLP

99 Park Avenue

New York, New York

For the People:

Hon. Charles J. Hynes, District Attorney of Kings County

By:

Assistant District Attorney Keith Dolan, Esq.

Assistant District Attorney Joan Erskine, Esq.

Joel M. Goldberg, J.

By a pro se motion, dated February 15, 2008, the defendant moved pursuant to CPL 440.10 to vacate his June 16, 2004 judgment of conviction of Robbery in the First Degree after a jury trial on which he was sentenced to 11 years plus 5 years post-release supervision contending he was deprived of his Federal and State constitutional rights to effective assistance of counsel.

Background

The defendant's main claim in his motion was that he did not receive effective assistance of counsel based on his trial counsel's alleged failure to properly investigate his alibi claim. The defendant argued that such an investigation may have resulted in finding a witness who could corroborate the testimony of his girlfriend, Cheryl Foster, that he was with her at a shoe store at the time of the robbery. As a result of this purported failure, the [*2]defendant claimed he was pressured at the close of the People's case at trial by his Legal Aid Society trial attorney, Wadeedah Sheeheed, and her supervisor to agree not to call Foster as an alibi witness and not to testify in his own defense, and, thus, to rely solely on weaknesses in the People's case identifying him as the perpetrator.

The People opposed the motion in an affirmation dated May 13, 2008. The People's affirmation stated that Sheeheed, who was no longer with the Legal Aid Society, had told the Assistant District Attorney who prepared the People's answering affirmation that "while she had a general recollection of defendant's case, she could not recall any specific details about the matter."

The defendant filed a reply dated June 4, 2008.

The Court in a decision dated June 19, 2008, ordered a hearing "solely on the defendant's claim that he received ineffective assistance of counsel at trial due to counsel's purported failure to investigate the defendant's alibi and thereafter to call Cheryl Foster as an alibi witness."

The defendant retained counsel for the hearing. At the hearing, the defense called as witnesses defendant's trial counsel, Wadeedah Sheeheed, defendant's sister, Gail Whiting, defendant's now-former girlfriend, Cheryl Foster, and the defendant himself. The People called Sheeheed's Legal Aid supervisor, Andrew Eibel. Following the hearing, each side submitted post-hearing papers. The People's papers were dated October 10, 2008 and numbered 63 pages, and the defendant's papers were dated October 14, 2008 and numbered 122 pages. The Court also heard oral argument after the submission of the papers.

Rather than separately summarize the hearing testimony, the relevant testimony will be discussed with respect to each of the defendant's arguments.

Failure to investigate the shoe store alibi/failure to call an alibi witness

The defendant contends that he was with his then-girlfriend, Cheryl Foster, at the time of the robbery of Alex Negron which was at approximately 1:20 p.m. on February 4, 2003. The defendant was arrested a week later on February 11, 2003 when he was pointed out to the police by the complaining witness on the street while in the company of his co-defendant, Joseph Grajales, who was also pointed out at that time. (Grajales was tried separately. His conviction of Robbery in the First Degree was affirmed. People v Grajales, 8 NY3d 861 [2007].) The defendant was purportedly wearing the same coat he wore during the robbery. The defendant was arraigned on a Criminal Court felony complaint and represented by an assigned counsel from the Brooklyn Defender Services. When it was learned that the defendant was already represented by Sheeheed on a pending misdemeanor charge, she was also assigned to this case.

Sheeheed first spoke to the defendant on February 27, 2003. Sheeheed made contemporaneous notes of their conversation. According to Sheeheed, whom the Court credits with respect to this testimony (despite the fact that she may have not wanted initially to furnish information to the Assistant District Attorney who contacted her in response to this [*3]motion), the defendant told her that on the day of the robbery he was with his girlfriend, Cheryl Foster, at a Chase ATM at Pitkin Avenue and Mother Gaston Boulevard at "10:ish." Foster withdrew $500 and gave the defendant $60. The defendant told Sheeheed (and she wrote in her notes introduced as Defendant's Exhibit "I") that the two then "parted ways." The defendant did not say at that interview, as he later maintained, that he remained with Foster and accompanied her via a bus to a shoe store. The notes also state that the defendant said, "[I]t is mistaken identity. He knows co-defendant but not complaining witness."

Later that same day, Sheeheed noted that she spoke with "S.[sic] Foster" and "Ben Rivera at Chase Bank" with regard to obtaining possible evidence from photographs and a surveillance camera to corroborate the defendant's presence with Foster at the bank (Defendant's Exhibit "I"). These conversations were over the telephone. The next day, Sheeheed noted that she faxed Rivera a subpoena for this material. Sheeheed's notes make no mention of what Foster told her, but they do not contradict Sheeheed's recollection that Foster said that the defendant was with her only at the bank and, like the defendant, Foster made no mention of the shoe store.

Sheeheed obtained Foster's ATM receipt which showed the time of the transaction as 12:40:03 which corresponded to the time stamped on the 15 bank surveillance photographs which Sheeheed obtained on March 3, 2005 (Defendant's Exhibit "E1-E15"). Although faces are not clearly visible in these photographs, the Court credits the testimony of the defendant and Foster that Foster is the person shown making the transaction and that the person accompanying her wearing a light-colored, fur-trimmed hooded ski parka is the defendant.

Sheeheed realized that these photographs were not exculpatory, because the ATM was only one block away from the scene of the robbery and were taken approximately 40 (though perhaps as little as 20) minutes before the robbery. Moreover, the photographs showed Foster with a person wearing a parka matching the beige puffy coat with fur on the hood described by the complaining witness as being worn by one of the perpetrators. This coat also matched the coat worn by the defendant when he was arrested a week later. Therefore, Sheeheed told the defendant that the photographs actually were not helpful to his defense, and Sheeheed never informed the prosecution of their existence.

The defendant was arraigned on the indictment on March 26, 2003 which is when Sheeheed believed she for the first time discussed the incriminating potential of the photographs with the defendant. At this conversation, the defendant still said nothing about being with Foster at a shoe store. Sheeheed had discussed this "bank alibi" with Eibel and whether it really constituted an alibi, because it did not account for the defendant's whereabouts at the time of the robbery. No Alibi Notice was filed based on the defendant's presence at the bank. Neither Sheeheed nor Eibel recall discussing a shoe store alibi in this conversation.

The Court does not credit the defendant's testimony that he promptly told Sheeheed about the shoe store alibi, because if he had mentioned the shoe store in their early conversations, Sheeheed likely would have told this to Eibel, also likely would have made [*4]a note in her file of this information, and also likely would have acted promptly to confirm it as she had done when the defendant told her about being at the bank. For the same reasons, the Court also does not credit Foster's testimony that she told Sheeheed about the shoe store in their first conversation.

Sheeheed spoke with the defendant again on May 6, 2003 at which time he told her that he had heard Negron was recanting. The next day Sheeheed requested that a Legal Aid investigator look into this possibility, and this was done on May 13, 2003. Based on a report of that investigation, Sheeheed informed the defendant that Negron was not recanting. The report also stated that Negron said he "had seen the defendant in the area many times before" (Defendant's Exhibit "PP"). It was sometime after this conversation, Sheeheed was not sure when, that the defendant informed her that he had remained with Foster after the bank transaction, and they went to a shoe store together traveling there from the bank by bus.

On May 20, 2003, Foster gave Sheeheed a shoe store receipt showing a sale made at 1:20 p.m. (Defendant's Exhibit "G"). The name of the purchaser is not on the receipt. The store was located at 1492 Rockaway Parkway. Sheeheed's file contains a MapQuest printout generated on October 14, 2003 (Defendant's Exhibit "JJ"). This map shows the shoe store to be approximately two miles (and a six minute car ride) from the scene of the crime.

In contrast to her expeditious investigations of the ATM transaction and the report of Negron's recantation, Sheeheed did not immediately send an investigator to the shoe store to determine if anyone could remember the transaction with Foster or if there were surveillance tapes of it. The Court finds that Sheeheed did not immediately attempt to find evidence that the defendant was at the shoe store with Foster, because, based on the belated claim and the defendant's initial statement that he "parted ways" with Foster at the bank, Sheeheed did not believe it. Neither did Sheeheed seek to examine the defendant's Metrocard (which the defendant now asserts was lost while it was in the custody of the New York City Department of Corrections, but which Sheeheed did not recall the defendant ever telling her he used) to determine if it recorded the bus trip to the shoe store.

Sometime after learning of the shoe store alibi, Sheeheed decided that if she could confirm in a polygraph examination that the defendant was telling the truth, she would reveal the details of this alibi to the District Attorney's Office and request that the defendant take a similar polygraph test administered by the prosecution. She sent the defendant a letter, dated October 30, 2003 telling him he would be produced in a corrections facility in Manhattan to take a polygraph given by a Legal Aid Society examiner on November 6, 2003, and if the results were favorable she would try to persuade the People to dismiss the case (Defendant's Exhibit "MM"). However, Sheeheed's suspicions about the truthfulness of the shoe store alibi were confirmed when the defendant failed to get on the prison bus to keep this appointment.

The defendant testified that he missed this bus because he "overslept." The defendant, according to his hearing testimony, knew that Sheeheed had not sent investigators to the shoe store and, therefore, he knew there was no evidence to corroborate Foster's shoe [*5]store alibi. Even though the defendant knew he had "slept through" an opportunity to provide perhaps the only possible additional proof that he was with Foster in the shoe store, the defendant despite his testimony to the contrary never pressed Sheeheed to arrange for another polygraph examination. Knowing that the polygraph would possibly be the only evidence to support Foster's shoe store alibi, the defendant would not without vigorous protest, which he did not make, have allowed Sheeheed to ignore his claimed demands to reschedule the polygraph examination if he really thought the examination would produce a favorable result. Indeed, the defendant had previously successfully pressed Sheeheed to file his belated pro se CPL 190.50 motion, which she reluctantly did, when he believed it would further his interests.

Sheeheed tried to interview Foster about the shoe store, but Foster was reluctant to cooperate, telling Sheeheed that her new boyfriend was not happy with her involvement and neither was her employer, the Department of Homeland Security for which she worked as a baggage inspector at JFK (and who later fired her for failing a drug test for marihuana). Foster testified that her work schedule at JFK made it difficult for her to go to Sheeheed's office. Although Sheeheed had difficulty arranging to speak with Foster, Sheeheed ultimately was able to speak with her prior to the trial.

Sheeheed believed Foster's demeanor in answering questions would not make her a credible witness. (In fact, at the hearing Foster could not recall what she spoke to Sheeheed about in their numerous conversations or when she gave certain items to Sheeheed.) Sheeheed knew that the only evidence to corroborate Foster's account that the defendant was with her that afternoon were the bank photographs which would place the defendant near the scene of the robbery less than an hour before the robbery wearing a jacket described by Negron. Sheeheed believed that if Foster was asked on cross-examination about when she gave the shoe store receipt to Sheeheed and if she answered truthfully, the answer would have been "May 20, 2003," over three months after the defendant's arrest. Foster would then have to explain why it took so long to find the receipt and be able to give a credible reason other than the fact that the defense attorney was not immediately told about the shoe store alibi by Foster. Further, if Foster was asked what the defendant was wearing when he was with her, an honest answer would have been devastating, even if the bank photographs remained in Sheeheed's file, because it would place the coat described by Negron on the back of the defendant. Thus, Sheeheed did not believe Foster would be able to present a credible alibi that would withstand cross-examination.

Sheeheed's supervisor, Andrew Eibel, who had 15-years experience as an attorney with the Legal Aid Society, confirmed that Foster's status as the defendant's girlfriend would raise the issue of her being an interested witness and, without any corroboration that the defendant was with her, the alibi on its face would not be persuasive and possibly, despite a jury charge to the contrary, result in the jury shifting the burden of proof to the defendant. The only way to corroborate that the defendant was with Foster would be to introduce the bank photographs, which, as noted, would hurt more than help the defense case. Further, [*6]although not explicitly stated in the testimony from Sheeheed and Eibel, there was an obvious further consideration that if there was no corroboration of Foster's testimony, the jury might be reluctant to accept it without also hearing the defendant testify. Because the Court's Sandoval ruling allowed prospective questioning of the defendant regarding his convictions for possessing a stolen car in 1990, possessing a stolen necklace in 1993, and buying a watch with a stolen credit card in 2003 (Trial Transcript at 26-27), having the defendant testify to corroborate Foster would not necessarily be helpful.

Sheeheed, nevertheless, filed a belated Notice of Alibi in December of 2003 after she had spoken with Foster in order to preserve the option of calling her as an alibi witness if that was what the defendant wished to do. (See CPL 250.20 [1] which requires the defense to serve such notice within eight days of arraignment.) The Notice of Alibi strategically, although required by CPL 250.20 (1), did not assert where the defendant claimed to be at the time of the crime, stating only that he was with Foster (Defendant's Exhibit "J"). Sheeheed successfully argued against the prosecution's objections to this late notice and the prosecution's request to preclude the alibi testimony. Sheeheed stated to the Court, as a reason for the late notice, that she was concerned about Foster's willingness to cooperate and did not receive assurances from her until December 29, 2003 (Trial Transcript at 114, Defendant's Ex. "HH").

Sheeheed successfully moved to have the defendant's case severed from Grajales's, based on an argument that an anonymous tip had given the police the nicknames of three suspects and that this tip was exculpatory reliable hearsay which she wished to introduce into evidence, because one of the nicknames belonged to Grajales but neither of the other two nicknames belonged to the defendant.

In March of 2004, after serving the Alibi Notice and after Grajales had been convicted, Sheeheed for the first time sent an investigator to the shoe store to determine if there was anything significant that the prosecution would learn if they sent an investigator there, characterizing it as a "prophylactic measure." On March 28, 2004, according to the investigator's report, the shoe store personnel would not give Sheeheed's investigator any information without permission from the owner (Defendant's Exhibit "L"). Sheeheed did not pursue the investigation, because she did not believe the shoe store alibi to be credible. Eibel testified that had it been his case, he would have sent the investigator back to the store one more time.

At the trial, Sheeheed did not mention the alibi in her opening statement, although she had prepared a list of potential questions to Foster about the alibi (Defendant's Exhibit "K"). It was Sheeheed's plan, based on her belief that the alibi would not be credible, to persuade the defendant not to use the alibi at trial, although she did not tell this to the defendant. The defendant did not say anything to her about why she did not mention the alibi in her opening.

At the close of the People's case, Sheeheed asked for a recess after which she announced that the defense was "withdrawing the Alibi Notice" and would rest without calling any witnesses (Defendant's Exhibit "GG," Trial Transcript at 211). During the recess, [*7]Sheeheed and her supervisor, Eibel, discussed with the defendant the lack of credibility in the prospective alibi testimony of Foster who was, nevertheless, in the courthouse ready to testify. This discussion may have been discouraging to the defendant and emotionally upsetting, but ultimately he recognized the risks in relying on Foster's uncorroborated alibi testimony, insofar as her inability as a witness to give convincing testimony and the necessity of her having to place the defendant near the scene of the crime at the bank as well as the possibility that she would reveal what he was wearing that day. Thus, the defendant ultimately agreed with the decision to rest without presenting any witnesses.

The defendant acknowledged in response to the Court's direct question of him that he and Sheeheed had discussed "his right to testify and he understands that it's his decision and he's decided not to testify" (Defendant's Exhibit "GG," Trial Transcript at 211-212). At the hearing, the defendant testified that Sheeheed had "persuaded me not to testify on my own behalf" based on her opinion that his criminal record as a "petty thief" would not make him credible to the jury (Hearing Transcript at 334).

The Federal and State Standards for Ineffective Assistance of Counsel Claims

The federal constitutional right to effective assistance of counsel, as set forth in Strickland v Washington, 466 US 668, 687 (1984), is violated when (1) a convicted defendant shows that "counsel's performance was deficient," meaning "that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed by the Sixth Amendment" and (2) that "the deficient performance prejudiced the defense," meaning that "counsel's errors were so serious as to deprive the defendant of a fair trial whose result is reliable."

To determine whether counsel's performance is "deficient," the "proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Strickland at 688.

Evaluations of counsel's conduct should not be distorted by hindsight based on second-guessing an unsuccessful defense strategy. Strickland at 689. "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments. ... And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable." Strickland at 691.

Further, as a second prong of the Strickland test, "counsel's errors, even if professionally unreasonable, do not warrant setting aside a conviction if the errors had no effect on the judgment, and where the error involves matters of trial strategy or pre-trial investigation, the defendant must affirmatively prove prejudice." Strickland at 692-693. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland [*8]at 694. "When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Strickland at 695.

Thus, there is both a performance and a prejudice component to the Strickland test, and a Court may dispose of an ineffectiveness claim by examining the prejudice suffered without first examining whether counsel's performance was deficient. Strickland at 697.

New York courts under the State Constitution, as noted in People v Turner, 5 NY3d 476, 480 (2005), apply the first Strickland-prong regarding deficient performance. "Further, similar to Strickland's first prong, to establish ineffective assistance, a defendant in New York must demonstrate the absence of strategic or other legitimate explanations' for counsel's allegedly deficient conduct." Caban at 152 citing People v Rivera, 71 NY2d 705, 709 (1988).

As a second prong, New York uses a "meaningful representation" test which is broader than Strickland's prejudice test. People v Caban, 5 NY3d 143, 152 (2005), citing People v Benevento, 91 NY2d 708, 712 (1998); People v Baldi, 54 NY2d 137, 147 (1981). This second New York prong has a prejudice component similar to Strickland's second prong, but it "focuses on the fairness of the process as a whole," rather than on the particular deficiency's impact on the outcome of the case. People v Ozuna, 7 NY3d 913, 915 (2006). The New York standard of meaningful representation, as stated in Caban,5 NY3d at 155-156, "does not require a defendant to fully satisfy the prejudice test of Strickland,' although we continue to regard a defendant's showing of prejudice as a significant but not indispensable element in assessing meaningful representation' (People v Stultz, 2 NY3d 277 at 284 [1984]), whose prejudice component focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case' (Benevento, 91 NY2d at 714)."

Application of Tests to Sheeheed's Failure to Investigate Shoe Store Alibi

Sheeheed did not immediately send an investigator to the shoe store when she learned that the defendant was claiming he was there. She did not believe the claim was true which was a reasonable conclusion based on the failure of both the defendant and Foster for several months to tell her he was there, which conclusion was supported by the defendant's "sleeping through" his polygraph appointment. As noted in Strickland at 691, an attorney is not required to conduct what would be, in the judgment of the attorney, a fruitless investigation. See Henry v Poole, 409 F3d 48, 63 (2nd Cir. 2005), citing Strickland at 690-691 (strategic choices made after less than a complete investigation do not amount to ineffective assistance so long as the known facts made it reasonable to believe that further investigation was not necessary) and the New York Court of Appeals decision in that case, People v Henry, 95 NY2d 563 (2000).

However, despite her reservations about the shoe store alibi, it would not have taken much effort to send an investigator to the shoe store, which Sheeheed subsequently did prior to the trial and which her supervisor opined that he would have done a second time when the [*9]shoe store personnel did not cooperate. See Rompilla v Beard, 545 US 374 (2005)(counsel found ineffective in death penalty case for failure to examine a readily available court file resulting in prejudice); Wiggins v Smith, 539 US 510 (2003)(defense counsel ineffective in death penalty case for not utilizing a forensic social worker to obtain mitigation evidence resulting in prejudice).

Nevertheless, while Sheeheed may have been arguably deficient in not promptly sending an investigator to the shoe store after belatedly being told of this unlikely alibi, the defendant has not met his burden under Strickland of establishing that but for Sheeheed's failure to promptly send an investigator to the store (or for that matter to secure the defendant's Metrocard), there is a reasonable probability that the defendant would have been acquitted. Williams v Taylor, 529 US 362, 396-399 (2000).

The defendant produced no evidence at the hearing to create a reasonable probability that anyone in the shoe store would have testified at the trial that he was at the store with Foster or that the store contained surveillance cameras that recorded his presence. Thus, the defendant failed to establish the second prong of the Strickland test. People v Ozuna at 915 (defendant's CPL 440 ineffective assistance of counsel claim properly denied without a hearing because the defendant's motion failed to contain an affidavit from the purported exculpatory witness whom trial counsel failed to call as a trial witness); People v Fogle, 10 AD3d 618 (2nd Dept. 2004) (evidence at hearing showed it was likely that an investigation would have disclosed evidence favorable to the defense that could have been utilized at trial); Davis v Lambert, 388 F3d 1052, 1064-1065 (7th Cir. 2004) (even where attorney does not contact alleged exculpatory witnesses, defendant must show prejudice at a hearing where witnesses's credibility can be tested); Bigelow v Williams, 367 F3d 562 (6th Cir. 2004) (defendant has burden to show a reasonable pre-trial investigation would actually have uncovered credible witnesses whose absence prejudiced the defendant); Washington v Smith, 219 F3d 620, 635 (7th Cir. 2000) (defendant met his burden to show that trial attorney's failure to investigate alibi and call certain witnesses caused prejudice undermining confidence that the trial produced a just result, citing Strickland at 686); Maddox v Lord, 818 F2d 1058, 1062 (2nd Cir. 1987) (defendant must prove at a hearing that the failure to call a particular witness would have resulted in establishing an affirmative defense of extreme emotional disturbance); Schulz v Marshall, 528 F. Supp2d 77 (EDNY 2007) (defendant established that attorney's failure to properly interview a witness resulted in failure to obtain exculpatory information resulting in prejudice to the defendant).

Similarly, under the New York standard of "meaningful representation," the defendant has not met his burden to show that the failure to promptly send an investigator to the shoe store prejudiced the defendant to the extent that he did not have a fair trial. People v Henry, 95 NY2d at 566 (defendant received "meaningful representation" even though defense counsel, who otherwise presented a competent misidentification defense, called an "alibi witness" who did not know defendant's whereabouts at the time of the charged crimes).

The likelihood that the shoe store alibi was true and would be supported by witnesses [*10]from the store is belied by the circumstances surrounding its belated revelation to Sheeheed and the credibility of its proponents, Foster, the former girlfriend who belatedly disclosed the shoe store alibi and who was reluctant to cooperate with Sheeheed, and the defendant, whose own extensive record of larceny-related crimes reflected poorly on his credibility. Compare People v Greene, 37 AD3d 615 (2nd Dept. 2007) (counsel found ineffective for failing to contact known witnesses who would have been able to provide exculpatory testimony regarding misidentification defense).

Sheeheed, as did the attorney in Henry, presented a competent misidentification defense. Prior to trial she successfully argued that the defendant's case should be severed from co-defendant Grajales's case thereby securing the tactical advantage of having the defendant tried after Grajales so that she could better plan her cross-examinations. In obtaining the severance, Sheeheed persuaded the Court to allow the jury to hear evidence of an "anonymous tip" given to the police that gave the nicknames of three people involved in this robbery (including the nickname "Corky" which the jury was told was associated with Grajales) and that the defendant was not known by any of these nicknames. Sheeheed also persuaded the Court to accept a late Notice of Alibi without even specifying where the defendant claimed to be at the time of the crime, thereby not alerting the People to do their own check of the bank which might have disclosed the incriminating bank photographs.

Sheeheed, as noted in the People's answer at 15, engaged in substantial pre-trial preparation, investigation of other issues, and motion practice as well as a suppression hearing. At the trial, Sheeheed competently questioned the witnesses, gave a cogent closing argument, and continued to engage in plea negotiations with the prosecutor which resulted in obtaining, at the close of all the evidence in the case, a reduced plea offer of five years although prior to trial the offer had been eight years. This reduction is a testament to her effective presentation of a defense case at trial. The defendant's refusal to accept this offer after hearing closing arguments is an indication that he believed he had a chance of being acquitted, even though the defendant testified that he did not accept this offer solely because it would have kept him imprisoned beyond the life expectancy of his ill father whom he wanted to see so much that he would have falsely told the Court that he had committed this crime in order to be released in time to see him.

Application of Tests to Decision Not To Call Foster As An Alibi Witness

The decision not to call Foster as an alibi witness should not be second-guessed with the benefit of hindsight. Strickland at 692-693; People v Turner, 5 NY3d 476, 480-481 (2005); Greiner v Wells, 417 F3d 305, 317 (2nd Cir. 2005). Where "the evidence, the law, and the circumstances of [the] particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, a defendant's constitutional right to effective assistance of counsel will have been met." People v Henry 95 NY2d at 565 quoting People v Baldi, 54 NY2d at 147.

Given the above-noted credibility issues surrounding Foster's uncorroborated and [*11]belated claim that the defendant was with her at the shoe store, and the incriminating potential of her testimony placing him at the bank with her near the scene of the crime which would also possibly reveal that the defendant was wearing a coat matching the one described by Negron, not calling her as a witness was an objectively reasonable professional decision made with the concurrence of Sheeheed's experienced supervisor and ultimately agreed to by the defendant. Compare People v Bussey, 6 AD3d 621, 623 (2nd Dept. 2004) (evidence at hearing revealed no sound strategic reasons for not calling multiple available alibi witnesses); People v Maldonado, 278 AD2d 513, 514 (2nd Dept. 2000) (evidence at hearing revealed no strategic reason not to call exculpatory witnesses); Schultz v Marshall, supra (no sound strategic reason for not calling an available alibi witness).

Not only was the decision not to call Foster a reasonable professional judgment under the first prong of the Federal and State tests, but also the defendant has not met his burden under either the second prong of Strickland to show that calling Foster would have resulted in an acquittal, or the second prong of New York's "meaningful representation" test to show that failure to call Foster caused prejudice to the extent of depriving the defendant of a fair trial.

Other Evidentiary Claims

Although beyond the scope of the hearing ordered by the Court, at the hearing the defendant raised other purported deficiencies in Sheeheed's handling of evidentiary issues (See Defendant's Memorandum of Law at 112). These issues included the failure to elicit evidence that the defendant had at the time of the robbery certain pre-existing scars that were not described by Negron and that the defendant had a limp (which has since been medically addressed by "orthotic footwear" supplied by the New York State Department of Correctional Services [Defendant's Exhibit "LL"]) which was also not described by Negron. Because the extent of these impairments as they may have existed at the time of the crime was not shown at the hearing to have been particularly noticeable, the defendant did not meet his burden to show that the jury would have concluded that Negron should have noticed them, recalled them, and described them to the police. Therefore, the defendant did not meet his burden to show that had these issues been raised, there is a reasonable probability that the jury would have concluded that the defendant had been misidentified.

The defendant also argues that Sheeheed failed to insure that the tape of the 911 call was not destroyed by the police. However, because the substance of the call was preserved on a Sprint report (Defendant's Exhibit "B"), which included the exact time of the call and the caller's statement that the crime had occurred "about 10 to 15 minutes ago," the defendant has again failed to demonstrate the required prejudice, even assuming Sheeheed's failure to obtain the 911 tape itself constituted deficient representation.

The defendant also asserts that Sheeheed should have tried to locate and interview the defendant's friend "Shawnee" who purportedly was with the defendant at the time of his arrest and who could have given an innocent explanation for why the defendant was also in [*12]the presence of Grajales at that time. However, the defendant did not produce "Shawnee" as a witness at the hearing, or an affidavit from him, or even provide his name, and, thus, there is no independent evidence of what this witness would have testified to or even that he could have been located by Sheeheed had she tried to find him. People v Ozuna, 7 NY3d at 915.

Further, the defendant claims that Sheeheed was professionally deficient in failing to submit evidence that the defendant was not known by the nickname "Unique," one of the three nicknames contained in the anonymous tip given to the police naming three perpetrators of this robbery (the third perhaps being a lookout that Negron was unaware of). At the trial, as a result of Sheeheed's persuasive pre-trial arguments to the Court, Detective Parks was permitted to identify two other people associated with the two other nicknames, one of whom was Grajales, and testify that the police did not know who belonged to the nickname "Unique" (Trial Transcript at 134-139). The defendant does not suggest in this motion how Sheeheed would have proved to the satisfaction of the jury the negative proposition that the defendant did not have the third nickname.

Far from hurting the defendant more than it helped him, as the defendant now argues, this evidence at least gave the jury the impression that the defendant was not as well-known to the police as the other two individuals whose nicknames were known and also allowed for the argument that there was no evidence that the defendant was known by any of these nicknames which were provided by an apparently reliable source. The defendant's present argument that it was constitutionally deficient trial strategy to introduce this evidence without also affirmatively proving that the defendant was not known by any of the three nicknames is the type of hindsight that should not be used to evaluate whether a trial strategy was reasonable under prevailing professional norms. Thus, this claim fails both under the first prong of both Strickland's and New York's standards for determining ineffective assistance.

Ethical Claims

The defendant's Memorandum of Law at 114-121 devotes a section to various instances where Sheeheed purportedly committed ethical violations constituting ineffective assistance of counsel. First, the defendant argues that Sheeheed could not be absolutely certain that the shoe store alibi was untrue, and, therefore, it was ethically improper for her to use her subjective opinion as a basis for (1) not immediately sending an investigator to the shoe store, (2) not calling Foster as an alibi witness, and (3) persuading the defendant not to testify.

However, taking each of these allegations one at a time, even assuming Sheeheed's decision not to immediately investigate the shoe store alibi violated prevailing professional norms, the defendant did not make a sufficient showing at the hearing, as discussed above, that an immediate decision to investigate the shoe store alibi would have disclosed evidence that would have resulted in a more favorable verdict to the defendant or that the failure to do so deprived the defendant of meaningful representation. [*13]

As to the decision of Sheeheed and her supervisor not to call Foster as a witness, the decision was justified based on an objective assessment of the credibility of Foster's proposed testimony and the risks involved in calling her as a witness, regardless of whether Sheeheed personally believed her. Sheeheed's personal views of Foster's credibility obviously played a role in her determination that the jury also would not believe her. This is not the same thing, as the defendant now argues, that Sheeheed did not call Foster as a witness solely because Sheeheed did not believe the shoe store alibi, and the evidence at the hearing does not support this argument. What the evidence showed was that Sheeheed utilized her own opinion of Foster's credibility, as well as the risks involved in calling her as a witness, to determine that calling Foster ultimately would not help the defense case.

The defendant argues that Sheeheed's advice not to call Foster was motivated to some degree by her prior decision not to aggressively investigate the shoe store alibi, because calling Foster without having made the best possible attempt to find a witness to corroborate her shoe store testimony would leave Sheeheed open to criticism. This argument cannot be disproved, particularly in view of Sheeheed's having belatedly sent an investigator to the shoe store who was not allowed to speak with the employees. Nevertheless, regardless of Sheeheed's motivations for this advice, when objectively evaluated, Sheeheed's decision and advice to the defendant not to call Foster as a witness was within reasonable professional norms and not shown to have prejudiced the defendant or deprived him of meaningful representation.

The defendant makes the further argument on this point that Sheeheed owed a duty to the defendant to "confront him" with her subjective belief that both the defendant and Foster were lying about the shoe store alibi so as to give him the opportunity to "clarify the factual issues with her or attempt to obtain new counsel" (Defendant's Memorandum of Law at 120). However, as discussed above, the decisions Sheeheed made and the advice given to the defendant either were within reasonable professional norms and/or were not shown to have prejudiced the defendant. Applying the traditional Strickland and New York tests to this argument, assuming there was an ethical duty for Sheeheed to tell the defendant she did not believe the shoe store alibi, the defendant, nevertheless, has not shown that the result of the trial would likely have been different if Sheeheed had been absolutely candid with the defendant as to her subjective beliefs. Although the defendant now argues he would have been in a position to persuade Sheeheed he was telling the truth had she told him she did not believe him, this argument overlooks the fact that he "slept through" the polygraph examination Sheeheed arranged for him which the defendant never pressed to have rescheduled.

Finally, as to the decision not to call the defendant as a witness, as noted above, that was a decision that the defendant made for himself after discussing it with Sheeheed. While Sheeheed may have advised the defendant not to testify, that advice has not been shown to have been motivated by anything other than Sheeheed's belief that the jury would not believe the defendant, taking into account the defendant's criminal record and the potential negative [*14]effect of the defendant having to place himself at a nearby bank shortly before the time of the crime, a circumstance that the jury might obviously view as more than an unfortunate coincidence, just as the defendant claimed was the explanation for his arrest a week after the robbery in the presence of Grajales, the other perpetrator, while wearing a coat described by Negron.

Conclusion

Neither the belated investigation of the shoe store alibi nor the failure to call Foster as a witness, as well as the other issues raised by the defendant, assuming any of them constitute deficient professional conduct a finding this decision has not made has been shown to have either resulted in prejudice to the defendant or deprived him of meaningful representation under the Federal and State standards for measuring ineffective assistance of counsel.

Accordingly, the defendant's motion to vacate the judgment is denied.

SO ORDERED

Joel M. Goldberg

Judge