People v Radcliffe

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[*1] People v Radcliffe 2009 NY Slip Op 52593(U) [25 Misc 3d 1245(A)] Decided on December 18, 2009 Supreme Court, Bronx County Price, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 18, 2009
Supreme Court, Bronx County

The People of the State of New York

against

Troy Radcliffe, Defendant,



3714-2001



For the Defendant:

Harold Ferguson, Jr., Esq.

The Legal Sid Society

For the People:

Jennifer Marinacchio

Assistant District Attorney

Bronx County District Attorney

Richard Lee Price, J.



On July 10, 2003, defendant was convicted after a non-jury trial of criminal possession of a weapon in the second degree (PL 256.03 [2]) and assault in the second degree (PL 120.05 [2]) by Supreme Court Justice Dominic Massaro. Upon that conviction, Justice Massaro entered judgment against this defendant on September 25, 2003, sentencing him to two concurrent determinate terms of imprisonment of fifteen years and seven years, respectively. On November 22, 2005, the Appellate Division, First Department, rejected defendant's challenge to the trial court's suppression rulings and affirmed his conviction. On February 24, 2006, Court of Appeals Judge Victoria Graffeo denied defendant's petition seeking leave to appeal.

By motion submitted October 6, 2009, defendant, through the Legal Aid Society, moves to vacate his judgment of conviction pursuant to CPL 440.10 (1) (h), Article I, Section 6, of the New York State Constitution as well as both the Sixth and Fourteenth Amendments of the United States Constitution on the grounds that he was denied effective assistance of counsel. Defendant asserts, in essence, that trial counsel's strategical advice and decisions were neither [*2]objectively reasonable nor tactically justified, and precluded the successful presentation of a meaningful and effective defense. Specifically, defendant argues that David Feige, his trial counsel, encouraged him to waive his right to a jury trial because Mr. Feige believed the court would acquit him. Defendant also faults Mr. Feige for deciding to conduct a bench trial by resting on the Wade/Crews pre-trial suppression hearing testimony and several evidentiary stipulations claiming that it deprived him of an adequate defense. He further criticizes Mr. Feige for objecting to the testimony of Ivan Liriano, notwithstanding that his testimony ultimately damaged the People's case. Finally, defendant asserts that had Mr. Feige not counseled him to waive his right to a jury trial, he would have testified and presented an alibi defense.

The People, in opposing defendant's motion, argue that Mr. Feige indeed provided meaningful and effective representation in that he thoroughly cross-examined the People's witnesses at the pre-trial suppression hearing, emphasized weaknesses in the People's case and delivered a persuasive summation. They further argue that defendant's waiver of his right to a jury trial and Mr. Feige's decision to rest on the pre-trial hearing testimony and stipulations as the trial record were not only a reasonable trial strategy, but were tactically justifiable since they were based on Mr. Feige's belief that doing so would achieve a favorable result. The People also correctly note that although the determination of whether counsel provided meaningful and effective representation is not dependent on achieving the desired outcome, here the trial court ultimately acquitted the defendant of the most serious charges, attempted murder in the second degree and assault in the first degree. This, they argue, supports the notion that Mr. Feige's representation was indeed meaningful and effective; that the result was not what the defendant desired, expected or liked is of no moment. This court agrees.

i. Ineffective Assistance of Counsel

In order to establish ineffective assistance of counsel, a defendant must demonstrate both the absence of strategic or other legitimate explanations for counsel's allegedly deficient conduct and a showing of prejudice (see Strickland v Washington, 466 US 668 [1984]). In accordance with this test, it is necessary to show that "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result" (Id at 686). Under the New York State Constitution, success of an ineffective assistance of counsel claim rests on whether " the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation'" (People v Henry, 95 NY2d 563, 565 [2000], quoting People v Baldi, 54 NY2d 137, 147 [1981]).

Effective assistance of counsel, then, is meaningful representation; not perfect or error free representation (People v Ford, 86 NY2d 397, 404 [1995] quoting People v Modica, 64 NY2d 828, 829 [1985]. Moreover, hindsight does not transform tactical errors into ineffective assistance of counsel (Baldi, 54 NY2d at 151; see People v Jackson, 52 NY2d 1027 [1981]). Only errors that seriously compromise a defendant's right to a fair trial warrant a finding of ineffectiveness (People v Hobot, 84 NY2d 1021, 1022 [1995]; see People v Flores, 84 NY2d 184, 188 [1994]; Baldi at 146-147). A "claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case" (People v Benevento, 91 NY2d 708, 714 [1998]). And, "[i]n assessing counsel's actions or [*3]omissions it is well established law that if they might be considered sound . . . strategy' they do not constitute ineffective assistance" (Brown v US, 167 F3d 109, quoting Strickland at 689 quoting Michel v Louisiana, 350 US 91, 101 [1955]).

Finally, this court notes that the performance and prejudice elements set forth in Strickland may be addressed in either order; "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed" Strickland at 697)]. This court will therefore begin with an analysis of whether the defendant has demonstrated the requisite prejudice.

ii. Prejudice

In order for defendant to demonstrate that he has been prejudiced, he must show that but for Mr. Feige's failures, there is a reasonable possibility that the defendant would not have been convicted of assault in the second degree and criminal possession of a weapon in the second degree (see People v Guretzky, 274 AD2d 524 [2d Dept 2000]). In analyzing whether prejudice could reasonably have emanated from Mr. Feige's performance, deference must be given to the notion that it was presumed to be effective, (People v Rivera, 71 NY2d 705, 709 (1998]), unless and until the defendant demonstrates "the absence of strategic or other legitimate explanations for counsel's shortcomings" (Benevento, 91 NY2d at 712). Thus, the defendant must show a deficiency in Mr. Feige's performance by demonstrating that he "made errors so serious that . . . [he] was not functioning as the counsel' guaranteed defendant by the Sixth Amendment" (Strickland at 687). While courts frequently examine an attorney's performance as a whole to determine its effectiveness, however, "[a] single error may qualify as ineffective assistance, but only when the error is sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial" (Murray v Carrier, 477 US 478, 496 [1986]; People v Caban, 5 NY3d 143, 152 [2005]).

Here, defendant contends that Mr. Feige deprived him of his constitutional right to effective assistance of counsel by urging defendant to waive a jury and resting on the testimony of the pre-trial suppression hearing and factual stipulations. Defendant argues that had Mr. Feige not given his assurance that Justice Massaro would acquit him, he would not have waived a jury and insists that a jury would certainly have acquitted him of all charges. Defendant's contentions, however, are entirely without merit. Indeed, as the People note, neither the defendant nor Mr. Feige claims that he improperly or incompetently conducted the trial. Hence, the defendant has suffered no prejudice.

What defendant is essentially asking this court to do is evaluate Mr. Feige's performance "with the clarity of hindsight to determine how the defense might have been more effective," a standard clearly inconsistent with prevailing authority (Benevento at 712). In hindsight, it is obvious that Mr. Feige regrets interpreting Justice Massaro's "face . . . tone" and "unmistakable look" as an indication that he would acquit the defendant and further regrets having convinced the defendant to waive a jury. It is precisely Mr. Feige's regret that defendant predicates his demand for another opportunity to achieve the result he wants. Even if this court were inclined to do so, which it is not, neither such regret nor Mr. Feige's other perceived "sins" constitute anything other than strategical and tactical decisions gone awry. A defendant who relies on counsel's assurance that a judge will find in his favor merely because of how the judge [*4]"unmistakably looks" at counsel, and later learns that counsel was in fact mistaken, is not a serious basis for a CPL 440.10 motion.

iii. Waiver of Jury Trial

The People's argument that defendant's motion must be summarily denied pursuant to CPL 440.10 (2) (c) because his claims are record-based and should have been raised on direct appeal is unpersuasive. CPL 440.10 (2) (c) provides as follows:

2. Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when: . . .

(c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him;

While the People correctly state that issues regarding sufficiency of a jury waiver colloquy are record-based and must be brought on direct appeal, here the underlying issue that the defendant presents is the ineffective assistance of counsel claim. In general, the avenue for pursuing ineffective assistance of counsel claims is exactly through a collateral motion under CPL 440.10, as opposed to a direct appeal, because the trial record will often be insufficient and need to be supplemented (see People v Harris, 109 AD2d 351, 360 [2d Dept 1985]).

It is well established that "in the typical case it would be better, and in some cases essential, that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by [a] collateral or post-conviction proceeding brought under CPL 440.10" (People v Brown, 45 NY2d 852, 853-854 [1978]; see also Cruz v Berbary, 456 F Supp 2d 410, 414 [2006], ["Denial of a CPL 440.10 motion, pursuant to 440.10 (2) (c), will not always be appropriate in the ineffective assistance context, such as when the facts supporting the instance of ineffective assistance of counsel appeared outside the record"]). Thus, a court's obligation to address the merits of an ineffective assistance claim may obviate consideration of a procedural bar (Horton v Ercole, 557 F Supp 2d 308, 316 n 5 [2008]; see Greiner v Wells, 417 F3d 305, 318 n 14 [2d Cir. 2005]). Accordingly, since defendant's claim is based, at least in part, on matters outside the record, which he was justified in not asserting through direct appeal, it is entirely appropriate for this court to entertain it.

Having done so, however, this court finds that defendant's jury trial waiver, which was executed in writing and in open court, was knowing, voluntary, and intelligent (CPL 320.10; see People v Fani, 59 AD3d 460 (2d Dept 2009). Indeed, only the defendant, not counsel, may waive the right to a jury trial (Jones v Barnes, 463 US 745 [1983]; People v Ferguson, 67 NY2d 383 [1986]). The record clearly reflects that Justice Massaro engaged in a lengthy dialogue with defendant and Mr. Feige regarding the waiver of a jury, in which defendant clearly stated he was aware of the consequences of his waiver of a jury, as follows:

THE COURT:All right. Having afforded you a little more time, counselor.

MR. FEIGE:Your Honor, we will continue with our decision. [*5]

THE COURT:To go bench trial, is that correct, Mr. Ra[d]cliffe?

THE DEFENDANT:Yes.

THE COURT:You realize by going bench trial you only have one trier of fact, namely myself and that you waive the opportunity which is constitutionally afforded to you to have a jury of your peers, people drawn from Bronx County to sit here in judgment over you; do you understand that?

THE DEFENDANT:Yes.

THE COURT:Do you understand that the court is number one, more acute, hopefully in the law than a lay jury and might look at things differently, might not be as assuaged by argument as a jury might be, might not be as impressed by testimony as a jury might be, might look at things a little more closely that [sic] a jury might, do you understand that?

THE DEFENDANT:Yes, I do.

THE COURT:You understand also that another way of putting it with a jury the odds are 11 to one, only one person has to be convinced that you should not be convicted and could result in a favorable verdict on your behalf whereas with a judge it is only one-on-one as opposed to one on twelve, do you understand the difference?

THE DEFENDANT:I am comfortable with you, your honor.

THE COURT:You feel enough confidence in your case/

THE DEFENDANT:Yes, I do.

THE COURT:You feel that you have confidence in the bench to get the type of trial which I am sure you will get, namely a fair trial in coming to this decision?

THE DEFENDANT:Yes, I am.

THE COURT:All right. I have for you to review a piece of paper which sets forth in one paragraph everything we have just discussed. And if after counsel and you confer on it you feel comfortable in signing it, please do so. [*6]

...

Mr. Ra[d]cliffe, you have had enough time in speaking with counsel in submitting these [sic] waiver of jury trial?

THE DEFENDANT:Yes.

THE COURT:Counsel, you have had enough time to discuss with your client all of the implications?

MR. FEIGE:We have.

THE COURT:Court so executes and orders. . .

It is patently obvious from this record that the trial court provided the defendant and Mr. Feige with an ample opportunity to discuss the ramifications of waiving a jury. Further, there is absolutely no indication that Mr. Feige coerced or cajoled the defendant into waiving a jury, or usurped his right to it. Notably, the trial court specifically asked the defendant whether he understood that as the trier of fact, the court might not be "assuaged by argument . . . impressed by testimony . . . [or may] look at things a little more closely" than a jury. The defendant clearly and unequivocally stated that he did. In addition, when the trial court asked whether he was comfortable with the judge as the trier of fact, he again clearly and unequivocally indicated that he was. Finally, and perhaps most significantly, both the defendant and Mr. Feige acknowledged that they had enough time to discuss all of the implications of waiving a jury.

Accordingly, the record plainly and unambiguously demonstrates that defendant's waiver was knowing, voluntary, and intelligent. Moreover, even considering Mr. Feige's questionable mea culpa statement that he urged defendant to waive a jury because he was certain Justice Massaro would return a not guilty verdict, nothing before this court substantiates defendant's claim that Mr. Feige's advice was without a strategic or other legitimate explanation.

iv. Defense Trial Strategy

Defendant also claims that Mr. Feige's decision to conduct a bench trial on basis of the Wade/Crews pre-trial hearing testimony, and his failure to consult him on it, constituted ineffective assistance of counsel. The People, conversely, argue that defendant's consent was not required since such a decision is tactical and encompassed within counsel's responsibility to develop the defense strategy. This court finds both arguments unpersuasive. While it is true that counsel maintains control over developing and determining an effective trial strategy, it is also true that counsel should advise the defendant of it, seek his approval, and obtain his consent. Failure to do so may indeed constitute ineffective assistance of counsel (see Florida v Nixon, 543 US 175, 192 [2004]; People v Welch, 307 AD2d 776 [4th Dept], lv denied 100 NY2d 625 [2003]; see also People v Medina, 44 NY2d 199, 209 [1978]). That is not to say, however, that "[w]hen counsel informs the defendant of the strategy counsel believes to be in the defendant's best interest . . . counsel's strategic choice is not impeded by any blanket rule demanding the defendant's explicit consent . . . . [I]f counsel's strategy, given the evidence bearing on the defendant's guilt, satisfies the Strickland standard, that is the end of the matter; no tenable claim [*7]of ineffective assistance would remain" (Nixon at 192). Necessarily then, this court must engage in an objective analysis of whether Mr. Feige's decision, and subsequent failure to discuss it with the defendant, lacked a strategic or other legitimate explanation, and if so, whether the defendant was prejudiced as a result.

To be sure, there is nothing inherently inappropriate with conducting a bench trial by resting on the pre-trial hearing testimony and evidentiary stipulations (see People v Williams, 161 AD2d 295 [1st Dept 1990]; see People v.Mills, 103 AD2d 379 [2d Dept 1984). Nevertheless, the Mills court noted that courts have at least a general responsibility to ensure stipulations are entered into knowingly and intelligently (Mills at 379; see US v Stalder, 696 F2d 1247, 1251 [8th Cir 1982] ["A careful inquiry on the record should affirmatively show that the defendant knew what he was doing and understood the consequences of his stipulation"]). A formal inquiry, however, may not always be necessary especially where the defendant has a criminal history, was familiar enough with the criminal justice system to know what such a stipulation would entail, and retained the opportunity to present a case subsequent to entering into the stipulation (Mills at 379). Here, Justice Massaro conducted no inquiry into whether the defendant knew and understood Mr. Feige's decision to rest on the pre-trial hearing testimony and evidentiary stipulations. Considering that Mr. Feige claims he never discussed these decisions with the defendant, the issue is whether such alleged failure deprived the defendant of meaningful representation pursuant to Baldi. As described below, an objective evaluation of Mr. Feige's performance reveals that it did not.

Indeed, it is reasonable practice for counsel to strategically decide which issues to raise in court because "[a] brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions" (Young v McGinnis, 411 F Supp 2d 278 at 332 [EDNY, J, 2006] citing Jones v Barnes, 463 US 745, 753 [1983]). Viewed in this perspective, Mr. Feige's performance did not prejudice defendant's trial. Mr. Feige's decision to proceed solely on a theory of misidentification by resting on the pre-trial hearing testimony and stipulations, and not by way of an alibi or some other defense, was part of a reasonable trial strategy (see People v McDonald, 255 AD2d 688 [3d Dept 1998] [finding that counsel was not ineffective for foregoing an alibi defense in favor of a misidentification defense]). This is especially true because Mr. Feige based his strategic decision on observing that Justice Massaro "nodded his head slightly in an affirming way and told me: I am intimately acquainted with the vagaries of eyewitness identification.'"

Additionally, during the pre-trial Wade/Crews hearing, Mr. Feige extensively cross-examined the complaining witness, Julio Cruz, and the investigating detective concerning the discrepancies between Mr. Cruz's description of the perpetrator and the defendant, the circumstances underlying the creation of the police sketch, the photographs that Mr. Cruz viewed at the police precinct, and the line-up that was conducted. Mr. Feige also elicited testimony from Mr. Cruz that he was medicated while in the hospital and did not recall viewing the photograph array.

Mr. Feige also successfully obtained the following crucial stipulations: the fingerprints lifted from the taxicab were not those of the defendant; the defendant was not wearing eyeglasses at the time of his arrest; there were no eyeglasses or corrective lenses recovered from his home; and, no request for corrective lenses was made during the pendency of the court proceedings. [*8]Additionally, Mr. Feige obtained a stipulation that an eyewitness, Victoriano Polanco, heard a bang and observed a black man wearing gloves exit a taxicab and walk away. Included in it was that Mr. Polanco had been drinking for several hours before the incident and only observed the black man for approximately fifteen seconds from across the street. The stipulation also included that Mr. Polanco viewed several photographs of potential perpetrators and indicated that although one photograph looked like the defendant, he was not certain. Interestingly, that photograph became the basis for creating a police sketch. More significantly, Mr. Polanco, who testified at the hearing, failed to positively make an in-court identification of the defendant as the perpetrator he observed. Mr. Feige then delivered a persuasive argument to the court.

Defendant nevertheless complains that Mr. Feige's performance was less than meaningful because he failed to present expert testimony on misidentification, failed to call any negative identification witnesses, failed to exploit the questionable nature of the identification proceedings, failed to provide proof that defendant had perfect vision and never required corrective lenses (the perpetrator wore eyeglasses), and failed to introduce evidence that another potential perpetrator closely matching the complainant's description was arrested while possessing the same type of gun used in this case. This court strongly disagrees.

Defendant also criticizes Mr. Feige for objecting to the testimony of Ivan Liriano. Apparently, Mr. Feige reasonably anticipated that Mr. Liriano would identify the defendant as the perpetrator he observed running from the crime scene. He therefore reasonably objected. Ironically, Mr. Liriano failed to positively identify the defendant. Still, defendant incredulously insists that Mr. Feige erred even though his testimony ultimately damaged the People's case.

Defendant further claims that had Mr. Feige not compelled him to waive a jury and decide to proceed with a bench trial on the hearing testimony and stipulations of fact , he would certainly have exercised his right to testify. Remarkably, however, he concedes that Mr. Feige neither coerced him to relinquish his right to testify nor usurped it. The People accurately note that defendant's moving papers are completely devoid of any allegation that he informed Mr. Feige of his desire to testify or the substance of what his testimony would have been. Regarding defendant's assertion that Feige precluded him from presenting an alibi defense, this court notes that also conspicuously absent from his moving papers is any mention of what his alibi would have been.

Moreover, the People note that defendant makes no showing of whether any of the alleged additional negative identification witnesses exist, whether they would have been available and willing to testify, and whether their substantive testimony would have been both favorable and material. Regarding the other potential perpetrator, Mr. Feige extensively cross-examined the assigned detective on his investigation of that individual and his resemblance to the defendant, and indeed attempted to introduce a photograph that individual. The court precluded Mr. Feige from doing so because that individual was from Brooklyn and there was no evidence he had any connection to the Bronx or was in the Bronx at the time of the crime.

It is, therefore, quite evident that Mr. Feige's decision to base the bench trial on both the testimony elicited at the Wade/Crews hearing and factual stipulations extracted from the People, along with his other strategic decisions, were part of an overall methodical defense strategy. Clearly, Mr. Feige's strategy was based on what he correctly perceived as a weak, one-witness identification case with no scientific evidence and a judge who was "intimately familiar with the [*9]vagaries of eyewitness identifications." Notwithstanding both the defendant's and Mr. Feige's protestations to the contrary, it was an apparently effective strategy as the defendant was acquitted of the most serious charges. Accordingly, although Mr. Feige should have consulted with the defendant regarding these matters, this court finds that he nevertheless provided objectively meaningful representation.

v. Mr. Feiga's Mea Culpas

Since defendant's motion is predicated on Mr. Feige's mea cupla statements, scrutiny is warranted here as well. Generally, mea culpa statements made by trial counsel cannot be taken at face value because counsel may be motivated by either a desire to assist a former client or protect their own reputation (Barclay v Spitzer, 371 F Supp 2d 273, 283 [EDNY 2005]; but cf, e.g., Henry v Poole, 409 F3d 48 [2d Cir 2005]). Moreover, where, as here, an otherwise excellent attorney, who consistently performs in a highly credible manner as a member of the criminal defense bar, unexpectedly and inexplicable pleads ineptitude, skepticism is particularly called for. As such, this court is wary of Mr. Feige's claim that he lays awake at night wrought with guilt for having made "the most stunning and appalling decision" of his career.

This court finds it acutely disturbing that after spewing his mea culpas, Mr. Feige implicitly abdicates responsibility to Justice Massaro for the verdict not being what he anticipated. "Had Justice Massaro not done what he did, I would had [sic] proceeded with a trial, as I had throughout my career and as I always intended to do." Unfortunately, for both Mr. Feige and the defendant, nothing in the record before this court remotely suggests that Justice Massaro assured, promised or guaranteed that he would acquit the defendant. Even Mr. Feige's characterization that Justice Massaro gave him the "wink" is devoid of any factual support. In fact, as noted above, Mr. Feige based his strategic decision on a dubious head-nod and "unmistakable" look, which does not remotely qualify as a promise or guarantee.[FN1] To infer that Justice Massaro somehow made false or misleading representations is intellectually dishonest.

If Mr. Feige is indeed guilty of that which he claims to be, it would perhaps constitute far more than ineffective assistance of counsel. It is patently absurd to believe that an extraordinarily experienced defense attorney with an admittedly inherent distrust for the judiciary would suddenly unravel into a hideously incompetent advocate merely by the way a judge looked at him.[FN2] Of course, it is not for this court to speculative what Mr. Feige thought, believed or intended when concluding that defendant's best opportunity for success was to waive a jury. What appears unmistakable, however, is the striking similarity between the defendant's case and an ostensibly fictitious case contained in Mr. Feige's book "Indefensible."[FN3] Also unmistakable is that in one episode of Mr Feige's television drama, "Raising the Bar," another ostensibly similar [*10]fictitious case involves a corrupt judge who agrees to acquit the defendant but fails to do so.[FN4]

Perhaps Mr. Feige does indeed seek redemption for his perceived malpractice or perhaps there are other motivational forces in operation. Neither is of any moment. If, however, Mr. Feige is indeed guilty of the ills he claims to be, then in light of the accomplished author and producer he has become, disbarment, which he curiously appears too eager to accept, seems far from adequate. If, on the other hand, Mr. Feige is simply remorseful for misreading Justice Massaro, such remorse hardly qualifies as error, much less ineffective assistance of counsel; it is merely an unsuccessful defense strategy.

v. Conclusion

Accordingly, for the reasons stated, this court finds that, in fact, the defendant entered a knowing, voluntary and intelligent jury waiver and that the defendant received effective assistance at all stages of the proceedings (see People v Wiggins, 89 NY2d 872 [1996]; People v Ford, 86 NY2d 397, 404 [1995]; see also Strickland v Washington, 466 US 668). Therefore, the defendant's motion to vacate his judgement of conviction pursuant to CPL 440.10 (1) (h) is in all respects denied.

This constitutes the decision and order of the court.

The clerk of the court is directed to forward a copy of this decision to the defendant at his place of incarceration.

Dated:December 18, 2009

E N T E R

________________________________

Richard Lee Price, J.S.C.

Footnotes

Footnote 1: See Feige affidavit, paragraph 19, which provides, "Justice Massaro fixed me with an unmistakable look [and] nodded his head slightly in an affirming way."

Footnote 2: See Feige affidavit, paragraph 20, which provides, "[i]t is not in my nature to trust judges."

Footnote 3: See defendant's moving affirmation, page 14, and the District Attorney's opposing affirmation, page 12.

Footnote 4: See defendant's moving affirmation, page 14, the defendant's reply memorandum of law, page 5, and the District Attorney's sur-reply, page 1.



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