People v Nikc

[*1] People v Nikc 2015 NY Slip Op 51852(U) Decided on December 18, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 18, 2015
Supreme Court, Kings County

The People of the State of New York, Plaintiff, - vs -

against

Jeton Nikc, Defendant.



9431/98



The People were represented by D.A. Kenneth Thompson, 350 Jay Street, 20th Floor, Brooklyn New York 11201, by: ADA Lori Glachman and ADA Kenneth Taub

Defendant was represented by Mischel & Horn, P.C., 1 Whitehall Street, 10th Floor NY,NY 10004,bt Richard Mischel, and Steven L. Brounstein, 42-40 Bell Blvd., Bayside NY 11361
Joel M. Goldberg, J.

The defendant's motion, pursuant to CPL 440.10, dated July 29, 2015, to vacate the judgment of January 31, 2001 convicting the defendant after a non-jury trial wherein the defendant claimed he was not responsible due to a mental disease or defect of Murder in the Second Degree (depraved indifference), three counts of Assault in the First Degree (depraved indifference), Criminal Possession of a Weapon in the Second Degree and Third Degrees, and Reckless Endangerment in the First Degree, and sentencing him to concurrent terms of 18 years to life on the murder conviction, 15 years on each of the assault convictions, 15 years on the second degree weapons count, 7 years on the third degree weapons count, and 2 to 6 years on the reckless endangerment count (J. Goldberg J. on trial and sentence), upon consideration of the People's Answer, dated September 28, 2015, the hearing held on the motion on October 30, 2015 and November 4, 2015, the defendant's post-hearing brief, dated November 13, 2015, the People's post-hearing brief, dated December 7, 2015, and the defendant's reply brief, dated December 16, 2015, is denied.

The judgement was unanimously affirmed by the Appellate Division. People v. Nikc, 52 AD3d 740 (2d Dept. 2008). Leave to appeal to the Court of Appeals was denied at 11 NY3d 856 (2000).

The Motion

The defendant on this motion contends that the judgment should be vacated, because, in violation of the defendant's constitutional due process rights, the People did not disclose two police reports "favorable to the defense" which are asserted to be Brady material. The defendant claims he saw these reports for the first time as a result of a FOIL request made years after his conviction.

In particular, these reports, a police DD5 and property voucher (hereinafter referred to as "the reports") concerned the recovery of a .25 caliber handgun at the crime scene behind the front gate of the "Hocus Pocus" magic store. The reports noted that this gun (hereinafter "the Hocus Pocus gun") was not found at the scene by Crime Scene Unit on its initial investigation, but, instead, was recovered by the police after the Hocus Pocus store owner reported finding it the next day.

The defendant argues that had these reports been disclosed to the defense prior to trial, the defendant would not have waived a jury trial and would not have interposed a defense of not responsible by reason of mental disease or defect. Rather, the defendant would have opted for a jury trial and interposed a justification defense (self-defense). The defendant argues that this alternative strategy would have resulted in a more favorable verdict.

The Trial

According to the trial evidence, on September 12, 1998, at about 2 a.m., on Coney Island Avenue in Brooklyn, the defendant and his group of friends argued with another group of young men. After two or three of these men hit and punched the defendant, the defendant drew a 9-millimeter gun from his waistband and fired at the people on the street, killing Anthony Andujar and seriously injuring Angelique Martinez, Richard Davis, and Yui Tung Lok.

Of the four people shot by the defendant, only Richard Davis had been involved in the prior argument with the defendant and his friends. The other three were bystanders.

Earlier that evening, the defendant was at Friends Field (a New York City public park located at 1294 East 4th Street, Brooklyn, New York — about eight blocks from where the shootings would take place) with a group of his friends, including Angelique Martinez, Peter Pacheco, Jeffrey Wachman, Mario Oliva, and "Gatto." Two or three people in the group had guns and were passing them around. The defendant was seen by Martinez in possession of a black 9-millimeter handgun and Mario Oliva was seen by Pacheco in possession of a .38 caliber handgun.

After talking about "a problem going on at Coney Island Avenue," the defendant and members of his group left in several cars and arrived at the vicinity of Dixie's Bar located at the corner of Coney Island Avenue and Avenue M.

There was a second group at the scene which included Ronald Durbin, Richard Davis, and Devon Stevens.

Durbin left Dixie's bar and spoke on the street with Oliva. Durbin thought the defendant said something to him, but the defendant said, "I ain't talking to you...I'm here to handle some business."

Durbin was told by Pacheco that Pacheco had heard that Durbin wanted to rob defendant's friend Jeffrey Wachman. Durbin said that he grew up with Wachman and would never rob him. Durbin then got into a verbal argument with Gatto.

At some point, Davis and Stevens joined Durbin. Oliva became involved in a confrontation with Gatto. Oliva was seen to have a .38 caliber revolver under his shirt. Oliva then became involved in a confrontation with Durbin and placed his gun against Durbin's chest. Durbin dared Oliva to shoot him. However, Oliva, instead, withdrew from the encounter.

Durbin then heard a commotion and saw Wachman, the defendant, and others appear [*2]from around the corner. Wachman was armed with a knife and attempted to swing it at Durbin. Stevens then hit Wachman with a garbage bag.

A fight broke out between the two groups. According to Durbin and Stevens, their group was comprised of 3 or 4 people while the defendant's group numbered 15 to 20 people.

According to Martinez, who was part of the defendant's group, prior to the defendant's firing his gun, she saw him with a gun in his front waistband standing near a green car that belonged to "Beck."

According to Martinez, during the altercation between the two groups, Davis and Stevens ran towards the defendant. Durbin recalled that first Davis and the defendant were scuffling on the sidewalk and then Stevens joined in. Davis and Stevens had the defendant against a gate or wall and were striking him in the chest and shoulder. Stevens also hit the defendant in the head.

The fight moved into the street. The defendant managed to get away after the fight just eased off." As Davis and Stevens were standing in the street, the green car that had been parked nearby pulled out and drove at Davis and Stevens. Stevens kicked the car as it went by. At the same time, the defendant who was standing in the street, no longer involved in a fight, pulled a black gun from his front waistband, yelled "Mother fuckers" and started shooting into the crowd which included his friends. No one else was shooting. The defendant then got into the green car which drove off.

The police recovered four 9-millimeter shell casings in the street where the defendant had been seen shooting. All of the shell casings were determined to have been fired from the same Glock-type gun.

Shortly before the defendant started shooting, Anthony Andujar had driven to the scene with his passenger, Yui Tung Lok. They had not been involved in the altercation.

Martinez, one of the defendant's friends was shot in the thigh. Davis was shot in the ankle. Andujar was fatally shot in the chest. Yui Tung Lok was also shot in the chest.

Pacheco, the defendant's friend, had a conflicting version. According to Pacheco, the defendant jumped out of Beck's green car and was rushed by three people who were on top of the defendant. The defendant started shooting while either on the ground or bent over at the waist. Pacheco did not hear the defendant yell anything other than "probably" yell "get off me." According to Pacheco, none of the three people on top of the defendant were struck by the defendant's gun shots.

Pacheco observed the defendant and others jump in Beck's car and drive off. Pacheco was certain that only the defendant and Oliva possessed a gun at the scene. Pacheco had observed four guns at Friends Field possessed by the defendant's group.

No one testified that anyone in the other group had a weapon of any kind. (Nevertheless, the defendant contends on this motion that evidence of the Hocus Pocus gun, if its existence was known by the defense, could have been a basis to contend that the defendant saw someone in the other group possess it, thereby resulting in the defendant firing his own gun in self-defense.)The defense at trial was that the defendant was suffering from post-traumatic stress disorder (PTSD) which affected his perception of reality. This defense was presented by Dr. Stephen Teich a psychiatrist who examined the defendant in preparation for the trial. Dr. Teich concluded that the defendant was suffering from PTSD as the result of several traumatic [*3]incidents in his past. The defendant and his family were refugees from the civil war in Bosnia where the defendant lived as a child. The family continued to discuss the dire on-going situation in Bosnia while the defendant was growing up in America, which Dr. Teich believed was a continuing source of trauma to the defendant.

Dr. Teich testified that the defendant had told him that he believed one of the people he had been fighting with was reaching for a gun and that he was going to be killed. The defendant reported to Dr. Teich that during the street fighting, he had been hearing the people around him speaking in the Serbian and Kosavari languages spoken in Bosnia. Dr. Teich also testified that there was no evidence in reality to support the defendant's belief that someone was about to shoot him when the defendant fired his gun.

It was Dr. Teich's opinion that the defendant's PTSD and the stress of the street fight caused the defendant to disconnect with reality.

In rebuttal, the People presented Dr. Robert Berger, a psychiatrist who also examined the defendant. Dr. Berger opined that the defendant did not lack criminal responsibility for his actions by reason of PTSD or any other mental disease or defect.

A.

The evidence at the hearing does not support the defendant's assertion on this motion that the People did not serve defense counsel with purported Brady material, i.e. the reports.

Trial counsel testified at the hearing that he did not believe he received these reports, because had he received them, he would have made use of them either to further the PTSD defense (i.e., that seeing a gun about to be used against him "triggered" the defendant's mental break with reality) or, more likely, not waive a jury trial and assert a justification defense.

However, there was strong circumstantial evidence at the hearing that, in fact, the reports and additional documents reflecting the recovery of the Hocus Pocus gun, were turned over by the prosecution. First, the trial record at the beginning of the trial contains the prosecutor's statement that "Rosario material" was being contemporaneously turned over and that additional "Rosario material" had been turned over the day before. Defense counsel's silence at this point can only be interpreted as an acknowledgment of the truth of the prosecutor's assertions.

Second, the prosecutor testified at the hearing and authenticated copies of the documents that were purportedly served which were kept in separate folders in the People's case file that the prosecutor had specifically prepared for use at trial. Included in these folders were copies of the two police reports (Hearing Exs. 3 and 5) in question, as well as four other police documents reflecting the discovery of this weapon: including a Crime Scene Unit report, a Crime Scene Unit diagram; a computer generated Sprint report; and a handwritten note concerning a police interview with the store owner (Hearing Exs. 1, 2, 4, and 6, respectively).

The People's file did not contain a list of the specific documents turned over in the prosecutor's two eve-of-trial deliveries, even though the prosecutor testified that it was her practice to keep such lists. The prosecutor testified that her computerized records of the case

which were kept by the District Attorney's Office, no longer exist due to the passage of time between the trial and this motion.

However, there is really no other reasonable conclusion that can be drawn from the existence in the People's file of copies of these documents which were purportedly disclosed to trial counsel on the eve of trial combined with the prosecutor's un-refuted assertion on the trial record that there [*4]were two eve-of-trial deliveries of documents, that, in fact, the documents in issue were disclosed by the People to trial counsel on the eve of trial. There was no suggestion at the hearing that the prosecutor kept copies of these particular documents in the case file but chose to deliberately withhold them from the defense. And there is no basis for the Court to make such a finding.

There was an earlier delivery of documents to trial counsel by another Assistant District Attorney who made a list of those documents. None of the Hocus Pocus gun documents were listed thereon. However, at the trial, a document also not on this list, a DD5 by Detective Burke, was used by trial counsel to cross-examine Richard Davis (Hearing Ex. 7). The use of this unlisted document at the trial would tend to corroborate the prosecutor's testimony that documents in addition to the listed documents disclosed by the prior prosecutor were turned over on the eve of trial (and also demonstrate that trial counsel had an opportunity to examine these eve-of-trial documents).

The People's position is supported by trial counsel's making references to the Hocus Pocus store during the trial. Trial counsel explained at the hearing that his use of the name of that store (while not naming any other store on the street) was not based on his reading any of the reports concerning the Hocus Pocus gun. Rather, trial counsel testified that he just happened to recall the unusual name of the store from either his visit to the crime scene or his general familiarity with the neighborhood. As detailed in the People's Brief at 45-51, his explanations were inconsistent and implausible.

Nevertheless, trial counsel also testified at the hearing that if he were actually aware of the Hocus Pocus gun, he would have mentioned it at trial for several reasons, including to demonstrate that the Crime Scene Unit did not thoroughly investigate the crime scene. He testified that, had he known about this gun, he also would have demanded to be informed of the results of any tests performed on the gun and ammunition recovered. This testimony is plausible, and, therefore, trial counsel's mention of the Hocus Pocus store at the trial does not conclusively establish that trial counsel was aware of the Hocus Pocus documents.

On the other hand, trial counsel, contrary to his hearing testimony, may have decided that the Hocus Pocus gun was irrelevant to the PTSD defense he planned to put forth and, if anything, its discovery would tend to show that other people in the defendant's group besides the defendant and Oliva possessed a gun at the scene. After all, more than two guns were seen in the group's possession at Friends Field.

Finally, although not necessary to support the Court's conclusion on this issue, at the hearing, trial counsel could not satisfactorily account for the present whereabouts of his own file in this case. Trial counsel testified he turned his file over to the defendant's appellate counsel, but he could not supply the name of that attorney.

Examination of that file, if it were made available, could have shed some light on whether or not the documents concerning the Hocus Pocus gun were received and reviewed by trial counsel. Not remembering or having any record of who took custody of his file constitutes an unusual lapse of memory in a circumstance where the contents of the file might defeat the defendant's motion.

Accordingly, it may be inferred that had the file been located, the file would support the People's position that the contested documents were, in fact, turned over. Therefore, the Court finds, principally based on the testimony of the trial prosecutor and the copies of the documents in the People's file that were purportedly served on the eve of trial, that the defense has not met its burden to show this material was not disclosed. CPL 440.30 (6) (The defendant has the burden of proving [*5]by a preponderance of the evidence every fact essential to support a motion to vacate judgment.)

This finding is made despite the defendant's testimony at the hearing that he personally reviewed every police report in his trial attorney's possession and he did not see the two reports he later received in his FOIL request or any other document concerning the Hocus Pocus gun.

B.

The defendant alternatively argues that even if the documents were delivered as contended by the People, the manner and timing of the eve-of-trial disclosure deprived the defense of a meaningful opportunity to use them, citing People v. Wagstaffe, 120 AD3d 1361 (2d Dept. 2014).

At the hearing, the People's exhibits from their file reflecting copies of the delivered documents consisted of two unindexed stacks, each representing one of the two eve-of-trial deliveries. One stack was about an inch and a half thick. The second stack was about three-quarters of an inch thick.

As previously noted, the documents turned over by the prosecution on the eve of trial included the two reports and four other documents reflecting that the Hocus Pocus gun was discovered. These documents included a handwritten note, a computer printout of a Sprint Report detailing the store owner's call to the police about finding a gun, and a Crime Scene Unit diagram of the store. These particular documents on their face appeared different from most of the other documents in the two stacks of papers. Nevertheless, the defendant argues that if, in fact, delivered on the eve of trial, the Hocus Pocus documents were interspersed throughout a voluminous stacks of documents without specifically identifying the documents as Brady material, thus depriving trial counsel of "an adequate opportunity" to make use of the documents. Wagstaffe, at 1363.

However, as other attorneys have done when prosecutors have made similar "document dumps" on the eve of trial, if trial counsel needed more time to review the documents before proceeding, trial counsel could have requested a continuance to review the documents and to undertake investigation of the newly disclosed information. (Despite long-standing complaints from the defense bar, to this day Criminal Procedure Law 240.45 [1] does not require a prosecutor to turn over Rosario material until after the trial has commenced, thus promoting similar "document dumps" and consequent defense requests for continuances to review material and investigate even after a jury has been seated.)

Just because the trial may have commenced, trial counsel was not without remedies, including a motion for a mistrial, had he appreciated the now-asserted significance of these documents. Instead, trial counsel did not complain to the Court about not having sufficient time to review the documents. From his lack of complaint about the eve-of-trial service of these documents, it may be assumed that trial counsel believed he had time to sufficiently review them.

In fact, in this case, trial counsel not only had time to examine the documents and did not ask for more time, he actually used a police report contained in the stack to cross-examine Richard Davies, if not also noting the name of the Hocus Pocus store on the police reports he testified he never saw.

Therefore this case is distinguishable from the circumstances in Wagstaffe, where the documents that could have been used to impeach the People's witnesses at a Wade hearing were not [*6]disclosed until the time of jury selection which was after the witnesses had testified at the Wade hearing. The disclosure in Wagstaffe was "not in time" for the documents to be used in a "meaningful fashion." Wagstaffe at 1363.

C.

Even if the documents were not disclosed or, if disclosed, were not disclosed so that they could be "meaningfully" used, there nevertheless is no Brady violation requiring vacating the judgment, because had the documents been properly disclosed, the outcome would, nevertheless, have resulted in the defendant being convicted of the same charges.

To establish a Brady violation fatal to a judgment of conviction, a defendant must prove prejudice resulted from a failure to disclose favorable evidence that was material. Wagstaffe, at 1364, citations omitted. "As to the element of materiality, where there was only a general request by the defendant at the time of trial for exculpatory material, evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Wagstaffe at 1364 (citations omitted ) (emphasis supplied).

"In New York, where a defendant makes a specific request for a document, the materiality element is established provided there exists a reasonable possibility' that it would have changed the result of the proceedings." People v. Fuentes 12 NY3d 259, 263 (2009) citing People v. Vilardi, 76 NY2d 67, 77 (1990) (emphasis supplied).

As contained in Exhibit B attached to the defendant's motion, the defense made a pre-trial omnibus motion which, in paragraph 40, moved for production of "all" Brady material. In paragraph 42 of that motion, in 11 separately lettered sub-paragraphs, the defense made specific requests for certain Brady material without any reference to the facts of this particular case. None of these "boilerplate" requests pertained to the issue of justification or recovery of weapons at the crime scene.

Also contained in Exhibit B of the defendant's motion is a copy of the Demand for Discovery served by the defense in this case. Included on page 5 of that Demand was a demand for "exculpatory material" pursuant to Brady v. Maryland, followed by the words, "Exculpatory material includes impeachment material. Exculpatory material includes any statements by anyone that addresses any issue in all of Article 35 of the Penal Law" (emphasis supplied).

Article 35 of the Penal Law is titled "Defense of Justification." It contains eight sections covering a myriad of issues, most of which are not applicable to this case, such as PL 35.20 (use of physical force in defense of premises), PL 35.25 (use of physical force to prevent a larceny or criminal mischief) and PL 35.30 (use of physical force in making an arrest or preventing an escape).

It may be argued that "common sense" would direct a prosecutor to ignore all of the sections in Article 35 that were not relevant to this case. But if that argument is applicable, then the defendant's Demand for Brady material which included "all of Article 35" would have required the prosecutor to make judgments concerning the scope of the defendant's generalized request.

Further, even if the prosecutor focused exclusively on PL 35.15 relating to the use of deadly physical force, the request for information pertaining to "any issue" concerning that section would require the prosecutor to look beyond the specific words of both the statute and the Brady request to decide what the defendant had in mind when making that request.

For example, if someone in the other group had made prior threats concerning the defendant, even if the defendant did not know of the threats, such evidence could indicate that this person was [*7]the "initial aggressor" at the time of the incident and, therefore, constitute a potential exculpatory issue addressed by Article 35 of the Penal Law. See People v. Petty, 7NY3d 277 (2006).

Another example would be if someone in the other group had a license to carry a firearm. This fact would tend to show that this person was armed that night, even though no witness testified to seeing anyone other than those in the defendant's group carrying a firearm.

These examples illustrate that the Brady Demand by the defendant was not specifically addressed to information concerning the Hocus Pocus gun or any other weapon found anywhere at anytime. Indeed, when asked at the hearing if she had considered the finding of the gun Brady material, the prosecutor answered, "I don't remember. I don't know" (Hearing at 134).

Rather than encouraging specific requests for information to take advantage of the lenient Villardi rule that a failure to produce specifically requested Brady material will require only a showing of a reasonable possibility of a more favorable outcome, deeming a Brady request for information addressing "any issue" in the law of justification to be sufficiently "specific" will only encourage gamesmanship in future Brady demands and destroy the efficacy of the current Villardi standard.

Furthermore, requiring a more specific request in this case would not have placed an undue burden on the defense. Trial counsel was purportedly told by the defendant that he had seen the other group in possession of guns at the scene. It would not have been difficult for the defense to draft a more specific Brady demand tailored to the defendant's version of the events in addition to the generalized Brady request that was made in this case, thereby alerting the prosecution that the defense possessed information that the other group may have had their own guns that night

Accordingly, to prevail on this motion, the defendant must show that had the material in question been disclosed (assuming that it had not been disclosed), there is a reasonable probability, not a reasonable possibility, of an outcome more favorable to the defendant.

Had the defense chosen to maintain the PTSD defense, either with or without a jury, evidence of the discovery of the Hocus Pocus gun the next day would not have — to either a reasonable probability or even a possibility — changed the outcome.

Pursuant to PL 40.15 and 25.00 (2), the defendant had the burden of establishing at the trial that he was not criminally responsible due to PTSD by a preponderance of the evidence. The finding the next day of a gun of unknown ownership would not have changed the result of the trial based on a PTSD defense, either with or without a jury.

There simply was no credible evidence that anyone other than those in the defendant's group possessed a gun. The only person who claimed to have seen a gun in the possession of the other group was the defendant. He told this to Dr. Teich who postulated that the defendant's belief that he was threatened by a gun could have acted as a "stressor" triggering the defendant's PTSD which caused him to falsely believe he was being attacked in Bosnia. The defendant contends the finding of the Hocus Pocus gun would have made his claim that the shooting was the result of PTSD more convincing.

The PTSD defense relied on the premise that in the middle of a fight to which he and his friends brought their own guns, the defendant suddenly had some sort of "flashback to Bosnia" that was "triggered" by the stress" of the situation. This defense just was not sufficiently convincing to carry the defendant's burden of proof, particularly in view of the rebuttal testimony of Dr. Berger. [*8]Evidence of a gun recovered the next day would not have changed the result.

Alternatively, had the defense chosen to opt for a jury trial and interpose a justification defense, as trial counsel asserted at the hearing he would have done, the outcome of this hypothetical trial to this Court's thinking, would have even more certainly resulted in a conviction.

In this case, the evidence was that the defendant assembled with a group of his friends past the midnight hour in a park where three or four guns were passed around. The defendant had one of the guns in his possession when his group left the park to confront the other group. This certainly is not a good start to a justification defense. It does not get better.

Shortly after arriving at the scene, the defendant told a member of the other group (Durbin), "I'm here to handle some business."

Thereafter, one of the people in the defendant's group (Oliva) put a gun to Durbin's chest, and another member of the defendant's group (Wachman) came at Durbin with a knife. Stevens

responded to Wachman's use of a knife with a garbage bag. No one in the other group used a weapon.

When the defendant became involved in the fight that spilled into Coney Island Avenue, no one saw anyone use a weapon either against the defendant or against any one else in the defendant's group.

The defendant testified at the hearing , not too convincingly in this Court's view, that he thought he saw two people with guns. But his prior statement to Dr. Teich was that he thought he saw a one person reaching for a gun in his waist — which Dr. Teich believed, based on his hearsay knowledge of the witnesses's statements, was not the reality.

After the fighting in the street stopped, the defendant then pulled out his gun, and yelled an epithet commonly used more in anger than in fear for one's life. That epithet was not directed at anyone in particular. The defendant then fired at least four shots, hitting Davis in the ankle and three uninvolved people, consisting of his friend Angelique Martinez and two innocent bystanders, killing one of them.

The defendant immediately jumped into an apparent getaway car and left the scene, leaving behind the Coney Island Avenue carnage he had caused.

With no evidence that might persuade a jury that the defendant had a reasonable belief that he would be killed unless he fired those shots, and with evidence that the defendant and his friends came to the scene armed for a fight resulting in innocent bystanders being shot, there is certainly no reasonable probability, or even possibility, that evidence of the finding of the Hocus Pocus gun the next day would have resulted in a verdict more favorable to the defendant.

There simply was no evidence, even from the defendant's friends Pacheco and Martinez, that the defendant saw a gun about to be used against him or anyone else. Any trial testimony to the

contrary by the defendant would thus be uncorroborated, self-serving, contradicted by other witnesses, and, under all the circumstances, not likely to persuade a jury.

As noted in the People's Brief, at 57-59, the police report of the interview with Richard Davis that the defendant now asserts is an admission by Davis that "he pulled a gun and fired one shot,"

is actually a purported statement by Davis that it was Jeff Wachman who had a the gun. In fact, that is how trial counsel interpreted this report when questioning Davis at the trial.

Therefore, the defendant has not shown that it is reasonably probable, or even reasonably possible, that evidence of this purportedly undisclosed, or untimely disclosed, Hocus Pocus gun, would have, if timely disclosed, resulted in a more favorable outcome. If anything, evidence of this gun would have tended to show that someone else in the defendant's group besides the defendant and Oliva brought a gun with them to the scene.

D.

Although the defendant's motion took the position that the People did not disclose the police reports in issue, at the close of the hearing after evidence had been received that the reports were disclosed, the issue of ineffective assistance of trial counsel was discussed (Hearing at 202-211). The defense took the position that the documents, if they were in fact served, were served in a manner that, in effect, concealed them from trial counsel which prevented him from using them to render effective assistance (Hearing at 210). The defense believed there was no need to reopen the hearing to question trial counsel on any other issue (Hearing at 205-206, 211).

In his post-hearing brief, at 30-31, the defendant contends that if the documents were delivered and defense counsel was aware of them, then defense counsel provided ineffective assistance by not pursuing a justification defense and using the documents at the trial.

In response, the People's post-hearing brief, at 64, contends that, "defendant should be precluded from raising an ineffective assistance claim, because he was in a position to raise the claim prior to the hearing but failed to do so, "and because the defendant effectively waived the claim by objecting to a fully developed record" (i.e., reopening the hearing to take further testimony from trial counsel).

It is unnecessary to decide this question on procedural grounds, because, as discussed in Section C. of this decision, evidence of the Hocus Pocus gun would not have resulted in a verdict more favorable to the defendant.

To establish ineffective assistance of counsel under the Federal Constitution, a defendant must show that his attorney's conduct was professionally unreasonable, and the attorney's errors resulted in prejudice to the defendant. Strickland v. Washington, 466 US 668, 687 (1984). "Prejudice exists when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." People v. Caban, 5 NY3d 143, 154 (2005) quoting Strickland at 694.

As discussed in Section C. above, given the evidence in this case, there was no reasonable probability of a verdict more favorable to the defendant regardless of whether counsel would have opted for a jury trial and interposed a justification defense using evidence of the Hocus Pocus gun, or whether trial counsel would have maintained the PTSD defense.

Assuming trial counsel was aware of the gun and made a conscious choice not to employ a justification defense (which, of course, trial counsel asserts did not happen), this would not have been an unreasonable strategic decision, particularly if a successful justification defense hinged on the defendant giving credible testimony. People v. Rivera, 71 NY2d 705, 708 (1988). Such a strategic decision should be evaluated without the "distorting effects of hindsight." Strickland at 689.

New York's standard for ineffective assistance is failure to provide "meaningful representation." People v Benevento, 91 NY2d 708,712 (1988). There can be no denial of effective assistance of counsel from counsel's failure to pursue a strategy "that has little or

no chance of success." People v. Stultz, 2NY3d 277, 287 (2004); People v. Caban, 5 NY3d at 154.

As noted, a justification defense would have had little or no chance of success. The defendant's testimony at the hearing about seeing a gun possessed by the other group was unconvincing in this regard and would not have been supported at the trial by any other witness, including his friends. Further, the defendant never explained why he and his friends came to the scene armed with at least two guns and one knife, and what the fight with the other group was all about. The defendant also was unclear as to how many guns he saw being carried by the other group and whether these guns were ever threatened to be used. (Of course any such explanations at the hearing would have been difficult to accept given, the defendant's prior statements to Dr. Teich that at the time of the shooting he was essentially hallucinating and believed he was in Bosnia.)

Assuming the defendant gave the same delusional version to trial counsel as he did to Dr. Teich (a question trial counsel could have clarified if the hearing had been re-opened on the issue of ineffective assistance of counsel), trial counsel would have had an excellent strategic reason not to have interposed a justification defense: the defendant at the time of the shooting was hearing voices speaking foreign languages the defendant, thus, would not have been capable of articulating that he had a reasonable fear that deadly physical force was about to be used against him; and there were no other witnesses to support a justification defense, despite the recovery of the Hocus Pocus gun.

Finally, trial counsel's choice to waive a jury trial and interpose a PTSD defense, despite its ultimate lack of success, would have been a reasonable professional decision even with knowledge of the Hocus Pocus gun. Trial counsel knew the evidence against the defendant was overwhelming, and a justification defense was not supported by any witness, including the defendant's friends. That would leave only the defendant to assert that defense in the face of evidence that the defendant came to the scene with his friends armed "to handle some business."

The PTSD defense, on the other hand, provided the Court with evidence of the difficult circumstances faced by the defendant and his family as presented through Dr. Teich.

This strategy created the possibility that the Court, making the decision without a jury, might be persuaded to find the defendant's conduct only reckless without the "depraved indifference to human life" element that significantly enhanced the sentences. Although the trial Court found that the defendant acted with depraved indifference to human life, the 18-year to life sentence imposed on the murder conviction was less than the maximum allowable sentence of 25 years to life. The other sentences, some of which could have been imposed to run consecutively, were, instead, all imposed to run concurrently. It cannot be said that if an unsuccessful justification defense had been interposed in a jury trial, that the defendant would have received the same consideration. In that

respect, waiving a jury and interposing the PTSD defense made the best of a bad situation, even if it were made with knowledge of the Hocus Pocus gun.

Therefore, the defendant has not shown that trial counsel's failure to make use of the Hocus Pocus gun at the trial that actually took place, or in the hypothetical jury trial with a justification defense that the defendant argues should have taken place, resulted in any prejudice to the defendant or that the defendant did not receive meaningful representation.

Accordingly, the defendant has not established he received ineffective assistance of counsel justifying vacating the judgment.

[*9]Conclusion

The defendant's motion to vacate the judgment is denied.

SO ORDERED

JOEL M. GOLDBERG

JUDGE