Upon the notice of motion dated July 2, 2010, defendant moves via his attorney for an order pursuant to Criminal Procedure Law (CPL) sections 440.10(1)(H) and 440.20 to vacate the within conviction and to have his sentence therewith set aside. A New York Family Lawyer said defendant argues that his conviction should be vacated and the sentence set aside because of ineffective assistance of counsel, in that, although alibi notice was served and on notice with the court, trial counsel failed to present defendant’s alibi defense and did not call alibi witnesses whose testimony would have exculpated defendant from the within conviction. A hearing on this matter was granted without objection from counsel and held on October 28, 2010. The hearing was continued on December 16, 2010 with oral argument of counsel.
On February 3, 1993 at approximately 8:45 pm at 1033 Broadway in Kings County, the defendant along with three companions was alleged to have robbed four persons inside a pool hall located at that address. A New York Custody Lawyer said the defendant was said to be armed and in the course of the robbery shot two persons one died and the other was wounded, an eyewitness. Eyewitnesses identified the defendant out of a line-up and photo array as one of the people who committed the crimes. Defendant was charged with Murder in the Second Degree, Attempted Murder in the Second Degree, Robbery in the First Degree, and two counts of Criminal Possession of a Weapon.
A Suffolk County Family Lawyer said that, alibi notice had been presented in this matter by defendant’s former Legal Aid attorney which offered the defense that defendant could not have committed the acts he is charged with because at the time of the commission of said crimes defendant was eighteen blocks away at 1217 Jefferson Avenue in Kings County, his family home. Defendant had intended to call the two tenants who live at 1217 Jefferson Avenue. The alibi notice dated April 12, 1993 is addended to defendant’s motion as exhibit A.
According to defendant, the tenant would have testified that “she returned from the grocery store in a cab just prior to the time that the shooting had occurred and that the tenant and the defendant carried her groceries into her apartment and remained there.” At the time, the tenant possessed a receipt from the grocery store which was date/time stamped and assisted to establish the time in which she got back to her apartment with the groceries. Afoot note in defendant’s motion states that, “seventeen years later, the receipt has since been lost.” The tenant would have testified similarly, that he had been “hanging out with the defendant on the front stoop [of 1217 Jefferson Avenue in Kings County on that night [February 3, 1993] and that the two of them assisted his aunt with her groceries [into the apartment] before she then made them something to eat,” and he would have told the court that it would have been impossible for the defendant to have been at the scene of the crime, 1033 Broadway in Kings County because as he stated in his affirmation, they both remained in and around the apartment the remainder of that night. Affirmations from the tenants are addended to defendant’s motion as Exhibits B and C. Although the tenants states in her affirmation that on two occasions detectives came to question her and she was told by them, essentially, that she did not have to testify, yet, she still expected to be contacted in order to testify in court at defendant’s trial.
A Suffolk County Child Custody Lawyer said that, prior to the filing of the within 440 motion, defendant’s appeal, was denied by the Appellate Division, Second Department on February 3, 1997 and the judgment was affirmed. Defendant’s issues on appeal dealt with a prosecutor who spoke with a prosecution witness while the witness was still under oath and was being cross examined. The appellate court held that while this conduct was not to be encouraged or approved, under the facts of this case, the conduct did not deprive the defendant of a fair trial and the defendant was not unduly prejudiced.
In addition, the hearing court had been advised of the People’s questionable conduct and found out that the prosecution had only advised the witness to rethink the answers previously given. In addition the underlying court made a determination that the witness’s post recess testimony was not credible and as a result, the court suppressed the lineup identification of three eyewitnesses. The appellate court also pointed out that the “in-court identifications by those eyewitnesses had a sufficient independent source, considering that the scene of the incident was well-lit and was not crowded, and all of the witnesses had a five to ten minute opportunity to view the defendant and his accomplices.” Defendant’s appeal did not deal with ineffective assistance of counsel, the issue now presented in the submission of the CPL 440 motion.
The issue in this case is whether defendant’s conviction should be vacated and the sentence set aside on the ground of ineffective assistance of counsel.
A hearing was necessary to determine the extent of trial counsel’s awareness of potential witnesses and whether there was a valid tactical reason for not presenting them at trial regarding the issue whether trial counsel’s failure to present testimony of alleged alibi witnesses amounted to ineffective assistance as these issues could not be resolved upon the motion to vacate the conviction. The issues presented by defendant here is that the defendant’s prior counsel failed to investigate the alibi witness and failed to call the alibi witnesses to testify. Defendant believes such failure to investigate alibi witnesses resulted in ineffective assistance of counsel.
The burden is on the defense to show that the defendant was prejudiced and that there was a reasonable likelihood that if the alibi witnesses had testified at trial, the outcome would have been different. The witnesses’ testimony was consistent with the defendant’s alibi that he was not at the location of the incident because he and the tenant was together that day after they helped her with her groceries just prior to the time the crime was committed at the pool hall. At the time of the incident, the tenant said she had a receipt from the grocery store and had held onto it expecting to testify in the defendant’s behalf. She stated that she was visited on two occasions by detectives who told her that her testimony was not needed. She subsequently lost track of the receipt. The witnesses also testified that they were like family with the defendant and lived as tenants in the home that was owned by the defendant’s family for almost two decades.
Defendant also testified that he had obtained the counsel’s information from another inmate, was impressed with him and secured his counsel. Defendant’s grandmother put her house up for collateral and was paid $25,000.00 after also meeting with defendant’s father and grandmother. His former attorney, who represented defendant at arraignment, had filed the notice of alibi statement. Defendant said he discussed his case with the counsel including the quality of evidence and that he believed the description of defendant was an issue as well as the credibility of the prosecution witnesses. Defendant stated he had two meetings with him prior to the trial. They also discussed the alibi testimony and defendant said he told him he did not need it.
The counsel testified that he knew of the alibi witnesses, had them both on his potential witness list which had been submitted to the court. An original copy of the defense witness list was in the court file and the People presented a copy of the list as evidence. He stated that he evaluated the credibility of the alibi witnesses and discerned that putting them on the stand would not help the defendant’s case because the witnesses were too closely connected to the defendant and the tenant had a criminal conviction that closely mirrored what the defendant was being charged with in this matter. He stated that he fully discussed the merits of putting the alibi witnesses on with the defendant as well as the best theory for the defense which was the tenuous description of the defendant and inconsistencies of the eyewitness testimony. He stated that his decision not to call the alibi witnesses to testify was a strategic one.
The counsel contradicted defendant stating that it was impossible for him to tell defendant after first meeting him that alibi witnesses were not needed because he would want to evaluate the entire case before making that decision and would have been considering the alibi up until the point he was ready to rest. He testified that he did not have any independent recollection of speaking to the alibi witnesses. But he stated that he would not have included the two alibi names on the list without having spoken to them directly. He further explained his reasoning regarding the risk of putting on alibi witnesses whether weak or not, because if they are found to lack credibility “you get a burden shifting result” where the defendant is convicted because the jury imparts witnesses they perceive as lying to the defendant. He goes on to say, “in this case, there is no way I would have put on anything short of an absolute black and white alibi and even then I might not have because in this case it was riddled based on the discrepancies in identification. And, not proffering an alibi defense was a tactical decision on his part. If the defendant had insisted on putting on alibi witnesses where he believed it would be unwise to do so, he says he would have notified the court and put a ‘divide’ like that between him and his client on the record, however he recalls no such insistence by the defendant in this matter.
The prosecution also offered in evidence a map of the location showing that the building where the alibi witnesses and defendant lived was in very close proximity to the pool hall where the crime occurred.
Defendant admitted he discussed the alibi witness and his case with his counsel. The counsel presented the alibi witnesses on the list of potential defense witnesses to the court. Defendant testified that his counsel told him that his focus for the defense would be on the credibility of the prosecution witnesses and the inconsistency in the description of the defendant. The counsel’s testimony was consistent with the defendant’s in this regard. Defendant stated that he was impressed with his counsel, did not question his strategy and went along with the decision that he made until he came across a case this year that made him question whether his counsel did something wrong.
In weighing all of the factors of defendant’s case, the counsel essentially decided that the alibi was tainted and that calling the tenants may have further prejudiced defendant because of the close familial connection as well as the fact that one of the alibi witnesses had a criminal record which would result in an improper burden shifting against the defendant. The strategy appeared to be reasonable and sound and one that the defendant did not object to at the time of the trial. Defendant’s affirmation papers, in support of defendant’s motion to vacate the judgment pursuant to CPL section 440.10 (1) (h), focuses on failure to investigate the alibi and point out that despite the myriad inconsistencies in the prosecution’s case, “the only evidence inculpating defendant was the four in-court identifications” pointing to defendant as the perpetrator of the crimes charged and defendant believes that presenting the alibi “would have tipped the scales in defendant’s favor.” Further, no evidence was presented in the hearing that the counsel failed to investigate the alibi witnesses.
Under the facts and circumstances of this matter, this court is in no position to substitute its judgment for that of the trial attorney. Here, the defendant has not met either prong of Strickland, the first being that the counsel’s representation fell below an objective standard of reasonableness and defendant failed to meet his burden in showing prejudice in that the outcome of the trial would have been different had the alibi witnesses been called.
Although, the alibi issue has been apparent for well over seventeen years, the defendant did not raise the issues in his submission to the Appellate Division and here offers no justifiable reason for failing to do so. Although defendant knew from the inception of his trial in discussions with his attorney that alibi witnesses were not likely going to be called as a result of the trial strategy; rather, defendant asserts that he was not aware that anything might have been wrong until he read a case where there was a failure to investigate alibi witnesses.
Here, the issues defendant presents in his instant motion were known at the time of judgment and defendant had the opportunity to present such issues heretofore for appellate review.
Accordingly, defendant is barred from raising the issue of evidentiary insufficiency in this collateral proceeding pursuant to CPL 440.10(2) (c). Consequently, defendant’s motion herein must be denied in its entirety.
If you are involved in a similar case, seek the help of a Kings Order of Protection Attorney and Kings Family Attorney at Stephen Bilkis and Associates. Call us.