This case is not published in a printed volume and its disposition appears in a table in the reporter.
Plaintiff Attorney: Anne C Feigus Asst DA- Kings County, New York
Defense Attorney: pro se
Yvonne Lewis, J.
Mr. Willie Kearse, a/k/a Darrell Crouch, pro-se, has moved this court, pursuant to CPL 440.10 (1) (f), (l), and (h), the 6th and 14th Amendments of the United States Constitution, and Article I, 6 of the Constitution of the State of New York, to vacate his March 2, 1995 judgment of conviction (for the murder of Devon Brown and attempted murder of Raymondo Frazier on August 6, 1993, at approximately 3:00 p.m.) as a result of his trial counsel's failure to investigate, contact, interview, or call his then girlfriend and alibi witness, Ms. Shirene Cirino Mosley, despite the fact that his priorly retained attorney had timely filed a notice of alibi with regards to said Ms. Mosley. Trial counsel did call another alibi witness, Ms. India Barnes, who resided with her boyfriend, Ms. Mosley, and Mr. Kearse in Massachusetts, who testified that she prepared dinner on a nightly basis in August, 1993 although she had no exact memory of the murder date of August 6, 1993 during which Mr. Kearse was always present. She stated that she prepared dinner during the hours of 5:00 to 7:00 p.m., and that Mr. Kearse was always present when she left the house for her 3:00 p.m. to 11:00 p.m. work shift, and returned home in the morning. The trial transcript makes reference to a 3:00 p.m. to 11:00 p.m. work shift that she sometimes had to work, and a "normal" 11:00 p.m. to 3 a.m. shift at Dunkin' Donuts.
Mr. Kearse notes that in a July 17, 2006 affidavit, obtained by private investigator Kevin Hinson, Ms. Mosley attested to the fact that she had contacted his retained counsel and advised him that she had been with him in Fitchburg, Massachusetts the entire day of August 6, 1993. In addition, Mr. Kearse indicates that his trial attorney had assured him that Ms. Mosley would be contacted at the appropriate time and called as a witness on his behalf, although she wasn't. Finally, Mr. Kearse asserts that trial counsel's reason for refusing his request to present her as a witness was, in sum and substance, "we don't need Shirene, becuase Ms. Barnes did a wonderful job, and we got this case in the bag, so don't worry yourself."
In his memorandum of law, Mr. Kearse cites the following facts; to wit, 1. three of four prosecution witnesses to the shooting identified him as the shooter; 2. he is currently serving (as corrected by the prosecution) eight and one-third to twenty-five years for attempted murder, in the second degree, five to fifteen years for criminal possession of a weapon, in the second degree, and two and one-third to seven years for assault in the second degree, running concurrently with each other and consecutively to a twenty year to life sentence for murder in the second degree; 3. he timely appealed his convictions, which were unanimously affirmed by the Appellate Division, Second Department on the 27th day of May, 2007 (citing,
Peo. v. Crouch, 239 A.D.2d 597 [2d Dept., 1997]), with leave to appeal to the New York Court of Appeals denied on the 11th day of August, 1997 (citing,
Peo. v. Crouch, 90 N.Y.2d 903 ); and, 4. on the 30th day of August, 1999, this court denied his CPL 440.10 (1) (g) and (h) motion which sought to vacate his judgments of conviction on the grounds that the prosecution had failed to disclose a sprint report prior to trial, wherein a 911 caller had indicated that the perpetrators of the drive by shooting were in a grey or black car whereas the trial witnesses had testified that they saw him driving a green car on the day of the shooting; that said sprint record constituted newly discovered evidence and a Brady violation; and that he had been denied the effective assistance of counsel by his trial counsel's failure to have called several witnesses on his behalf.
Mr. Kearse argues that his trial counsel's failure to investigate, interview, or call his alibi witness and/or to have given an adequate explanation as to why he opted not to do so constitutes a substantial enough error so as to result in the ineffective assistance of counsel (citing, Peo. v. Bussey, 6 A.D.3d 621, 775 N.Y.S.2d [2d Dept., 2004], wherein reversal resulted from failure to investigate alibi and potential alibi witnesses), especially since his second alibi could not as thoroughly account for his whereabouts for the entire day in question.
The prosecution particularized that the Appellate Division upheld Mr. Kearse's conviction upon a finding that the trial court's accomplice liability charge, when viewed as a whole, adequately conveyed the proper standards, and that his remaining contentions (use of his nickname, "guns," and other alleged prejudicial testimony; erroneous admission of gun into evidence; and violation of his right to be present at a continued suppression hearing) were either unpreserved for appellate review, without merit, or constituted harmless error. The prosecution also noted that on the 14th day of May, 1999, Judge Nickerson, of the U.S. District Court denied Mr. Kearse's writ of Habeas Corpus on the just mentioned grounds as untimely. Finally, the prosecution cited this court's 8/30/99 determination vis-a-vis Mr. Kearse's first 440 motion that trial counsel "gave strong opening and closing arguments, made appropriate objections, aggressively cross-examined prosecution witnesses, and, in short, did the best he could given the strength of the People's case" against the defendant. . . .[and] "viewing each ineffective assistance claim individually and collectively, the court finds that [defendant] received a fair trial with effective assistance of counsel." In making that finding, the court had taken note of trial counsel's affidavit that he or his investigator had interviewed but that he, as a trial tactic, decided not to call the three witnesses that Mr. Kearse argued should have been called; to wit, Raymondo Frazier, the victim who had been shot but not killed; Carmen Tirado, who had identified someone other than the defendant in a line up; and the woman who owned or worked in a grocery store in close proximity to the shooting and had made the 911 call to the police. The prosecution additionally contends that the fact that both he and Ms. Mosley candidly admit that they were boyfriend and girlfriend at the time of the shooting not only makes it even more readily apparent that Mr. Kearse could have raised this claim in his prior motion (filed in 1999) but inexplicably failed to do so until now (seven and one-half years later), but points to the fact that trial counsel may have opted not to call her since she was an interested witness, her testimony would have been merely cumulative, and could have increased the risk for inconsistencies with Ms. Barnes, thereby rendering the same more impeachable.
In short, insofar as Mr. Kearse's present 440 motion is concerned, the prosecution asserts that the same is procedurally barred, pursuant to CPL 440.10(3)( c), and entirely meritless given that "the defendant was in a position adequately to raise the ground or issue underlying the present motion, but did not do so." (Citing, Peo. v. Sanchez, 212 A.D.2d 487 (1st Dept., 1995); Peo. v. Moolenaar, 207 A.D.2d 711 (1st Dept., 1995); Peo. v. Cortez, 158 A.D.2d 611 (2d Dept., 1990); and Peo. v. Thomas, 147 A.D.2d 510 [2d Dept., 1989]).
The effective assistance of counsel is essential to receiving a fair trial (See Peo. v. Claudio, 83 N.Y.2d 76; U.S. v. Cronic, 466 U.S. 648), and can only be constitutionally met when the evidence, the law, and the circumstances of a particular case reveal that the attorney provided meaningful representation when viewed under the totality of the circumstances existing at the time of the representation (See Peo. v. Satterfield, 66 N.Y.2d 796; Peo. v. Baldi, 54 N.Y.2d 137; McKinney's Const. Art. 1 6, USCA Const. Amend. 6). Hence, "[to] succeed on a claim that trial counsel was ineffective, a defendant must demonstrate that counsel's representation fell below an objective standard of reasonableness,' and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Defendant must also show that he suffered actual prejudice." (See Strickland v. Washington, 66 U.S. 688, supra ; Mills v. Scully, 826 F.2d 1192; Peo. v. Morgan, 157 A.D.2d 64; Peo. v. Sullivan, 153 A.D.2d 223). Having considered all the arguments herein raised, trial counsel's performance as duly noted in this court's prior 440 decision (from which assessment there is no legitimate basis to deviate), this court finds that trial counsel provided "meaningful representation" as required by State law (see Peo. v. Benevento, 91 N.Y.2d 708, 712 (1998); Peo. v. Satterfield, 66 N.Y.2d 796 (1985), supra, and Peo. v. Baldi, 54 N.Y.2d 137) and "reasonably effective assistance" under federal law, "which in light of all the circumstances, does not fall outside the wide range of professional competent assistance'." (see Strickland v. Washington, 466 U.S. 668 (1984)). In addition, this court finds that Mr. Kearse's instant 440 motion is procedurally barred, pursuant to CPL 440.10(3)( c), given that the defendant had been in a position adequately to raise the ground or issue underlying the present motion, on direct appeal and/or his earlier 440 motion, but did not do so.
WHEREFORE, on the basis of the foregoing, Mr. Kearse's motion is denied in its entirety. This constitutes the ...