Appeal, by permission, from an order of the Criminal Court of the City of New York, Kings County (Robert D. Kalish, J.), dated August 17, 2009.
Appellate Term, Second Department
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: WESTON, J.P., GOLIA and RIOS, JJ
The order, following a hearing, denied defendant's motion, pursuant to CPL 440.10, to vacate a judgment of conviction.
ORDERED that the order is affirmed.
On February 7, 2003, a judgment was entered convicting defendant, after a non-jury trial (Margarita Lopez-Torres, J.), of attempted criminal contempt in the second degree (Penal Law §§ 110.00, 215.50 ) and harassment in the second degree (Penal Law § 240.26 ). Defendant appealed, and this court affirmed the judgment of conviction (People v Perez, 5 Misc 3d 133[A], 2004 NY Slip Op 51435[U] ). Defendant then moved to vacate the judgment of conviction pursuant to CPL 440.10, alleging the ineffective assistance of counsel. By order dated December 14, 2005, the Criminal Court (Margarita Lopez-Torres, J.) denied the motion without a hearing. Defendant obtained leave to appeal, and this court reversed the order and remanded the matter to the Criminal Court for a determination de novo, following a hearing, of the motion to vacate the judgment of conviction, having found that "questions of fact exist as to the circumstances surrounding trial counsel's failure to call two potential alibi witnesses . . . [and] defendant's failure to testify" (People v Perez, 17 Misc 3d 134[A], 2007 NY Slip Op 52198[U] ). After the hearing, the Criminal Court (Robert D. Kalish, J.) denied the motion. Defendant appeals by permission, and we affirm.
Defendant contends that his trial counsel failed adequately to investigate and develop the defense that, on January 8, 2002, the date defendant was alleged to have committed the offenses, he was in Florida on real estate business, having driven there with a friend, Besim Nikqi, two days before. Defendant further argues that his counsel failed to inform him that he had the right to testify on his own behalf and in support of the alibi defense, even if it was counsel's professional advice that he refrain from testifying.
Although defendant asserted at the hearing that counsel never advised him of his absolute right to decide whether to testify (see NY Const, art I, § 6; CPL 60.15; Jones v Barnes, 463 US 745, 751 ; People v White, 73 NY2d 468, 478 ), the hearing court credited trial counsel's explicit testimony to the contrary, and we find no basis to reject that determination. As defendant failed otherwise to establish that the advice, limited to the issue of the utility of his testimony, fell below an objective standard of reasonableness, defendant has not established the ineffectiveness of counsel on this ground.
With respect to the alibi defense, we note that a defendant's right to effective representation entitles him or her "to have counsel conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed" (People v Bennett, 29 NY2d 462, 466 ; see e.g. People v Green, 37 AD3d 615 ; People v Nau, 21 AD3d 568, 569 ; People v Fogle, 10 AD3d 618 ; People v Maldonado, 278 AD2d 513, 514 ; People v Rojas, 213 AD2d 56, 67 ). The issue is whether the record establishes the existence of a viable alibi defense, and, if so, whether the record "reveal[s] any sound reason for the defense counsel's failure to investigate the defendant's alibi or to call . . . alibi witnesses to testify at the trial" (People v Bussey, 6 AD3d 621, 623 ).
Here, trial counsel interviewed Mr. Nikqi and submitted a videotape of the interview, and Mr. Nikqi himself, to the prosecutor, who offered defendant a favorable plea disposition, which defendant rejected. Trial counsel ultimately presented Nikqi as a trial witness. At the hearing, neither defendant nor Nikqi produced any written or electronic proof corroborating their claim of having driven from New York to Florida and back during the period in question, and defendant admitted that none existed. Defendant insisted that he had informed counsel that en route home, he had contacted a police official in Maryland and from there had telephoned his parents and a local New York City police precinct. Trial counsel testified that she investigated these claims, contacting the Maryland police official, who could not corroborate the fact of their presence at the time alleged, much less that defendant had made telephone calls from there to New York. Defendant's mother, who testified at the hearing, did not confirm that she had spoken to defendant at the time claimed, and defendant produced no evidence that the New York City police precinct had received a call from defendant. Thus, aside from defendant's and Nikqi's bare claims, defendant adduced no evidence to corroborate those claims, much less that reasonable efforts on counsel's part would have produced such proof.
Defendant also alleged that he had informed counsel of the existence of two witnesses, Ms. Greenbaum, an elderly friend of defendant's mother, and Mr. Morali, a Florida real estate agent. Ms. Greenbaum signed an affidavit asserting only that she remembered seeing defendant in Florida on January 8, in 2002 or 2003. However, the hearing court credited trial counsel's testimony that she was never informed of Ms. Greenbaum's existence prior to the trial, and, in any event, since Ms. Greenbaum could not recall the year ...