Defendant was found guilty of Murder in the Second Degree and sentenced in 1994 to an indeterminate term of imprisonment of 25 years to life. Defendant made two motions to vacate his judgment of conviction which were denied, on August 12, 1995 and March 1, 1999, respectively. The Appellate Division, Second Department, affirmed the judgment (242 AD2d 745 [2d Dept 1997]), and the Court of Appeals denied defendant's application to appeal (91 NY2d 896 [1998]).

The United States District Court denied defendant's petition for habeas corpus relief. The defendant appealed to the Second Circuit and by decision filed May 25, 2004, the United States Court of Appeals issued a summary order remanding the case to the District Court, "with instruction to stay the habeas corpus petition to allow [defendant] a reasonable time period in which to pursue his unexhausted claims in state court" (Summary order, p3). The Second Circuit noted that while the defendant made two claims of ineffective assistance of counsel, only one was "unexhausted", that being that "his trial counsel rendered ineffective assistance by failing to introduce into evidence a photograph of the defendant taken following his arrest which shows the defendant with a full beard and moustache....contradict[ing] the testimony of the crime's sole eyewitness that the perpetrator was cleanshaven" (id).

The defendant now moves, pursuant to CPL 440.10 (1) (h), for an order vacating his judgment of conviction on this ground.^[FN1] The People oppose the motion, claiming that defendant's motion must be rejected on two separate procedural grounds as well as on the merits. With respect to first procedural ground, they argue that the fact that defense counsel failed to introduce the arrest photo into evidence appeared on the record and, therefore, under CPL 440.10(2)(c), the motion to vacate must be denied in that "sufficient facts appeared on the record" to have permitted review of his claims on direct appeal. As to the second procedural ground, the People contend that the defendant's [*2]motion should be denied pursuant to CPL 440.10(3)(c) because he failed to raise the issue at bar in his previous two motions to vacate judgment, despite the fact that he was in a position to do so. They point out that the defendant knew that there was an arrest photo of him, knew that there was a videotape of him, and knew that he had a beard and moustache at the time of the murder, yet he never raised this issue in his previous motions. Finally, the People assert that the defendant's motion is without merit because the testimony of the witness regarding the perpetrator being clean-shaven was equivocal and that defense counsel's introduction of the arrest photo to impeach the witness would have permitted the People to rebut by introducing evidence that the witness photo-identified the defendant shortly after the commission of the murder. They claim that counsel was not ineffective and that the defendant failed to meet his "high burden of demonstrating that he was deprived of a fair trial by less than meaningful representation" (People' s Affirmation in Opposition p. 29).

In reply to the People's Affirmation in Opposition, the defendant asserts that his motion should not be denied on procedural grounds in that: 1) the procedural default doctrine is inapplicable to claims of ineffective assistance of counsel because the attorney's motivations were not on the record; 2) the arrest photograph was not in the trial record and to the extent that it was introduced at a pretrial hearing, the defendant was nevertheless justified in not raising the question of its non-introduction because of the People's position on direct appeal that the photograph was not in the record; and 3)the Appellate attorney did not see the arrest photo and the defendant, as a layman, should not be required "to mount his own defense in a murder case" (Reply memo p.5). In addition, the defendant restates his position that the failure to introduce the photo was ineffective, claiming that in order to rebut with the photo-identification, the People would have had to concede that the witness initially failed to identify the defendant in a photo shown to her days after the incident.

In the opinion of the court, the defendant's motion to vacate judgment should be denied on both procedural and substantive grounds. The court finds that the defendant should be procedurally denied, pursuant to CPL 440.10(3)(c), from raising the issue at bar because he was in a position to adequately raise the issue in his two previous CPL 440.10 motions but failed to do so. The fact that the defendant had a beard and moustache at the time of the murder was obviously known to him and furthermore, his arrest photo was part of the record in that it was introduced at a pretrial hearing, so that the issue at bar should have been raised earlier. In addition, the court finds that the motion should fail on the merits in that the defendant has failed to meet his burden of demonstrating "the absence of strategic or other legitimate explanation for counsel's alleged shortcomings" (People v Benevento, 91 NY2d 708, 712 (1998). As the Court of Appeals held in Benevento, "[a]s long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance" (id).

In the case at bar, trial counsel was confronted with a scenario in which the only eyewitness named the defendant as the murderer. This testimony was unequivocal. What was equivocal was the witness' testimony as to whether or not the perpetrator had facial hair. Because of this, impeaching the witness with the defendant's arrest photo had more disadvantages than advantages. The witness could not be significantly impeached, because at both the pretrial hearing and at trial^[FN2] she could not state with any certainty that the perpetrator was clean-shaven, so that confronting her with the arrest photo would not have had the dramatic impact the defendant alleges it would have. Furthermore, it would have permitted the People to introduce evidence that the witness photo-identified the defendant days after the murder, not just six months later at the lineup. In the opinion of the court, this would have been devastating to the defense, which clearly relied upon the witness's mistaken identification. The court notes that the damaging impact would not have been seriously lessened by the misidentification of the defendant in a different photo, because it was taken much earlier. By not introducing the arrest photo, the defense was able to try to convince the jury that the witness, who claimed that her cataracts had worsened since the time of the murder, had misidentified the defendant in the lineup, conducted six months after the incident. Trial counsel told the jury that the witness could not see, commenting on the fact that she had to be led to the defendant and that she had characterized trial counsel as elderly, although despite having gray hair, he obviously was not. It seems to the court that the last thing he would want the jury to know is that in addition to naming the defendant, she had identified his photo four days after the murder. The defense strategy was unsuccessful, but that does not mean that it was not well-reasoned or that it constituted ineffective assistance of counsel.

Based upon the foregoing, the defendant's motion to vacate judgment is denied.

Order entered accordingly.

The Clerk of the Court is directed to forward copies of this decision to the Office of The District Attorney and to the attorney for the defendant.

STANLEY B. KATZ, J.S.C.