By a pro se motion, dated July 27, 2004 (not June 21, 2004 as stated in the People's answer), the defendant moves pursuant to CPL. � 440.10(1) to vacate his judgment of conviction of Robbery in the First Degree and other charges, dated July 24, 2003. After requesting several extensions to answer the defendant's motion due to the voluminous trial record, the contemporaneous filing of the defendant's brief on his direct appeal to the Appellate Division, and the need to obtain an affidavit from the defendant's trial attorney, the People filed their answer, dated January 18, 2005.

BACKGROUND

The pertinent facts of the trial record are recited in the People's answer and need not be repeated in this decision. The defendant was tried jointly with two co-defendants, Terry Williford and Michael Williams, and one of the issues at trial was the propriety of this Court's decision not to grant a motion for a severance based on a claim of "antagonistic" defenses, particularly the defendant's claim of duress.

This duress defense was grounded on the defendant's claim at trial that he was an employee of the robbery victim and that he provided information under "duress" to his co-defendants about when the complainant, Chiam Kolker, would be taking money from his beverage distribution business, Beer Castle. The defendant had made statements to the police to that effect. Ultimately, the People did not introduce them at trial. To do so would have required a severance from his co-defendants, and the People did not wish to try this relatively lengthy case more than once.

THE DEFENDANT'S CLAIMS

The defendant raises two "Grounds" in his motion. First, is that his attorney was "ineffective" and, second, is that evidence favorable to him was suppressed by the police and his attorney. His claims of ineffective counsel are capable of being reviewed on the trial record and, therefore, must be denied because his direct appeal is pending. CPL. § 440.10 (2) (b).

The claim of suppression of favorable evidence is supported by only the defendant's allegations (which are refuted by the affidavit of his attorney), and, under the circumstances, there is no reasonable possibility that they are true. Thus, no hearing on these unsupported allegations is required in order to deny them. CPL. � 440.30 (4) (d); People v. Toal, 260 AD2d 512 (2d Dept. 1999); People v. Harris, 109AD 2d 351, 363 (2d Dept. 1985).

Further, as to these unsupported claims, the defendant had an explicit opportunity to place them on the record at his sentencing, as well as at his earlier court appearance on this [*2]case, but unjustifiably failed to do so resulting in an inability to review these claims on appeal. CPL. § 440.10 (3) (a). His failure to do so does not suggest that his prior silence on this issue was motivated by his fear of his co-defendants as he now suggests in his motion. Rather, it appears these allegations are untrue and have been fabricated for purposes of this motion, or, if some of them are true, they were unjustifiably concealed by the defendant, because the defendant believed it would not have been helpful to reveal them to his attorney.

A.Claims That Are Reviewable On The Trial Record

The following claims of error as set forth in "Ground I" of the motion are on the record and, therefore, must be denied, pursuant to CPL. § 440.10 (2) (b), because they are reviewable on appeal:

1. His trial attorney, John B. Stella, did not effectively cross-examine some witnesses, particularly Matthew Falco, a handwriting expert who identified the defendant's handwriting ("highly probable") on a note found in the getaway car. (Ground I, pars. 1-4). This note referred to the money that would be coming out of the Beer Castle. The note, according to Falco, also contained the handwriting (again, "highly probable") of co-defendant Terry Williford asking when the money would be coming out. In his own testimony claiming duress, the defendant admitted to having written the note in answer to the written inquiry of co-defendant Williford. Therefore, vigorous cross-examination of the handwriting expert by his attorney would not have benefitted the defendant.

2. Evidence of the defendant's family connections to the family of co-defendant Michael Williams was "too remote" and should have been objected to by defense counsel (Ground I, par. 5). This connection was highly relevant to connect the defendant to the crime and, therefore, was not "remote."

3. Defense counsel was ineffective for allowing the defendant to testify that his co-defendants coerced the defendant into assisting in the crime (Ground 1, pars. 7-22). The decision to testify belonged to the defendant himself, and the defendant, given the circumstances of the case, had to explain in his defense how a note in his own handwriting concerning the money came to be in the getaway car. A duress defense was not so implausible as to amount to ineffective assistance, given all of the surrounding circumstances of the case, and the facts in the defendant's statements to the police (even though those statements were not introduced at trial). Although this defense was not credible, there really was no other defense available. Had the defendant pursued a different defense, the People may very well have decided to ask for a severance and introduce the defendant's statements admitting his participation under duress. Thus, the defendant was effectively "locked in" to this defense.

Contrary to the defendant's claim, the People's circumstantial case against the defendant as "the inside man" was not weak. The defendant now asserts that his own testimony was not credible because it omitted significant details and offers an alternative version of the events, blaming his attorney for not allowing him to relate the "true" version at trial. This version will be discussed below.

4. Questions asked of the defendant by defense counsel ineffectively elicited the facts from the defendant (Ground I, pars. 20-21). Without going through each question in the transcript cited by the defendant, which may be done on appeal, it should be recognized that there may have been strategic or ethical considerations properly motivating Mr. Stella not too more fully develop the defendant's trial testimony. For example, Mr. Stella would be ethically bound not to assist the defendant in giving perjured testimony by asking questions knowing the answer would be false.

B.Claims Of Suppression Of Favorable Evidence [*3]

The defendant also accuses his attorney of participating in a police and prosecutorial conspiracy to cover-up the complaining witness's involvement in the Mafia which the defendant knew about at the time of trial but was afraid to reveal at the time. These arguments are blended into his arguments concerning ineffective counsel as well as in a separate Ground II of his motion. As noted, these arguments are supported only by the defendant's allegations, supplemented by his own affidavits, attached as Exhibits A and B. Under all the circumstances, there is no reasonable possibility that his allegations of suppression of evidence are true so as to warrant vacating the defendant's conviction. After all, the defendant admits knowing these "facts" during the trial but chose to keep silent about them, even during his own testimony.

The defendant claims his attorney "told him to suppress certain events and implications" (Ground I, par. 8), that his attorney's motivation was "to implicate [the] co-defendants"even though it would result in "throwing [the defendant] to the wolves (Ground I, par. 12), and that his attorney and Detective Anselmo "interfered to suppress material facts and events that would have implicated [the complaints]." (Ground I, par. 25).

The defendant gives no reason why his attorney, an experienced and well-regarded criminal practitioner, would want to do anything other than give his best efforts to represent the defendant, and the record shows his attorney, in fact, did so. There is no evidence to support the defendant's insinuation that his attorney and Detective Anselmo were previously acquainted and that Anselmo arranged to have Stella assigned to the case (Exhibit A, pp. 2-3). The defendant contends that Anselmo encouraged him to give a false statement, omit the true circumstances of his participation, and that Stella told him to stick to this false version during his trial testimony, because the prosecutor wanted this version in order to convict co-defendant Michael Williams. (Exhibit A, p. 3).

The defendant's motion contains a separate affidavit, Exhibit B, purportedly setting forth the true version of his involvement. This version also sets forth a duress defense. The new version includes assertions that Chiam Kolker was involved in "running numbers" and involved with the Mafia (Exhibit B, pp. 1-2).

Apparently, the defendant concluded Kolker was involved in criminal activity based on the large amount of cash payments given by corner stores for relatively small beverage deliveries made by the defendant. (Exhibit B, p.5). Even though the defendant was employed in Beer Castle for several years, the defendant provides no other facts to support Kolker's claimed involvement in organized crime.

The defendant asserts that two days prior to the robbery Michael Williams and three other men showed up at the Beer Castle and met with the defendant in a vehicle at which time Williams told the defendant that Williams had done "street work" for Chiam Kolker about a year before and that Kolker had not paid Williams for the work he did. (Exhibit B, p. 2). Williams wanted the defendant to help him get Kolker's money, and if the defendant did not help, Williams would shoot the defendant. (Exhibit B, p. 3). Based on these threats, the defendant agreed to cooperate in furnishing information that resulted in the subsequent robbery. After the robbery (and Michael Williams's apprehension after a car chase), the defendant told no one of his own involvement because he was fearful. (Exhibit B, pp. 4-5).

After the defendant's arrest, the defendant claims he told this version to Detective Anselmo, but Anselmo advised the defendant not to write all the facts in his statement and omit references to Kolker's criminal activity and Kolker's prior dealings with Williams (Exhibit B, p. 6).

The People's answer contains an affidavit from John Stella, the defendant's attorney, stating that the defendant's trial testimony was substantially the same as what the defendant [*4]had related to Stella from the outset of Stella's representation and that the defendant had never said anything negative about his employers, the numbers racket, picking up large amounts of cash, the mob, or Michael Williams having threatened the defendant in a vehicle prior to the robbery.

The defendant's motion asserts that his "illogical" trial testimony was the product of "continuing misrepresentation and coercion by Anselmo and Counsel Stella." (Ground I, pars. 25-39). To support these assertions, the defendant cites portions from the trial records, including portions where counsel for one of the co-defendants was purportedly attempting to impeach the defendant by referring to the defendant's statement to Detective Anselmo. However neither Stella's objections to these questions nor any other portions of the record establish that the defendant was prevented from giving his "true" version of the incident during his own testimony.

In Ground II of the motion, the defendant attempts specifically to demonstrate how the record supports his assertions that Anselmo and Stella thwarted the defendant from testifying as to the "true" version of events. The defendant's arguments are not persuasive.

For example, the defendant's arguments concerning his attorney purportedly not making an issue of the absence of business records establishing the defendant's working hours at Beer Castle and the legality Chiam Kolker's carrying cash in excess of $10,000 is entirely without persuasive force. (Ground II, pars. 1-2).

The defendant also argues that the money was not legitimate business proceeds as evidenced by the failure of the police to recover bank deposit slips that should have been in the box with the recovered cash. (Ground II, pars. 3-5).

The defendant also claims the absence of deposit slips results in a failure to prove Chiam Kolker was an "owner" of this money and a "victim" of a robbery. This legal argument is in error, but, nevertheless, may be raised on appeal. Further, the failure to recover bank deposit slips is not persuasive evidence of a conspiracy by Anselmo and Stella to keep the defendant's "true" version from the jury. Again, all this was purportedly actually known by the defendant at the time of the trial but the defendant did not complain to the Court about it.

Finally, the defendant argues that "this Court and its police officials along with Stella protected... the possible prosecution of people that may have been implicated in organized crime." (Ground II, par. 5). The defendant fails to provide a persuasive reason why he waited until after his sentence to make these claims other than saying that he is now no longer fearful for his safety. This delay destroys the credibility of these assertions. No hearing is needed to reject these unsupported claims of conspiracy, which have no reasonable possibility of being true.

The defendant testified at trial and had every opportunity to present his version of the facts supporting his defense of duress. His true problem is that almost no version of the events can establish this defense, because the compelling evidence of his note in the getaway car and his connections to the Beer Castle and Michael Williams are just too much for even an inventive mind to overcome.

For the foregoing reasons, the defendant's motion is in all respect denied without a hearing.

SO ORDERED [*5]

JOEL M. GOLDBERG

Judge