The defendant, although represented by counsel, proceeded pro se, in writing and orally at sentencing, to set aside the verdict. Defendant's motion was denied on the record, and this decision sets forth the basis of the court's ruling.

In deciding this motion, the court has considered defendant's motion papers, as well as his arguments made on the record at the time of sentencing, the People's affidavit in response, the trial testimony and the court file. Based on these records, this court concludes as follows:

The defendant alleges, in his written motion, that his constitutional rights were violated during the grand jury proceedings, the suppression hearing and trial, because the People introduced perjured testimony during these proceedings.

A moving party must establish that the People knew ^[FN1] that the testimony was false [*2]"prior to the entry of the judgment,"^[FN2] and that the testimony was in fact false.^[FN3] Inconsistencies between statements made by the same witness do not, in and of themselves, establish that the witness' testimony is perjured or false.^[FN4] Additionally, inconsistent testimony between prosecution witnesses does not establish perjury.^[FN5] The inconsistencies merely create an issue of credibility for the trier of fact to determine.^[FN6]

A witness' inaccurate testimony resulting from confusion, mistake or faulty memory is not perjury.^[FN7] Also, a claim that the witness should not have been believed by the jury is insufficient to raise the issue of perjury.^[FN8]

In this case, the only evidence that the defendant presents of perjury are prior inconsistent statements. However, unsworn prior inconsistent statements do not establish perjury of testimony given under oath.^[FN9]

Additionally, the defendant has failed to establish that the unsworn statements are true while the sworn testimony is false.

Therefore, the court denied this claim.

At the time of sentencing, the defendant claimed that the People failed to present [*3]exculpatory material to the Grand Jury.

Under the Federal Constitution, the People do not have an obligation to present Brady or exculpatory evidence to the Grand Jury.^[FN10] However, New York has consistently assumed,

without discussion, that such an obligation exists.^[FN11] When applying the unique New York rule, the Appellate Courts hold that matters of credibility are collateral in a Grand Jury presentation because, the function of the Grand Jury differs from that of a petit jury function.^[FN12] Thus, evidence that the witness recanted,^[FN13] made prior inconsistent statements ^[FN14] or had a motive to lie ^[FN15] need not be introduced by the People under the theory that the evidence is exculpatory.

The only allegation in this case is that the People failed to present inconsistent statements to the Grand Jury. As noted above, the People are not required to present such evidence.^[FN16]

Further, errors at the Grand Jury are not constitutionally cognizable after a jury verdict.^[FN17] This includes claims that the government failed to present exculpatory evidence [*4][*5][*6]to the Grand Jury.^[FN18]

Therefore, the court denied this branch of the motion.

The defendant claimed at oral argument that he was not accorded a preliminary hearing prior to indictment. However, this claim lacks merit, because there is no constitutional ^[FN19] or statutory right ^[FN20] to a preliminary hearing prior to indictment. In New York, the preliminary hearing is discretionary and only affects a defendant's bail status.

The court therefore denied this claim.

The defendant claimed that defense counsel was ineffective because he failed to call an individual named Mr. Williams as a witness at trial.

Both the United States Constitution ^[FN21] and the New York State Constitution ^[FN22] grant a defendant in a criminal proceeding the right to the assistance of counsel. This includes the right to "effective" assistance of counsel.^[FN23]

Counsel renders effective assistance when "the evidence, the law and the circumstances of a particular case, viewed in totality and as of the time of the representation reveal that the attorney provided meaningful representation."^[FN24] What constitutes effective assistance, moreover, is not susceptible to precise measurement.^[FN25] "To prevail on a claim of ineffective assistance, defendants must demonstrate that they were deprived of a fair trial by less than meaningful representation; a simple disagreement with strategies, tactics or the scope of possible cross-examination, weighed long after the trial, does not suffice."^[FN26] This standard is designed to provide the defendant with a fair trial not a perfect one.^[FN27]

Generally, the failure to call a witness comes under the rubric of trial strategy.^[FN28] As such, the defendant is required to show the lack of a legitimate explanation for counsel's decision not to call a witness.^[FN29]

In order to show that defendant's Federal constitutional right to effective assistance of counsel was violated, the defendant must establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."^[FN30] Reasonable probability means a probability that undermines the fact finder's confidence in the outcome of the trial.^[FN31]

Under New York law, prejudice is examined in terms of errors that deprive the defendant of a fair trial.^[FN32] Prejudice is a significant factor, but not an "indispensable element in assessing meaningful representation."^[FN33]

When a claim of ineffective assistance of counsel is based upon defense counsel's alleged failure to call a witness, the moving papers must contain an affidavit from such witness setting forth the substance of the witness' proposed testimony.^[FN34]

The defendant failed to submit an affidavit from Mr. Williams. The defendant also failed to establish that the failure to call Mr. Williams was not part of a legitimate trial strategy or that he was deprived of a fair trial by the failure to call Mr. Williams.

Therefore, the court denied the motion.

The defendant has made numerous other claims. With regard to claims regarding issues of credibility, such issues were resolved against the defendant by the trier of fact. Claims relating to the defendant's innocence or lack of evidence were resolved by the jury and this court when it denied counsel's motion to dismiss after the close of the case. Similarly, the claim that the court should exercise its discretion and dismiss the indictment in the interest of justice is without merit as there is no compelling reason for such a dismissal.

Therefore, the court denied the motion.

To the extent that the court has not addressed each and every claim that the defendant has made, the court finds them to be without legal merit.

Comment should be made regarding the People's procedural bar allegation. The prosecution correctly states that CPL 330.30 does not authorize the instant motion since most of the claims do not appear on the record and are unpreserved. However, when faced with

this type of motion, the court may exercise its powers under Judiciary Law § 2-b (3) and create a proper procedure.^[FN35] This court has done so by entertaining the motion.

For all the reasons set forth herein, defendant's motion to set aside the verdict has been denied.

This constitutes the decision and order of the court.

E N T E R ,

_____________________________

L. PRISCILLA HALL, J. S. C.