Pursuant to this court's Decision and Order dated July 12, 2004, a hearing was held on defendant's CPL 440.10 motion to vacate the judgment of conviction entered against him on August 14, 2003, upon a jury verdict: testimony was taken on November 12, 2004, and on June 9 and 17, and September 30, 2005. Sylve Metellus, defendant's grandmother, Antonia Metellus, defendant's mother, Beatrice Guerrier and Walter Seidel, acquaintances of defendant, and defendant himself testified on his behalf ^[FN1]. Lawrence E. Wright, defendant's trial attorney, and Gerado Talamo, a former intern in the district attorney's office, testified for the People.

Defendant moved, by papers dated December 28, 2003, to vacate the judgment on the ground that he was denied the effective assistance of counsel when his trial attorney (1) advised him that he could not testify at his trial, and (2) refused to present a viable alibi defense. Defendant submitted three affidavits in support of his motion, in addition to that of his new attorney: his own, his mother's, and that of Beatrice Guerrier.

Defendant stated in his affidavit that, upon learning that the robbery he was charged with committing occurred on February 11, 2002, he realized that he was in Florida, staying with his grandmother, Sylve Metellus, on that date. His grandmother came to New York, ready to testify for him, but his trial attorney, Lawrence Wright, would not call her as a witness because he believed that the jury would not find a family member credible. Defendant also stated that Wright would not allow him to testify, disregarding defendant's desire to do so. Defendant's mother's affidavit supported defendant's claims. She added that she was present when Wright [*2]interviewed defendant's grandmother, and that she knew that other persons could have testified that defendant was not in New York on the day the crime took place.

Beatrice Guerrier stated that she saw defendant during the evening of February 11, 2002 when he attended a Valentine's Day party at her home in Tamarac, Florida.

In opposition to the motion, the People submitted an affidavit from Henry Marines, the assistant district attorney who tried the case, in which he stated that defendant was unable to produce alibi witnesses, despite being granted adjournments of his sentence in order to do so. The People argued that defendant's trial counsel provided meaningful representation. The People did not address defendant's claim that his attorney advised him that he could not testify.

Neither party submitted an affidavit from Lawrence Wright. This court granted defendant's motion to the extent of ordering that a hearing be held.

THE HEARING

Defendant's Witnesses

Sylve Metellus testified that defendant came to Florida on February 4 and left on February 25, 2002 and that she saw him everyday, when he came to her home to get food. In August 2002, defendant's mother informed her that defendant had been arrested. In September 2002, defendant's mother brought her to the office of a man with braids ^[FN2], who questioned her about defendant's presence in Florida. She testified that no one ever asked her about February 11. She appeared to be unable, or unwilling, to answer some of the questions posed.

Antonia Metellus testified that defendant was in Florida and that she spoke to him every day while he was there. She told Wright that both she and her mother could testify, but Wright told her that they could not testify because they were family. She also testified that she was present when her mother was interviewed in Wright's office, and that Wright was not present. She also appeared unable, or unwilling, to answer some questions.

Guerrier testified that she saw defendant at her Valentine's Day party on February15, 2002 and during the weekend before the party. She did not speak to anyone about this until she gave her affidavit on July 23, 2003.

Seidel testified that in January and February of 2002 defendant lived with him in Coral Springs, Florida, and also worked for him, at Image Graphics 2000, a company owned by Wade Davis. He stated that defendant was with him, in his apartment, on February 11. After defendant moved out, at the end of February, Seidel had no further contact with him. Seidel did not learn of defendant's criminal conviction until approximately January 2005, when he encountered defendant's grandmother.

Defendant testified that, on the day he participated in a lineup, he learned that the robbery he had been charged with committing had occurred on February 11, 2002. He told Wright at that time that he did not believe that he was in New York on February 11. Defendant called Wright the next day and told him, as he did throughout the pendency of the case, that he was in Florida on February 11. Wright responded only that it would be an easy case to beat.

Defendant told Wright that his grandmother, the girls he went to Florida with, and some friends could all testify that he had been in Florida. The witnesses' telephone numbers could be found on his cell phone. His cell phone had been vouchered upon his arrest, and defendant retained the voucher. Wright simply refused to retrieve the cellphone. Before the trial began, defendant sent [*3]the voucher for the cellphone to his mother so that she could retrieve the cellphone, but she failed to do so. Defendant never advised the court that Wright refused to retrieve the cellphone, nor did he ask the court for help.

After Wright interviewed defendant's grandmother, he told defendant that he would not call her as a witness because the jury would believe that a grandmother would lie for her grandson. Wright also assured him that the People's case was weak. Wright further informed him that he planned to call an identification expert to testify about the difficulties of cross-racial identification.

Wright advised him not to testify because he was inexperienced, and because he did not need to prove his innocence; rather, the People would have to prove his guilt. He also warned defendant that the jury would learn about his prior convictions if he testified. Defendant took his advice and did not testify.

Defendant further testified that, just as Seidel had testified, defendant was living with Seidel on February 11. Defendant stated that he worked with Seidel at Image Graphics for about two months. He never spoke with Seidel again after he left Florida, but he did inform Wright that he was with Seidel on February 11, and that Seidel lived in Coral Springs.

Defendant characterized his grandmother's testimony as inaccurate.

The People's Witnesses

Lawrence Wright testified that he asked defendant where he was on February 11 at their first meeting in court, and on June 4, 2002, while they were together at a police precinct, waiting for witnesses to appear to view the lineup. Defendant could not remember on either occasion where he had been on February 11. On June 4, Wright also outlined for defendant his contemplated strategy of attacking the witnesses' identification of defendant through the use of an expert who would testify about the weakness of cross-racial identifications. Defendant raised no objections to this strategy.

In mid-August, defendant's mother told Wright that she believed defendant was in Florida at the time the crime was committed, and that his grandmother could verify that. Wright sent his investigator, Kevin Hinkson, to Riker's Island to interview defendant. Defendant told Hinkson he was in Florida with two white girls. Defendant gave Hinkson their first names. He could not say where he stayed while he was in Florida. In September, defendant's grandmother came to New York and met with Wright and Hinkson. She could not testify to defendant's whereabouts on February 10, 11, or 12.

Defendant told him that his personal telephone numbers were on a cell phone. Defendant never told him that he had a police voucher for this cell phone. Defendant never asked him to obtain the cell phone. Defendant never mentioned Walter Seidel.

Gerado Talamo testified that on June 30, 2005, he had a conversation with Wade Davis. According to Davis, defendant had worked for him for a short period of time in 1998 or 1999, but not at Image Graphics 2000, which was not in existence at that time. Defendant's brother worked for Davis at Image Graphics 2000, as did Seidel. Both men left Image Graphics 2000 on bad terms with Davis. Davis also stated that defendant's brother and Seidel's sister had five children together.

Right to Testify

As to defendant's first claim, he failed to present any evidence that Wright told him he could not testify. Rather, defendant testified that he chose not to testify at trial after Wright advised him of the disadvantages entailed by his proposed course of action, e.g, that the jury would learn of his criminal record. The evidence demonstrates that Wright did not deprive defendant of his due process right to testify, properly leaving the ultimate decision whether to testify up to defendant (see People v Terry , 309 AD2d 973 [3d Dept 2003]; People v Mason , 263 AD2d 73 [1st Dept 2000]).

Alibi Defense

Failure to present a viable alibi defense can constitute ineffective assistance of counsel (People v Sieber, 2006 NY Slip 00576; People v Bussey, 6 AD3d 621 [2d Dept 2004]). However, a defendant must show that the defense was viable (People v Sieber, 2006 NY Slip 00576; People v Surdis, 275 AD2d 553 [3d Dept 2000] lv denied 95 NY2d 908 [2000]; People v Newton, 192 AD2d 447 [1st Dept 1993]). "A defendant is not denied the effective assistance of trial counsel merely because counsel does not make a motion or argument that has little or no chance of success" (People v Stultz, 2 NY3d 277, 287 [2004]; People v Newton, 192 AD2d 447).

Just as his trial counsel determined after interviewing his grandmother, defendant did not have a viable alibi defense. Defendant's testimony, and that of his witnesses at the hearing, taken as a whole, was confused, contradictory, implausible, and largely refuted at its core by the testimony of Gerado Talamo .

The testimony proffered to establish that defendant had a viable alibi defense at the time of trial contradicted defendant's prior claims about his alibi. In his motion papers, dated December 28, 2003, he claimed that his grandmother had been willing and able to testify at his trial that he was in Florida with her on the date the crime was committed, and that Wright refused to present that testimony. At the hearing, however, defendant testified that his grandmother's testimony that he came to Florida in February was inaccurate.

Defendant presented a different alibi at the hearing. He testified, as did Seidel, that he was in Florida in January and February 2002, living with Seidel, and working with him at Image Graphics 2000. However, this alibi was largely refuted by the testimony of Gerado Talamo. Talamo testified that Wade Davis told him that defendant did not work for him at Image Graphics 2000 in 2002, and that Seidel and defendant had a close family relationship not revealed during their testimony at the hearing.

In sum, Wright investigated the alibi evidence defendant and his family brought forward [*5]during the pendency of the case by interviewing defendant's grandmother. Wright prudently chose to present the more viable defense of misidentification.

Defendant's claim that his trial counsel was ineffective under the federal constitutional standard is necessarily rejected by the finding that he was not denied meaningful representation under the State Constitution (People v Caban, 5 NY3d 143, 156 [2005]).

Defendant has failed to meet his burden of proof. His motion to vacate the judgment entered against him is therefore, denied.

Dated: February 9, 2006

ENTER

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J.S.C.