The defendant, pro se, moves to vacate the judgment on the grounds that he was

denied his constitutional right to effective assistance of counsel in that:

1.Defense counsel failed to adequately investigate defendant's alibi defense and interview potential defense witness: Awilda Pacheco.

2.Defense counsel failed to present defendant's actual innocence claim.

3.Defense counsel failed to adequately prepare for trial in general.

4.Defense counsel failed to convey to defendant a plea offer made the prosecutor.

5.Defense counsel failed to advise defendant as to the pros and cons of whether he should accept or reject the plea offer.

6.Defense counsel failed to apprise defendant as to the strength and weakness of the prosecution's case.

7.Defense counsel failed to advise defendant of the consequences of rejecting the plea offer and the maximum sentence he faced if convicted after trial.

8.Defense counsel failed to conduct a thorough investigation of the criminal background of Pierre.

9.Defense counsel failed to investigate the background of Terry's sexual affairs with defendant, Pierre, her boyfriend, and the deceased.

10.Defense counsel failed to view the crime scene, failed to interview police officers who would testify for the prosecution, failed to interview Terry who would testify for the [*2]prosecution; as a result counsel was unprepared to cross-examine witnesses at trial.

11.Defense counsel failed to uncover evidence that Pierre had a motive to murder the deceased.

12.Defense counsel failed to adequately prepare a defense to the murder charge.

13.Defense counsel failed to subpoena Awilda Pacheco as a hostile defense witness to corroborate defendant's alibi defense.

14.Defense counsel failed to hire an expert witness to testify as to police investigative procedures to secure the vehicle the perpetrator was driving to obtain fingerprint evidence.

15.Defense counsel failed to emphasize the fact that defendant was involved in a love triangle with Guzman, Pacheco and Terry, and that Terry had threatened defendant that if she couldn't have him, no one else could.

16.Defense counsel failed to use records of previous trial, which resulted in a hung jury mistrial, to impeach the credibility of Terry.

17.Cumulative effect of ineffective assistance of counsel denied meaningful representation to defendant.

In deciding the motion, the court considered the defendant's moving papers, the People's opposition, defendant's reply and the history of this case which includes People v. Perez, 150 AD2d 733 (1989) (affirming the judgment); Perez, 74 NY2d 816 (1989) (denying application for Leave To Appeal); Perez, 308 AD2d 464 (2003) (denying application for a writ of error coram nobis to vacate on the ground of ineffective assistance of appellate counsel); Perez, 1 NY3d 577 (2003) (denying application for Leave To Appeal); Perez, 1NY3d 632 (2004) (denying Applications for Leave To Appeal); Perez, Silverman, J., NYS Sup. Ct., Kings County, March 31, 2004 (denying defendant's 440.10 motion to vacate on the ground of ineffective assistance of counsel); and Perez v. Zon, 2005 WL 503933 (EDNY, 2005). The court also reviewed the court folder.

Background

On February 22, 1986, a person named Marlon Christie was shot and killed in Brooklyn, New York. An indictment charging the defendant with the crime was filed on March 13, 1986. Defendant was arraigned on March 21, 1986. Defendant's second trial commenced on February 9, 1987. At trial, the People presented evidence of an eyewitness who identified defendant as the shooter and a witness who testified that shortly after the shooting the defendant admitted to shooting somebody. On February 17, 1987, the jury convicted defendant of murder in the second degree and criminal possession of a weapon in the second degree. On March 23, 1987, defendant was sentenced.

Delay [*3]

In this case, the defendant delayed in making this motion to vacate a judgment for more than eighteen years. In People v Nixon,^[FN1] the Court stated:

"Quite important too, as revelatory of the seriousness of defendant's present claims, is that defendant waited over a decade before asserting them. In stale cases, defendants have all to gain by reopening old convictions, retrial being so often an impossibility. These are factors to consider in determining how valid the assertions are; albeit, if they are made out, justice requires that they be explored in a hearing (cf. People v Chait, 7 AD2d 399, 401, affd. 6 NY2d 855)."

The defendant made a prior 440 motion to vacate the judgment on the ground of ineffective assistance of counsel predicated upon his trial counsel's consenting to the annotation on the verdict sheet of "intentional murder" under the charge of second degree murder. On March 31, 2004, Justice Silverman, NYS Sup. Ct., Kings County, denied that prior 440 motion.

Except as to the issue relating to Mr. Centano, the defendant does not offer a valid reason for not previously raising the remaining issues. That the defendant did not have adequate prison intern assistance is not a grounds for not raising the issues. With regard to Mr. Centano, the defendant fails to explain why it took seventeen years to make a FOIL request for police documents, and failed to show that defense counsel ever had this document in his possession. Thus, the defendant has failed to make a prima facie showing that counsel knew of the existence of Mr. Centano and therefore should have [*4]called him to testify.

Thus, this motion is denied on this basis in its entirety.

B)Sworn Allegations of Fact

CPL 440.30(4) (b) permits a court to deny a motion to vacate a judgment or a

motion to set aside a sentence without a hearing if the moving papers do not contain sworn allegations as to all essential facts. ^[FN5] The affidavit must be from a person having actual or personal knowledge of the facts at issue.^[FN6]

The only affidavit in support of defendant's motion was that of his trial counsel, Howard H. Weiswasser, dated August 22, 2005 (a second affidavit by Mr. Weiswasser was submitted with defendant's reply). Mr. Weiswasser stated, in part, "I have little recollection as to the facts of this case." He further affirmed that he cannot state if a "plea offer was ever made herein." This court notes the defendant was sentenced in March 1987, some eighteen years ago. In Greiner v. Wells,^[FN7] the court observed, "Time inevitably fogs the memory of busy attorneys. That inevitably does not reverse the Strickland presumption of effective performance."

It is especially noteworthy that no affidavit of Mr. Centano is submitted. There is no evidence from the police report indicating that the person seen by Mr. Centano was the shooter of the victim. This is significant because the person seen by Mr. Centano entered a Pontiac which differs from the description given by the eyewitness at trial of a black Monte Carlo car that the defendant concedes was used by the murderer in his current motion papers.

Thus, claims one through three and eight through fifteen are further denied on this basis.

C)Issues Previously Decided

CPL 440.10 (3) (b) permits a court to deny a motion if the ground or issue raised on the post conviction motion was previously decided on a prior motion unless there has been a retroactive change in the law effecting the issue.^[FN8]

In his federal habeas corpus action, the defendant claimed, among other things,

actual innocence. In his decision denying the motion, Justice Gleeson found that the defendant did not support his actual innocence claim with "new reliable evidence" and did not demonstrate that it was "more likely than not that no reasonable juror would have [*5]found [him] guilty . . . ."

Thus, claims one and two are also denied on this basis.

Both the United States Constitution ^[FN9] and the New York State Constitution ^[FN10] give a defendant in a criminal proceeding the right to the assistance of counsel. This includes the right to "effective" assistance of counsel.^[FN11]

To render effective assistance, counsel must communicate any government plea offer to the defendant.^[FN12] Furthermore, counsel must fully inform and advise the client on the wisdom of accepting a particular plea offer and its consequences.^[FN13]

In order to succeed on this claim, movant must establish that a plea offer was made ^[FN14] and that he would have accepted the plea had the plea been communicated to him.^[FN15] The willingness to accept a plea must be established by "objective evidence" outside of his own conclusory statement.^[FN16]

The defendant's steadfast insistence that he is innocent is a factor to consider in assessing the defendant's claim that he would have accepted a plea offer, but is not dispositive of the issue. ^[FN17] A countervailing factor is the disparity between the alleged plea offer and the potential sentence if convicted after sentence.^[FN18]

Other than defendant's conclusory statement, there is no reason to believe he [*6]would have accepted any plea offer. Indeed, in this motion defendant states that he would have accepted a plea. However, in the very same instant motion, he is advocating his claim of actual innocence and alibi (Affidavit In Support of Notice of Motion [current motion, paragraphs 3b and 5]). The defendant contended he was innocent during his trial, in his federal habeas corpus action and again in this current 440 motion. Since his proclamation of innocence spans eighteen years, it is difficult to credit his conclusory statement in 2005 that he would have accepted a plea.

The defendant alleges that prior to the first trial, Justice Egitto offered him a sentence bargain of 20 to Life. He also claims that ADA Silverstein offered him a sentence bargain of 15 to Life. The People claim that no offers were ever made.

The defendant has failed to provide the substance of any conversation between himself and counsel regarding the alleged offers. The failure to provide such substance is fatal to the argument.^[FN19]

Indeed, the alleged offer by the prosecution is in effect no offer at all. The only way such a sentence could be imposed is if the defendant pleaded to the murder in the second degree count of the indictment. The defendant could have done this regardless of the prosecution's offer (CPL 220.10 [2]). The prosecution cannot control the sentence of the court. Thus, if such offer was made, it had no value, especially in light of Justice Egitto's offer of 20 to Life.

Thus, claims four through seven are again denied.

"The Court of Appeals has time and time again advised that ineffective assistance of counsel is generally not demonstrable on the main record (citations omitted)."^[FN20] A motion to vacate the judgment is the appropriate vehicle to raise ineffective assistance, rather than a motion to set aside the verdict ^[FN21] or by direct appeal.^[FN22] This is true because even when the facts are on the record, the attorney's motivations are usually not reflected on the record.^[FN23] Further, where there are both record and non-record claims, a CPL 440 motion is the appropriate method by which to raise both claims.^[FN24]

As noted above, both the United States Constitution and the New York State [*7]Constitution grant a defendant in a criminal proceeding the right to the assistance of counsel. This includes the right to "effective" assistance of counsel.

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."^[FN25] What constitutes effective assistance, moreover, is not susceptible to precise measurement.^[FN26] "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."^[FN27] This standard is designed to provide the defendant with a fair trial, not a perfect one.^[FN28]

Isolated errors in defense counsel's representation ordinarily do not constitute ineffective assistance of counsel.^[FN29] A single error, if it affects the fairness of the trial, may rise to the level of ineffective assistance of counsel.^[FN30]

A court should take care "to avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis."^[FN31] If transcripts and submissions reveal a trial strategy that might well have been pursued by a reasonably competent attorney, then assistance is effective, even if trial counsel disavows the tactic.^[FN32] Courts will not second guess whether defense counsel's trial strategy "was the best trial strategy, or even a good one, so long as defendant was afforded meaningful [*8]representation."^[FN33] The choice of trial tactics is viewed objectively.^[FN34] Trial strategies that might well have been pursued by a reasonably competent attorney and are objectively reasonable are within the constitutional parameters.^[FN35]

A defendant must "demonstrate the absence of strategic or other legitimate explanations for counsel's failure . . . . Absent such a showing, it will be presumed that counsel acted in a competent manner and exercised professional judgment."^[FN36]

Generally, the failure to call a witness comes under the rubric of trial strategy.^[FN37] As such, the defendant is required to show the lack of a legitimate explanation for counsel's decision not to call a witness.^[FN38]

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."^[FN39] Reasonable probability means a probability that undermines the fact finder's confidence in the outcome of the trial.^[FN40]

Under New York law, prejudice is examined in terms of errors that deprive the defendant of a fair trial.^[FN41] Prejudice is a significant factor, but not an "indispensable element in assessing meaningful representation (citation omitted)."^[FN42]

The federal and state standards are different.^[FN43] The federal standard focuses on the [*9]outcome of the proceeding.^[FN44] The state standard focuses on the "fairness of the process as a whole . . . ."^[FN45]

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' testimony.^[FN46] In addition, the moving papers must contain an affidavit from the witness or witnesses, that would have been discovered by proper investigation, setting forth the substance of the witness' or witnesses' testimony.^[FN48]

The defendant has failed to supply an affidavit from the alleged alibi witness or from any witness that could have been discovered by an investigation. Furthermore, he has failed to provide an affidavit as to what investigation was conducted by defense counsel and what more could have been discovered. In addition, the defendant has failed to demonstrate that there were material statements in the first trial that were inconsistent with statements in the second trial.

Further, as indicated earlier, there is no indication that Mr. Centano ever saw who was the real shooter. Also, the discrepancies in the description between the man who Mr. Centano saw and the defendant are not as "distant" as claimed by the defendant. It is interesting to note that Mr. Centano described the person as having a moustache and the defendant had a moustache.

The defendant has also failed to prove that counsel did not interview and did not call him for strategic reasons. One possible strategic reason could have been that the automobile (Pontiac) that Mr. Centano saw was different than the claimed automobile (Monte Carlo) at trial by both sides. It is also possible that if Mr. Centano were called as [*10]a witness he would have placed the defendant at the scene. All this shows the importance of an affidavit by Mr. Centano and emphases the lack of such an affidavit.

Thus, claims one through three and eight through seventeen are again denied.

Since the court has denied the motion without a hearing, the motion is moot. Also, the defendant fails to supply any information as to what the attorney would testify. The affidavit submitted by the attorney indicates he has no recollection of the case. Thus, his argument that he has the right to call a witness who has no substantial evidence to give is without validity.

The motion for a subpoena is denied.

E N T E R ,

__________________

J. S. C.