People v Collins (2007 NY Slip Op 51028(U))

People v Collins

2007 NY Slip Op 51028(U) [15 Misc 3d 1138(A)]

Decided on April 9, 2007

Supreme Court, Bronx County

Seewald, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Defendant's motion, pursuant to CPL § 440.10 (1) (h), to vacate the instant judgment of conviction on the alleged ground that he was denied his right to the effective assistance of trial counsel - under both the State and Federal Constitutions - is denied.^[FN1]

Simply stated, "[t]he evidence, the law and the circumstances of this case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation' [citations omitted]" (People v McKinney, 302 AD2d 993, 995 [4th Dept 2003], reargument denied 306 AD2d 960, lv denied 100 NY2d 584; see also People v Thompson, 27 AD3d 888, 890 [3rd Dept 2006], lv denied 6 NY3d 853). In sum, trial "counsel made appropriate pretrial motions, [more than] adequately cross-examined the prosecution witnesses, and gave effective opening and closing statements, and defendant was acquitted of the two most serious crimes charged in the indictment [- as well as many other charges submitted to the jury]. The record thus establishes that defendant received meaningful representation [citation omitted]" (People v Ott, 30 AD3d 1081 [4th Dept 2006]).

On March 24, 1999, a jury convicted the defendant of manslaughter in the first degree, criminal possession of a weapon in the second degree and reckless endangerment in the first degree. The next month, the trial judge [Hon. Robert L. Cohen - now retired], sentenced the defendant to 12½ to 25 years on the manslaughter conviction, a concurrent sentence of 7½ to 15 years on the weapons possession conviction, and a term of 21/3 to 7 years on the reckless endangerment conviction, the latter sentence imposed consecutively to the manslaughter sentence. Defendant's conviction had stemmed from a shootout that had occurred on August 17, 1996, on the Grand Concourse [located in Bronx County]. [*2]

Upon appeal, a unanimous Appellate Division affirmed defendant's conviction and sentence (see People v Collins, 301 AD2d 452 [1st Dept 2003], lv denied 1 NY3d 570). Notably, in affirming the conviction, the Appellate Division expressly held, inter alia, that "[t]he existing record establishes that defendant received meaningful representation [citation omitted]" (id. at 453).

Defendant now moves, pursuant to CPL § 440.10 (1) (h), to vacate the instant judgment of conviction, alleging ineffective assistance of counsel. Specifically, in his supporting affirmation [dated 7/20/04] and his accompanying Memorandum of Law [also dated 7/20/04], defendant asserts that trial counsel was ineffective on the sole and exclusive ground that he did not call Passion Baker - one of the five surviving shooting victims - as a defense witness. Defendant maintains that if Passion Baker had been called to testify in his behalf, she would have testified that someone else - not the defendant - was the shooter and, moreover, she did not see the defendant in possession of a firearm when the various victims had been struck.

Defendant, however, apparently did not pay attention when his trial counsel was cross-examining a key prosecution witness. More particularly, trial counsel elicited the same information from that witness, Danny Hernandez [a/k/a "Blex"], as clearly illustrated by the following extract from the trial record (TT,1831-1832):

This is precisely the identical exculpatory testimony proffered by Passion Baker [and Passean Baker] at this hearing. The only significant difference is that trial counsel, by eliciting this favorable information from a prosecution witness, would certainly have been foolish - if not ineffective - if he had in fact presented the Bakers at trial, where, on deft cross-examination by the experienced prosecutor in this case, their miserable demeanor and utter lack of credibility [discussed infra] would have been easily exposed and laid bare before the jury - thus rendering their testimony completely unworthy of belief and, more importantly, undermining trial counsel's defense strategy [also discussed infra].

In addition, the evidence adduced at the hearing plainly revealed that the Baker sisters were unavailable and, moreover, did not want any involvement whatsoever in the defendant's case; they both would not have voluntarily appeared and testified. Thus, it is readily apparent that the defendant's motion is purely frivolous and devoid of merit.

In any case, in order to better appreciate the superb performance by trial counsel - based upon this Court's review of the hearing and trial transcripts - and the stupendous end-result he achieved for the defendant after trial, as plainly illustrated by the jury's verdict, it is first necessary to recite the initial charges voted against the defendant [and codefendant] by a Grand Jury in a 28-count indictment [voted on February 27, 1997] - bearing in mind that all counts were predicated upon an acting in concert theory (see PL § 20.00). In this regard, it must be noted that "[t]he indictment did not limit the People to a particular factual theory as to the defendant's role in the crime[s] [citation omitted]" (People v Medina, 37 AD3d 240, ___ [1st Dept 2007], 830 NYS2d 76, 78; see also People v Rivera, 84 NY2d 766, 769 [1995] ["there is no legal distinction between liability as a principal or criminal culpability as an accomplice . . ."]).

Counts one and two charged the defendant [and codefendant] with murder in the second degree [intentional murder and depraved indifference murder, respectively,] of Dietrich Little. Count three charged the defendant [and codefendant] with manslaughter in the first degree referable to the same victim.

Count four charged the defendant [and codefendant] with attempted murder in the second degree of Leo Watson. Count five charged the defendant [and codefendant] with attempted murder in the second degree of Keith Williams. Count six charged the defendant [and codefendant] with attempted murder in the second degree of Rajab Asep. Count seven charged the defendant [and codefendant] with attempted murder in the second degree of Passion Baker. Count eight charged the defendant [and codefendant] with attempted murder in the second degree of Andre Little.

Count nine charged the defendant [and codefendant] with assault [intentional] in the first degree of Leo Watson. Count ten charged the defendant [and codefendant] with assault [intentional] in the first degree of Keith Williams. Count eleven charged the defendant [and [*4]codefendant] with assault [intentional] in the first degree of Rajab Asep. Count twelve charged the defendant [and codefendant] with assault [intentional] in the first degree of Passion Baker.

Counts thirteen through sixteen also charged the defendant [and codefendant] with assault in the first degree - under the alternative theory of depraved indifference (see PL 120.10 [3]) - against the respective victims named above in counts nine through twelve.

Counts seventeen through twenty charged the defendant [and codefendant] with assault [intentional] in the second degree against the respective victims named above in counts nine through twelve.

Counts twenty-one through twenty-four also charged the defendant with assault in the second degree - under the alternative theory of recklessness (see PL 120.05 [4]) - against the respective victims named above in counts nine through twelve.

Count twenty-five charged the defendant [and codefendant] with reckless endangerment in the first degree.

Count twenty-six charged the defendant [and codefendant] with criminal use of a firearm in the first degree; and count twenty-seven charged the defendant [and codefendant] with criminal possession of a weapon in the second degree.

The last count, count twenty-eight, charged the defendant [and codefendant with criminal possession of a weapon in the third degree.

In the end, counsel's "efforts convinced the jury that defendant was not guilty [of the two counts] of murder in the second degree" (People v Gilliam, 300 AD2d 701 [3rd Dept 2002], lv denied 99 NY2d 628). While the defendant was found guilty of manslaughter in the first degree, the defendant - as a result of trial counsel's extraordinary efforts - was found NOT GUILTY OF THE FIVE COUNTS OF ATTEMPTED MURDER IN THE SECOND DEGREE submitted to the jury; NOT GUILTY OF THE FOUR COUNTS OF ASSAULT IN THE FIRST DEGREE submitted to the jury; and NOT GUILTY OF THE FOUR COUNTS OF ASSAULT IN THE SECOND DEGREE submitted to the jury. Twenty counts, according to the verdict sheet, had been submitted to the jury for its consideration.

Defendant, who had shot himself at the crime scene, was also found guilty of two other lesser crimes charged in the indictment: criminal possession of a weapon in the second degree and reckless endangerment in the first degree (see People v Love, 307 AD2d 528, 533 [3rd Dept 2003], lv denied 100 NY2d 643 ["Considering the active role played by counsel at trial, and defendant's acquittal on the most serious charge . . ., defendant received the effective assistance of counsel"]; People v St. Paul, 3 AD3d 604, 606 [3rd Dept 2004], lv denied 2 NY3d 765 ["jury's findings that defendant was not guilty of any but the lesser included offenses attest to the meaningful and effective representation provided here . . ."]; People v Pettiford, 28 AD3d 687, 688 [2nd Dept 2006], lv denied 7 NY3d 361; People v Bullock, 28 AD3d 673, 673-674 [2nd Dept 2006]; People v Gilmore, 6 AD3d 748, 749 [3rd Dept 2004], lv denied 3 NY3d 640).

Here, as in People v Hargett (11 AD3d 812 [3rd Dept 2004], lv denied 4 NY3d 744), trial counsel, who participated vigorously in the defendant's trial, as well as the pretrial Huntley hearing, "obtained acquittals on the majority of the crimes charged in the indictment and advocated compellingly on defendant's behalf during the sentencing hearing. Under those circumstances, [the Appellate Division in Hargett] conclude[d] that defense counsel's actions were within the reasonably objective range of performance and . . . provided the defendant with meaningful representation' [citation omitted]" (id. at 815 [emphasis added]; see also People v [*5]Baldwin, 35 AD3d 1088, 1091 [3rd Dept 2006] ["Significantly, a review of the record indicates that defense counsel made numerous objections, effectively cross-examined witnesses, made appropriate motions, secured (an accomplice as a matter of law charge) and succeeded in having certain counts (not submitted) . . ."]; People v Sieber, 26 AD3d 535, 536 [3rd Dept 2006], lv denied 6 NY3d 853 ["defendant received meaningful representation as defense counsel pursued reasonable trial strategies, adequately prepared for trial, vigorously cross-examined prosecution witnesses and gave an effective summation . . ."]).

The case of People v Baptiste (306 AD2d 562 [3rd Dept 2003], lv denied 1 NY3d 594), is also instructive. In Baptiste, the Appellate Division, which rejected the defendant's claim of ineffective assistance, found that trial counsel - like trial counsel at bar - had "participated in an extensive Huntley hearing, [and] thoroughly cross-examined witnesses, both at the hearing and trial . . ." (id. at 569). "Notably, defendant was acquitted on several charges, including two counts of intentional murder in the second degree [citation omitted]" (id.; see also People v Albanese, 38 AD3d__, __ [3rd Dept] 2007], __NYS2d__, 2007 WL 685497, 2007 NY App Div Lexis 2644 [defendant received meaningful representation - "most significantly, (trial counsel) succeeded in obtaining a not guilty verdict on the two more serious charges for which the defendant was charged"]; People v Dashnaw, 37 AD3d 860, __ [3rd Dept 2007], 828 NYS2d 697, 700; People v Daniels, 35 AD3d 495, 496 [2nd Dept 2006]).

In any event, analysis begins with the well entrenched principle that "[o]ur state standard for effective assistance of counsel has long been whether the defendant was afforded meaningful representation [citations omitted]. In applying this standard [the Court of Appeals] ha[s] emphasized the difference between ineffective representation and losing trial tactics [citation omitted]. Indeed, counsel's performance will not be considered ineffective, even if unsuccessful, as long as it reflects an objectively reasonable and legitimate trial strategy under the circumstances and evidence presented [citation omitted]" (People v Berroa, 99 NY2d 134, 138 [2002] [internal quotation marks omitted]; see also People v Henry, 95 NY2d 563, 565 [2000], habeas corpus granted 409 F3d 48 [2nd Cir], cert denied __US__, 126 S Ct 1622). Further, "[i]n applying this standard, counsel's efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective [citation omitted]. The Constitution guarantees the accused a fair trial, not necessarily a perfect one [citations omitted]. That a defendant was convicted may have little to do with counsel's performance, and courts are properly skeptical when disappointed prisoners try their former lawyers on charges of incompetent representation' [citation omitted]" (People v Benevento, 91 NY2d 708, 712 [1998] [emphasis added]; see also People v Butler, 273 AD2d 613, 615-616 [3rd Dept 2000], lv denied 95 NY2d 933).

Thus, "[w]here [, as here,] the evidence, the law and the circumstances of a particular case, viewed together and as of the time of representation, reveal that meaningful representation was provided, defendant's constitutional right to the effective assistance of counsel has been satisfied [citation omitted]" (People v Satterfield, 66 NY2d 796, 798-799 [1985] [emphasis added]; see also People v Benevento, 91 NY2d at 712). In this regard, the Court of Appeals "ha[s] clarified meaningful representation' to include a prejudice component which focuses on the fairness of the process as a whole rather than [any] particular impact on the outcome of the case' [citation omitted]" (People v Henry, 95 NY2d at 566; see also People v Ozuna, 7 NY3d 913, 915 [2006]; People v Schulz, 4 NY3d 521, 530 [2005] ["to sustain a claim of ineffective [*6]assistance of counsel, New York courts examine the trial as a whole to determine whether defendant was afforded meaningful representation . . ."]; People v Georgiou, __AD3d__ [2nd Dept 2007], 828 NYS2d 541, 545 {38 AD3d 155} ["in New York, a defendant's showing of prejudice is a significant but not indispensable element in assessing meaningful representation"]).

Most importantly, " [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result' (see Strickland v Washington, 466 US 668, 686 [1984]" (People v Schulz, 4 NY3d at 531).

Application of the foregoing well established principles to the case at bar clearly leads to the inexorable conclusion that the defendant's ineffective assistance of counsel claim is wholly untenable. Specifically, "the record [conclusively] demonstrates that defense counsel made appropriate pretrial motions in an effort to suppress evidence against the defendant; delivered clear and cogent opening and closing statements; conducted meaningful cross-examination of the People's witnesses; lodged objections consistent with the defense theory; highlighted inconsistencies in the witnesses' testimony; moved for a trial order of dismissal at the close of all of the evidence; and urged leniency during sentencing" (People v Mondelus, 233 AD2d 408, 408-409 [2nd Dept 1996], lv denied 89 NY2d 987).

"Taken as a whole, the defendant was provided with meaningful representation [citations omitted]" (id. at 409; see also People v Boyce, 2 AD3d 984, 986 [3rd Dept 2003], lv denied 2 NY3d 796; People v Charles, 309 AD2d 873 [2nd Dept 2003], lv denied 1 NY3d 625; People v Johnson, 303 AD2d 830, 834-835 [3rd Dept 2003], lvs denied 99 NY2d 655, 100 NY2d 583; People v Duke, 292 AD2d 463, 463-464 [2nd Dept 2002]; People v Franklin, 288 AD2d 751, 756 [3rd Dept 2001], lv denied 97 NY2d 728; People v Walker, 259 AD2d 1026, 1027 [4th Dept 1999], lv denied 93 NY2d 1029, habeas corpus denied 262 FS2d 25 [WDNY]), as "[a] review of the record as a whole reflects a performance commensurate with that of a competent attorney who conducted the defense in accordance with a reasoned trial strategy" (People v Butler, 273 AD2d at 615-616; see also People v Moorehouse, 5 AD3d 925, 927-928 [3rd Dept 2004], lv denied 3 NY3d 644; People v Tomasello, 189 AD2d 903, 904 [2nd Dept 1993]).

Here, trial counsel - a highly experienced and well respected veteran criminal defense attorney - credibly testified at the hearing that since the defendant had previously given a written statement (People's trial exhibit No.38 in evidence) to the police, which was not suppressed after a Huntley hearing, he was constrained to work his defense around defendant's statement. In reviewing that statement (set forth in the People's Memorandum of Law [dated January 2005, p 6], as well as in defendant's Memorandum of Law [dated 7/20/04, p 9]), the Court notes that defendant plainly admitted that he was near the crime scene when he saw a male black pull out a gun and start firing in the direction of Rockwood and the Grand Concourse. At that point, the defendant, according to his statement, then ran north on the Concourse, while he attempted to pull his .22 nickel-plated gun out of his pants. As he did so, defendant shot himself in the genitals. Defendant thereupon went back to his building, where he discarded his gun down a nearby sewer. Defendant thereafter went to the hospital for treatment of his wound. [*7]

Thus given the content of defendant's written statement ^[FN2] - made to the police while he was in the hospital and not in custody - trial counsel further testified that if the proffered defense witnesses, Passion and Passean Baker, had both been called - as now argued by the defendant - and testified that the defendant did not have a gun, such testimony could conceivably have been detrimental to his defense.

As explained by trial counsel, "[m]y defense, basically, was since he [defendant] shot himself in the groin area, he didn't participate in the general shootout, and he was unable physically to participate as the People claim[ed]" (HT,149). Further, defendant's written statement affected my strategy "a lot. My defense was based on the fact that the jury heard the statement that he admitted being present; however, he did not discharge his weapon towards any of the victims" (HT,163). If, on the other hand, Passion Baker, according to trial counsel, had testified that the defendant did not have a gun, it would undermine her credibility and, moreover "undermine my client's chance of winning the case" (HT,153). Defendant "admitted . . . having the gun and he shot himself. If [Passion Baker] said he didn't have a gun, then, of course, it would hurt our case" (HT,154). "I didn't want to call her. That was my judgment" (HT,155).^[FN3]

Passion Baker testified that, in the early morning hours of August 17, 1996, she was hanging out on the corner of 172nd Street and the Grand Concourse, watching a dice game. Also present, and watching the game, was her friend, E-Man, whose real name is Emanuel Gullet. At that time, a man suddenly walked up to E-man and said remember me. Passion Baker could not recall how this man was dressed. In any event, gunfire immediately erupted. According to Passion Baker, it was an unknown male participant in the dice game who had first commenced firing. At that point, Passion Baker grabbed her sister's [Passean Baker's] hand and ran away. In the course of fleeing to safety, Passion Baker bumped into the person who had shot her. Her assailant was completely dressed in black. She also saw the defendant on the ground. The defendant, according to Passion Baker, was not the person who had shot her.

Upon conclusion of the hearing, the Court finds that defendant was certainly not deprived of effective assistance of trial counsel because of counsel's failure to interview and call Passion Baker as a defense witness for several reasons: (1) it was trial counsel's strategy not to call any witnesses, since the defendant had accidentally shot himself and had placed himself at the crime scene in his statement to the police; (2) Passion Baker, one of the five surviving shooting victims in this case, deliberately made herself unavailable for trial; (3) Passion Baker would not have voluntarily testified; and (4) Passion Baker, moreover, had previously destroyed her own [*8]credibility as a witness, as she now admits that she had willfully and intentionally told a detective only "half-truths" about the incident, when he had interviewed her in the hospital shortly after the shooting, on August 17, 1996.

More particularly, Passion Baker testified that when she was interviewed by the detective, she gave him an address where she did not reside. It was her mother's address; and while she also testified that she gave the detective her mother's phone number, explaining "you can actually get in contact with me for anything" (HT, 37), the plain fact, as revealed by her hearing testimony [set forth infra], was that Passion Baker did not want anything whatsoever to do with this matter - a fact expressly confirmed by the credible hearing testimony of the prosecutor who was assigned the case for trial, Ms. Elizabeth Roeckell [hereinafter "prosecutor].^[FN4]

Further, Passion Baker emphatically testified that no one from the Office of the District Attorney had ever contacted her about the shooting - not even the assistant district attorney who prosecuted the case (HT,38). However, Passion Baker's testimony on this point was sharply contradicted by the prosecutor, who testified that when this case was reassigned to her for trial, she initially reviewed the entire file, ascertaining the names of prospective witnesses and, moreover, interviewing them in her office. The prosecutor distinctly recalled having interviewed Passion Baker and her sister Passean - at an earlier stage of the case - "because of their unusual [respective] first names. All along I thought I was dealing with one person and then I discovered there were two" (HT,197-198).Passion Baker, according to the prosecutor, "didn't even know she was shot. She didn't know what happened. It was a free for all was basically how it was put to me" (HT,194). "There were a lot of people. It was a free for all. Everybody running in different directions, not really knowing what happened" (HT,194).

Nevertheless, since Passion Baker was a shooting victim, as reflected in the various counts of the indictment [discussed above], the prosecutor was very interested in obtaining her presence for trial - "I do try to present everything to the jury" (HT,202). However, "I couldn't get them [Passion and Passean Baker] in. I didn't present them because I did not get them in" (HT,203). "You always try to get your witnesses in, absolutely. I didn't just forget about [them]" (HT,203). In this regard, the prosecutor testified that her "usual practice would be to send letters, . . . make phone calls, and [she] remember[ed] making phone calls in this case" (HT,203). Thus, the Court rejects the defense argument that "[o]bjectively, Passion Baker was not hard to locate" (defense counsel's affirmation [dated 3/14/07], p 10).

As to Passion Baker's complete lack of credibility (see People v Staton, 224 AD2d 984, 984-985 [4th Dept 1996] [at a CPL article 440 hearing it is the Court which assesses the witnesses' credibility]; People v Wong, 11 AD3d 724, 725 [3rd Dept 2004]), she testified that "[w]hatever I told the police that day [in the hospital] - - I was 14 - - [h]alf of it is truth. The other half may not be. Maybe some bits and pieces. At the age of 14, it wasn't okay to talk to peoples [sic] and cops. My mother made me give them a statement. So I gave them what I wanted to give them. . . ." [*9](HT,85). I was not prepared to tell anything. My mother was pressuring me. She should have told her own story. . . . The police was asking me and I didn't want to say nothing. My mother told them a story, but that's what that was" (HT,85).

The following colloquy (on cross-examination) at this hearing is most revealing of Passion Baker's utter lack of credibility and her sheer determination not to testify - for either the prosecution or the defense - (at HT,85-88):

Additional questioning by this Court of Passion Baker further confirms that (1) trial counsel would not have been able to locate Passion Baker as a defense witness; (2) Passion Baker was not, in any event, going to appear at trial - either as a defense or prosecution witness, perhaps due to witness fear; (3) Passion Baker, by virtue of her admittedly false and misleading prior statements to a detective, had completely destroyed her credibility as a defense witness; and (4) by her own admission, Passion Baker had "buried kind of deep" (HT,99) the tragic events of the night in question (at HT,94-100):

In any event, defendant further alleges trial counsel had rendered ineffective assistance [*15]because he did not also interview and call Passean Baker - sister of Passion Baker - as a second defense witness. Passean Baker testified at the hearing that an unknown male Hispanic had walked up to E-man and said remember me?, pulling out a gun and firing in the direction of E-man as the latter individual ran away.^[FN5] Further, another guy who had approached E-man with the gunman had also pulled out a gun. Moments later, she and her sister [Passion Baker] ran down the block. Passean Baker also testified that she was with her sister when Passion was hit, but that she did not see the shooter. Passean Baker further testified that she "remember[ed] [the defendant] standing in the street on Rockwood and [the Concourse]. That he did not fire a gun into the crowd as the other individuals were doing" (HT,13). "I seen him [the defendant] wounded. I never seen him actually like shoot himself, but he was wounded on Rockwood" (HT,18). However, on cross-examination Passean Baker admitted that she "was not looking at [the defendant] when the gunshots went off. I seen him on the corner of Rockwood and [the Concourse]" (HT,27).

The Court finds, as a matter of fact, that Passean Baker, too, deliberately made herself unavailable to be a witness in this case and, moreover, would not have voluntarily testified, as clearly confirmed by the prosecutor's testimony [discussed above]. Perhaps her intentional unwillingness to become a witness in the case was also due to her recognition of the people who had opened fire that fatal night (HT,10). Passean Baker testified that "[t]hese are guys that some of them I went to school with, CES-64 in the Bronx on Walton Avenue, and seeing them around in the neighborhood [sic]" (HT,11). In any case, when Passean Baker was interviewed by a detective shortly after the shooting, she, like her sister Passion, gave her mother's address as her residence even though she, too, was not living there. At that time, Passean Baker testified that she was living at "Inwood Houses Shelter on 182nd Street" (HT,9). In this regard, Passean Baker would have apparently been difficult to locate at the time of trial, because, according to Passion Baker's hearing testimony, her sister was then "living in a shelter at 106 and Pleasant . . ." (HT,100).

But more importantly, Passean Baker - like her sister Passion - did not present herself as a credible witness. Besides her unpleasant demeanor, Passean Baker testified that she, too, was never interviewed by an assistant district attorney at any time after the shooting. However, as noted above, the credible hearing testimony of the prosecutor revealed that Passean Baker's testimony on this point was simply not true. Further, in regard to her lack of credibility, Passean Baker recently pleaded guilty to selling drugs to an undercover officer in exchange for a sentence that consisted of her entry into a drug treatment program - for drug users. But when asked by this Court if she had been using drugs, Passean Baker testified "[n]o, I was just selling them" (HT,29). "Selling drugs. I wasn't on drugs" (id.).

Again, it merits repeating that it certainly would have been imprudent - absolutely foolish - for trial counsel to present Passean Baker as a defense witness - whose testimony would have [*16]been effectively impeached by the experienced prosecutor ^[FN6] - since trial counsel had already elicited from a key prosecution witness that he did not see the defendant shoot any one.

In addition, Passean Baker's testimony not only would have served to undercut the defense strategy, as earlier discussed, it would have also bolstered the testimony of Francis Perez,^[FN7] who testified for the People that, inter alia, he had earlier furnished the defendant with a nine millimeter gun, and later observed him firing a gun that fatal night - thus circumstantially linking the defendant to the death of Dietrich Little [hereinafter "decedent"].

More particularly, the medical examiner [Dr. Bruce Levy] who had performed the autopsy on the decedent, according to the trial testimony of Dr. Manuel Montez, an expert in forensic pathology, had recovered the bullet - People's exhibit #

25A in evidence - which caused the decedent's death. Detective Barry, an expert in the field of ballistics, testified that the bullet - People's exhibit #

25A - "is a nine millimeter deformed copper jacketed bullet. . . ." (TT,2542). Further, Detective Engdahl, who had responded to the scene of the shooting, 1515 Grand Concourse - on the west side of the Concourse - shortly after its occurrence, testified at trial that he had "observed five 9 millimeter discharged shells near the southwest corner of Rockwood Street and the Grand Concourse" (TT,2075).^[FN8] In this regard, Passean Baker testified that she had observed the defendant on the corner of Rockwood and the Concourse when the shooting had occurred (see HT,57-58). Consequently, trial counsel's failure to interview and call Passean Baker as a witness as well caused no demonstrable prejudice whatsoever to the defendant.

In any case, assuming, arguendo, that the proffered testimony of Passion and Passean Baker was received at trial, namely that two other people - and not the defendant - did the shooting that night, defendant has simply overlooked the indisputable fact that his conviction of the manslaughter, possession of a weapon and reckless endangerment charges was predicated upon an acting in concert theory (see PL § 20.00). Thus, "[i]t is not necessary to prove that defendant fired the fatal shot if the evidence is sufficient to establish that the defendant was acting in concert with another who did fire the fatal shot and that the defendant was acting with the mental culpability required for the commission of the crime. Here, the evidence [discussed infra] of prior planning and then active participation, without apparent cause, in the resulting furious and wanton shoot-out . . . was sufficient to support the jury's finding of guilt" (People v Brathwaite, 63 NY2d 839, 842 [1984]) - especially in view of the trial court's meticulous and [*17]detailed instructions on the principles of accessorial liability (see TT, 2964-2967).^[FN9] (See also People v Modesto, 262 AD2d 586 [2nd Dept 1999], lv denied 94 NY2d 826 ["Although the appellant was not among the assailants using knives or ice picks, the evidence nevertheless established that he shared a community of purpose with his fellow gang members . . ."].)

Specifically, the combined testimony of prosecution witnesses Francisco Duran, Danny Hernandez, a/k/a Blex and Francis Perez, a/k/a Bae plainly established that the defendant did indeed possesses the requisite "community of purpose" with his fellow cohorts to do harm and, in this regard, the proffered testimony of the Baker sisters did absolutely nothing to impugn defendant's guilt as an accessory, as they were certainly not present when the defendant had previously formulated and manifested his specific intent to aid his accomplices.^[FN10]

Duran testified that on the evening of August 15th [1996], around 6:30, he was with his wife and newborn child in the area of 174th Street and Townsend Avenue [Bronx County]. At that time, the defendant - whom he had known for about a year - was also on the sidewalk. Defendant called him over, asking to see the baby. The defendant thereupon said "do you know what happened with Blex [Danny Hernandez], that they tried to take his chain away" (TT,1864-1865). Duran, who had known Danny Hernandez for about eleven years, further testified that the defendant then added "[i]f I was Blex, I would shoot those Morenos, [M-O-R-E-N-O-S-]" (TT,1865) - which, Duran said, is Spanish for blacks. Afterwards, Duran went home and he did not see the defendant again.

Danny Hernandez [a/k/a "Blex"], a convicted felon then on parole for selling drugs, testified that he had known the defendant for about three or four years, socializing with him about two or three times a week. Around 8:00 in the evening of August 16th [1996], he met the defendant [and codefendant] in a candy store on 173rd Street and the Concourse. At that time, the defendant, according, to Hernandez, asked him why he did not tell him what had happened to him [Hernandez] last week. Hernandez then told the defendant that he had gotten jumped "[b]y three African-Americans in front of the candy store on 172nd and the Concourse" (TT,1717). Hernandez further testified that he knew one of his alleged assailants by the name of E-man.

Hernandez and the defendant then entered a car. The defendant drove away, and the two proceeded to circle the area. Upon seeing a group of about thirty people outside a candy store located on 172nd Street and the Concourse, Hernandez spotted E-man. Hernandez thereupon told [*18]the defendant "yo, there he goes" (TT,1721). Defendant said nothing. The two then drove back to Townsend Avenue, where they met the codefendant. Hernandez told the codefendant to meet him up the block in a little while.At that time, Hernandez left by himself, and walked to a storefront on 173rd Street and the Concourse; he arrived there at about 8:30. About ninety minutes later, while still there, Hernandez met Bey [Francis Perez], Miker and Sak. Hernandez told them that he had seen E-man in front of the candy store [on 172nd Street] and that he was going to fight him, one-on-one. Defendant was not present when Hernandez had announced his intention to fight.

Approximately twenty minutes later, defendant [and the codefendant] joined Hernandez and the other three males who had been with him. Hernandez once again stated his intention to fight E-man, one-on-one. At that point, the defendant, according to Hernandez, stated that "we ain't going over there without no guns" (TT,1727). After some debate between Hernandez and Perez about taking guns, they decided to take them. Hernandez thereupon told Sak to go across the street and get his .38, also instructing the codefendant to go with Sak. After those two left, he [Hernandez], Perez and the defendant stood on 173rd Street and the Concourse, talking about getting the other gun - a 9 millimeter. The defendant, according to Hernandez, then stated that "I ain't going over there without a gun" (TT,1732).

After about five minutes had elapsed, Hernandez observed the codefendant and Sak heading to the candy store. Hernandez and about six other friends then walked towards 172nd Street, stopping in front of Bey's [Perez's] building. At that point, Hernandez saw Perez and defendant going upstairs into the premises. Prior to their going upstairs, Hernandez testified that he had a conversation again with Perez - in defendant's presence - about the 9 millimeter. Perez, according to Hernandez, "said I'm gonna go upstairs and get it" (TT,1735). A couple of minutes later, Perez and the defendant exited the apartment house.

At that point, Hernandez, Perez, defendant and about seven other males walked to Rockwood and the Concourse. The codefendant, who had been near Perez's building, was now out of sight, according to Hernandez. Upon reaching Rockwood, Hernandez put on a hoody and crossed the street; he walked towards a group who had been playing dice in front of the candy store.^[FN11] As the defendant, Perez and the other males stood on the corner, Hernandez walked into the crowd and quickly spotted E-man. E-man, according to Hernandez, had apparently recognized him, as E-man had acted nervous when Hernandez had approached. Upon removing his hoody, Hernandez said "remember me". E-man then shoved someone and began to flee across the Concourse. Hernandez thereupon pursued him. The defendant, according to Hernandez, did not follow. [Neither did the codefendant.]

When Hernandez - who also testified that he never had a gun that night - got to the middle lane of the Concourse, he heard a shot coming from the direction of Rockwood. Seconds later, [*19]while still in pursuit, Hernandez heard more shots - four or five.^[FN12] Hernandez, who had apparently never caught up to E-man, did not see the defendant again that night.

Francis Perez, age 23 at the time of trial, testified - under a grant of immunity - that he is known by the nickname of "Bey" [also spelled BAE] - and that he considered Danny Hernandez [Blex] a good friend. In fact, prior to August 1996, Perez had a lucrative drug operation on 36th Street [in New York County] and Hernandez was one of his employees. In any event, in the late evening of August 16, 1996, Perez and two friends, Robert Sak and Mike, had taken the subway to 173rd Street and the Grand Concourse, arriving there around 11:30.They then went to a nearby store [on Sheridan Avenue] to buy some weed, which they promptly smoked. Afterwards, the three went to another store - located on 173rd Street and the Concourse - where Perez met the rest of his friends: the defendant, whom he had known for about three to four years, the codefendant and Hernandez [Blex].

At that time, Hernandez approached Perez, according to the latter's testimony, and stated that he had earlier seen the guy he had a prior beef with - on 172nd Street and Rockwood - and that he wanted to fight the guy. However, since there were about thirty guys over there, and Hernandez and his friends only numbered seven, Hernandez said that he did not want to go over there without weapons. At that point, the defendant, according to Perez, told him "to go get it" (TT,2182) - referring to a gun; and Hernandez told Sak to get a gun - referring to a .38. Prior to the codefendant and Sak leaving to retrieve the .38, Hernandez had also told them to remain on the other side of the Concourse - once they had the gun.

After seeing the codefendant and Sak go into Sak's building, Perez, Hernandez and the defendant went to Perez's apartment building, about a block away. The defendant accompanied Perez upstairs. While the defendant waited by the staircase, Perez went inside and retrieved an unloaded nine millimeter and an ammunition clip, which contained hollow point bullets. Upon exiting his apartment, he handed the gun and clip to the defendant. Perez then saw the defendant insert the clip into the gun, and place the loaded gun underneath his shirt and into his pants -"right in the middle" (TT,2190). Although Perez had told the defendant not to do anything with the gun - because it's not his beef - defendant told him "not to worry about it" (TT,2191).

Upon leaving the building, defendant began walking a few steps ahead of him. Moments later, the defendant was joined by Hernandez "and some other guys that were there" (TT,2192), as they walked toward Rockwood. Eventually, as they approached the grocery store - located at 1515 Grand Concourse - Perez saw "[a] whole bunch of guys standing in front of the store" (TT,2193-2194). The group numbered about thirty, according to Perez, who also testified that "they were playing dice" (TT,2194).

At that point, Hernandez approached a male individual, whom Perez did not know. [Perez further testified that he was subsequently informed that the male was known as "E-man".] Hernandez lowered his hoody and asked E-man "remember me?". Perez was now standing seven feet away from the encounter, and the defendant was a couple of feet away from him [Perez] - [*20]towards the corner of Rockwood. Moments later, as the crowd began moving away, Perez heard the first shot ring out - coming from his right side. Perez then took cover, moving towards the street. As he did so, Perez observed the defendant grabbing his crotch area. The defendant then jumped up.

After hearing about two or three more shots, Perez started running towards Mount Eden, passing behind the defendant. "I passed him. As I was passing him flashes [sic] was going towards the crowds [sic], which is shots towards the crowd" (TT,2202). The defendant, according to Perez, was running and firing, while grabbing his crotch with his other hand. Perez testified that the defendant had fired about three or four times - towards the remaining people who had initially been standing outside the store (on the Concourse). Perez also testified that he did not see anyone get shot when the defendant was firing. Further, Perez did not see anyone else in his group (i.e., Hernandez, Sak and Mike) in possession of a gun that night. Nor did he have one.

Thus, based on the aforesaid prosecution testimony of Duran, Hernandez and Perez, it is clear that the People adduced sufficient evidence to establish the defendant's complicity in the homicide predicated upon firmly established principles of accessorial liability; and the Appellative Division, apparently, did not disagree, as it had unanimously affirmed defendant's conviction (see People v Collins, 301 AD2d 452, supra ).

While Perez was the only witness to testify that the defendant was firing a gun, it is notable, at this point, to again emphasize that trial counsel was in fact able to successfully elicit, on cross-examination of Hernandez, that he did not see the defendant in possession of a gun or fire one that fatal and tragic night. Nevertheless, it is beyond dispute that the defendant did in fact have a gun. As earlier stated, the defendant had given a pre-custodial written statement (People's trial exhibit #

38 in evidence) to the police, wherein he had expressly admitted his possession of a firearm and shooting himself in the genitals while attempting to extricate the weapon from his pants when the shootout had occurred.

In any case, the law is well established that "[t]he defendant bears the high burden of demonstrating that he was deprived of a fair trial as the result of counsel's performance [citation omitted], and simple disagreement with strategies and trial tactics will not suffice [citation omitted]" (People v Schreter, 252 AD2d 563 [2nd Dept 1998], lv denied 92 NY2d 951, habeas corpus denied 225 FS2d 249 [EDNY]; see also People v Hobot, 84 NY2d 1021, 1022 [1995], habeas corpus denied 1998 WL 642705 [EDNY]; People v Balbuena, 264 AD2d 424 [1st Dept 1999]).

In this case, it is unquestionable, as the trial record plainly reveals, that defendant has not overcome the strong presumption that trial counsel rendered effective assistance (see People v Fernandez, 7 AD3d 730, 731 [2nd Dept 2004], lv denied 3 NY3d 658, error coram nobis denied 19 AD3d 614, lv denied 5 NY3d 828; People v Bell, 298 AD2d 398 [2nd Dept 2002], lv denied 99 NY2d 555, habeas corpus denied 2005 WL 1962413 [EDNY]; People v Birch, 284 AD2d 405 [2nd Dept 2001], lv denied 96 NY2d 916).

Specifically, defendant has not shown "that his counsel's acts and omissions were inconsistent with a competent legal strategy or seriously compromise[d] [his] right to a fair trial' [citations omitted]" (People v Parker, 305 AD2d 858, 859 [3rd Dept 2003], lv denied 2 NY3d 804 [bracketed material in original]) and, most importantly, affected the result (see People v Harris, 304 AD2d 355 [1st Dept 2003], lv denied 100 NY2d 582). Furthermore, "[a] defendant is [*21]not entitled to error-free representation [^[FN13]], and here defendant failed to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged failures' [citation omitted]" (People v Jackson, 4 AD3d 848, 849 [4th Dept 2004], lv denied 2 NY3d 801; see also People v Grey, 34 AD3d 832, 833 [2nd Dept 2006]; People v Williams, 24 AD3d 575, 575-576 [2nd Dept 2005], lv denied 6 NY3d 782; People v Nixon, 21 AD3d 1123, 1123-1124 [2nd Dept 2005]; People v Louissant, 8 AD3d 407 [2nd Dept 2004], lv denied 3 NY3d 677).

In this regard, "[d]efendant's attack on counsel's decision not to call . . . [the Baker sisters as] witness[es] is, at most, a disagreement over trial tactics that does not indicate ineffectiveness [citation omitted]" (People v Brooks, 283 AD2d 367, 368 [1st Dept 2001], lv denied 96 NY2d 916), as "there was a real risk . . . that [these] witnesses would have furnished testimony damaging to the defendant's position" (id.; see also People v Thomas, 244 AD2d 271 [1st Dept 1997], lv denied 91 NY2d 898 ["defendant's attack on counsel's decision not to call certain witnesses . . . amounts to, at most, a disagreement over trial tactics, which does not indicate ineffectiveness . . ."]; People v Hernandez, 295 AD2d 989 [4th Dept 2002], lv denied 98 NY2d 711, error coram nobis denied 303 AD2d 1059, lv denied 100 NY2d 562 ["Defense counsel's failure to call a witness at trial does not, by itself, constitute ineffective assistance of counsel"]).

"Viewed objectively, the record demonstrated a legitimate and strategic reason for not calling [the Baker sisters] to testify at trial [citation omitted]" (People v Peters, 28 AD3d 686, 687 [2nd Dept 2006], lv denied 7 NY3d 793, cert denied __US__, 127 S Ct 964; see also People v Llanos, 13 AD3d 76, 77 [1st Dept 2004], lv denied 4 NY3d 833 [trial counsel made a strategic and legitimate choice in declining to call a witness who was incredible and potentially harmful to the defense]; People v Botting, 8 AD3d 1064, 1066 [4th Dept 2004], lv denied 3 NY3d 671 [defense counsel's failure to call a witness was a matter of strategy and, therefore, counsel was not ineffective]). "Thus, the defendant failed to demonstrate that he was deprived of meaningful representation [citation omitted]" (People v Peters, 28 AD3d at 687) - especially in view of the fact that this Court has found, as a matter of fact, that the Baker sisters deliberately made themselves unavailable to testify at trial and, therefore, could not have been located and interviewed by trial counsel.

But more importantly, as stated above, the Baker sisters' proffered testimony could not have absolved the defendant of accomplice liability - because they were simply not present when the defendant had uttered incriminating statements in the course of earlier conversations with Duran, Hernandez and Perez.

In any case, as previously mentioned,"[t]he defendant's disagreement with the strategies and tactics employed by the defense counsel does not amount to a deprivation of effective assistance of counsel [citation omitted]" (People v Morrison, 288 AD2d 494 [2nd Dept 2001], lv denied 97 NY2d 758, error coram nobis denied 300 AD2d 323; see also People v Benn, 68 [*22]NY2d 941, 942 [1986]; People v Love, 307 AD2d at 532 ["Disagreement or unhappiness with counsel's strategies does not equal denial of meaningful representation . . ."]; People v Koufomichalis, 2 AD3d 987, 989 [3rd Dept 2003], lv denied 2 NY3d 742; People v Philbert, 267 AD2d 607, 608 [3rd Dept 1999], lv denied 94 NY2d 905).

Said differently, "[i]neffective assistance of counsel may not be premised upon unsuccessful trial strategy by defense counsel [citation omitted]" (People v Brown, 286 AD2d 687 [2nd Dept 2001], lv denied 97 NY2d 702; see also People v Taylor, 1 NY3d 174, 177 [2003], habeas corpus denied 2006 WL 416372 [SDNY]; People v Colvin, 37 AD3d 856, ___ [3rd Dept 2007], 828 NYS2d 716, 718 ["The guarantee of meaningful representation is not breached when an attorney pursues reasonable trial strategies and tactics which ultimately proves unsuccessful . . ."]; People v Jenkins, 300 AD2d 751, 753 [3rd Dept 2002], lv denied 99 NY2d 615 ["Losing trial tactics or strategy . . . do not rise to the level of ineffectiveness"]; People v Washington, 184 AD2d 451, 452 [1st Dept 1992], lv denied 80 NY2d 911, habeas corpus denied 1997 WL 178616 [SDNY] ["A claim of ineffective assistance of counsel will not lie where the purported failures of counsel are the result of a calculated trial strategy which, in the final analysis, does not work . . ."]; People v Thomas, 33 AD3d 1053, 1055 [3rd Dept 2006]; People v Walker, 2 AD3d 656, 656-657 [2nd Dept 2003], lv denied 1 NY3d 602, habeas corpus denied 2006 WL 47410 [EDNY]; People v Sowizdral, 275 AD2d 473, 476 [3rd Dept 2000], lv denied 95 NY2d 969).

Indeed, in determining whether a defendant has been afforded meaningful representation, "courts should not confuse true ineffectiveness with losing trial tactics or unsuccessful attempts to advance the best possible defense" (People v Rose, 307 AD2d 270, 271 [2nd Dept 2003]; see also People v Plaisted, 2 AD3d 906, 909 [3rd Dept 2003], lv denied 2 NY3d 744; People v Standard, 273 AD2d 870 [4th Dept 2000], lv denied 95 NY2d 908; People v Smith, 230 AD2d 925 [2nd Dept 1996], lv denied 89 NY2d 930, habeas corpus denied 1999 WL 1007348 [EDNY]). Here, "defense counsel pursued a coherent trial strategy, made appropriate motions and objections and otherwise provided defendant with meaningful representation [citation omitted]" (People v Plummer, 24 AD3d 1027, 1028 [3rd Dept 2005], lv denied 6 NY3d 837; see also People v Madison, 31 AD3d 974, 975 [3rd Dept 2006], lv denied 7 NY3d 868; People v Sieber, 26 AD3d 535, 536 [3rd Dept 2006], lv denied 6 NY3d 853; People v Deshields, 24 AD3d 1112, 1114 [3rd Dept 2005], lv denied 6 NY3d 811).

Thus, the Court is completely "unconvinced by defendant's contention that he received the ineffective assistance of counsel. [The Court also] view[s] counsel's performance as objectively reasonable and legitimate [citations omitted], and defendant's current arguments as simply second-guessing the defense strategy [citation omitted]" (People v Wallis, 24 AD3d 1029, 1033 [3rd Dept 2005], lv denied 6 NY3d 854 [emphasis supplied]).

As aptly stated by the Court of Appeals in the seminal case of People v Baldi (54 NY2d 137, 146 [1981]), "i[t] is always easy with the advantage of hindsight to point out where trial counsel went awry in strategy". (See also People v Benevento, 91 NY2d at 712.) However, "[a] difference of opinion with respect to strategies or trial tactics, particularly with the benefit of hindsight, is not sufficient to demonstrate ineffectiveness of counsel [citations omitted]" (People v Philbert, 267 AD2d at 608). And "[a]s long as a defendant was afforded meaningful representation, the courts may not, aided by the wisdom of hindsight, second-guess matters of the defense counsel's trial strategy [citation omitted]" (People v Finley, 27 AD3d 763 [2nd Dept 2006], lv denied 7 NY3d 788). [*23]

Thus, "[i]t is not for this [C]ourt to second-guess whether [the] course chosen by defendant's counsel was the best trial strategy, or even a good one, [since the] . . . defendant was [unquestionably] afforded meaningful representation" (People v Satterfield, 66 NY2d at 799-800; see also People v Pierce, 303 AD2d 966, 966-967 [4th Dept 2003], lv denied 100 NY2d 565; People v Williams, 273 AD2d 824, 825 [4th Dept 2003], lv denied 95 NY2d 893, habeas corpus denied 435 FS2d 199 [WDNY]). Significantly, "[d]efense counsel had a discernible strategy . . ." (People v Barnes, 305 AD2d 1095 [4th Dept 2003], lv denied 100 NY2d 592; see also People v Lawton, 134 AD2d 454, 455 [2nd Dept 1987], lv denied 71 NY2d 1029 ["decisions by counsel concerning trial strategy (are matters) which our courts have refused to second-guess on appeal . . ."]) . And "[w]here, as here, a defense attorney presents a well-grounded but ultimately unsuccessful defense, such attorney will not later be held to have provided ineffective assistance [citations omitted]" (People v Rodabaugh, 26 AD3d 598, 600 [3rd Dept 2006]; see also People v Tomasky, 36 AD3d 1025, 1027 [3rd Dept 2007] ["a losing strategy is not sufficient to establish the lack of meaningful representation . . ."]). In this regard, "[h]indsight does not elevate counsel's unsuccessful trial strategies into ineffective assistance of counsel [citations omitted]" (People v Gillespie, 36 AD3d 626, 627 [2nd Dept 2007]).

Furthermore, it is familiar law that "[t]o prevail on a claim of ineffective assistance of counsel a defendant must demonstrate the absence of strategic or other legitimate explanations for counsel's failure to pursue colorable claims' [citation omitted]" (People v Garcia, 75 NY2d 973, 974 [1990]; see also People v Benevento, 91 NY2d at 712 [" it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations' for counsel's alleged shortcomings"]; People v Johnson, 37 AD3d 363, ___ [1st Dept 2007], 830 NYS2d 546, 547; People v Eagleton, 161 AD2d 482 [1st Dept 1990], lv denied 76 NY2d 855; People v Philbert, 267 AD2d at 608). Defendant, however, simply failed to do so; and thus " it will be presumed that counsel acted in a competent manner and exercised professional judgment' [citation omitted] . . ." (People v Taylor, 1 NY3d at 177-178; see also People v Hightower, 35 AD3d 884 [2nd Dept 2006]).

"Nor has defendant demonstrated that but for counsel's purported errors, the verdict would have been different [citation omitted]" (People v Styles, 156 AD2d 223, 225 [1st Dept 1989], lvs denied 75 NY2d 872, 76 NY2d 743, habeas corpus denied 1995 WL 326445 [SDNY], affd 101 F3d 684 [2nd Cir], cert denied 519 US 936; see also People v Harris, 304 AD2d at 356; People v Diaz, 157 AD2d 569 [1st Dept 1990], lv denied 76 NY2d 733). In fact, "[e]ven if [the Court] were to find that trial counsel's failure to . . . [call] . . . [the Baker sisters] was neglectful rather than strategic, [the Court] would still find that defendant received meaningful representation [citation omitted]" (People v Brown, 306 AD2d 12, 13 [1st Dept 2003], lv denied 100 NY2d 592, habeas corpus denied 2005 WL 1773683 [SDNY], affd 451 F3d 54 [2nd Cir]), as "there is no proof that defendant suffered actual prejudice as a result of the claimed deficiencies, which is a necessary prerequisite to a finding of ineffective assistance of counsel [citations omitted]" (People v Frascatore, 200 AD2d 860, 861 [3rd Dept 1994]; see also People v Miller, 254 AD2d 627, 628 [3rd Dept 1998]).^[FN14] Stated another way, trial counsel's failure to call the [*24][Baker sisters] "did not affect either the fairness or the outcome of the trial [citation omitted]" (People v Barnes, 29 AD3d 390, 391 [1st Dept 2006], lv denied 7 NY3d 785).^[FN15]

Consequently, "[c]onsidering counsel's conduct of the defense as a whole, defendant was not denied meaningful representation [citations omitted]" (People v Parker, 305 AD2d at 859); and, as stated above, "defendant did not meet his well-settled, high burden of demonstrating that he was deprived of a fair trial by less than meaningful representation' [citation omitted]" (People v Coleman, 305 AD2d 1031, 1032 [4th Dept 2003], lv denied 100 NY2d 579).

In essence, the relevant and dispositive issue, of course, is the quality of trial counsel's representation of the defendant at trial. The answer, of course, is plainly found in the transcript of the trial itself. This Court's review of the pretrial suppression hearing and trial record reveals that trial "[c]ounsel demonstrated a [more than] reasonable understanding of the principles of criminal law and procedure [citation omitted] and was familiar with the facts and the law bearing on the defendant's case [citation omitted]" (People v Schlageter, 238 AD2d 891, 892 [4th Dept 1997]). In this regard, the trial "record reflects that counsel made appropriate motions and objections, effectively cross-examined witnesses, presented sound opening and closing statements and otherwise pursued a cogent defense [citation omitted]" (People v Valderama, 25 AD3d 819, 821 [3rd Dept 2006], lv denied 6 NY3d 854; see also People v Gillespie, 36 AD3d at 627; People v Lackey, 36 AD3d 953, 956 [3rd Dept 2007]; People v Lozada, 35 AD3d 969, 970 [3rd Dept 2006]; People v Weaver, 34 AD3d 1047, 1050 [3rd Dept 2006]; People v Madison, 31 AD3d at 975), as earlier noted.

Having thus concluded that there was no violation of the defendant's right to effective assistance of counsel under our State Constitution, the Court - mindful of the cases of Gersten v Senkowski (426 F3d 588 [2nd Cir 2005], cert denied __US__, 126 S Ct 2882, revg 280 AD2d 487 [2nd Dept 2005]) and Henry v Poole (409 F3d 48, 62-63 [2nd Cir 2005], cert denied __US__, 126 S Ct 1622 revg 95 NY2d 563 [2000]) - next examines whether the defendant received effective assistance of counsel under the Federal Constitution ^[FN16] - even though the New York State [*25]Court of Appeals has held that "our state standard . . . offers greater protection [to defendants] than the federal test . . ." (People v Caban, 5 NY3d 143, 156 [2005]; see also People v Ozuna, 7 NY3d at 915, quoting People v Turner, 5 NY3d 476, 480 [2005]; People v Casiano, 184 AD2d 206 [1st Dept] 1992], lv denied 80 NY2d 927; People v Parker, 220 AD2d 815, 816 [3rd Dept 1995], lv denied 87 NY2d 1023 .^[FN17]

In the seminal case of Strickland v Washington (466 US 668 [1984], rehearing denied 467 US 1267), "the Supreme Court established a two-pronged test for determining whether a defendant's Sixth Amendment right to the effective assistance of counsel has been violated. In order to prove such a violation, a convicted defendant must show both (a) that counsel's representation fell below an objective standard of reasonableness . . . under prevailing professional norms' [citation omitted], and (b) that the deficient performance prejudiced the defense' i.e., that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable' [citation omitted]" (Henry v Poole, 409 F3d at 62-63).^[FN18] "Prejudice [, which] forms the second half of an ineffective assistance claim [, is found to exist when] "[t]here is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. [Citations omitted]" (Greiner v Wells, 417 F3d 305, 319 [2nd Cir 2005], cert denied __US__, 126 S Ct 1363). Further, it is the defendant who "bears the burden of establishing both deficient performance and prejudice. [Citation omitted]" (id.)

Simply stated, the defendant cannot even remotely satisfy the first prong of the Strickland performance test.^[FN19] "In assessing performance, [the federal courts] . . . apply a heavy measure of deference to counsel's judgments'. [Citation omitted.] [Federal courts] will not normally fault counsel for foregoing a potentially fruitful course of conduct if that choice also entails a significantly potential downside'. [Citations omitted.] Thus, [a] lawyer's decision not to [*26]pursue a defense does not constitute deficient performance if, as is typically the case, the lawyer has a reasonable justification for the decision', [citation omitted] and [,most significantly,] strategic choices made after a thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, [citation omitted]" (Greiner v Wells, 417 F3d at 319). "[A]nd even strategic choices made after less than complete investigation do not amount to ineffective assistance - so long as the known facts made it reasonable to believe that further investigation was unnecessary [citation omitted]" (Henry v Poole, 409 F3d at 63 [emphasis added]).

In the recently decided habeas case of Villoch v Brooks ( __FS2d__ [EDPa 2006], 2006 WL 2715180), the federal magistrate issued a report and recommendation, subsequently approved and adopted by the district court, denying habeas relief to a state court prisoner who had argued that he was deprived of ineffective assistance of counsel because trial counsel had failed, inter alia, to call and interview a witness in support of an alibi defense. The magistrate held that "[w]here a [defendant] contends that trial counsel was ineffective because he failed to interview a witness, the [defendant] must, at a minimum, show that the witness was available to testify at the time of trial . . ." (id. at ___). Further, "[i]n order to establish ineffective assistance of counsel for failure to call a witness, [defendant] must establish that: (1) the witness existed; (2) the witness was available; (3) counsel was informed of the existence of the witness or should otherwise have known of him; (4) the witness was prepared to cooperate and testify for the defendant at trial; and (5) the absence of the testimony prejudiced the defendant so as to deny him a fair trial. [Citation omitted]" (id. at ___).

Here, it is clear that the defendant plainly failed to satisfy the second, fourth and fifth factors articulated above by the magistrate in Villoch. As discussed above, trial counsel cannot be faulted for his failure to interview and call the Baker sisters, as they would not have voluntarily testified and, in this regard, they deliberately made themselves unavailable for trial. Indeed, despite numerous letters and phone calls, even the prosecution - which, unquestionably, had far more investigative resources at its disposal than the defense - was not able to locate them for trial. In addition, as also discussed above, they were simply not credible, in addition to projecting a poor demeanor.

Most importantly, the absence of testimony by the Baker sisters caused no prejudice whatsoever to the defendant. It is indeed critical to again note that their testimony would not only have been detrimental to trial counsel's strategy, the testimony of Passean Baker, placing the defendant on the corner of Rockwood and the Grand Concourse when gunfire had erupted, would have also served to circumstantially link the defendant to the homicide - given the prosecution's ballistics and forensics evidence. Specifically, this portion of her testimony - coupled with the ballistics and forensics evidence (i.e., the police recovery of five 9 millimeter discharged shells on the southwest corner of Rockwood and the Concourse, as well as the medical examiner's recovery of a 9 millimeter deformed bullet from the decedent) - clearly corroborated the trial testimony of prosecution witness Francis Perez ["Bey"], defendant's accomplice. As earlier discussed, Perez had testified that he gave a 9 millimeter pistol and ammunition clip to the defendant shortly before the various victims were shot and, moreover he [Perez] later saw the defendant firing a handgun about three or four times - although he did not see anyone get shot at that time.

But above all else, the testimony proffered by the Baker sisters at this hearing would not [*27]have negated defendant's guilt - which was predicated upon the fundamental principles of accessorial liability - even if it is assumed that the defendant was not the assailant who had in fact fired the nine millimeter gun. In this regard, defendant does not assert that the Baker sisters were also present - and thus in a position to proffer exculpatory testimony - when the defendant had previously made inculpatory admissions - evincing his "shared intent" and community of purpose" - to the prosecution witnesses Duran, Hernandez and Perez, discussed in detail above.

Thus, after reviewing the trial record in conjunction with the applicable Strickland standard, the Court must conclude that there is surely no reasonable probability - i.e., "a probability sufficient to undermine confidence in the outcome" (Strickland, at 694) - that, but for trial counsel's failure to locate, interview and call the Baker sisters at trial, the result of the proceeding would have been different.

In the end, "[a] review of the [trial] record reveals that trial counsel not only provided defendant with meaningful representation', he provided defendant with exceptional representation [far] exceeding both state and federal standards [citations omitted]" (People v Baptiste, 306 AD2d at 569). While it must be noted that "[e]ven the best criminal defense attorneys would not defend a particular client in the same way [citation and internal quotation marks omitted]" (Thomas v Lord, 396 FS2d 327, 335 [EDNY 2005]), the Supreme Court has noted, there are countless ways to provide effective assistance in any given case . . .' [citation omitted]" (id.); and in the case at bar the defendant did in fact receive very effective assistance of counsel in the particular way trial counsel had litigated his case.