Pursuant to CPL §440.10,^[FN1] Defendant Charles Stevenson seeks to vacate the judgment of conviction rendered by the Court on July 11, 2007, that found him guilty of robbery in the first degree after a jury trial (see, Penal Law §125.20). Alternatively, Defendant requests a hearing to decide whether he was denied effective assistance of counsel when his attorney, among other things, failed to investigate an allegedly exonerating notarized statement said to be written by the victim in this case and failed to impeach the detective who conducted the photo array identification.

Background

Defendant is now housed at Attica Correctional Center in Wyoming County while serving a term of incarceration of twelve and one half years (with five years post release supervision). The Appellate Division affirmed Stevenson's conviction and found no reason to modify the sentence (see, People v. Stevenson, 67 AD3d 605 [1st Dept. 2009]). Subsequently, the Court of Appeals denied leave to appeal (see, People v. Stevenson, 14 NY3d 805 [2010]).

Defendant says ineffective assistance of trial counsel occurred when Attorney Jenny Semmel of [*2]the Office of Bronx Defenders ^[FN2] failed to question Alberto Nunez, the robbery victim, about a notarized statement which Defendant says exonerates him. According to Defendant, counsel also failed to properly prepare for Detective Matthew Crowley's testimony about Nunez's photo array identification.

Unquestionably, Defendant is most disturbed by Attorney Semmel's failure to investigate the victim's notarized statement in which he recants his initial identification of Stevenson as the perpetrator. Compounding matters, the notarized statement was delivered days before trial (Exhibit A).^[FN3] Defendant is also distressed because, among other things, counsel failed to question Detective Crowley about suggestive photo arrays, follow leads uncovered by private investigators; and failed to investigate an alleged "deal" between the prosecutor and the victim (Affidavit ¶¶16 and 17).^[FN4]

Prosecution's Position

In his answering papers, the District Attorney argues ineffective assistance of counsel charges are meritless and lack evidentiary support. The prosecutor says the motion should be dismissed without a hearing because the moving papers do not contain sufficient allegations and supporting evidence (that is , the submission lacks a complete transcript and counsels' affirmations) to substantiate ineffective assistance. Because a judgment of conviction is presumed valid, Defendant must meet the burden of coming forward with allegations supporting vacating the judgment which he has not done (see, People v. Session, 34 NY2d 254 [1974]).

Significantly, the prosecutor points out Defendant submitted no affidavit from either Attorney Shapiro or Attorney Semmel and no reasonable excuse exists for not so submitting; thereby depriving the Court of essential facts needed to evaluate the instant motion (see, CPL §440.30[4][b]) (see generally, People v. Ozuna, 7 NY3d 913 [2006]). Perhaps most significantly, the prosecutor underscores the failure to present the complete transcript; which further handicaps the ability to make a determination upon the merits concerning the trial process as a whole (see generally, People v. Caban, 5 NY3d 143b [2005]).^[FN5]

The test for ineffective assistance is whether counsel's conduct deprives a defendant of "meaningful representation.^[FN6] " Defendant must show an absence of strategic or other legitimate explanation for counsel's deficient representation. A simple disagreement with tactics does not suffice [*3](see generally, People v Caban, supra). Defendant must show his attorney's actions constituted serious, egregious, and prejudicial error denying a fair trial.

The District Attorney says the Court must keep in mind that the right to effective assistance of counsel cannot compel an attorney to knowingly offer false or questionable evidence (see generally, People v. DePallo, 96 NY2d 437 [2001]). For this reason, Defendant cannot overcome the presumption that his attorney acted reasonably when faced with questionable documents.

Defendant's Reply

In his reply papers, Defendant rejects criticism of his failure to submit an affirmation from his trial counsel or to otherwise explain why he failed to do (see generally, People v. Radcliffe, 298 AD2d 533 [2nd Dept. 2002]). Requiring Defendant to submit affidavits and then denying a hearing under the circumstances is wasteful and contrary to justice (see generally, People v. Sherk, 269 AD2d 755 [4th Dept. 2000]). Finally, Defendant rejects the prosecutor's demand that the motion must be dismissed because a complete record was not filed with the instant motion. Because the prosecutor possesses the full record, Defendant says, the People are not disadvantaged and there is no prejudiced because of the actions of Defendant, a pro se Movant with limited legal knowledge, who submitted only partially relevant portions of the record.

Legal Discussion

For reasons discussed below, the motion is denied with leave to renew.

New York applies a "flexible standard" in evaluating ineffective assistance of counsel (see generally, People v. Yagudayev, 91 AD3d 888 [2nd Dept. 2012]). The standard requires that the evidence, the law, and the circumstances of the case be viewed in totality as of the time of representation, A court can determine, by focusing upon the process' fairness as a whole, whether trial counsel provided effective representation (see generally, People v. Baldi, 54 NY2d 137 [1981]) (see also, People v. Hobot, 84 NY2d 1021 [1995]). To be avoided is confusing "true ineffectiveness" with mere losing tactics (see generally, People v Baldi, supra). As long as representation is reasonable and presents a legitimate strategy under the circumstances, even if unsuccessful, legal representation does not reach ineffective assistance levels. Instead, ineffective assistance is to be sustained only where counsel acts in an "inexplicably prejudicial course" contrary to a defendant's constitutional interests (see generally, People v. Benevento, 91 NY2d 708 [1998], quoting People v. Zaborski, 59 NY2d 863 [1983]).

Conclusion

In this case, the Court finds it cannot examine the proceeding as a whole because the parties failed to supply the complete record (see generally, People v. Cummings, 16 NY3d 784[2011]). Without the agreed complete record, the Court lacks ability to evaluate Defendant's concerns, including alleged failures to conduct pre-trial investigations, questions about the notarized statement, or the questioning Detective Crowley about the photo array (see, CPL §440.10).

Upon this record,^[FN7] the Court finds Defendant fails to set forth adequate grounds upon which to set aside his conviction. The Court agrees with the prosecution that Defendant's application is flawed by failure to supply a complete record which should include transcripts, trial exhibits, and affidavits of prior [*4]counsel (or adequate explanations for such absence). On the other hand, the Court also agrees with Defendant that his inability arises in part because of the pro se nature of his application.

Accordingly, Defendant's motion in its entirety is DENIED with leave to renew.

The foregoing constitutes the Decision and Order of this Court.

Dated: Bronx, New York

May 11, 2012

___________________________DOMINIC R. MASSARO, JSC