Defendant has moved pro se pursuant to CPL § 440.10 to set aside judgment herein, on the ground that his conviction was obtained in violation of his right to effective assistance of counsel. Following a jury trial, defendant was convicted of robbery in the first degree (3 counts), burglary in the first degree (2 counts) and criminal possession of stolen property in the fifth degree (2 counts). On March 7, 2007, he was sentenced to an aggregate determinant term of imprisonment of twenty years (i.e, five concurrent 20 year sentences and two one-year sentences), plus a five-year period of post-release supervision.

On December 11, 2005 at about 11:35 a.m., defendant, co-defendant Galveston Gooding and a third man entered the apartment of Hamath Diop and Alassane Moussa. The three intruders placed hands in their pockets to indicate that they had guns, and threatened to shoot Diop, Moussa and their guest, Owmar Ba. The intruders tied up all three men, and left the apartment with $2,700, a laptop computer, a Playstation game system, more than ten sports jerseys, four cell phones, watches, an ipod, a digital camera, a wallet belonging to Ba, keys and certain immigration papers.

Defendant was arrested four blocks from the location of the apartment, about twenty-five minutes after the incident. He was arraigned, and indicated his desire to testify before the Grand Jury hearing evidence against him. On December 16, 2005, accompanied by his counsel, Jerilyn Bell of the Legal Aid Society, defendant testified before the Grand Jury. The Grand Jury also agreed to hear testimony from Trisha Phillip, defendant's girlfriend, but she never testified. The Grand [*2]Jury voted no action, indicating that it had been unable to reach a vote for either a True Bill or No True Bill. The People were given permission to re-submit the case to a second Grand Jury. Defendant testified again, and this time he was indicted on charges that formed the basis for this indictment.

A Mapp/Dunaway/Wade hearing was conducted prior to trial. The people presented testimony from Officer Lamonte Davis, who described the circumstances surrounding defendant's arrest, and the property belonging to the victims which was recovered from defendant at the precinct. There was also testimony concerning the show-up identifications by victims Diop and Moussa at the scene of defendant's arrest. Following the hearing the Court concluded that the officers who stopped and detained defendant had sufficient reason to do so based on radio runs they had received concerning the robbery. Thus, there was probable cause for defendant's arrest, and any ensuing evidence was admissible. The Court also concluded that the show-up identifications were not unduly suggestive.

Following his conviction defendant appealed to the Appellate Division, Second Department, which affirmed (People v Coleman, 62 AD3d 810 [2d Dept 2009]). Leave to appeal to the Court of Appeals was denied (13 NY3d 743 [2009]). Defendant's pro se motion for reconsideration was also denied (13 NY3d 859 [2009]). Defendant then applied for a federal writ of habeas corpus, which was denied by the United States District Court for the Eastern District of New York (Colemen v Berbary, 2011 WL 686410 [EDNY Feb 16, 2011]).

In this CPL § 440.10 motion, defendant bases his claims of ineffective assistance on three alleged failures: 1) counsel failed to discuss or advise defendant to accept the People's plea offer of ten years in state prison; 2) counsel did not inform him of his right to testify at trial and ignored his desire to do so; and 3) counsel failed at a Wade hearing to argue suggestiveness of identification procedures by neglecting to bring out the fact that an identifying witness had been shown a single photograph of defendant. Defendant also argues that there is newly discovered evidence, in the form of a photograph of his brother allegedly wearing the same shirt worn by defendant at the time of his arrest. Defendant claims that the photo refutes Diop's trial testimony that the shirt belonged to him and had been taken by defendant, and establishes that in fact the shirt belonged to defendant.

The People submitted an Affirmation and Memorandum of Law in Opposition, both dated May 18, 2012. On July 25, 2012, this Court issued an Interim Order granting defendant's application for the appointment of counsel on his behalf. Wayne C. Bodden, Esq., 118-36 Queens Boulevard, Forest Hills, New York 11375, was assigned by the 18b Panel. Thereafter new counsel submitted a Supplemental Affidavit of defendant, dated October 4, 2012 and otherwise adopted defendant's pro se papers. The People obtained and submitted an Affirmation dated October 12, 2012 of defense trial counsel, Jerilyn L. Bell, Esq., who is now an attorney at the Georgia Capital Defenders Office in Atlanta, Georgia. The People also submitted a Supplemental Memorandum of Law in Opposition, dated November 7, 2012. Oral argument was held on October 15 and November 8, 2012, during which defense counsel focused on those issues identified in the Court's Interim Order of July 25, 2012, but did not formally abandon any of defendant's other claims.

II. Discussion

A. Counsel's Alleged Failure to Report or Discuss Plea Offer [*3]

"An essential ingredient of our system of criminal jurisprudence, rooted deeply in our concept of a fair trial within the adversarial context' (People v Felder, 47 NY2d 287, 295) is the right to the assistance of counsel guaranteed under both the Federal and State constitutions (see U.S. Const., 6th Amend; NY Const. Art I § 6)." (People v Benevento, 91 NY2d 708, 711 [1998]). Moreover, counsel must be "effective," and provide "the reasonably competent services of an attorney devoted to the client's best interests." (Id.).

The right to effective assistance of counsel is not limited to a trial; it extends to the plea process under both federal and state law. (See, e.g., Missouri v Frye, __US__, 132 S.Ct. 1376 [2012] [counsel ineffective in failing to communicate plea offer]; Lafler v Cooper, __US__, 132 S.Ct. 1399 [2012] [counsel ineffective in failing to properly advise as to whether to accept offered plea]; see also Hill v Lockhart, 474 US 52 [1985]; People v Ford, 86 NY2d 397, 404 [1995]). Effective assistance does not mean perfect representation. A defendant's federal constitutional rights are violated if trial counsel fails to meet a minimum standard of effectiveness and that failure causes defendant to suffer prejudice. In the Supreme Court's words, prejudice occurs "when there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different". Strickland v. Washington, 466 US 668, 694 (1984). New York has departed from the "prejudice" prong, "adopting a rule somewhat more favorable to defendant." People v. Turner, 5 NY3d 476, 480 (2005); see also People v. Caban, 5 NY3d 143, 155-156 (2005); People v. Stultz, 2 NY3d 277, 284 (2004); People v. Benevento, 91 NY2d 708, 713-714 (1998). In general the issue is whether counsel's performance "viewed in its totality" amounts to "meaningful representation." People v. Baldi, 54 NY2d 137, 147 (1981).

Defendant has provided nothing besides a self-serving affidavit to support his allegations concerning the plea process in this case. In the first place, any suggestion that he was unaware of the plea offer of 10 years is flatly contradicted by the court file and daily transcripts. The offer was first communicated on March 20, 2006, when defendant was arraigned on the indictment. The offer was once again communicated and placed on the record on June 2, 2006. On that date, Jerilyn Bell, defendant's counsel, announced in his presence, "That offer is refused." (6/2/06 Tr. p. 4). On September 27, 2006, the ten-year offer was repeated (9/27/06 Tr. p. 2). Finally, on January 31, 2007, just prior to the start of trial, the People placed on the record in defendant's presence, that "the offer had been ten years." (Trial Transcript January 31, 2007 at 4).^[FN1]

The number of these on-the-record statements of the plea offer, and the circumstances under which they were made, also provide powerful evidence that counsel discussed the plea offer with defendant. On no occasion did defendant express surprise or seek clarification from the Court about the offer. He was silent on June 2, 2006 when his counsel rejected the offer — an indication that the offer had been discussed and found unacceptable. This conclusion is supported by Ms. Bell's Affirmation, that it was her practice to discuss plea offers with defendants. (October 12, 2012 Bell Affirmation at 2). [*4]

But even if, arguendo, the Court were to accept defendant's unsupported claim that his counsel failed to inform him of or discuss the plea offer, there is no evidence — other than defendant's bare, unconvincing assertion — that if his counsel had recommended accepting the ten year plea he would have pleaded guilty. In the first place, from the outset of proceedings, defendant aggressively proclaimed his innocence. He testified twice before Grand Juries, and sought to present an alibi defense in the person of his girlfriend, Trisha Phillip, to establish that he was not guilty. Although Ms. Phillip did not appear before either Grand Jury, defendant nevertheless avoided indictment in the first presentation. In light of the People's difficulty in securing an indictment in the first instance, defendant's claim of innocence and the possibility of an alibi witness at trial, it is highly unlikely that defendant would have accepted a plea.

Moreover, the offered plea of ten years was not so attractive a bargain. Yet, defendant now says he would have accepted the plea if his counsel had told him that the co-defendant had taken a plea and implicated him, of which he incredibly denies any knowledge until after his sentence. It is hard to imagine that defendant had failed to note the absence of his co-defendant at trial, or that he did not inquire about the circumstances surrounding his absence. The trial record is replete with references in defendant's presence to the absent co-defendant who pled guilty and to the Court's instructions to the prosecutor to keep his arrest and conviction completely away from the jury. See, e.g., Trial Transcript at 48-49, 255-256, 273-277, 284, all appended to Assistant District Attorney Twersky's November 7, 2012 Supplemental Memorandum of Law. It is clear that the trial jury was never told of the co-defendant's plea or of his statements inculpating defendant. The Court simply cannot accept defendant's assertion that he had no knowledge of co-defendant's plea or, more to the point, that such knowledge would have persuaded him to plead guilty. Co-defendant's plea, including his inculpation of Coleman, was irrelevant to the trial and defendant's current claim about it lacks any probative value on this motion. Defendant's claim of ineffective assistance of counsel based on counsel's alleged failure to reveal or discuss the plea offer is therefore summarily DENIED because it is made solely by defendant, is unsupported by any other affidavit or evidence, and under all the circumstances attending the case, there is no reasonable possibility that it is true. (CPL § 440.30[4][b],[d]).

In fact, defendant probably had no need for that advice. He was not a novice to the system, and certainly at some point while accumulating his five convictions he had become aware of his right to testify at trial. But he was also aware from his Grand Jury appearances that his criminal record could be used against him, and he knew that, despite a balanced but somewhat favorable Sandoval ruling, at least two of his convictions would be revealed to the jury if he testified.^[FN3] He also planned to present the testimony of Trisha Phillip at trial, if she agreed to cooperate, to establish his alibi defense, so that this could be put before the jury without subjecting himself to cross-examination and revealing part of his criminal history. It is clear to the Court that defendant, after consulting with counsel, made an informed and considered decision to forego his constitutional right to testify at trial. His claim that he was not informed of his right to testify at trial relies only on his bare allegations, and I conclude there is no reasonable possibility that it is true.^[FN4] That aspect of his motion is also summarily DENIED. (CPL § 440.30[4][d][i][ii]).

The fact that Ba had viewed a single photograph of defendant on the day of the crime was first elicited on cross-examination of Ba at trial. At a sidebar, the People explained that Ba was mistakenly referring to a photo array procedure involving co-defendant Gooding. But defense counsel pointed out that at both Grand Jury proceedings Ba had testified that he had identified defendant from a single photo at the precinct.

After a hearing outside the jury's presence during trial, which confirmed that Ba had in fact viewed a single photograph of defendant and identified him as one of the perpetrators, the Court permitted defense counsel to examine Ba further. Counsel used the information elicited to attack Ba's in-court identification on summation as tainted, and later sought and received an instruction to the jury that it could consider the suggestive photo identification in evaluating the accuracy of Ba's in-court identification.

It seems clear that defendant's counsel made a decision not to attack the photo identification by Ba at the Wade hearing, choosing instead to attack the identification at trial. There appear to be sound reasons for pursuing this strategy. The jury would likely be impressed by the revelation that Ba's in-court identification was preceded by an inherently suggestive procedure. Morever, there was [*6]a chance, however small, that the jury could become more skeptical of identifications by the other victims.

But even if the strategy was mistaken, and instead defense counsel should have brought up the fact that Ba had identified a single photo of defendant at the Wade hearing, and assuming an independent source hearing went in defendant's favor — not a foregone conclusion — and Ba was precluded from identifying defendant at trial, that would not have changed the result. Defendant was found in possession of much of the property stolen from the victims very shortly after the crime, and he was properly identified in court by the two other victims. Thus, there is little likelihood that the strategic decision to use the photo identification by Ba at trial rather than at the Wade hearing, even if wrong, influenced the verdict. Therefore, apart from the fact that this claim was a matter of record which should have been raised on direct appeal (CPL 440.10 [2][c])^[FN5], in the context of the ineffective assistance of counsel claims it adds nothing of merit.

Defendant has submitted to the Court a copy of a photograph, purportedly of his brother, Te'Aier Michael, wearing the jersey that defendant was wearing at the time of his arrest. Defendant argues that the photograph establishes that the jersey belonged to him, and not to Diop, as the victim claimed. Defendant's sister has submitted an affidavit indicating that she had received the photograph from defendant's mother, who is prepared to testify that the jersey belonged to defendant.

Defendant claims that the photo is "newly discovered evidence," which further supports his argument that his counsel was ineffective, in this instance for failing to impeach the witness Diop with the alleged fact that the Los Angeles Clippers red basketball jersey with blue trim and white lettering belonged to defendant and not, as Diop testified, to him. CPL § 440.10(1)(g) permits a court to vacate a judgment on the ground that "[n]ew evidence has been discovered since the entry of judgment . . ." A defendant seeking vacatur on the ground of newly discovered evidence must establish by a preponderance of the evidence six criteria: (1) the evidence must be such as will probably change the result if a new trial is granted; (2) it must have been discovered since the trial; (3) it must be such as could not have been discovered before the trial by the exercise of due diligence; (4) it must be material to the issue; (5) it must not be cumulative to the former issue; and (6) it must not be merely impeaching or contradicting the former issue. (People v Salemi, 309 NY 208, 216 [1955]).

Defendant's application based on newly discovered evidence must fail for several reasons. In the first place, he has not established that the evidence could not have been produced at the time of the trial. His sister's affidavit essentially concedes that defendant never sought from the family any evidence of his alleged ownership of the jersey at the time of the trial. Defendant's mother allegedly had custody of the photo, and can now — and presumably could at the time of the trial — [*7]testify that the shirt in question belonged to defendant. Defendant has offered no sensible explanation for her absence at the trial. She lives a short distance outside of the city, in an area more accessible to Kings County Supreme Court than many areas within the city.

Additionally, the "new evidence" is not such as to probably change the result if a new trial were to be ordered. Defendant has offered no evidence — other than the proposed testimony of his interested witness mother — concerning when the photo was taken, and there is very strong reason to doubt it was even the same jersey.^[FN6] Moreover, the jersey was simply one of a number of items stolen from the three victims which were found on or near defendant when he was arrested. In short, even if defendant's claims about the jersey were true — which is unlikely — the outcome of a new trial would be no different. Therefore, not only does this claim fail the "newly discovered evidence" test, it was not a matter known to trial counsel Bell and it adds no merit to his ineffective assistance of counsel claim either.

For all of the reasons stated above, defendant's motion is summarily DENIED in all respects.

The defendant is hereby advised of his right to apply to the Appellate Division, Second Department, 45 Monroe Place, Brooklyn, New York 11201 for a certificate granting leave to appeal the denial of defendant's CPL 440.10 motion. This application must be made within 30 days of service of this Decision and Order. Upon proof of financial inability to retain counsel and to pay the costs and expenses of the appeal, the defendant may apply to the Appellate Division for the assignment of counsel and for leave to prosecute the appeal as a poor person and to dispense with printing. Application for poor person relief will be entertained only if and when permission to appeal or a certificate granting leave to appeal is granted (22 NYCRR 671.5).

The Clerk is directed to provide a copy of this Decision and Order to Wayne C. Bodden, Esq., 118-36 Queens Boulevard, Forest Hills, New York 11375 and to Assistant District Attorney Sholom J. Twersky, Kings County District Attorney's Office, 350 Jay Street, Brooklyn, New York 11201.

IT IS SO ORDERED.

ENTER,

____________________________

J.S.C.