On December 12, 1991, judgment was entered against the defendant in Supreme Court, Bronx County (Globerman, J.), convicting him upon a jury trial of murder in the second degree (PL 125.25 [1]), and criminal possession of a weapon in the second degree (PL 265.01 [3]). The basis of his conviction was that on October 16, 1989, the defendant murdered Venezio Diaz by firing several shots at him with an illegal .380 caliber rapid-fire automatic weapon simply because Mr. Diaz insisted he leave the bodega because of his monopolizing the stores's pay telephone. Defendant was sentenced as a second felony offender to an indeterminate term of life imprisonment with a mandatory minimum period of twenty-five years on the murder count, and determinate term of seven and one-half years imprisonment on the weapon count to be served concurrently with the life term.

By motion submitted October 4, 2012, defendant moves to vacate his judgment of conviction pursuant to CPL 440.10 (1) (h), Article I, Section 6, of the New York State Constitution as well as both the Sixth and Fourteenth Amendments of the United States Constitution on the grounds that he was denied effective assistance of counsel. By decision dated December 12, 2012, this court denied defendant's motion. This expands that decision.

In August 1993, Paul Liu of the Legal Aid Society was assigned to represented defendant for the purpose of perfecting an appeal of his conviction to the Appellate Division, First Department. Mr. Liu also moved, in Supreme Court, Bronx County, pursuant to CPL 440.10, to [*2]vacate the judgment of conviction on the ground that the People failed to disclose Rosario material.

On November 30, 1993, the People filed an affirmation and memorandum of law in opposition to the defendant's motion. On February 14, 1994, Mr. Liu, filed both a supplemental and a reply affirmation. By letter dated February 15, 1994, defendant asked Mr. Liu to look into a possible Rosario violation regarding an autopsy tape. By letter dated March 10, 1994, Mr. Liu informed the defendant that he had obtained the Medical Examiner's autopsy tape, and had filed a CPL 440.10 motion on the ground that the prosecutor failed to provide it to trial counsel, Mr. Jeffrey Pogrow. By decision dated August 6, 1994, Justice Globerman denied the motion.

On July 11, 1994, defendant filed a pro se supplemental brief in connection with his direct appeal, claiming that he was denied a fair trial because the prosecutor, among other things, distorted evidence, and acted as a sworn witness. He further claimed that trial counsel failed to conduct/ supervise a competent investigation and mismanaged the testimony of two defense witnesses.

On January 10, 1995, the Appellate Division, in rejecting both Mr. Liu's and the defendant's pro se claims, unanimously affirmed defendant's judgment of conviction (People v Melendez, 311 AD2d 436 [1st Dept 1995]). On March 16, 1995, the Court of Appeals denied defendant's petition for leave to appeal (People v Melendez, 85 NY2d 912 [1995]).

On April 15, 1997, defendant, pro se, filed a petition with the Appellate Division for a writ of error coram nobis on the ground that Mr. Liu performed ineffectively by failing to separately address the individual questions that gave rise to his prosecutorial misconduct claim, and argue that the prosecutor violated the Sandoval ruling. On September 16, 1997, the Appellate Division denied defendant's petition in its entirety (People v Melendez, 242 AD2d 985 [1st Dept 1997]). Defendant's motion to reargue was denied on March 19, 1998.

On October 31, 1997, defendant, pro se, filed papers in the United States District Court of the Southern District New York. Defendant petitioned the court for a writ of habeas corpus, in which he asserted the same claims previously raised in his state application for a writ of error coram nobis. By order dated November 16, 1999, Judge Deborah A. Batts adopted the report and recommendation of United States Magistrate Judge Henry Pitman, and denied defendant's habeas corpus petition. On June 29, 2000, the United States Court of Appeals for the Second Circuit denied defendant leave to appeal Judge Batts's order.

Now, fourteen years later, and twenty-one years after his conviction, defendant moves this court to vacate the judgment of conviction pursuant to CPL 440.10, arguing that Mr. Pogrow rendered ineffective assistance of counsel at trial.

Upon considering the merits of [a CPL 440.10] motion, the court may deny it without conducting a hearing if . . . (b) [t]he motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts, as required by subdivision one; or . . . (d) an allegation of fact essential to support the motion (i) is contradicted by a court record or other official document or is made solely by the defendant and is unsupported by any other affidavit or evidence, and (ii) under these [*3]and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true (CPL 440.30 [4] [b], [d] [i], [ii]).

CPL 440.10 (3) further provides that "the court may deny a motion to vacate a judgment when: (c) Upon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so" (see also CPL 440.30).

Generally, a judgment of conviction enjoys presumptive regularity, and a defendant moving to vacate it bears the "burden of coming forward with sufficient allegations to create an issue of fact" (People v Session, 34 NY2d 254, 255-256 [1974]; People v Braun, 167 AD2d 164, 165 [1st Dept 1990]). Here, defendant claims, in essence, that trial counsel, Mr. Pogrow, failed

a) to object and request crucial jury instructions; b) to investigate and examine available scientific writings, Dr. Pearl's autopsy report, scientific writings relied upon by Dr. Pearl, physical evidence, and to retain experts; c) to conduct a reasonable investigation and move for a Frye hearing; d) to conduct a reasonable investigation and move to preclude Dr. Pearl's testimony based upon the People's failure to lay proper foundation; e) to bring to the Court's attention the specific deficiencies in the People's burden to disprove [his] justification defense; and f) to bring to the Court's attention the specific deficiencies in the People's burden to prove intentional murder beyond a reasonable doubt (Defendant's Affidavit ¶ 37).

Before addressing whether defendant's moving papers contain sufficient sworn allegations tending to substantiate the essential facts or contradicted by the record or other evidence such that there is no reasonable possibility that they are true (see CPL 440.30 [4] [b], [d] [i], [ii]), this court notes that the record belies defendant's assertion that he was unable to raise these claims in his prior CPL 440.10 motion. Mr. Liu filed that motion on November 30, 1993, and supplemented it on February 14, 1994. While it is possible that the defendant was unaware that it had been filed, as evidenced by his February 15, 1994, letter to Mr. Liu expressing concern of a Rosario violation regarding the People's failure to provide the autopsy tape, he certainly became aware of it through Mr. Liu's response. The defendant, in that letter, asked Mr. Liu, to "please look into this matter . . . I would appreciate your assistance in my endeavored matters which have been brought to your attention." In a letter dated March 10, 1994, Mr. Liu informed the defendant that he was already in possession of the Medical Examiner's autopsy tape, and had filed a CPL 440.10 motion on behalf of defendant. At no time did the defendant object to its filing, or request that any additional claims or arguments, including those he now raises, be included in that motion. Accordingly, his declaration to the contrary, it is patently unbelievable that he was neither aware of nor consented to the original motion. He was, therefore, in a position to adequately assert these claims, failed to do so, and conspicuously omits any explanation of such failure. On this basis alone, defendant's motions fails.

A. Ineffective Assistance of Counsel

Success of an ineffective assistance of counsel claim under Article I, § 6 of the New York State Constitution depends on whether counsel's performance "viewed in totality and at the time of representation, reveal[s] that the attorney provided meaningful representation. . ." (People v Baldi, 54 NY2d 137, 147 [1981]; People v Henry, 95 NY2d 563, 565 [2000]). Generally, trial counsel is presumed to have provided competent representation unless defendant demonstrates [*4]the absence of a "strategic or other legitimate explanation" for the allegedly deficient conduct (People v Benevento, 91 NY2d 708, 712 [1998]; People v Rivera, 71 NY2d 705, 709 [1988]). An attorney'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" (People v Berroa, 99 NY2d 134, 138 [2002]). "It is not for this court to "second-guess whether a course chosen by counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation" (People v Satterfield, 66 NY2d 796, 799-800 [1985]). Thus, "the claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole" (Benevento at 714).

In addition to demonstrating that counsel's performance fell below an objective standard of reasonableness, a claim for ineffective assistance of counsel under the Sixth Amendment of the United States Constitution requires the defendant to also establish that he was prejudiced by such deficient performance (Strickland v Washington, 466 US 668, 687 [1984]). Prejudice is established when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" (Strickland at 694). A reasonable probability exists where the ineffective performance rendered the proceeding fundamentally unfair or produced an unreliable result (Lockhart v Fretwell, 506 US 364, 370-372 [1993]).

In New York then, the only "question is whether the attorney's conduct constituted egregious and prejudicial error such that defendant did not receive a fair trial" (Benevento at 713). Indeed, a defendant need not prove that the outcome of the case would have been different but for such errors, rather only that he was deprived of a fair trial overall (People v Caban, 5 NY3d 143, 155-56 [2005]).

Notwithstanding the absence of a specific prejudice requirement, New York's "meaningful representation" in totality standard is not contrary to the Strickland standard (Rosario v Ercole, 601 F3d 118 [2d Cir 2010]; Eze v Senkowski, 321 F3d 110 [2d Cir 2003]); Lindstadt v Keane, 239 F3d 191 [2d Cir 2001]). This is particularly true since any analysis of an ineffective assistance of counsel under the New York standard inherently considers whether trial counsel engaged in "an inexplicably prejudicial course" (People v Zaborski, 59 NY2d 863, 865 [1983]; Benevento at 713). The New York Court of Appeals has observed that the State constitutional standard is indeed satisfied when " prejudice' is examined more generally in the context of whether defendant received meaningful representation" (Benevento at 713 quoting NY Const).

Accordingly, because New York's concept of prejudice focuses on the quality of representation provided and not simply the "but for" causation chain, the distinction between Baldi and Strickland is that New York "refuse[s] to apply the harmless error doctrine in cases involving substantiated claims of ineffective assistance" (id. at 714). As a practical matter then, New York has " adopt[ed] a rule somewhat more favorable to defendants' (People v Ozuna, 7 NY3d 913, 915 [2006], quoting People v Turner, 5 NY3d 476, 480 [2005]) because its prejudice component focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case'" (Ozuna at 915 quoting Caban at 156).

Commenting on this ostensible dichotomy, the Second Circuit noted:

[I]t is hard to envision a scenario where an error that meets the prejudice prong of Strickland would not also affect the fundamental fairness of the proceeding. The very opinion from which [*5]the troublesome phrase was drawn- Benevento- affirmatively stated that even a "harmless error" could undermine the fairness of the process in such a way that violates the state's constitutional guarantee of effective assistance [citation omitted]. What case, then, could present the converse, an error so egregious that it most likely influenced the outcome of the trial, but did not cripple the fundamental fairness of the proceedings? We can think of none. Fundamental fairness analysis by its nature must always encompass prejudice (Rosario at 125).

Consequently, though not required, this court believes it appropriate and wise to consider defendant's claim in accordance with both Baldi-Benevento and Strickland (Rosario at 125). In so doing, "[t]he performance and prejudice prongs of Strickland may be addressed in either order, and if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed'" (Green v Portuondo, 2003 US Dist LEXIS 24342 [2003], quoting Strickland at 668).

B. Jury Charge

Defendant argues that Mr. Pogrow rendered ineffective assistance of counsel because he neglected to object to the trial court's charge regarding the proffered justification defense. Specifically, he claims that the court's charge created a strong possibility that the jury may have interpreted it as precluding a finding of justified force because the gun he used was illegal.

It is true that "when evidence at trial viewed in the light most favorable to the accused sufficiently supports a claimed defense, the court should instruct the jury as to the defense, and must when so requested" (People v Watts, 57 NY2d 299, 301 [1982]). While the defendant concedes that the court instructed the jury with "the model justification charge on the use of deadly physical force," he insists the court should have also instructed the jury it could find "Mr. Melendez's use of the weapon lawful when he used force against Mr. Diaz, despite a finding of intent to use the gun unlawfully against another during the continuum of time that Mr. Melendez possessed the gun prior to the shooting." He is wrong.

A model jury instruction, by itself, suggests that the instruction is the prevailing professional norm and that it was appropriate to be used as part of the instruction. In fact, the defendant requested and received the justification defense. To now claim that instruction, tailored specifically to the facts of the defendant's case, was unreasonable is simply disingenuous.

Moreover, the court properly instructed jurors that they "must place themselves figuratively in the defendant's shoes at the time he used the force in question" and decide whether "an ordinary reasonable person standing in the defendant's shoes, again, knowing the facts as you determine them to have been . . . believe he was being or about to be attacked and that use of defensive physical or deadly physical force was necessary to defend himself." Clearly, then, the jury could certainly have found that defendant's use of the weapon was lawful if they reasonably believed his use of force was necessary. Contrary to his assertion, nothing in the court's instructions could remotely be construed as inferring that defendant's justification defense fails merely because he possessed an illegal gun. As such, Mr. Pogrow had no rational basis to object to the court's justification charge.

C. Expert Testimony and Reliance on Scientific Writings

Defendant claims Mr. Pogrow should have used contemporaneous scientific writings to [*6]contradict the testimonial opinion of Dr. Pearl, the medical examiner, that since no gunshot powder residue was discovered surrounding the deceased's wounds, the gun must have been fired from a distance greater than two feet. Dr. Pearl explained that although residue powder is typically found only when the gun is fired at close range, it is not possible to determine the distance from which a shot is fired in a body. Defendant takes Mr. Pogrow to task for not relying on scientific writings that he asserts would have been more instructive regarding Dr. Pearl's examination of the victim's clothing.

It is well known that "[a]n attorney need not pursue an investigation that would be fruitless, much less one that might be harmful to the defense" (Harrington v Richter, 131 S Ct 770, 789-790 [2011]). Defendant believes that his case turned on whether he was justified in shooting the victim in self defense. Had Mr. Pogrow vigorously cross examined Dr. Pearl on his examination of the deceased's shirt and pants, it would have highlighted the absence of gunshot powder residue, reinforcing the finding that the shooting occurred at a distance of greater than two feet. No doubt such a strategy would have undermined the defendant's self-defense theory, thus damaging his justification defense.

Defendant further argues that Mr. Pogrow should have countered ballistics evidence with more scientific writings to establish that only two shots were fired. He bases this assertion on scientific writings that indicate, "when a bullet fired from a revolver strikes a person wearing coarse woven clothing, the weave of the cloth often stamped onto the nose of the missile" (defendant's memorandum, ¶ 21). This, defendant insists, along with the examination of the bullets recovered from the crime scene and from the body of the victim, would somehow reveal that two rounds, not three, were fired. Defendant's logical connection escapes this court, and he fails to offer any proof otherwise.

Continuing with his evidence examination complaint, defendant argues that the deceased's shirt, if examined, "would raise doubt as to whether it was in fact the shirt worn by Mr. Diaz during the shooting." Such a claim is absurd, and there is not a scintilla of evidence in the record to support it. Even assuming it was a credible argument, which it is not, defendant failed to preserve this objection at trial. And, there is no newly discovered evidence to suggest that the victim's clothing was mishandled.

Yet another complaint is that Mr. Pogrow failed to argue against Dr. Pearl's testimony regarding the position of the victim when the defendant shot him. In closing, the prosecutor argued that the victim was turning away from the defendant when he fired, strongly inferring the defendant did not act in self defense. Among the litany of defendant's baseless opinions is that where a pathologist can determine the angle of the shooting from the abrasion collar surrounding a bullet hole, s/he may then be able to determine the position of a shooter and victim.In support, defendant cites to writings that are general and absent any specific reference to this case In his argument, defendant cites to general and non-specific writings that suggest a bullet rimmay be helpful to determine the position of the shooter. Of course, there is nothing to suggest this argument is worthy of consideration.

Finally, defendant contends that Mr. Pogrow should have examined Dr. Pearl regarding the deceased's blood alcohol content (BAC) at the time of death, and for failing to question him on the scientific writings he relied upon in forming his opinion. As with his previous claims, defendant cites writings in an attempt to establish errors in Dr. Pearl's testimony. Once again, [*7]however, defendant's reliance on these writings is entirely misplaced. Dr. Pearl testified that had the victim had been continuously drinking until the time of death, the last of the alcohol may not have reached his brain, thus would not have been registered in his final BAC level. Had the deceased not been drinking, his BAC may have already been receding when he died. Wisely, Dr. Pearl refused to speculate on the victim's drinking status prior to his death. Instead, he simply testified to the deceased's BAC in his brain at he time of death. Defendant's assertion that Mr. Pogrow erred by not relying on "available scientific writings [that] indicate that in the interval between the fatal blow and the death, the blood alcohol will decline at a minimum rate of .02 percent per hour'" is incredible (defendant's memorandum, ¶ 19). Such a claim is tenuous at best.

Defendant's contention that Mr. Pogrow should have called expert witnesses on his behalf is meritless. There is no authority requiring defense counsel to call a defense expert witness as a means of counteracting every prosecution in which an expert is called. Indeed, cross examination will be sufficient in most instances (Harrington v Richter, 131 S.Ct 770, 791 [2011]).

D. Frye Hearing

Finally, regarding Dr. Pearl, defendant asserts that Mr. Pogrow should have move for a Frye hearing to determine the procedures Dr. Pearl used to arrive at his expert opinion during trial. However, "[a] Frye hearing is required only with respect to novel scientific evidence requiring a determination as to its reliability'" (People v Wooten, 283 AD2d 931, 932 [4th Dept 2001]). Nothing in defendant's papers suggest Dr. Pearl presented any "novel scientific evidence" or anything else to justify a Frye hearing. Moreover, a "pretrial Frye hearing . . . does not encompass matters going to trial foundation or to weight of evidence" (People v Wesley, 83 NY2d 417 [1994]).

E. Deficiencies in the People's Burden of Proof

Defendant faults Mr. Pogrow in failing to "bring to the attention of the court" the "specific deficiencies in the People's burden to disprove [defendant's] justification defense beyond a reasonable doubt" during his application for a trial order of dismissal (defendant's memorandum, ¶ 33). In defendant's view, because the People indisputably established that the deceased had a bullet wound through both his chest and leg, Mr. Pogrow's "failure" to emphasizing that the trajectory of the bullet implicated a face-to-face shooting undermined his justification defense. Assuming for analytical purposes only that the deceased was shot while facing the defendant, which he was not, it neither proves the defendant was justified nor contradicts witness testimony that the defendant made good on the threat to gun down the victim. This court also notes that the Appellate Division rejected this argument on direct appeal in affirming his conviction (People v Melendez, 311 AD2d 436 [1st Dept 1995]).

In similarly misguided reasoning, defendant further claims Mr. Pogrow erred by neglecting to specifically argue that the People failed to prove defendant's intent. According to the defendant, the scientific and ballistics evidence established that the deceased was shot in the chest, two of the People's witnesses testified that he victim was shot in the back. Not surprisingly, his view demonstrates a gross manipulation of the trial testimony. Dr. Pearl testified that the trajectory of the bullet pierced the deceased's lung and fractured the spine. Such [*8]testimony is not, however, inconsistent with the People's conclusion that the victim was shot in the back as the bullet traveled to the deceased's chest area. More poignantly, as noted, witnesses testified that immediately before observing the defendant fire several shots at the deceased, heard him threaten to do so. Nothing better establishes the requisite intent. Why the defendant would believe that Mr. Pogrow should have made such arguments is a mystery to this court. But under no scenario would refraining from making such an argument be ineffective.

"For the Court to justify a hearing to develop background facts on a postjudgment motion, pursuant to 440.10 to vacate judgment of conviction on the ground that defendant was denied his right to effective assistance of counsel, defendant must show that the nonrecord facts sought to be established are material and would entitle defendant to relief" (People v Satterfield, 66 NY2d 796 [1985]).

Defendant's impenetrable procedural impediment aside, his conviction has been reviewed on direct appeal, and through a prior 440.10 motion, a state coram nobis application, and federal habeas petition; all were rejected. Not surprisingly, defendant has provided nothing to remotely suggest that Mr. Pogrow's performance fell below a reasonable standard of practice. To the contrary, the record establishes that defendant was provided with meaningful representation. If anything, defendant's motion is nothing other than a potpourri of assorted claims replete with contorted reasoning best described as an implausible strain on the most meager modicum of credulity.

Therefore, for the reasons stated above, defendant's motion to vacate his judgment of conviction pursuant to Criminal Procedure Law 440.10 (1) (h) is summarily denied in its entirety.

This constitutes the decision and order of the court.

The clerk of the court is directed to forward a copy of this decision to the defendant at his place of incarceration.

Dated: May 1, 2013

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Richard Lee Price, J.S.C.