Defendant moves pursuant to CPL § 440.10, to vacate his judgment of conviction, entered on or about September 13, 2004, convicting him, following a jury trial, of Murder in the Second Degree, and sentencing him to twenty-five years to life. By Order dated October 5, 2012, this Court held defendant's motion in abeyance pending a hearing "limited to determining the circumstances surrounding the sleeping juror and whether defendant was deprived of the effective assistance of counsel as a result of counsel's action or inaction." Following the filing of post-hearing submissions by the parties, the court orally denied the motion and this written decision follows.

In addition to his own testimony, defendant presented three witnesses, namely, his mother Rosia Ragsdale ("Ms. Ragsdale"), his brother Nathaniel Ragsdale ("Mr. Ragsdale") and trial [*2]counsel, Paul Lieberman, Esquire. As to the latter, whom the court finds credible, defendant waived any attorney/client privilege. The People's witnesses were Assistant District Attorney Kyle Reeves (now employed by the Richmond County District Attorney's Office) and Associate Justice L. Priscilla Hall, both of whom the court finds to be credible.

The evidence established that the juror who is the subject of this inquiry was Juror Number 4 (hereinafter "the Juror"). Ms. Ragsdale attended "the whole trial" and sat in the second row of the gallery on the side further across from the jury box. On more than one day she "saw one of the jurors nodding out and then [she] heard the Judge kept saying give him a glass of water, in other words, to wake him up. She kept saying give him a glass of water. She didn't call his name and she didn't call his number. She just said give him a glass of water, kept giving him water to wake him up" (H: 5-6). Although she could not remember the precise point in the proceedings when this occurred, she did recall that on one day in particular, the juror nodded off on three occasions, with the judge making the remarks about the water. When the juror was given water, he would "drink the water and sit up straight" (H: 14). He would then nod off "a little bit later" (id.). According to Ms. Ragsdale, the juror "actually fell asleep" (id.). Other than this juror, the only other panelist that Ms. Ragsdale remembered was a "Spanish lady" who was "fraternizing with ... the newspaper guy" (id.).

Although she never mentioned anything about a sleeping juror to trial counsel, the latter "said something about it to the Judge" (H: 16). When defendant for the first time mentioned to her that "he needed something in writing about the juror," Ms. Ragsdale wrote an affidavit about it in August 2011 (H: 16-17).

Defendant recalled, as did his mother, that the juror was seated in the fifth seat from the right hand side of the first row of the jury box. On the first day the defendant noticed the juror, the latter fell asleep two or three times; the same behavior persisted over the next two days until finally, the juror came to court with sunglasses, and the Judge directed him to remove them

(H: 21-22). In response to the juror's sleeping, the court would tell a court officer to give him some water, whereupon the juror would "be up, sitting there listening, then a little while later he had dozed back off" (H: 22). On the sole occasion when trial counsel told the judge about the juror, "she told the court officer to give him some water...That's how it kept happening" (H: 22-24). He remembered a dark-skinned woman sitting behind the juror in question, a young man seated next to her left and an older White man in the front row.

Defendant acknowledged that he did not "do anything about this particular sleeping juror during the trial" (H: 24). He pursued a CPL §440 motion on that ground after he had exhausted his direct appeal. He did so because his attorney had advised him that in the absence of anything on the record, he could not advance this claim on appeal. He then contacted Mr. Lieberman after his appellate lawyer indicated that there was nothing further that he could do for him "so the appeal lawyer [would] know [he was] not lying" about the sleeping juror (H; 25). With help from another inmate, he drafted the instant motion. He learned how to read by reviewing his transcript, finished reading it in 2005 and sought the letter from trial counsel in 2010 or 2011

(H: 26-27).

Mr. Lieberman, currently a Trial Supervisor at Brooklyn Defender Services, wrote a letter in response to a letter from defendant about a sleeping juror. He had "a very vague memory" about the issue, despite reviewing the letter that he had sent to defendant. And although he [*3]"couldn't really swear to this," he remembered that "it was a male juror somewhere in the front row, at least that's the image in [his] mind who fell asleep, I believe, more than once. How many times, I couldn't tell you, who appeared to fall asleep at least was sitting there with his eyes closed at some point or points. The Judge sent a court officer over to offer water to that juror as a way of making sure he was then awake and attentive" (H: 45-46). He had "no idea" the juncture during the trial that this sleeping incident occurred. Based on his review of his computer, he was able to discern that the letter he wrote to defendant was modified or created on February 18, 2011 (H: 55). He "honestly can't say that no court officer dealt with the juror and [he] know[s] what he wrote but [he] honestly can't say [he] remember[s] anybody giving that person water" (H: 56).

Trial counsel did not recall having placed anything about the issue on the record or taking any action about this juror (H: 47; 49). However, if he "felt there was a juror who had slept through a substantial portion of the trial or substantial portion of any witness and had missed something of importance, then [he] absolutely would have been concerned about that, but [his] recollection is not of anything lengthy" (H: 49-50). Based on his review of the letter he sent to defendant, he still does not recall whether the sleeping occurred on one or more occasions but he does "know what [he] wrote in that letter" (H: 47-48). "Since [he] took no action regarding this juror who apparently nodded off, then [he] must not have felt at the time that [the juror] missed anything substantial" (H: 50).

Nathaniel Ragsdale recalled that a "dark-skinned guy" who was not African American, with a "flat top"and in his 40's, seated in the fourth seat from the right, nodded off on more than one occasion on one specific day when he was there without his mother. According to

Mr. Ragsdale, "[t]he day that I was there, that I seen him dozing off, this and that, quite a few times asking, sir, do you need a cup of water, you know, tap this gentleman, you know, he just, it was a day he was out of it, he was just sleeping. Everytime you turned around, he was nodding off sleeping. He wasn't, wasn't really paying attention, to my knowledge, like I said" (H: 61-62). The judge "said something about maybe two times to the gentleman about dozing off." She asked if the juror needed water. He never heard the judge tell anyone to give the juror water nor saw anyone hand the juror water (H: 63-64). Mr. Ragsdale could not recall whether it was "the bailiff or someone actually sitting next to" the juror who would wake him up, but then he "got up, you know, like, he, okay, he wasn't — a person, like, I'm not really asleep. He sat up in the chair, got back focus and started continuing what they were, he was doing"(id.).

Mr. Ragsdale did not recall at what point in the trial that this occurred and never saw the juror sleeping on any other days when he attended the trial. He recalled a Spanish woman who was talking with a reporter. He never told trial counsel about the sleeping juror and no one discussed the issue with him in 2011.

THE PEOPLE'S CASE

Mr. Reeves had no personal knowledge or recollection of a sleeping juror in this case. He was seated closest to the jury box. People's Exhibit 3 is his chart of the final jury panel, with the sex, race and approximate age of each juror (H: 73-74). In his prior experience during the eight murder trials that he had handled before Justice Hall, if someone was falling asleep or in distress, she would "offer them water, a Kleenex, anything to make the jurors comfortable" (H: 79-80). She would not allow anyone to sleep without addressing the issue. As in his prior trial [*4]experience, had Mr. Reeves observed a juror with his/her eyes closed and appear to be sleeping for thirty seconds to a minute, he would have brought it to the court's attention. He recalled that deliberations were delayed for several days due to Juror 4's illness. The designation of "H" on his chart would have been based on his perception of someone as Hispanic by virtue of their accent or appearance. Although he knew what defendant's brother looked like, he had no independent recollection of whether any of defendant's family members were present at the trial.

He acknowledged that he and defense counsel did not get along during the trial. Nonetheless, he had a specific memory about this case and "will not forget Mr. Ragsdale"

(H: 81). Since he did not know any of defendant's relatives other than his brother, whom he had previously met, he could not answer any questions regarding the presence of defendant's family. His usual practice was to look at the juror's response when he questioned a witness. He was "more focused on the jury in cross" and would also "look all over the courtroom" (H: 87).

Justice L. Priscilla Hall presided over the trial. She had no memory of a juror sleeping during this case. She reviewed her trial notes and saw no indication of a sleeping juror, although that probably would not have been listed in her notes. According to Justice Hall, had a juror fallen asleep in this case, her "usual procedure is to have the officer hand the juror a glass of water because it's usually difficult to sleep and hold a glass of water, or take a break or whatever. I try to keep a ... close eye on [the] jurors so that does not happen. If I see someone whose eyes are closed, I don't assume they're sleeping. I just wait and see if they open their eyes again. If they do then maybe they were just resting, but if I think their eyes have been closed for too long, I would have the officer give them a glass of water, or I would say something or I would just actually look at them. If for some reason the people don't notice if you're looking at them, I take a break" (H1: 5-6). She either would have gestured to the officer or stated out loud that the latter should give a juror some water (H1: 10).

Justice Hall did not "recall anything with respect to [her] taking any action involving a sleeping juror in this case" (H1: 6). Although defendant looked familiar, she had no "recollection of any juror who sat on this case" (H: 9). Indeed, her only recollection regarding this case was "that there was some particular friction among the lawyers involved" (H: 9).

Following Justice Hall's testimony, the People indicated that Juror number 4, Mr. Fraser, had failed to appear and respond to subpoenas despite multiple attempts by the District Attorney's homicide investigators. During a brief conversation with the juror several months earlier in June, he indicated that he "kind of remember[ed] being drowsy or tired or something of that nature" (H1: 11-12). Defendant declined to call Mr. Fraser, maintaining that the probability of successfully doing so was highly unlikely given the witness' failure to appear as a prosecution witness.

The parties stipulated that it was a cup, not a glass of water that would have been utilized by the court officers (H: 38)

Defendant argues that his conviction should be vacated due to the ineffective assistance of counsel because, inter alia, trial counsel failed to object to a juror who repeatedly fell asleep during the trial. The People counter that defendant has failed to meet his burden of proving by the preponderance of the evidence that there was in fact a juror who fell asleep during the trial, particularly given the inconsistencies in the hearing testimony of defendant's witnesses. [*5]

This Court agrees.

Preliminarily, defendant cites no support for his proposition that Juror 4's hearsay testimony to the prosecutor should be admissible at this hearing. Nor has he met his burden of demonstrating by a preponderance of the evidence that Juror 4 slept through a substantial portion of the evidence at trial.

"A court must discharge a juror who is determined to be grossly unqualified'

(CPL 270.35[1]), including a juror who did not hear all of the evidence in a case because he or she fell asleep" (People v. Buel, 53 AD3d 930 [3d Dept. 2008]) (internal citations omitted); People v. Simpkins, 16 AD3d 601 [2d Dept.], lv denied 5 NY3d 769 [2005]). Indeed, a juror who admits that he was " drifting off' during testimony and that he kind of lost it a little bit" is properly discharged as grossly unqualified (People v. Williams, 202 AD2d 1004

[4th Dept. 1994]). A defendant should not be heard to complain, however, where at trial he "demonstrated a willingness to continue to accept" a juror that he now claims was grossly unqualified to serve due to sleeping but neither requested the court to make an inquiry of that juror nor "move[d] to discharge the juror" (People v. Quinones, 41 AD3d 868 [2d Dept.],

lv denied 9 NY3d 1008 [2007]).

In this case, defense counsel acknowledged that he had a "very vague memory" of the issue; and that although he "couldn't really swear to this," he remembered that "it was a male juror somewhere in the front row, at least that's the image in [his] mind who fell asleep, I believe, more than once. How many times, I couldn't tell you, who appeared to fall asleep at least was sitting there with his eyes closed at some point or points. The Judge sent a court officer over to offer water to that juror as a way of making sure he was then awake and attentive"

(H: 45-46). He had "no idea" when this occurred and "honestly can't say that no court officer dealt with the juror and [he] know[s] what he wrote but [he] honestly can't say [he] remember[s] anybody giving that person water" (H: 56).

Even assuming that the court credits defense counsel's assertion that Juror 4 sometimes nodded off during the trial, it is clear from his own testimony that he did not believe that there had been any issue relative to that juror having missed "a substantial portion of the trial or substantial portion of any witness and had missed something of importance," because he "absolutely would have been concerned about that, but [his] recollection is not of anything lengthy" (H: 49-50). This is consistent with the testimony of ADA Reeves, who had tried multiple cases before Justice Hall, regarding the latter's usual practice when there is an issue regarding someone who may be suspected of sleeping. First, as she confirmed during her testimony, Justice Hall does not assume that someone is sleeping merely because their eyes may be closed. By her account, "if I think their eyes have been closed for too long, I would have the officer give them a glass of water, or I would say something or I would just actually look at them. If for some reason the people don't notice if you're looking at them, I take a break" (H1: 5-6). She either would have gestured to the officer or stated out loud that the latter should give a juror some water (H1: 10). Notably neither the attorneys nor the Judge in this apparently hotly contested trial had any recollection that a juror fell asleep to the point of requiring either discussion on the record regarding the behavior of this juror or the need to discharge that juror for actually sleeping and missing testimony.

Here, if there were these multiple instances of sleeping as recounted by the defense [*6]witnesses, then surely the court, which usually tried to keep a "close eye" on the jurors, would have noticed something beyond the one instance on the record in which she ordered an officer to give the Juror some water. In that regard, the court declines to credit the remaining defense witnesses who suggest that this juror actually fell asleep at trial. None could state at which point during the trial that this occurred; all agreed that they never said anything to defense counsel about their specific observations, with defendant confirming that he "didn't do anything about this particular sleeping juror during the trial." As to defendant's mother, who claimed to have attended the "whole trial," her son Nathaniel contradicted that claim with his testimony that she was absent on the sole occasion when he observed the juror purportedly sleeping. And when he was present, he confirmed that he never saw anyone give the Juror water. Accordingly, defendant has failed to meet his burden at the hearing that Juror 4 slept during his trial and thus, his claim in that regard is rejected (CPL§§440.30[5] & [ [6]).

In further support of his ineffective assistance of counsel claim, defendant also cites to the absence of any objection by defense counsel, when the People failed to call to the stand Leslie Cordero, an uncooperative witness who had recanted her earlier identification of defendant. According to defendant, a violation of the Confrontation Clause occurred because Detective John Kristoffersen testified that he had spoken with her as part of his investigation and had focused on locating defendant after speaking with her prior to the People's decision not to call Cordero. In a related vein, he maintains that counsel should have moved to reopen the Wade/Dunaway hearingand to dismiss the indictment given the new information about Cordero. Citing to the hearing transcript, he also complains about defense counsel's failure to challenge the identification and statement evidence on Sixth Amendment grounds.

To prevail on a claim of ineffective assistance of counsel under the federal standard, "[a] defendant must show that counsel's representation fell below an objective standard of reasonableness" and "any deficiencies in counsel's performance must be prejudicial"

(Strickland v. Washington, 466 US 668, 688, 692 [1984]). Prejudice is found where "there is a reasonable possibility that but for counsel's unprofessional errors the result of the proceeding would have been different" (id., quoting Strickland v. Washington, 466 US 668, 694 [1984].

Under New York law, the constitutional standard of effective assistance of counsel will be satisfied when "the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation" (People v. Flores, 84 NY2d 184, 187 [1994] People v. Baldi, 54 NY2d 137, 147 [1981]). Thus, "to prevail on a claim of ineffective assistance, defendants must demonstrate that they were deprived of a fair trial by less that meaningful representation...[and] will be sustained only when it is shown that counsel partook an inexplicable prejudicial course'"

(People v. Benevento, 91 NY2d 708, 713 [1998]) (internal citations omitted).

Preliminarily, all of defendant's claims either could have been raised or indeed were raised and rejected by the Appellate Division, Second Department on defendant's appeal. For instance, as the record reflects, Detective Kristofferson testified that he and his partner Detective Garrity spoke to both Lacy Zimmerman and Cordero on June 29, 2002; that both parties signed written statements; that after speaking with them the detectives focused their "efforts in locating someone named Trevis Ragsdale" (T: 1228-29); that Zimmerman and Cordero individually viewed a lineup on July 10, 2002 (T: 1268); that the detectives then advised the prosecutor's [*7]office of the results of the lineup; and that the prosecutor authorized defendant's arrest upon receipt of the results (T: 1272-73). Zimmerman testified that he had identified defendant from the lineup but Codero never testified at trial. Defendant now faults counsel for not objecting to Kristofferson's testimony on Confrontation Clause grounds. Yet in rejecting this argument on appeal, the court found that even if it were to review this unpreserved claim, "the evidence was admitted not for the truth of the statement, but to show the detectives' state of mind and to demonstrate how the police investigation evolved"

(People v. Ragsdale, 68 AD3d 897, 898 [2d Dept. 2009], lv denied 14 NY3d 804 [2010]). Thus, there was no error by counsel.

Next, contrary to defendant's contention, the right to counsel does not attach to the issuance of a wanted card (People v. Walker, 84 AD3d 842, 843 [2d Dept.],

lv denied 84 AD3d 842 [2011]). Nor would there be a need to reopen the Wade/Dunaway hearing because one of two identifying witnesses later recanted her identification and did not testify at trial. In this case, Cordero never testified at the hearing and her recantation, although pertinent to the suppression issue, would not have " materially ... affected the earlier [constitutional] determination'" where, as here, the hearing testimony from the police witness revealed that there was another eyewitness, Zimmerman, who identified defendant from the same lineup that day (compare, People v. Velez, 39 AD3d 38, 42 [2d Dept. 2007], quoting, People v. Clark, 88 NY2d 552, 555 [1996]).

Finally, defendant challenges counsel's failure to call Codero as a defense witness. Yet the record reveals that Cordero, who was brought to court pursuant to a material witness order, concocted multiple versions of the circumstances of her identification of defendant ranging from fear for her safety to police misconduct and intoxication. In addition, there were inconsistencies regarding her sworn statement, oral statement, photo array and lineup identification of defendant as the shooter (T: 773-786). After being advised of this recantation, defense counsel indicated that he needed to "conference with [his] client" and assess whether there would be a need to put her on as a defense witness (T: 789-90). The court specifically gave him time to confer with defendant (T: 790-792). Counsel also spoke with Cordero, who purportedly agreed to cooperate with them (T: 793-794), consented to her release (T: 800-801) and gave her a subpoena for her appearance at trial (T: 802-805).

The record confirms that defendant, in conjunction with counsel, made a deliberate and strategic decision not to call Codero to the stand. Thus, during his argument regarding his belief that the court should not have prohibited him from commenting on the People's failure to call Codero on summation, defense counsel stated, in the presence of defendant, "[n]ow, she was available to me to put on the witness stand. I opted, honestly because of the fact — Judge, I would have loved to put her on the witness stand to testify that the police made her say things that were not true. I didn't put her on the witness stand mainly because she said that Lacy said at the time of the shooting, That's Travis,' and I did not want to bring that out"

(T: 1736-1742). Indeed, counsel claimed that he had "a good five minutes that [he] was going to talk about her not being put forth by the People" (id. at 1742). Under the circumstances, where "the record viewed in totality, demonstrates that the defendant was afforded the effective assistance of counsel" in this hard fought trial, defendant should not be heard to complain that he was denied the effective assistance of counsel due to the reasonable strategic decision by counsel [*8](People v. Caban, 5 NY3d 143, 152 [2005] People v. McNeal, 111 AD3d 652

[2d Dept. 2013]).

Based upon the foregoing, defendant's motion to vacate his judgment of conviction is denied.This constitutes the Decision and Order of the Court.

E N T E R,

_______________________________

Ruth Shillingford, A.J.S.C.

The defendant is hereby advised pursuant to 22 NYCRR §671.5 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 from this determination. This application must be made within 30 days of service of this decision. Upon proof of his 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 certification granting leave to appeal is granted.^[FN2]

APPELLATE DIVISION, 2ND Department 45 Monroe Place Brooklyn, NY 11201

Kings County Supreme Court Criminal Appeals 320 Jay Street Brooklyn, NY 11201

Kings County District Attorney Appeals Bureau 350 Jay Street Brooklyn, NY 11201