On November 23, 1997, judgment was entered against the defendant in Supreme Court, Bronx County (Sheindlin, J.), convicting him after a jury trial of murder in the second degree (Penal Law § 125.25 [1]), and sentencing him to an indeterminate term of life imprisonment with a mandatory minimum period of twenty years.

On October 9, 1991, at approximately 11:30 p.m., in the area of Schieffelin Avenue in Bronx County, the defendant fired several shots at Marc Johnson from behind striking him in three places: his right thigh, his right shoulder blade, and the back of his skull. Johnson sustained two broken ribs, a torn right lung, and a pierced brain that resulted in his death. He also sustained several flat, dry, broad abrasions to the left side of his head, nose, and mouth, as [*2]well as a laceration of his lip, all of which were consistent with a fall.

As noted, judgment was entered against the defendant after a jury trial in the Supreme Court, Bronx County (Sheindlin, J.), on November 23, 1993, convicting him of murder in the second degree and sentencing him to an indeterminate term of life imprisonment. On October 30, 1997, the Appellate Division, First Department, unanimously affirmed the judgment of conviction (see People v Watson, 243 AD2d 426 [1st Dept 1997]). On June 29, 1998, the Court of Appeals denied defendant's application for leave to appeal from the Appellate Division (Levine, J.) (People v Watson, 92 NY2d 863 [1998]).

On December 24, 1998, the defendant, pro se, petitioned the United States District Court for the Southern District of New York for a federal writ of habeas corpus. On November 30, 1999, Judge Shira A. Scheindlin denied defendant's application (see Watson v Artuz., No. 99 Civ 1363, 1999 WL 1075973 [SDNY 1999]).

In February 2008, the defendant moved pro se in the Supreme Court Bronx County to vacate the judgment pursuant to CPL 440.10, asserting that his due process rights were violated by improper police-arranged identification procedures. On April 17, 2008, Justice Michael Sonberg denied defendant's motion.

On July 25, 2008, the defendant moved pro se in the Appellate Division, First Department, for a writ of error coram nobis claiming that he received ineffective assistance of appellate counsel. Specifically, the defendant alleged counsel failed to assert the claim that his due process rights were violated by improper police identification procedures. On April 2, 2009, the First Department denied defendant's application (see People v Watson, 2009 NY Slip Op 68420[U]).

By motion submitted June 19, 2013, defendant moved through counsel to vacate his judgment of conviction pursuant to Criminal Procedure Law § 440.10 (1) (c) (f) (g) (h) arguing that 1) recantation of the People's eyewitness' constitutes newly discovered evidence, 2) trial counsel rendered ineffective assistance of counsel, and 3) the People failed to disclose exculpatory evidence during the pendency of defendant's case.^[FN2] Specifically, the defendant claims Christine Holloway's recanting of her identification of the defendant as the shooter, and "proof of improper and prejudicial conduct by the police/prosecution and a violation of the prosecution's duty to disclose exculpatory evidence" constitute newly discovered evidence. Defendant further claims counsel's failure to procure an alibi witness and door-opening cross examination that effectively converted a one-[*4]witness identification case into a three-witness identification case resulted in his receiving ineffective assistance of trial counsel.

By interim order, also dated June 19, 2013, this court directed that an evidentiary hearing be held on these issues. That hearing commenced on July 15, 2013, and concluded on October 23, 2013.^[FN3] The defense called four witnesses: eyewitness Christine Holloway, the decedent's girlfriend Diana Almonte, retired crime scene detective Hal Sherman, and defendant's trial counsel Paul Markstein. The People called retired detective Sevelie Jones, former Assistant District Attorney Brian Sullivan, and certified stenographer Natalie Perez. The testimony of these witnesses is credited to the extent indicated. This decision is based upon their testimony and respective papers submitted in connection with this matter.

On July 15, 2013, Christine Holloway testified before this court and disavowed her trial testimony identifying the defendant as Marc Johnson's murderer. At the hearing, she admitted that her attention was drawn to the man who crossed in front of her car, but insisted that she did not see his face (H 27-29, 110).^[FN4] Ms. Holloway further stated that although she later observed an individual chasing another person through the street in a zigzag pattern while shooting a gun, she was unable to see either of their faces (H 29-31, 36, 56). She also claimed her 1993 trial testimony concerning the BMW parked next to the fire hydrant was not accurate; rather, she was unaware it was a BMW until such information had been provided to her before testifying. Finally, and more poignantly, Ms. Holloway claimed that her testimony concerning the shooter pointing the gun at the individuals standing near the BMW was false (H 51-52, 56).

According to Ms. Holloway, the genesis of her recantation was in 2012, when Wantani Tyehimba, a private investigator, approached her at her home in Atlanta. Mr. Tyehimba informed her that he was looking into the Shane Watson case. After later meeting with Mr. Tyehimba and defense counsel Robert Boyle, Ms. Holloway voluntarily signed an affidavit formally recanting her trial testimony (H 59-62). In early 2013, the Bronx County District Attorney's Office contacted Ms. Holloway and arranged for her to travel to New York. On January 24, 2013, she met with Assistant District Attorney Rebecca Johannesen and Assistant District Attorney Justin Braun to discuss her trial testimony and subsequent recantation of it (H 62-3). Also participating in the meeting via speaker phone was Assistant District [*5]Attorney Pishoy Yacoub.

Following their conversation, Detective Jones displayed a photo array to Ms. Holloway that included the defendant's picture. Detective Jones explained that he assembled the defendant's photograph and five photos of individuals with similar characteristics in a random order. He indicated that those photographs were obtained either from the precinct or the photo unit in Manhattan (H 309-10).

Former Assistant District Attorney Brian Sullivan, the 1993 trial prosecutor, provided the background to Ms. Holloway's trial testimony. Mr. Sullivan testified that on two or three occasions, he met with Ms. Holloway to discuss the case (H 416, 400-402, 405). During these meetings, Ms. Holloway always appeared pleasant and was cooperative. Confirmed her statements to the detectives, Ms. Holloway stated that she carefully watched the defendant for a prolonged period of time as he walked in front of her car, and during the shooting. At no time did Ms. Holloway express any doubt or hesitation as to the shooter's identity. Moreover, Mr. Sullivan testified that Ms. Holloway indicated she

By October of 1991, Ms. Almonte had been in a romantic relationship with [*8]the decedent, Mark Johnson, for approximately one and a half years. She testified that the defendant and Mr. Johnson knew each other and were cordial. Ms. Holloway further stated she was unaware of any bad blood between them (H 130). In fact, Ms. Almonte testified she was "shocked" to learn that the defendant had been arrested for Johnson's murder "because me and him were cool" (H 130, 142).

Ms. Almonte stated that on October 9, 1991, she was working at a gas station located on the corner of 233rd Street and Baychester Avenue. Like every other

Paul Markstein, admitted to the New York State Bar in 1982, was retained by the defendant and served as his 1993 trial counsel. Mr. Markstein is a litigator whose practice concentrates on criminal defense. While acknowledging that the defendant's case was, and remains, his only homicide trial, Mr. Markstein had tried fifteen cases, several of which included shootings based on eyewitness [*9]identifications (H 215-17, 220, 243).

At the outset, it must be noted that Mr. Markstein categorically refused to meet with, discuss, or respond to any inquiries made by either defense counsel or the District Attorney in advance of the 440 hearing. The basis for such refusal was predicated on his belief that the rules governing professional responsibility required it in order "to maintain confidences of my client . . . whether they're current or former, especially if I have no informed consent." Although Mr. Markstein indicated that he had not obtained informed consent from the defendant, the record is entirely unclear whether he sought it (H 231-32, 240-42). Also unclear is why such refusal extended to matters beyond the attorney-client privilege, such as his work product, strategic analysis, and the circumstances surrounding his representation.

With respect to Mr. Markstein's memory, this court understands that given this hearing was held twenty years post-trial, Mr. Markstein would be unable to recall specific details such as the date he was retained, the date or year that the murder occurred, the number of shots fired, the deceased's name, or the circumstances of the shooting. It is also understandable that Mr. Markstein had a poor recollection of certain decisions relating to his defense strategy, and that he was unable to review his file:

For example, Mr. Markstein could not remember the defendant's polygraph examination, done at his request. When asked whether he used one in this case, Mr. Markstein replied, "No." After being confronted with his own report of the defendant's examination, Mr. Markstein stated, "I obviously misspoke . . . I did not recall Mr. Laurendi doing an exam." Upon reviewing his report for the first time in court, Mr. Markstein testified that an analysis of the defendant's responses indicated the absence of any deception. "Mr. Watson denied committing the crime and the polygraphs seem to back that up." But when asked whether "that finding . . . play[ed] any part . . . in [his] strategy in terms of defending Mr. Watson," Mr. Markstein responded, "I don't recall" (H 221-222).

Mr. Markstein also believed the evidence connecting the defendant to the shooting was weak:

With respect to his strategy of cross examining Monique and Robin James, Mr. Markstein explained,

Mr. Markstein also testified about locating potential defense witnesses:

Mr. Markstein did, however, decide to offer evidence of a leg injury that resulted in the defendant walking with a limp. Given that none of the witnesses observed anything unusual about the shooter's gait, he believed it would be of value to present such evidence. But, there were several problems. Among them was that "During the course of my discussions with Mr. Watson, — and we met many times — I never observed him walking with any kind of aid, a cane, or with any kind of limp or anything noticeable that I noticed with regard to his ability to walk." Additionally, Mr. Markstein did not have the defendant's medical records because "none of that information had been given to me by Mr. Watson. I had never received the name of a doctor. I had never received the name of a hospital . . . he certainly, as the patient could have provided me with this information or record directly, and I never got any of that." Still, Mr. Markstein located an individual purportedly able to testify "about Mr. Watson's inability to get around quickly." Although he could not remember the person's name or how the defense investigator located him, Mr. Markstein commented,

Finally, this court notes that subsequent to defendant's conviction and sentence, Mr. Markstein stated the defendant neither criticized nor expressed dissatisfaction with his services. In fact, according to Mr. Markstein, the defendant's response was "of a positive nature. He was grateful for my representation." Mr. Markstein further explained that he and the defendant "had a very close relationship both before and during the case" adding, "I felt bad . . . [he] was looking at a huge amount of time . . . I expressed my best wishes for him while he was incarcerated" (H 269).

...

..Mr. Yacoub: . . . [B]ack in January, you said something different, right?

...

To establish that counsel's performance was deficient, a defendant must show that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance" (Pavel v Hollins, 261 F3d 210, 216 [2d Cir 2001]). This standard is "rigorous" (Lindstadt v Keane, 239 F3d 191, 199 [2d Cir 2001]), and "highly demanding" (Kimmel v Morrison, 477 US 365, 382 [1986]). To demonstrate prejudice, a defendant must show there is a "reasonable probability" that the ineffective performance rendered the proceeding fundamentally unfair or produced an unreliable result (Missouri v Frye, 132 S Ct 1399 [2012]; Lafler v Cooper, 132 S Ct 1376 [2012]; Premo v Moore, 131 S Ct 733 [2011]; Padilla v Kentucky, 559 US 356 [2010]; Roe v Flores-Ortega, 528 US 470 [2000]; Lockhart v Fretwell, 506 US 364 [1993]; Hill v Lockhart, 474 US 52 [1985]; Strickland at 694-695).

Regarding prejudice, where defendant's ineffective assistance claim is based "solely on federal constitutional law," New York courts rely on the Strickland standard (People v McDonald, 1 NY3d 109, 114 [2003]). In such circumstances, "[t]he sufficiency of defendant's factual allegations as to prejudice should be evaluated with reference to the face of the pleadings, the context of the motion and defendant's access to information" (McDonald, 1 NY3d at 115). However, claims brought exclusively under the New York State Constitution are evaluated under Baldi (Baldi at 137). Initially, it may appear that the New York Baldi standard neglects the prejudice requirement of the federal Strickland standard. While it is true that New York law does not require a defendant to fully satisfy the prejudice test (Caban, 5 NY3d at 152; People v Stultz, 2 NY3d 277, 284 [2004]), both require a defendant to establish that his attorney's performance "fell below an objective standard of reasonableness" (Rosario v Ercole, 601 F3d 118, 124 [2d Cir 2010]). New York simply examines " prejudice' . . . more generally in the context of whether defendant received meaningful representation" (Benevento, 91 NY2d at 713); the federal standard assesses the advice's effect on "the result of the proceedings" (Strickland, 466 US at 695).

Consistent with this notion, it is irrelevant whether the attorney's advice had a particular impact on the outcome of the case (Caban at 156). Rather, New York is "ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case" (Benevento, 91 NY2d at 714). Indeed, if there is an apparent contradiction, it is this: "[f]undamental fairness analysis by its nature must always encompass prejudice" such that under the New York standard the "prejudice" prong in Strickland is effectively redundant (Rosario, 601 F3d at 125). Regardless, the former, by its nature, encompasses the latter (see Rosario at 118). Ultimately,

1. Federal Standard

With respect to defendant's claim that Mr. Markstein turned a one-witness identification into three-witness case, this court agrees that he indeed opened the door by eliciting identification testimony from Monique and Robin James. But doing so merely authorized the prosecution to explore the circumstances surrounding their selection of the defendant in both the photo array and lineup proceedings. It did not, however, result in either witness identifying the defendant in court. Indeed, the defendant makes no such claim, and nothing in the hearing record suggests otherwise. Whatever can be said about the efficacy of eliciting such testimony, nothing before this court remotely suggests there is a reasonable probability the defendant would have been acquitted in its absence. At most, it generates the mere speculative possibility of an acquittal. This is particularly true where Ms. Holloway's trial testimony was clear, detailed, and compelling. Finally, this court notes that aside from their photo array and lineup identification, the remainder of their testimony corroborated Ms. Holloway's observations. As such, the strength of the evidence supporting her identification of the defendant makes it unlikely that the testimony Mr. Markstein evinced had any impact on the jury's finding of guilt, let alone a reasonable probability to have changed the outcome.

Similarly, this court finds defendant's claim that he was prejudiced by Mr. Markstein's failure to locate and subpoena Diana Almonte prejudiced him baseless. [*20]Mr. Markstein testified that the investigator he hired was "pretty effective" in locating several potentially favorably witnesses (H 262). While Mr. Markstein was unable to recall specifics, he adamantly stated, "Whether it was making phone calls, going to the location where she was last known to reside, [or] speaking with people who might have known her," numerous unsuccessful attempts were made to locate Ms. Almonte (H 239, 263, 276). True, Mr. Markstein never sought a judicially ordered subpoena for her but as he explained, it was because the investigator was unable to find her. According to him, Ms. Almonte "was an elusive person" whom he "suspect[ed] . . . might have gone underground" (H 239-40, 276). It is unpersuasive that he was prejudiced by counsel's failure to call Ms. Almonte when she could not be located.

Nevertheless, assuming Ms. Almonte had been called to testify at trial, the question remains whether there is a reasonable probability her testimony would have resulted in the defendant's acquittal. By Mr. Markstein's admission, she was at most a potential witness because the description of the perpetrator she allegedly provided to detectives was inconsistent with Mr. Watson's (H 262-63). At the hearing, however, Ms. Almonte stated she told detectives that she was unable to see the perpetrator's face, determine his race or provide a description of him. All Ms. Almonte would have contributed is that she observed a man wearing a dark or black hoodie with the hood strings pulled tightly around his head such that it concealed his face. Other than perhaps corroborating portions of other witnesses' testimony, Ms. Almonte speculated that the defendant "could have been the shooter" (H 162-3). It is inconceivable how such speculation would have changed the outcome. Accordingly, the defendant fails to establish that but for counsel's perceived errors the result of the proceeding would have been different.

2. New York Standard

As indicated, New York, unlike Strickland, relies on the "meaningful representation" standard (Henry, 95 NY3d 143; Baldi, 54 NY2d 137). Under this standard, a defendant must establish that given the totality of the circumstances counsel's conduct was so egregious that it deprived him of a fair trial (Benevento, 91 NY2d 708, 713; see also Hobot, 84 NY2d 1021, 1022]; People v Flores, 84 NY2d 184, 188-189). A defendant need not, however, prove that the result would have been different but for counsel's allegedly deficient conduct (Baldi at 137; see Caban, 5 NY3d at 155-56). Under the same analysis, the defendant fails to establish that given the totality of the circumstances counsel's conduct was so egregious it deprived defendant of a fair trial. As noted, this court rejects defendant's argument that the identification testimony Mr. Markstein elicited and his alleged failure to call Ms. Almonte compromised the fairness of the process as a whole. It did not.

Here, there is no doubt Mr. Markstein boldly employed an identification defense as the trial strategy. Frankly, that alone ends the inquiry. As noted, Mr. Markstein did not believe Ms. Holloway's identification of the defendant was strong. According to him, Ms. Holloway's momentary glance at an individual with a hoodie covering his head was relatively weak. He further believed that Monique and Robin James' ability to identify the defendant from inside their apartment, late at night, and from a considerable distance lacked credibility. Mr. Markstein testified that he discussed this defense strategy with the defendant, who agreed that attacking the credibility of the witnesses on this issue was indeed the best strategy (H 224-25, 227):

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

This constitutes the decision and order of the court.

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