By motion submitted March 14, 2014, defendant moved to set aside his sentence and vacate his conviction pursuant to Criminal Procedure Law §§ 440.20 and 440.10 (1) (h), asserting that his sentence was illegally imposed and contending that he received ineffective assistance of counsel in violation the Sixth Amendment of the United States Constitution and article I, § 6 of the New York State Constitution. By decision dated June 24, 2014, this court denied defendant's motion. This expands that decision.

CPL 440.10 [2] [c] provides:

Defendant claims it was reversible error when the trial court permitted a non-licensed physician to offer her opinion of both a photograph, and the possible weapon used against the complainant. The People correctly note, however, that defendant's claim is entirely record-based. As such, they argue it should have been asserted on his direct appeal. Given his failure to do so, the absence of any justifiable explanation for such failure, and the void of any non-record based factual allegations this court is constrained to bar review of this claim.

Even if not procedurally barred, defendant's claim is nevertheless without merit. Generally, evidence is deemed to be relevant "if it has any tendency in reason to prove the existence of any material fact" and all relevant evidence "is admissible unless its admission violates some exclusionary rule" (People v Scarola, NY2d 769, 777 [1988]). With specific regard to expert testimony, trial courts have sole discretion in determining its admissibility and parameters (see People v Cronin, 60 NY2d 430, 433 [1983]).

To establish 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).

Consistent with this notion, it is irrelevant whether the attorney's advice had a particular impact on the outcome of the case (Caban, 5 NY3d 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). 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). Thus, 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 (Caban at 155-56). 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 v Ercole, 601 F3d 118, 124 [2d Cir 2010]). Regardless, the former, by its nature, encompasses the latter (see Rosario, 601 F3d at 118). Ultimately,

Notwithstanding the absence of a specific prejudice requirement, New York's "meaningful representation" in totality standard is not contrary to the Strickland standard (Rosario at 124; Eze v Senkowski, 321 F3d 110, 124 [2d Cir 2003]); Lindstadt, 239 F3d at 198). 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 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).

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" (Benevento 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'" (Id. at 915 quoting Caban at 156).

Commenting on this ostensible dichotomy, the Second Circuit noted:

Finally, since the performance and prejudice elements set forth in Strickland may be addressed in either order, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . [I]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed" (Strickland, 466 US at 697). As such, this court will address the prejudice aspect of defendant's claim before considering counsel's performance.

1. Federal Standard

To succeed on an ineffective assistance of counsel motion under the federal standard, the defendant must "affirmatively prove prejudice" by establishing a "reasonable probability" that, but for such allegedly deficient conduct, the result of the proceeding would have been different (Strickland, 466 US at 693; Lafler, 132 S Ct at 1384-85).

First, while a defense attorney has the right to present an opening statement, there is no obligation to do so. Rather, counsel may choose to open if s/he believes it is the better strategy (see CPL § 260.30[4]). Faulting counsel, then, for not making an opening statement simply means that in hindsight he disagrees with counsel's strategic tactic. But disagreement is a far cry from prejudice, and defendant conspicuously makes no allegation, suggestion or inference that he suffered any prejudice from counsel's decision.

With regard to counsel's decision to not object to the physician's reference to certain photographs as well as her opinion of the weapon used, defendant abjectly fails to demonstrate how, if at all, it deprived him of a fair trial. At the time the physician offered testimony about those photographs, they had been properly received in evidence thus presenting no infirmity with eliciting testimony about them. And, defendant again fails to explain how he was prejudiced by the perceived failure to object. Given the absence of prejudice in conjunction with the overwhelming evidence against him, his claim that counsel' failure to object is baseless (see People v Jiang, 62 AD3d 515, 516 [1st Dept 2009]).[*5]Additionally, defendant's assertion that Mr. Spellman was ineffective because of three "prejudicial" statements he made during summation is also without merit. According to defendant, he erred by referencing the complainant's prior testimony, during which she stated that defendant was previously in jail. In so doing, however, Mr. Spellman noted the "gratuitousness" nature of such statement thus strategically downplaying it in an attempt to neutralize it. Such a tactic benefitted, not prejudiced, the defendant. Defendant further maintains that Mr. Spellman blundered when he stated to jurors that "maybe" they could not return a guilty verdict if they disbelieved Ms. Dacres' testimony. To the extent such language generated confusion or ambivalence, the trial court's instruction clarified that they "must acquit if they found a reasonable doubt as to [defendant's] guilt" (emphasis supplied). And finally, as to defendant's opinion that Mr. Spellman prejudiced him by referencing the graphic nature of the photographs, it appears he did so consciously, not inadvertently. Doing so, therefore, indicates it was a strategic decision ostensibly to explain away the prosecution's evidence rather than ignore it.

Article 27, Section 286 [a] [1] of the Annotated Code of Maryland provides that "it is unlawful for any person to manufacture, distribute, dispense or to possess a controlled dangerous substance in a sufficient quantity to reasonably indicate under all circumstances an intent to manufacture, distribute or dispense, a controlled dangerous substance." Under New York Penal Law § 220.16[1], a class B felony, a "person is guilty of criminal possession of a controlled substance in the third degree when he knowingly and unlawfully possesses a narcotic drug with the intent to sell it." Thus, the trial court, upon review of the Maryland statute and [*7]Penal Law § 220.16 [1], properly determined that the elements of the Maryland statute were sufficiently comparable to Penal Law § 220.16 [1].

For the reasons stated above, this court finds that defendant's first claim is procedurally barred, and that he received effective assistance of counsel at all stages of the proceedings as guaranteed in the Sixth Amendment of the United States Constitution and article I, §6 of the New York State Constitution (Strickland, 466 US at 668; Benevento, 91 NY2d at 708; Baldi, 54 NY2d at 137). Defendant's motion to vacate his judgment of conviction pursuant to Criminal Procedure Law § 440.10 [1] [h] is therefore summarily denied in all respects.

This constitutes the decision and order of the court.

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