According to defendant's current team of attorneys, this contentious post-conviction litigation "is about a man the justice system . . . . failed." They vehemently argue that defendant is an "innocent man [who] was wrongly convicted of murder in a terrible miscarriage of justice" because of "false eyewitness identification[s]" (which now have been recanted), misconduct by the [*2]prosecutor and law enforcement officials, and the ineffective assistance of counsel.They claim that the "resulting injustice" to defendant "continues today uncorrected" — such that "[e]very day that goes by is another day that Mr. Jones spends in prison for a crime that he did not commit." This is why, according to defense counsel, this Court "must vacate Mr. Jones' conviction."

Defendant's post-conviction motion places squarely on this Court's shoulders the "solemn responsibility" to "determine as best [it] could where the likelihood of truth lay," at least as it relates to the recantation testimony (People v Shilitano, 218 NY 161, 180-181 (1916) (Cardozo, J., concurring). In considering the motion, the Court has reviewed and re-reviewed, in painstaking detail, the voluminous pleadings submitted by the parties in this litigation, the voluminous trial record, as well as the voluminous record of the CPL 440 hearing, including numerous exhibits and the testimony of ten witnesses who testified over a nine-day period. Upon this exhaustive comprehensive review, the Court finds that the newly discovered recantation evidence is not "true" (Shilitano at 170), and lacks "inherent believability" (People v Wong, 11 AD3d 724, 725 [3d Dept 2004]), and therefore cannot "destroy the basis upon which the judgment of conviction rests" (Shilitano at 170). Because the Court also finds that defendant otherwise failed to demonstrate that he is actually innocent, that he received the ineffective assistance of counsel, or that law enforcement officials or the People engaged in any misconduct or committed a Brady violation, the motion to vacate the judgment of conviction is denied in all respects.^[FN1]

In preparation for trial, defense attorney Barry Turner filed an omnibus motion seeking to, among other things, suppress defendant's many prejudicial statements, [*5]extremely prejudicial physical evidence and identification testimony. Counsel also moved to preclude the People from cross-examining defendant about his previous record, which included convictions for the sale of a controlled substance and criminal possession of a weapon. Because counsel made these applications, a court ordered a Mapp/Huntley/Wade/Dunaway hearing.

At the suppression hearing, counsel challenged the suggestiveness of the identification procedures (i.e., the photo arrays and the lineup identifications), the voluntariness of defendant's statements, as well as the propriety of defendant's warrantless arrest outside of his apartment. Defense counsel also challenged the execution of the search warrant that led to the recovery of a Ross bike, ammunition, a BB-gun, a gun cleaning kit, and a gun holster.

Josue Rodriguez testified that on September 10, 1994, he lived with his sister in a private house located on Mott Avenue between Dickens and Eggert streets in Queens County. At approximately 12:15 a.m., Rodriguez, who was watching television with his one-year old nephew, heard "two shots." Rodriguez took his nephew to his sister's room and then went to a window in the house that faced Mott Avenue. The prosecutor asked Rodriguez, "[w]hen you looked outside, did you see anything?" In response to this open-ended question, Rodriguez said that he "saw a man in the middle of the street zig-zagging back and forth saying something loud." Rodriguez testified that when he saw the man collapse to the ground at the corner of Mott Avenue and Eggert Street, he went outside and asked the man if he was alright. The man looked at him and said, "I was preaching to a drug dealer on a bike and he shot me. Why did he shoot me? Why?" The man's speech was "very excited" and he spoke "like he was scared."

Rodriguez never testified at trial about seeing a man on a bicycle riding toward Dickens Street.

Detective Gerald Weiser testified that on September 10, 1994, he commenced an investigation after observing Stone, who appeared to have a wound in his abdomen, "being assisted by ambulance technicians," on the corner of Mott Avenue and Dickens Street, which was well lit. On September 29, 1994, at approximately 10:15 a.m., Detective Weiser arrested defendant, who, immediately after his apprehension, and without prompting, said "I know why you're here. I didn't kill Antoine Stone." The arrest occurred outside of defendant's Manhattan [*10]apartment where Detective Weiser recovered a "blue Ross mountain bike."

Detective Weiser further testified that after arresting defendant, Weiser brought him to the 32nd Precinct, where he advised him of his Miranda rights. Detective Weiser testified that when he asked defendant about the homicide, defendant told him that he was not in Far Rockaway on the night of the murder and that he knew Stone four years ago when defendant was having a crack problem. Thereafter, Detective Weiser testified that defendant told him that he had a homosexual affair with Stone, who would "suck his dick for money, for crack." Defendant also told Weiser that he heard about Stone's murder from Edward Lawson, who had been in the apartment at the time of his arrest.

Detective Weiser testified that after he later re-read defendant his Miranda warnings, defendant told him that on the night of the murder he had been with his girlfriend, Amira Grant. According to defendant, his girlfriend arrived at his apartment at about 6:30 p.m.; he went by bicycle to City College to pick up his paycheck at approximately 8:00 p.m.; and he picked up food and returned to his apartment between 8:30 p.m. and 9:00 p.m. According to defendant, he stayed in his apartment with his girlfriend for the rest of the night. Detective Weiser also testified about a conversation he had with defendant regarding guns. When the prosecutor asked Weiser what defendant said to him, Weiser said, "[h]e stated to me that he liked 45s but his weapon of preference is a .380." Detective Weiser testified that defendant told him that he and his uncle had sexual affairs with Stone but that he was now straight. Detective Weiser also testified that Purser and Englebert identified defendant in a police arranged line-up, each witness taking seconds to make the identification, and that he collected pedigree information from defendant who gave two addresses — one in Manhattan and the other in Far Rockaway, Queens (his mother's address).

On cross-examination, defense counsel strenuously challenged the Weiser's testimony about the lighting conditions at the crime scene, inasmuch as the detective also admitted that "he was not there" at the time of the shooting. He also questioned Weiser about Englebert's description of the man on the bicycle. According to Weiser, Englebert said that the biker was wearing a dark jacket and riding on a mountain bike. Counsel also challenged the thoroughness of the investigation, including the fact that forensics were not conducted on the bicycle, that Lawson was not interviewed, and that defendant's assertions that he was working on the day of the homicide were not explored.

Later, outside the presence of the jury, defense counsel moved to have Detective Weiser's testimony about the shell matching a shell from another homicide, stricken as unresponsive. Defense counsel explained the timing of his application as follows: "I did not do anything about it because I didn't want to highlight it for the jury." He argued that the comment was "not responsive, not relevant to the case." The judge then said, "I will have it re-read back. I am going to let you . . . continue. I remember it was uttered. I was almost going to intervene. In my view, it was not responsive. Read it back." After a brief colloquy, the Court agreed with defense counsel that the statement was unresponsive and struck it from the record, indicating that defense counsel did not "hear" it. The Court said, "What I am telling you it's extremely inflammatory, I believe, bad faith on the witness. Certainly, no trap by [the People], but the jury — if he asked me to strike it, I would have." When the Court asked defense counsel if he wished to have a curative instruction read to the jury, the attorney said, "I don't want you to give any curative instruction" and the Court indicated that the unresponsive comment would be deleted from any read-back of testimony which the jury may request.

Defendant's niece, Claudine Campbell, testified that she lived with defendant until he moved to Harlem in 1993, that defendant and Stone attended the same [*12]junior high school and that she used to see defendant and Stone together on "a lot of occasions" because Stone would "come to visit the family." Although it had been years since Campbell had seen Stone in her family's house, she would see him on the street.

According to Turner, Purser's testimony was equally unreliable because of her equivocal identification of defendant at trial. He also argued that her testimony about what she had observed was undermined by her compromised vantage point, poor lighting and the fact that she was feeling dizzy at the time of the incident.Turner also argued that the dying declaration, in which Stone told Rodriguez that the person who shot him was a drug dealer on a bike wearing a white shirt, demonstrated that defendant was not the perpetrator. According to trial counsel, the only evidence in the case regarding the relationship between defendant and the victim was that they were friends. Counsel maintained that if defendant was the perpetrator, Stone would have said "Robert did it. Robert Jones did it," given their prior relationship. In the absence of this testimony, Turner urged the jury to conclude that the shooter was a stranger, someone wholly unknown to Stone.

Inconsistencies aside, Turner also challenged the suggestiveness of the line-up, the lack of scientific evidence, the detective's failure to question Edward Lawson, as well as the detective's failure to investigate whether defendant was working at the time of the shooting. Trial counsel argued that the People had inflated defendant's jail-cell "bullshit session" with the detectives about weapons and his affinity for a .380 because they had failed to recover the murder weapon. Finally, Turner argued that the bike found in defendant's home was of no [*13]evidentiary value because there are "thousands, millions of bikes."

During deliberations, the jury requested evidence from the case, including a read-back of "Det. Wiser [sic] testimony," which the Court provided, absent the stricken unresponsive comment regarding the "ballistics" match.

Before the jury reached its verdict, defendant attempted to escape from the courtroom. During the incident, two court officers were injured.

Thereafter, defendant was convicted of second-degree murder as well as criminal possession of a weapon in the second and third degrees. The Court sentenced defendant to an indeterminate prison term of from twenty-five years to life for the murder count and ordered that term to run concurrent to an indeterminate prison term of from five to fifteen years for the count of criminal possession of a weapon in the second degree and an indeterminate prison term of three and one-third to seven years for the count of criminal possession of a weapon in the third degree.

Subsequently, defendant pled guilty to one count of attempted escape in the first degree and four counts of assault in the second degree and was sentenced to one and one-half to three years in prison for the attempted escape count and three years in prison for each of the assault counts, all to run concurrent to each other and consecutive to the sentence imposed for the murder of Antoine Stone.

On appeal, the Appellate Division, Second Judicial Department, modified defendant's sentence as it related to the assault and escape attempt and made those counts run concurrent to defendant's life term sentence (People v Robert Jones, 260 AD2d 402 [2d Dept 1999]). The Appellate Division also ruled, after reviewing the evidence in a light most favorable to the prosecution, that the evidence was "legally sufficient to establish defendant's guilt beyond a reasonable doubt." Finally, the Court exercised its "factual review power" and held "that the verdict was not against the weight of the evidence."

The CPL 440 hearing was conducted over a nine-day period in January, February and March, 2014. The defense called six witnesses (Joan Gennace-Purser, Philip Englebert, Josue Rodriguez, Nelson Lassalle, defendant Robert Jones and attorney Barry Turner) and the People called four witnesses (former ADA Piper Paul, ADA Debra Pomodore, ADA Daniel Saunders and retired Detective Charles Lehner). The parties also introduced into evidence numerous exhibits, including all of the DD5s, a Line-up Form, the grand jury testimony of [*14]Purser, Englebert and Rodriguez and a transcript of an interview of defendant's former fiancée, Amira Grant.^[FN6]

Purser testified that when she testified at defendant's trial in 1996 she did not tell the whole truth because the police pressured her to identify defendant even though she had insisted that she could not identify the man on the bike. Purser testified that she felt "ashamed" that she testified falsely and never revealed it to anyone except God, and that she was in Court now "to tell the truth." She testified that she was too afraid to tell the truth at trial because she was afraid of the police — that "if [she] didn't do exactly what Detective [Weiser] wanted [her] to do, he could make tremendous trouble for [her] life," and "would have done something bad." Yet, Purser acknowledged that notwithstanding her abiding fear, she nevertheless defied the detectives and the Assistant District Attorney (ADA) by providing only an uncertain identification of defendant at trial. At the conclusion of her testimony at the hearing, Purser sought to approach the defense table and asked, "may I just say a word to Mr. Jones if it pleases you?"

Although Purser at various times in her testimony claimed that all of her trial testimony was untrue (i.e., "all of it" is inaccurate; "everything" is inaccurate), she ultimately testified that it was only her trial testimony regarding her lineup and in-court identification of defendant that was false. She confirmed, for example, that on the early morning hours of September 10, 1994, she observed two black men, one of whom had a bike, talking on the "bright and clear" street outside of her window about twenty to twenty-five feet away; that she observed the men for about fifteen to twenty minutes; that she was able to provide a clothing description of the man on the bike; that the man on the bike rode his bike toward another man who Purser knew as the "preacher" and that when they met, Purser heard a "pow, pow," and observed flashes of light emanating from where the men met; that after the "pow, pow," the man on the bike rode his bike back to the other man who remained standing under Purser's window; and that the man on the bike looked up into Purser's eyes and stared at her two times — first while he was standing under her window and second when he returned to the other guy after the "pow, pow."

Unlike her testimony at trial, however, Purser testified at the CPL 440 [*15]hearing that she observed the man on the bike ride his bike onto Dickens Street, away from Eggert Place, after the "pow, pow," but she did not see him turn on Dickens Street and could not "see anything more about it after that." At the hearing, unlike the trial, she also testified that after the "pow, pow" sound, the man on the bike shoved the man with whom he was standing before he rode his bike away. At trial, she testified that it was the other man that pushed the man on the bike. Notwithstanding the "pow, pow" sounds, the flashes of light, and the biker rushing back, Purser testified that she did not know what was transpiring and did not think someone had just been shot because she thought the sounds were "firecrackers" — this notwithstanding her grand jury testimony that the "pow" sounded like "a clapper or gunshot." Purser testified that she later learned that someone was shot when her landlord and neighbor informed her, through her window, that someone was shot and she heard the sirens of police cars and an ambulance. She then closed her window, went into her room and "went to bed."

Purser testified that two days later Detective Weiser and his partner came by her house, and asked her if she saw "anything" or "what happened on the night of the shooting," and she answered, "no," saying she "did not know anything." It was not until the detectives confronted Purser with the landlord's and the neighbor's claim that Purser was at her window, that Purser began to admit to the detectives that she saw the men standing outside and heard the "pow, pow." She insisted, however, that she told the detectives that she "didn't see nothing," could not "identify nothing," and did not know that it was a "gunshot that went off." She also insisted that she was not "reluctan[t] . . . to cooperate" and that she never told the detectives that she was "afraid that the shooter was going to come after" her. Purser admitted, however, that in the grand jury she expressed concern that the guy on the bike "was looking at me and I was thinking, he saw me there." Purser admitted that this fact — the shooter looking at her — did scare her. Purser also admitted that she informed Detective Weiser that her immigration status was illegal and that was the reason she "really [did not] want to go to court."

During her testimony, Purser often did not seem to appreciate the difference between "see," "know" and "recognize." For example, when Purser was asked whether she "saw" the face of the person on the bike who twice looked up at her, she initially answered "no." When the Court, however, followed up with other questions about that, she ultimately admitted that she did "see" the person's face:

Mr. Englebert likewise testified that at trial he identified defendant as the man on the bike, but, according to Englebert, that also was not true:

Englebert also exhibited anger towards the Queens County District Attorney's Office during the hearing, at some point referring them as "goons," and alleging that the cross-examiner (Masters) personally went to Englebert's home. Defense counsel had previously notified the Court and the People that the defense had lost contact with Englebert and the People apparently had some of its investigators attempt to locate him. The following colloquy, which also shows Englebert talking over the Court, ensued:

Barry Turner, defendant's trial attorney, testified that he refreshed his recollection of the trial and the circumstances of the murder of Stone, and generally had a "fairly good memory of what happened" but "a lot of things" may be "sketchy."

Turner testified that he graduated from law school in 1967, and has continuously practiced law since then — first as an Assistant District Attorney in Kings County and then as a private practitioner doing criminal defense work, while also serving on the Kings County 18-B Panel, and the CJA Panels in the Southern and Eastern District. Turner has always done criminal law work throughout his 45-year career, during which time he has represented thousands of defendants, including approximately fifty defendants charged with murder. He has tried about twenty murder trials over the last forty years.

Turner testified that he was aware that defendant has alleged three grounds for a claim of ineffective assistance of counsel against him: (1) counsel's failure to investigate the alleged narcotics notebook which was found near the deceased, but later lost; (2) counsel's failure to investigate the ballistics report, which indicated that the gun used in the Stone homicide was also used in another recent homicide at a location which was in close proximity to the location of the Stone homicide; and (3) counsel's failure to move for a mistrial when a detective gratuitously testified that the weapon used in the Stone homicide was also used in another homicide.

Regarding his failure to investigate the alleged narcotics notebook, Turner testified that he did not recall whether he specifically viewed the notebook or demanded to review the notebook, but he assumed that he did ask to review it. Turner testified that he felt strongly that he did not "want any reference to the notebook to come" out at trial because he did not "want any connection of that notebook," which "contained notations that referenced drug dealings," to defendant, given Stone's declaration that a drug dealer shot him. Turner did not want to "cloud up the trial with some sort of inference of drug dealing which could be construed" against defendant from the narcotics notebook. According to Turner, this was important because one of his defense strategies in the trial was that [*28]defendant, who had a long-standing relationship with Stone, could not have been the shooter since Stone's dying declaration indicated that a drug dealer on a bike shot him. His argument was that if defendant shot Stone, Stone would have identified defendant by name given their prior relationship.

Regarding the claim that counsel failed to investigate the ballistics report which indicated that the gun used to kill Stone was previously used in a nearby and recent homicide, Turner testified that although he remembers receiving a DD5 which requested that the Stone ballistics be compared to the ballistics in other homicides in the Precinct's Squad, he did not recall whether he received any reports which completed the comparison or which revealed a match.^[FN18] He testified that if he did receive a ballistics report which demonstrated a match, he "would most likely want that kept out in total because [he] wouldn't want the jury to hear about another homicide, another shooting," and infer or speculate that defendant was involved. Turner testified that it was also "possible that [he] thought that if" the prosecutor was not aware of it, "it would be best just to keep it out" and "not make noise about it" since "it could come back to haunt us if in fact [the prosecutor] . . . [*29]found something, after she did review it, that would connect" defendant to the other homicide. This was particularly so if the ballistics report indicated that the shells in the Stone homicide matched the shells in another unsolved homicide that occurred only 8 days before the Stone homicide, and a little less than a mile away. Turner acknowledged, however, that if the ballistics match "precluded" defendant from being involved in the other homicide, this exculpatory evidence — which constitutes Brady material — "might be relevant in the case."

Finally, Turner offered several explanations for his decision not to move for a mistrial when Detective Weiser unresponsively "blurted out" that the shell in the Stone homicide matched the ballistics evidence in another homicide. Turner testified that he decided not to move for a mistrial, first and foremost, because he believed that defendant was going to be acquitted given the equivocal identification testimony of Purser, the unreliable identification testimony of Englebert, and the exculpatory nature of the dying declaration. Furthermore, Turner had by then obtained a "very, very, very, very good discretionary ruling" in which the trial judge precluded the People from introducing into evidence extremely prejudicial statements (including one in which defendant told the detectives that if they had arrived at his home a week earlier, they would have found five or six guns) and prejudicial physical evidence (i.e., ammunition, a BB-gun, a gun cleaning kit, a gun box, etc.). Turner believed that if a mistrial were granted, the excluded evidence may then be admissible at the new trial.

Defendant Robert Jones testified on his own behalf. He acknowledged that he previously was convicted in 1988 of Attempted Criminal Sale of a Controlled Substance in the Third Degree, after he, acting in concert with others, sold crack cocaine to an undercover officer in December 1987, at a location where 42 vials of crack cocaine was recovered. Defendant also acknowledged that he previously was convicted in 1991 of Resisting Arrest, after he attempted "a strong-armed robbery of a man for his coat" and then resisted the arrest of police officers who had observed the incident near the vicinity of the homicide. Defendant also acknowledged that in 1992, he was convicted in Nassau County of Attempted Criminal Possession of a Weapon in the Fourth Degree.

Defendant's relationship with Stone began in Far Rockaway, Queens, about thirteen years before Stone was murdered. The relationship became "sexual" when defendant, who admittedly began selling drugs, became "seriously" "addicted to cocaine" and Stone offered to provide defendant with money in exchange for sexual acts and favors. Defendant would use the money to purchase drugs. Defendant's drug problem began when he was about 15 or 16 years old but he "stopped using drugs" in "1993," and moved out of Far Rockaway in 1992, when he moved to Harlem. In Harlem, defendant commenced a relationship with Amira Grant, with whom defendant shared a daughter who was born in April 1994.

Defendant testified that on the day that he was arrested for the Stone murder (September 29, 1994), a family friend named Edward Lawson had unexpectedly visited him in his Harlem apartment, telling defendant that his mother was worried about him because detectives had been calling the house asking for defendant and expressing concern about a murder. Lawson told defendant that the person who was murdered was defendant's friend, Antoine Stone; defendant testified that this was the first time he heard this information and he was completely shocked by the news.^[FN19] Approximately twenty minutes after Lawson arrived, homicide detectives — whom he later learned were Detective Weiser and Detective Lehner — knocked on defendant's door. When defendant opened the door and confirmed that he was Robert Jones, the detectives asked defendant to step out in the hallway and placed him under arrest. Because defendant wished to put on a pair of pants, the detectives brought defendant back into the apartment, during which time defendant stated, "I didn't kill Antoine Stone." Defendant acknowledged that the detectives observed a BB gun, various ammunition, a gun cleaning box, and a mountain bicycle in his apartment. Defendant also told the detectives that "if they would have come a week earlier they would have found six guns in the apartment" —

Defendant also admitted that he made several statements to Detective Weiser regarding guns — namely that he had a .25 but "got rid of it" because of his girlfriend, that he liked .45s because they were accurate, and that his "preferred weapon of choice is .380." Defendant testified that he preferred a .380 because it was even more accurate and it was the gun that he used at the gun ranges.

Regarding his relationship with Stone, defendant admitted that he stated that he "did not shoot Antoine, that [he] knew him for many years and that about four years ago [he] had a homosexual affair with" Stone, but that "everything ended when [defendant] stole the older brother's jewelry." Defendant testified that that portion of the statement to the detectives in which he said the affair occurred four years ago was not true because the affair occurred just two years prior to defendant's arrest. Defendant also explained that he did in fact steal some jewelry from Stone's home and sold it for drugs, but he and Stone spoke a few times and defendant apologized, before he moved to Harlem. Defendant acknowledged that the reason that he and Stone had a "falling out" was that Stone was very opposed to drug use.

Defendant testified that his fiancée Grant retained Mr. Turner as his counsel. He testified that Turner "barely spoke" to him, never visited him at Riker's Island and was "hard to deal with." Defendant also testified that he asked Turner to visit the crime scene but Turner, as far as defendant knew, did not do so. Defendant admitted, however, that he lied in his sworn allegation when he alleged that Turner had told him that this was Turner's "first murder case." Also, defendant admitted that Turner's principal defense strategy — challenging the "uncertain" identification testimony of Purser and the unreliable identification testimony of Englebert, and relying on the exculpatory nature of the dying declaration — "all made sense to" defendant. Defendant nevertheless insisted that "more work" should have been done in connection with the trial strategy. Defendant also recognized that Turner made an "important application" to keep out prejudicial ballistics evidence recovered from defendant's home, as well as certain prejudicial statements that defendant made. Although defendant knew that the Judge granted that application and defendant "thought we were okay," defendant testified that he still did not know whether he was going to get "convicted" at that point in the trial and would [*33]have wanted a re-trial after the Weiser blurt out.

Defendant testified that he recalled that during the trial, Detective Weiser blurted out that the "shell" in the Stone homicide was "matched up to another shell, to another murder." According to defendant, Turner never discussed with defendant how Turner should address the Weiser blurt out. Defendant admitted that before the jury rendered its verdict, defendant attempted to escape because he was "extremely emotional" and he did not "feel like [he] was being represented fairly." He acknowledged that he later pled guilty to a felony, arising out of his assault of the court officers and his attempt to escape.

During defendant's testimony, he would often answer a question and then immediately change his answer when it appeared that the answer was implausible or inconsistent with his prior or proposed testimony. For example, when defendant was asked about his condition — his mental state — on the night he was in a cell after his arrest, he first said, "I was a little hung over from the night before." The following colloquy then ensued:

On another occasion, when defendant was asked whether he signed the Miranda form before, during or after he made statements in the jail cell, defendant first was uncertain, saying it "was probably after I made those statements rambling" in the jail cell. When defense counsel asked defendant if he was "sure," however, defendant answered, "yeah." On cross-examination, however, defendant again testified that he was "not sure" if he made the "bullpen" statements before he was read his Miranda rights. Upon refreshing his recollection by reviewing several police reports, however, defendant recalled that in fact he was provided Miranda warning before he made his statements in the cell.When the People questioned defendant about his gun selling efforts, defendant likewise changed his testimony as to why he stopped selling guns. Defendant initially testified that he stopped selling guns because he "just didn't feel good about it so [he] just didn't do it." The followed colloquy then ensued:

Defendant also had a difficult time explaining how or why he lied in his sworn affidavit when he alleged that Turner told him that this was Turner's first murder trial. Defendant first evaded questions from the Court and the People regarding exactly when he realized that he made his mistake. The People asked defendant two times when it was that he discovered that the affidavit was [*35]inaccurate and twice defendant avoided the question. When the Court then followed up, asking defendant whether he "realize[d]" the affidavit was "false" when he signed it in July, defendant simply answered, "I didn't think about it after that." Defense counsel and the Court then returned to this topic on re-direct but defendant's answers were inconsistent:

Lehner, a retired NYC Police Department Detective, testified that in 1994 he worked in the 101st Precinct's Detective Squad with Detective Jerry Weiser, who passed away in 2002. He testified that in his experience as a detective and police officer, primary responsibility for a case shifts from the Police Department to the District Attorney's Office after the indictment is voted, and at that point the District Attorney's Office is responsible for the prosecution and for contacting witnesses.

Pomodore testified that she currently works as a Senior Trial Assistant in the Homicide Trial Bureau, and has worked in the Queens District Attorney's Office for almost 28 years. Pomodore testified that she was assigned to defendant's case in November 1994, when the Homicide Trial Bureau was located in Jamaica, Queens close to the Supreme Court building on Sutphin Boulevard, where homicide cases were often tried. Pomodore also explained that homicide cases generally would not be assigned to her until sometime after the Supreme Court arraignment on the indictment. That is also the "line in the sand" point in which the investigation conducted by the New York City Police Department generally ends, and the prosecution conducted by the Queens District Attorney Office generally begins. Although there is sometimes some "overlap," usually once a case is indicted, the Queens District Attorney's Office no longer relies upon the New York City Police Department resources to conduct further investigations; instead the Office would rely upon their own Detective Squad. Pomodore testified that given the foregoing protocols, she would not have utilized Detectives Weiser [*37]or Lehner to pick up witnesses in defendant's case to arrange for an interview. But Pomodore did not know whether Detective Weiser continued to investigate this case after defendant was arraigned on the indictment.

Pomodore likewise testified that Englebert never expressed an "inability to [*38]identify" the person on the bicycle, or expressed doubts about his prior identifications. Nor did Englebert ever indicate to Pomodore that the detectives were pressuring him to testify about anything or to identify the manufacturer of the bicycle. Pomodore testified that she also never pressured him to identify the manufacturer of the bicycle or to change any portion of his testimony.

Regarding the notebook which contained references to drug dealing, Pomodore recalled that there was a DD-5 which indicated that a Detective Van Housen from a different precinct took custody of the notebook and vouchered it in his precinct. When Pomodore later attempted to locate the notebook by reaching out to Detective Van Housen and directing others to search for it, it became clear that the notebook could not be found. Pomodore testified that at some point she informed Turner that she "exhausted all efforts" to find the lost notebook to no avail. Pomodore testified that she had the impression that Turner believed the notebook was "radioactive" and that Turner was not "disturbed about the fact that it could not be found."

Pomodore further testified that she was aware that there was a "ballistics report that matched the ballistics from this case" and another shooting that occurred eight days earlier, which was an "open case," and "investigation," and for which no arrest had been made. Pomodore testified that she turned the reports over to Turner "very early on" in the case, but Pomodore did not recall if she discussed it further with Turner. Pomodore admitted, however, that Turner never asked her to follow up or pursue anything further for him, and never asked for the "investigative file" in connection with the other shooting.

Saunders, Deputy Executive of the Major Crimes Division in the Queens District Attorney's Office, testified that in 1994, he served as Chief of the Homicide Trial Bureau and assigned defendant's case to ADA Pomodore after the case was indicted.

Saunders testified that after defendant filed his CPL 440 motion, he interviewed Englebert, Purser and Rodriguez. Saunders testified that Englebert said that after being unable to make an identification from the photo books, the police showed him a number of loose photos. Englebert could not remember how many photos there were but it could have been six, seven or eight. Englebert identified one of the photos of a man who he recognized as the man on the bicycle. When Saunders specifically asked Englebert whether anyone did "anything inappropriate or improper" to influence him, or make any suggestions to him [*39]regarding his identifications during the photo display, the lineup, his grand jury and trial testimony, Englebert said, "absolutely not" and stated that he "picked whom he wanted to pick." Although Englebert was initially cordial and friendly, at some point Englebert became "tearful" and began "sobbing," and, responding to Saunders questions, said that "it's all [his] fault" that "there is an innocent man in jail," and that Englebert "made a mistake" by identifying the "wrong man." Upon further questioning, Englebert explained to Saunders that the defense investigator told him that defendant is an "innocent man," that the defense had "proof that he is an innocent man" and that Englebert had "made a mistake." Englebert told Saunders that he did not think that he made a mistake after the trial or during the twenty years after he testified, but began to think that he made a mistake after the defense team told him he made a mistake.

Saunders also interviewed Rodriguez. When Saunders asked Rodriguez what he recalled from the day of the shooting, Rodriguez first told Saunders that the shooting "happened sometime in the afternoon," around 1 pm. Rodriguez indicated that after he heard two gunshots, he brought his nephew to a back room, looked out the window and observed the man on the bicycle. When Saunders confronted Rodriguez with the fact that he never previously said he saw the man on the bicycle in his grand jury or trial testimony or to police officers at the scene, Rodriguez said that if he did not previously indicate that he saw the man on the bike, it must have been because he "didn't know that it was important." But when Saunders then read Rodriguez excerpts from his grand jury and trial testimony in which Rodriguez said that the dying man had claimed that a drug dealer on a bicycle shot him, Rodriguez became "red in the face" and appeared "angry," and began to complain that he had asked the defense team to provide him with a copy of "testimony" before he "signed anything," but they would not let him "see it." Pointing to the excerpts of his testimony, Rodriguez then stated they contained the truth, and that if they were different than the affidavit, then what he said "under oath" in his testimony was "the truth." Saunders then promised to send Rodriguez a transcript of his testimony.

According to Saunders, Rodriguez also indicated that the defense team told him that defendant "was an innocent man," that the defense team had "proof that he was innocent," and that "he shouldn't be in jail."

Piper Paul, a former Assistant District Attorney with the Queens District Attorney's Office, testified that on September 6, 1994, she was assigned to the [*40]Homicide Investigations Bureau which required her to sometimes be on "pager duty," requiring her to respond to homicides or police shootings.In 1994, the Homicide Investigation Bureau was in Kew Gardens and the Homicide Trial Bureau was in Jamaica, Queens. Paul testified that her participation in the prosecution of defendant began when she was paged about the shooting on September 10, 1994. She eventually prepared documents related to the shooting, including the search warrant, met with witnesses, prepared the case for grand jury presentation and presented the case to the grand jury with ADA Neil Morse.

Although Paul testified that she was not present when Purser identified defendant at the lineup, Paul did recall meeting with Purser. During the meeting, Purser did not express an inability to identify defendant or claim that she received "pressure" from law enforcement to identify defendant. Paul did recall, however, that Purser had expressed that she "was afraid to identify defendant," because he had seen her "through the window and she was afraid of retaliation" and "felt very vulnerable" since her "family lived there," she "lived in the neighborhood," and she was seven months' pregnant.

Paul also recalled meeting with Rodriguez. Paul testified that Rodriguez never told her that he looked out of his window and saw a man on a bicycle. On the contrary, Paul testified that she recalled that Rodriguez indicated that he did not see anyone on a bike outside of his window.

Paul testified that sometime in December of 2013, she talked to attorney Hoffman who insisted that defendant was an innocent man and urged her to review the website that was created.

The People provided the foregoing documents to defendant in a letter on May 19, 2014. Defendant responded to the letter by moving to reopen the CPL 440 hearing, arguing that the recently disclosed documents constitute Brady material. The People opposed the motion to reopen the CPL 440 hearing, arguing that the recently disclosed documents do not constitute Brady material and that there is really nothing to further explore at a re-opened hearing.

In the Court's interim order dated September 8, 2014, the Court otherwise expressly denied the defense motion for full disclosure of the Rivera file on Brady [*43]grounds, finding that there is nothing in the Rivera file, save the documents already disclosed, which even arguably or remotely constitutes Brady material. On the contrary, the Court's review of the Rivera file confirmed the People's contention that defendant was a person of interest in the Rivera homicide after the ballistics link was discovered. The Court's review also confirmed the People's contention that most of the Rivera investigation focused on identifying the deceased.

The Court of Appeals has enunciated a multi-part test for the sufficiency of newly discovered evidence in the context of post-verdict motions in People v Salemi, 309 NY 208, 216 (1955). The language in CPL 440.10 (1) (g) is essentially a restatement of the Salemi test, which requires that the newly discovered evidence be "material," "[non-]cumulative" and of such character that it "will probably change the result if a new trial is granted" (id.). In this respect, newly discovered evidence which "merely impeach[es] or contradict[s]" the trial evidence would be insufficient (id.). Furthermore, the newly discovered evidence "must have been discovered" sometime following the trial and "must be such as could not have been discovered before the trial by the exercise of due diligence" (id.; see also People v Tankleff, 49 AD3d at 179).

Newly discovered evidence may of course come in many different forms, including that of a trial witness who recants his trial testimony (see People v Shilitano, 218 NY 161, 170 [1916] [the People's argument that "evidence of recantation upon the part of a [trial] witness is not newly discovered evidence . . . is in error"]). The People are correct that courts have often looked upon recantation evidence with skepticism (see e.g., id. at 170 ["There is no form of proof so unreliable as recanting testimony;" recanting testimony has an "untrustworthy character"]; People v Smalls, 70 AD3d 1328, 1330 [4th Dept 2010] ["It is well [*45]established that recantation evidence is inherently unreliable"]; People v Lawrence, 247 AD2d 635 [2d Dept 1988] ["It is well settled that there is no form of proof so unreliable as recantation testimony"]; see also People v Lavrick, 146 AD2d 648 [2d Dept 1989]; People v Cassels, 260 AD2d 392 [2d Dept 1999]). Where the "recantation [is] true," however, recantation evidence "may . . . destroy the basis upon which the judgment of conviction rests and might be sufficient of itself to justify the granting of a new trial" (Shilitano at 170; see also People v Singh, 111 AD3d 767 [2d Dept 2013]; People v Bellamy, 84 AD3d 1260 [2d Dept 2012]; People v Bronson, 32 Misc 3d 201 [Crim Ct, Queens County 2011]).

When the purported newly discovered evidence is recantation evidence, courts should consider the following factors: "(1) the inherent believability of the substance of the recanting testimony; (2) the witness's demeanor both at trial and at the evidentiary hearing; (3) the existence of evidence corroborating the trial testimony; (4) the reasons offered for both the trial testimony and the recantation; (5) the importance of facts established at trial as reconfirmed in the recantation; and (6) the relationship between the witness and the defendant as related to the motive to lie" (People v Wong, 11 AD3d 724, 725-726 [3d Dept 2004]; see also People v Tucker, 40 AD3d 1213, 1214-1215 [3d Dept 2007]). In addition, a recantation may "acquire an aura of believability" where it is corroborated by "the testimony of . . . other witnesses at the [recantation] hearing" and where there is a "lack of trial evidence connecting defendant with the commission of the crime" (Wong at 726).

Because the defense relies mostly upon Purser to overturn the conviction, the Court will address her testimony first. Considering the various factors set forth by People v Wong, the Court declines to credit the "substance of [Purser's] recanting testimony" (Wong at 725) — that she falsely identified defendant at trial because of misconduct on the part of detectives and the trial ADA.

Purser's current claim that she could not make an identification because she did not "see" or "know" the biker's face, aside from being completely inconsistent with her trial and grand jury testimony, is belied by her numerous admissions at the CPL 440 hearing. Significantly, Purser conceded at the hearing that she observed [*48]two black men, one of whom had a bike, talking on the "bright and clear" street outside of her window about twenty to twenty-five feet away for about fifteen to twenty minutes; that she was able to provide a clothing description of the man on the bike; that the man on the bike rode his bike toward another man who Purser knew as the "preacher" and that when they met, Purser heard a "pow, pow," and observed flashes of light emanating from where the men met; and that the man on the bike twice looked up into Purser's eyes and stared at her — the first time while he was standing under her window and the second time when he returned to the other guy after the "pow, pow." Indeed, Purser's concession, after some prodding on cross-examination, that she was able to recognize Stone — "the preacher man" — further away on the street, raises some serious doubts as to how Purser was unable to see the face of the biker who was standing under her window for 15 to 20 minutes and looked directly at her two times.

Retired Detective Lehner, of course, categorically denied that he ever "suggest[ed]" to a witness "that [Lehner] was aware of a potential witness's spouse's place of employment, the schedule of her children" or her "vulnerability [with] immigration." He also denied that Detective Weiser made such suggestions [*52]in his presence.

Nor does the Court credit the "reasons [Purser] offered" for the 20-year-old "recantation" (Wong at 726) — namely that she wanted to get the "burden . . . removed from [her]" by "telling the truth" because the "truth will set [her] free." Purser's testimony, delivered in a shouting tone, that she was speaking the truth now "to set [herself] free" was repeated numerous times during her testimony, often in an emotional, long-winded, agenda-driven narrative that was not responsive to the question being asked. That narrative came to life a little when, at the conclusion of her hearing testimony, Purser sought to approach defendant as she left the witness stand, seeking to "just say a word to Mr. Jones" directly. The Court is not persuaded by her out-of-context explanations which were previously never uttered to a single soul — not even her close family members or her spiritual counselors.

In short, the Court finds that there is no truth in Englebert's recantation testimony or the "reasons offered" (Wong at 725-26) therefor, and the Court declines to credit his testimony.

Accordingly, contrary to defendant's argument, Rodriguez's "corroborative" testimony did not provide an "aura of believability" (Wong at 726) to the testimony of Purser or Englebert.

Defendant sets forth three general claims of ineffective assistance of counsel. Defendant first argues that his attorney's representation was deficient because trial counsel failed to request a mistrial after one of the testifying detectives blurted out at trial that the shell recovered from the crime scene matched the shell recovered from the Rivera homicide. Second, defendant contends that counsel was ineffective for failing to investigate a notebook that was recovered from the ground near the deceased at the crime scene. Third, defendant claims that his attorney failed to investigate a ballistics report that indicated that the shell casing recovered from the crime scene matched the shell casing of a firearm that was used in another homicide one mile away and one week prior.

The Sixth Amendment to the United States Constitution grants a defendant [*62]the right to receive reasonably effective assistance of counsel, gauged by prevailing professional norms (see Strickland v Washington, 466 US 668, 687-688 [1984]; Greiner v Wells, 417 F3d 305, 319 [2d Cir 2005]). To establish that counsel was ineffective under the Sixth Amendment, a defendant must show, first, that "counsel's representation fell below an objective standard of reasonableness" (Strickland v Washington, 466 US at 688). In this regard, a defendant is required to "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment" (id. at 690). In turn, a "court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance" (id.). Because assessing an attorney's performance is a difficult task, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged act might be considered sound trial strategy" (id. at 689).

Furthermore, a court will not "second-guess whether a course chosen by defendant's counsel was the right trial strategy, or even a good one, so long as defendant was afforded meaningful representation" (People v Satterfield, 66 NY2d 796, 799-800 [1985]; see also People v Rivera, 71 NY2d at 708-09 ["A contention of ineffective assistance of trial counsel requires proof of less than meaningful representation, rather than simple disagreement with strategies and tactics"]; People v Gordon, 248 AD2d 634 [2d Dept 1998] [same]). Moreover, "[t]he right to counsel was not intended to afford a defendant, aided by the wisdom of hindsight, to second guess matters of trial strategy employed by counsel" (People v Sullivan, 153 AD2d 223, 227 [2d Dept 1990]) quoting People v Aiken, 45 NY2d 394, 399 [1978]). For "[i]t is always easy with the advantage of hindsight to point out where trial counsel went awry in strategy. But trial tactics which terminate unsuccessfully do not automatically indicate ineffectiveness" (People v Baldi, 54 NY2d at 146; see also People v Benevento, 91 NY2d at 712 ["counsel's efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective"]).

Finally, to demonstrate ineffective assistance of counsel in New York, a defendant is required to show that he or she did not receive a fair trial because counsel's conduct was both "egregious and prejudicial" (People v Benevento, 91 NY2d at 713). The Court of Appeals has expressly "recognized that a defendant's showing of prejudice [is] a significant but not indispensable element in determining whether the standard of meaningful representation was achieved" (People v Heidgen, 22 NY3d 259, 278-279 [2013] [internal quotations omitted]; see also People v Benevento, 91 NY2d at 714 ["whether defendant would have been acquitted of the charges but for counsel's error is relevant, but not dispositive under the State constitutional guarantee of effective assistance of counsel"]). The claim of ineffectiveness focuses on the fairness of the process as a whole rather than its particular impact on the outcome of a case (id.).Here, the Court finds that defendant's trial counsel, Barry Turner, provided defendant with the effective assistance of counsel and meaningful representation. The trial transcript and the record of the CPL 440 hearing as a whole demonstrate that counsel's strategy consisted of two equally important parts. First, trial counsel set out to undermine the People's identification evidence by casting Purser and Englebert as completely unreliable witnesses. Toward this end, trial counsel argued during his opening statement and on summation that Purser's equivocal identification testimony was weak and that Englebert's identification of a man on a bike, made when an ambulance was already at or near the crime scene, was completely irrelevant inasmuch as the timing of the observation by Englebert made [*63]it unlikely that the bicyclist was the shooter. In an effort to highlight the unreliability of the identifications, on cross-examination trial counsel challenged the witnesses' ability to perceive due to inadequate lighting, and highlighted how Englebert's testimony in the grand jury that the bicyclist was going at normal speed conflicted with his testimony at trial that the bicyclist was going fast.

Defendant's initial claim was that trial counsel, Barry Turner, was ineffective because he failed to move for a mistrial after Detective Weiser blurted out that a shell casing in the Stone homicide matched the ballistics in another homicide. Defendant's trial counsel, who had served as counsel in over fifty homicide cases, testified at the CPL 440 hearing, however, that he decided not to move for a mistrial, first and foremost, because he believed that defendant was going to be acquitted. The Court finds that this decision was an objectively reasonable strategy. Counsel's abiding belief that an acquittal was likely was reasonable given the equivocal identification testimony of Purser, the arguably unreliable identification testimony of Englebert and the exculpatory nature of the dying declaration — themes which were argued not only by Turner in his closing argument, but themes that were also argued by appellate counsel in her Appellate Division brief, invoking the Appellate Division's weight-of-the-evidence jurisdiction. The belief was also reasonable given that the "blurt out" occurred after the weaknesses in the identification testimony and the exculpatory nature of [*64]the dying declaration were exposed — that is, at a time when trial counsel had a sufficient opportunity to evaluate the import and strength of the People's case and to arrive at the reasonable belief that an acquittal was impending.

The Court finds that it was also reasonable for Turner to refrain from moving for a mistrial because he reasonably believed that the jury was not "really cognizant" of the "blurt out" given how fast it happened and how quickly he followed up with unrelated questions. Indeed, Turner's belief that the offending statement was fleeting is reflected by the trial judge's statement at side bar that Turner did not "hear" the "blurt out" as it happened, causing the trial judge to have [*65]the testimony "read back." Because Turner's CPL 440 testimony demonstrates that the passing offending statement was not so "prejudicial" that it "deprive[d]" defendant "of a fair trial," Turner's failure to move for a mistrial was legally and professionally sound (see CPL 280.10 [a defendant's motion for a mistrial must be granted "when there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, which is prejudicial to defendant and deprives him of a fair trial"]).Moreover, the trial transcript aptly demonstrates that Turner's decision not to "highlight" the unresponsive statement by immediately asking other questions after the "blurt out," by declining the court's offer for a curative instruction, and by requesting that the offending comment be stricken from the record, was not only reasonable — it was remarkably prescient. Indeed, by seeking to neutralize the statement in a coordinated manner, Turner ensured that the offending comment could not be repeated by the People during their summation and that the offending comment was not part of the record when the jury later asked for a read-back of Detective Weiser's testimony. By all accounts, this can only be described as good lawyering.

Furthermore, defendant has completely failed to demonstrate that trial counsel did not have a strategic reason for not moving for a mistrial. In People v Alexander, 109 AD3d 1083 (4th Dept 2013), the Appellate Division rejected the defendant's ineffective assistance of counsel claim because the defendant "failed to establish the absence of a strategic reason" for his trial attorney's failure to move for a mistrial or seek a curative instruction after "an outburst by the mother of the victim" which occurred "during the testimony of the victim's sister." Like defendant in Alexander, defendant here has failed to establish that counsel did not have a strategic reason for failing to request a mistrial. On the contrary, the robust hearing record details trial counsel's many strategic reasons.

Nor has defendant shown that he was prejudiced by trial counsel's actions or omissions. Indeed, even if Turner moved for mistrial, it is unlikely that the court would have granted the motion as there is nothing in the trial transcript to indicate that the "blurt out," which happened so quickly that the trial judge asked to have it read back, was so prejudicial that it deprived defendant of a fair trial. In this regard, Turner cannot be deemed ineffective for failing to make a motion that was not likely to succeed (see People v Walker, 115 AD3d 889 [2d Dept 2014]) quoting People v Ennis, 41 AD3d 271 [1st Dept 2004] ["A lawyer is not ineffective for failing to make a motion that is not likely to succeed"]; People v Cromwell, 99 AD3d 1017 [2d Dept 2012] [same]).

Accordingly, the Court finds that trial counsel provided defendant with the [*66]effective assistance of counsel and meaningful representation.

The Court likewise finds that counsel's failure to investigate a narcotics notebook found at the crime scene and a ballistics report did not constitute the ineffective assistance of counsel.

The federal standard governing ineffective assistance of counsel claims "require no special amplification" when a court is tasked with assessing an attorney's duty to investigate. It is well established that "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary" (Strickland v Washington, 466 US at 691). The duty to investigate, however, "does not . . . compel defense counsel to investigate comprehensively every lead or possible defense or to scour the globe on the off-chance something will turn up" (Greiner v Wells, 417 F3d at 321 quoting Rompilla v Beard, 545 US 374 [2005]). Ultimately, "strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigations" (Greiner v Wells, supra). And, oftentimes, an attorney's decision not to investigate [*67]rests on "defendant's own statement and actions" (id.). For that reason, "when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable" (id.; see also Sacco v Cooksey, 214 F3d 270, 275 [2d Cir 2000] [counsel's decision to refrain from introducing certain telephone calls into evidence was reasonable given the "potential downside" of that evidence, which was open to both an innocent and damaging inference]).

Under state law, the constitutional right of meaningful representation also requires counsel to conduct appropriate investigations (see generally People v Bennett, 29 NY2d 462 [1972]; People v Droz, 39 NY2d 457 [1976]). In People v Oliveras, 21 NY3d 339 (2013), the Court of Appeals held that an attorney provided the ineffective assistance of counsel when he failed to investigate certain psychiatric records that were critical to a defense premised on the proposition that defendant's mental weaknesses undermined the voluntariness of his admissions of guilt.The issue for the Court in that case was "whether the failure to secure and review crucial documents, that would have undeniably provided valuable information to assist counsel in developing a strategy during the pretrial investigation phase of a criminal case, constitute[d] meaningful representation as a matter of law" (id. at 348) (emphasis added).Because counsel in Oliveras advanced a defense about defendant's mental capacity without knowing the substance of defendant's psychiatric records, the Court found that counsel's decision not to investigate the documents was a "strategy" that was admittedly "born in the blind," and that there was "simply no legitimate explanation for th[e] purported strategy" (id. citing People Benevento, 91 NY2d 708 [1998]).

Initially, the Court finds that trial counsel investigated the narcotics notebook that was found at the crime scene. Although Turner testified at the CPL 440 hearing that he could not recall whether he had made a demand to review it, Turner "assumed" that he had made such a demand. Further, ADA Pomodore's testimony established that counsel did in fact make such a request. Indeed, ADA Pomodore contacted the detective who had recovered and later vouchered the notebook precisely because a defense request had been made. Unfortunately, since the notebook was vouchered in a precinct other than the precinct where the Stone homicide had occurred, the notebook was lost and could not be found. As a result, Pomodore informed Turner that she "exhausted all efforts" to find the lost notebook to no avail. By all accounts, Turner's inquiry into the whereabouts of the notebook, the existence of which was referenced in a DD5, demonstrates that trial counsel made every effort to conduct an investigation of all evidence in the case as he prepared for trial.

Significantly, although defendant strenuously maintains that Turner was somehow ineffective for failing to conduct an investigation into the "lost" notebook, defendant says nothing at all about what exactly trial counsel was supposed to do, or what the proposed contours or goals of the investigation should have been. And, of course, the Court itself is hard pressed to imagine what Turner could have done when the prosecutor told him that, after "exhaust[ing] all efforts," it was apparent to her that the notebook was irretrievably lost. If the purpose of the proposed investigation is to find the lost notebook, it is unclear what kind of inquiry could have been pursued given the fact that the recovering detective and others had already failed to locate the property after an exhaustive search. Under these circumstances, the Court declines to find Turner ineffective for failing to view property that was lost by law enforcement.

In any event, the CPL 440 hearing record establishes that Turner's alleged failure to investigate the notebook — that is, if there were any such failure — was objectively reasonable given the defense theory that defendant could not have been the shooter since Stone's dying declaration indicated that a drug dealer on a bike shot Stone. Trial counsel's considered decision not to pursue any reference to a notebook that "contained notations that referenced drug dealings" — which would have had the potential to "cloud up the trial with some sort of inference of drug dealing which could be construed" against defendant — not only made a further investigation of the lost notebook unnecessary, but it also demonstrates that the supposed omission was the product of sound professional judgment. Indeed, this sound professional judgment was likewise reflected in, and is consistent with, Turner's successful and strenuous opposition during trial to the People's Molineux application in which the People sought to introduce on their direct case defendant's conviction for third-degree criminal sale of a controlled substance. And trial counsel's testimony regarding his view of the notebook was completely consistent with ADA Pomodore's testimony that Turner believed the notebook was "radioactive" and that Turner was not "disturbed about the fact that it could not be found." Accordingly, counsel's strategy to have the notebook "kept out" of the trial because it "would hurt" defendant and "would have been prejudicial" to defendant, was, under the circumstances of the case, objectively reasonable and "in the best interest of" defendant.^[FN34]

Nor was defendant deprived of meaningful representation inasmuch as counsel's supposed failure to investigate the lost notebook was informed by his strategic desire to exclude any reference to narcotics so that the jury would not speculate that defendant was the unnamed drug dealer on the bike that Stone identified in his dying declaration. This explanation not only demonstrates that Turner's strategy was not "born in the blind," it simultaneously undermines defendant's argument that the failure to investigate the notebook was devoid of a legitimate strategy (see People v Cass, 18 NY3d 553, 554-556 [2012] [counsel's failure to object on summation did not constitute ineffective assistance of counsel because defendant failed to show the lack of a legitimate strategy]). Finally, because the notebook would not have "undeniably provided valuable information to the defense" (People v Oliveras, 21 NY3d at 348), counsel's supposed failure to investigate did not compromise the meaningful representation that he received at trial, or otherwise compromised defendant's right to a fair trial.Nor has defendant demonstrated that he was prejudiced under Strickland by counsel's action or omission, since defendant failed to show that there was a reasonable probability that the result of the proceeding would have been different had trial counsel investigated the lost narcotics notebook. Given the nature of a narcotics notebook — which according to Turner usually contains information about narcotic transactions, money, weight and dates but not the names of participants — there is no way to know for certain whether a review of the notebook found at the crime scene would have changed the result of the proceeding in any way. Furthermore, although defendant contends that the narcotics notebook could have allowed Turner to "develop potentially exculpatory evidence," and would have been "instrumental in Mr. Jones' defense," those contentions amount, in the end, to wishful thinking. Indeed, it is equally (or more) likely that such an investigation could have harmed defendant, whose criminal record included a conviction for the sale of a controlled substance and three convictions for the sale of marijuana (cf. People v Maldonado, 278 AD2d 513, 514 [2d Dept 2000] ["[I]t is hard to perceive of any defense strategy which would justify counsel's failure to interview and/or call witnesses who had exculpatory information which tended to exonerate the defendant and substantiate his defense"] [emphasis added]). Inasmuch as the notebook was not likely to strengthen the defense theory, counsel's supposed failure to investigate the lost narcotics notebook in no way undermined confidence in the outcome of the proceeding.

For similar reasons, counsel's failure to investigate the ballistics match connecting Stone's murder to the Rivera homicide was also objectively reasonable. [*68]Again, the CPL 440 hearing record is dispositive inasmuch as it demonstrates that Turner's omission (which Turner admits)^[FN35] was the product of sound professional judgment. Indeed, Turner testified that if he had received additional reports that demonstrated a ballistics match to an unsolved shooting or homicide, he would not have wanted the "jury to hear about" it because he would be concerned that the jury might infer or speculate that defendant was the perpetrator of both murders. Of course, that is precisely why trial counsel moved, in the first instance, to strike the unresponsive reference to the ballistics match during Detective Weiser's testimony. The potential prejudice arising from a jury inference or speculation that defendant was the perpetrator of both homicides is also the precise reason for one of the very claims defendant is currently raising in his motion to vacate (see Decision at 124-130 [ Failure to Move for a Mistrial]).

Furthermore, Turner testified that it was "possible" that he believed that if he made "noise" by demanding further documents related to the ballistics match, the People, upon a more diligent "review," may have "found something" that "would connect" defendant to the other homicide, and "it would come back to haunt" defendant. Ultimately, trial counsel's strategy was to create distance between defendant and an unsolved murder by failing to discuss the matter with the prosecutor, thereby avoiding or reducing the possibility that defendant would be inculpated for the commission of yet another homicide, which remained unsolved. The Court finds that trial counsel's strategy was objectively reasonable, particularly since trial counsel had no reason to believe that a more pro-active investigation in this regard would be helpful to defendant in his current murder case. Of course, if the ballistics match or other evidence in the Rivera file did tend to exculpate defendant in the Stone homicide, there was nothing inherently unprofessional in trial counsel's inclination to rely upon the People to promptly disclose the exculpatory information to trial counsel, as required by Brady.

Moreover, trial counsel's failure to investigate the ballistics match did not prejudice defendant. Even if trial counsel had conducted an investigation and obtained the additional documents which were disclosed to defendant after the in camera inspection (i.e., the fingerprint documents and other handwritten pages), defendant would not be able to demonstrate that there is a reasonable probability or possibility that the outcome of the proceeding would have been different. According to the People, the only "person of interest" in the Rivera homicide was [*69](and is) defendant — who the People describe as the "prime suspect" in the Rivera homicide.Indeed, the Court's review of the Rivera file confirmed the People's contention that defendant was a person of interest in the Rivera homicide after the ballistic link was discovered. Of course, this information would never have helped trial counsel as he prepared a defense in the murder of Stone.

Secondly, although the fingerprints lifted from a public railing on the boardwalk (above where the Rivera shooting occurred) did not match defendant's fingerprints, the absence of defendant's fingerprints on a public railing near the Rivera crime scene does not exculpate defendant in any way in the Stone homicide or raise even the slightest suspicion that someone other than defendant committed the Stone murder (see Decision at 143-160 [The Brady Claim Regarding the Ballistics Match and the Rivera File]). Nor would the other newly disclosed documents ^[FN36] have done anything else to help defendant other than frustrate trial counsel's effort to exclude all reference to the Rivera shooting (id.). Thus, because the Rivera file did not contain information that would have helped to advance the defense strategy, or that would have affected the defense strategy in any way, failure to further investigate the ballistics link would not have undermined confidence in the outcome of the proceeding.

For those same reasons, defendant was not deprived of meaningful representation as he cannot demonstrate that trial counsel's procurement of the additional ballistics reports or the additional reports in the Rivera file "would have undeniably provided valuable information to assist counsel in developing a strategy during the pre-trial investigation phase of the criminal case" (People v Oliveras, 21 NY3d at 348).

Of course, nothing of the sort could be said about trial counsel in defendant's case, where the un-obtained documents relating to the ballistics match and Rivera file were not in any way, shape or form, "critical" or "crucial" to the defense strategy of challenging the reliability of the identifications, or to any other defense, real or imagined. Indeed, the worst that could be said about trial counsel regarding this issue is that he failed to investigate that which he tried so hard to keep from the jury's ears — namely, any reference to a ballistics match involving an unsolved homicide. The second worst thing that could be said is that trial counsel had the audacity to actually rely upon the People to provide any additional further information or documents which may constitute Brady material.

Further, unlike trial counsel's failure to investigate in Oliveras, trial counsel's failure to investigate here was not inherently inconsistent with his defense strategy and theory in the case. If anything, the facts in Oliveras demonstrates why defendant's failure to investigate here did not deprive defendant of meaningful representation, the ineffective assistance of counsel, or defendant's right to a fair trial.

Defendant argues that "it is most likely that the same person shot both Mr. Rivera and Mr. Stone," and that the negative fingerprint results "makes it less likely" that defendant "killed either man" (Stone or Rivera), all of which therefore "undermines confidence in the jury's conviction of [defendant] for the Stone murder." The problem is that defendant's whole premise rests upon layers of false assumptions. First, defendant assumes that the same person committed both murders simply because of the ballistics link which indicated that shell casings in both homicides came from the same gun. This assumption "rest[s] on mere suspicion and surmise" (Primo at 357), and ignores the fact that the homicides were committed over a week apart and that the gun was never recovered. Of course, it also ignores the reasonable possibility that the firearm was transferred between different people some time after the Rivera shooting but before the Stone shooting. Defendant himself testified at the CPL 440 hearing about the ease with which he was able to buy firearms in other states and then sell them in New York. Indeed, defendant specifically admitted during the hearing that he himself had [*77]numerous guns in his apartment but sold them a week before the police arrested him. Common sense and practical experience dictates that sometimes a murderer will get rid of his weapon after he shoots someone — an obvious and unremarkable proposition which casts in doubt the validity of defense counsel's assumption that one person killed both Rivera and Stone. Of course, if defense counsel's assumption is accepted as true and reasonable, that would not bode well for defendant since defendant could then be charged with the murder of Victor Rivera, since a jury has already determined that he murdered Antoine Stone. Since a jury found beyond a reasonable doubt that defendant murdered Stone, defendant must have also killed Rivera since, according to defendant, the "same person shot" Rivera and Stone. But we know that the law does not accept these false assumptions.

In sum, the Court finds that defendant's Brady claim is without merit inasmuch as he failed to demonstrate that the newly disclosed material was both favorable and material to the defense.

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A.J.S.C.