Defendant moves, pro se, to vacate his judgment of conviction pursuant to CPL § 440.10 on numerous grounds, including claims that he is innocent and that he was denied the effective assistance of counsel. For the following reasons, the motion is denied.

On January 14, 2007, defendant beat his girlfriend, Claudette Marcellus, with a metal chair and a broom. He also punched and kicked her 12-year-old son, Brian Marcellus. Defendant was arrested and an order of protection was issued prohibiting defendant from contacting Claudette and Brian Marcellus. On May 4, 2007, while the order of protection was still in effect, defendant attacked both Ms. Marcellus and her son. Defendant stabbed Ms. Marcellus 35 times and Brian 15 times. Brian survived after recovering from his severe injuries but Ms. Marcellus died from her wounds shortly after the attack. Defendant was arrested in Dade County, Florida, and subsequently returned to New York.

For his crimes, defendant was charged under Kings County Indictment No. 5106/2007 with murder in the second degree (PL § 125.25[1]), attempted murder in the second degree (PL §§ 110.00/125.25[1]), assault in the first degree (PL § 120.10[1]), aggravated criminal contempt (PL § 215.52[1]) (two counts), criminal contempt in the first degree (PL §§ 215.51[b][I], 215.51[b][v], 215.51[b][vi]) (six counts), assault in the second degree (PL § 120.05[2]), criminal possession of a weapon in the fourth degree (PL § 265.01[2]) (four counts), and assault in the third degree (PL § 120.00[1]).

On December 16, 2009, the jury found defendant guilty of murder in the second degree, attempted murder in the second degree, assault in the second degree, assault in the third degree, and two counts of aggravated criminal contempt. On December 16, 2009, defendant was sentenced to two consecutive terms of imprisonment of twenty-five years to life for the murder and attempted murder convictions, two concurrent terms of one to three years for each of the aggravated criminal contempt convictions, and to two concurrent terms of seven years and one year for the assault convictions relating to the January incident, which are to run consecutively to the terms imposed in relation to the May incident. These sentences in aggregate added up to fifty-seven years to life.

Defendant has made one previous motion to vacate the judgment of conviction. On November 15, 2011, defendant moved pursuant to CPL § 440.10 on the basis of alleged ineffective assistance of counsel and other miscellaneous claims. He also requested DNA testing of two pieces of evidence recovered from the crime scene. On March 6, 2012, this court denied defendant's motion, finding that most of defendant's claims were based upon matters appearing in the record and thus should be raised on appeal. The Court also found that trial counsel had conducted a "rigorous and zealous defense" and that "none of the complaints of the defendant against counsel, the prosecutor or the court [were] factually correct." The court concluded that defendant's motion was "baseless on both the facts and the law." The court denied defendant's subsequent motion pursuant to CPLR § 2221(f) to renew and reargue his motion to vacate the judgment. The Appellate Division also denied defendant's request for leave to appeal (People v Dorcinvil, Decision and Order on Application, No. 2012-03026 [2d Dept, Jan. 29, 2013]).Defendant, represented by counsel, perfected his direct appeal in February, 2013, arguing that he was denied a fair trial by the admission of alleged hearsay evidence, the failure to receive a missing witness charge, and because the prosecutor's summation remarks appealed to the jury's sympathy. Defendant then filed a pro se supplemental brief on August 9, 2013, in which he raised five claims. According to defendant:

1) the trial court erred in permitting the child complainant, Brian Marcellus, to testify and in denying defendant's request for Brian's prior counseling records;

2) the trial court erred in admitting into evidence the surveillance video, a photograph of Ms. Marcellus after the first attack, and defendant's arrest photographs;

3) the trial court erroneously denied defendant's request for severance of the indictment;

4) the prosecutor introduced false testimony; and

5) trial counsel was ineffective because he did not request a Mapp hearing, failed to call an alibi witness, and did not call an expert to challenge the People's DNA evidence.

The Appellate Division affirmed defendant's judgment of conviction, finding that all of defendant's claims were either unpreserved or without merit (People v Dorcinvil, 122 AD3d 874 [2d Dept 2014], lv denied 25 NY3d 950 [2015]; request to reconsider denied June 15, 2015).

In this, his second motion pursuant to CPL § 440.10, defendant raises numerous claims alleging actual innocence, police bias, trial misconduct by the People, and ineffective assistance of defense counsel. Defendant relies upon newspaper articles about the murder to support his claim that the police engaged in misconduct and that he is innocent. He has also submitted an affidavit from Steven Renaud, who is incarcerated with defendant, claiming that he was with defendant the day before the murder. Finally, defendant seeks an order for DNA testing of material that was recovered from the crime scene.

Defendant has failed to state a claim of actual innocence. His claim amounts to no more than a restatement of his legal sufficiency challenge. "A prima facie showing of actual innocence is made out when there is a sufficient showing of possible merit to warrant a fuller exploration by the court" in a hearing (People v Woods, 120 AD3d 595 [2d Dept 2014], quoting People v Hamilton, 115 AD3d 12, 27 [2d Dept 2014]). " [A]ctual innocence' means factual innocence, not mere legal insufficiency of evidence of guilt, and must be based upon reliable evidence which [*2]was not presented at the trial" (Hamilton at 23). Here, defendant has failed to make the requisite prima facie showing because he has not submitted any factual allegations to support his claim of actual innocence. This lack of evidence also permits a court to deny a post-judgment motion without a hearing if it is "based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts" (CPL § 440.30[4][b]). To the extent that defendant is challenging the legal sufficiency of the evidence that led the jury to convict him of murder, the Appellate Division has already held that "there was overwhelming evidence of the defendant's guilt..." (People v Dorcinvil, 122 AD3d 874, 876-77 [2d Dept 2014]).

Moreover, the affidavit of Steven Renaud fails to demonstrate that defendant did not commit the crimes for which he was convicted. Renaud, whom defendant recently encountered at the Clinton Correctional facility, states in a January 7, 2015 affidavit that he has known defendant since 2006. Renaud is currently serving two consecutive sentences of fifty-seven years for his convictions of second-degree rape and first-degree course of sexual conduct against a child. According to the affidavit, Renaud was with defendant on the day before the murder and was in the car that drove defendant to Port Authority Bus Terminal to "take a train for Miami." Renaud has no personal knowledge of defendant's whereabouts on the day of the murder, nor of whether and when defendant actually traveled to Miami. Renaud's account is also self-contradictory because he alleges that defendant was dropped off at a bus station in order to take a train, when no trains pass through the Port Authority. While defendant was ultimately arrested in Miami on May 24, 2007 and returned to New York, he has offered no proof that he was in Miami on the day of the murder. Likewise, the news articles defendant submits in support of his claim of innocence, which describe the pursuit of defendant in relation with the brutal stabbings, fail to show either that the police acted improperly or that defendant did not commit the crimes.

A defendant in a criminal proceeding is constitutionally entitled to effective assistance of counsel (Strickland v Washington, 466 U.S. 668; People v Linares, 2 NY3d 507, 510 [2004]; see U.S. Const., 6th Amend.; NY Const., art. 1, §6). To prevail on an ineffective assistance of counsel claim under the federal standard, the defendant must be able to show that counsel's conduct was outside the "wide range of professionally competent assistance" (Strickland v Washington at 690). Second, the defendant must "affirmatively prove prejudice" by showing that were it not for counsel's unprofessional errors, there is a reasonable probability that the outcome of the proceeding would have been different (Strickland at 693). "The likelihood of a different result must be substantial, not just conceivable" (Harrington v Richter, 562 U.S. 86, 131 S.Ct. 770, 792 [2011]).

Under New York law, counsel's representation is adequate "so long as the evidence, the law, and the circumstances of a particular case, viewed in totality, and as of the time of the representation, reveal that the attorney provided meaningful representation" (People v Baldi, 54 NY2d 137, 147 [1981]; People v Benevento, 91 NY2d 708 [1998]). In New York "a defendant's showing of prejudice is a significant but not indispensible element in assessing meaningful representation" (People v Stultz, 2 NY3d 277, 284 [2004]). The prejudice component is "ultimately concerned with the fairness of the process as a whole" rather than the "particular [*3]impact" of counsel's advice "on the outcome of the case" (Benevento at 714; People v Caban, 5 NY3d 143, 156 [2005]). Accordingly, the reviewing court must separate ineffectiveness from "mere losing tactics" and the defendant must "demonstrate the absence of strategic or other legitimate explanation" for counsel's conduct (People v Baldi at 146; People v Rivera, 71 NY2d 705, 709 [1988]).

In this case, defendant claims that trial counsel was ineffective because he failed to 1) move for a Mapp hearing and for suppression of defendant's property; 2) move to strike a prospective juror who allegedly indicated actual bias during voir dire when she indicated that she was nervous about the case; 3) identify and interview potential alibi witnesses; and 4) call an expert witness to challenge the People's DNA evidence. All of these claims are both procedurally barred and without merit.

First, the claim that trial counsel failed to request a Mapp hearing is belied by the record (CPL § 440.30[4][d]). The Supreme Court file contains counsel's omnibus motion for discovery in which counsel requested a Mapp hearing. The People opposed the request because no property recovered from defendant was going to be introduced into evidence at trial. Thus, the court did not grant a hearing. Furthermore, defendant raised a nearly identical claim in his prior CPL § 440.10 motion, which the court rejected. This court's prior decision and order is now also a bar to defendant's attempt to re-litigate the same issue (CPL § 440.10[3][b]).

Defendant's voir dire claim is also procedurally barred and without merit. Defendant alleges that prospective Juror 12, Ramona Resilien, indicated an actual bias against defendant and that counsel should have made a for-cause or peremptory challenge to remove her. Defendant refers to a conversation during voir dire in which a person identified in the record only as "prospective juror", and addressed by counsel as "ma'am", stated "I think I'll be very nervous." When asked whether she could do the job, she replied, "I don't know. My stomach is bubbling already." However, there is nothing in the record or in defendant's motion to establish the identity of this juror, aside from her gender. Thus, defendant's claim is procedurally barred pursuant to CPL § 440.30(4)(b) because it is based on the existence or occurrence of facts, and defendant's moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts.

Counsel is not at fault for failing to challenge the prospective juror after she indicated that she was nervous about the subject case. Defendant bases his claim on the assumption that her remark indicated an inability to be fair and impartial. Here, the juror indicated that she was nervous at the prospect of serving on the jury, not that she was afraid of defendant or biased against him for a particular reason. She never stated that her nervousness would prevent her from being impartial (see People v Jones, 125 AD3d 403, 405 [1st Dept 2015] [prospective juror was not likely able to render an impartial verdict based upon the evidence where juror has revealed doubt, because of prior knowledge or opinion, about his ability to serve impartially]). Thus, counsel had no basis upon which to make a meritorious for-cause challenge solely because of this comment (see People v Caban, 5 NY3d 143, 152 [2005], quoting Stultz, 2 NY3d at 287 [2004] ["There can be no denial of effective assistance of trial counsel arising from counsel's failure to make a motion or argument that has little or no chance of success"]). Finally, given these considerations and the limited number of peremptory challenges available to trial counsel, the selection of jurors and the exercise of peremptory challenges are matters of valid trial strategy [*4]that remain in the province of counsel to decide, not defendant (see Peopel v Colon, 90 NY2d 824, 825-26 [1997]; People v Sprowal, 84 NY2d 113, 119 [1994]; see also People v Jackson, 59 AD3d 736, 737 [2d Dept 2009]).

Defendant's claim that trial counsel failed to investigate alibi witnesses is supported only by the affidavit of Steven Renaud, a fellow state prisoner incarcerated with defendant. This is the second time defendant has alleged that counsel failed to investigate potential witnesses, a claim that the court rejected in response to defendant's first CPL § 440.10 motion. As discussed with respect to defendant's claim of actual innocence, the Renaud affidavit fails to exonerate defendant or provide him with an alibi in any way. Even if counsel had access to the statement Renaud now offers, Renaud's lack of specific knowledge regarding defendant's whereabouts at the time of the crime would not have given him reason to pursue an alibi defense. All Renaud could have done is place defendant in mid-town Manhattan on the day before the crime, evidence which would not have precluded defendant's commission of murder a day later. Thus, counsel is not ineffective for failing to pursue Renaud's account and those of the other unidentified individuals whom defendant references (Baldi, 54 NY2d 137, 147 [attorney whose client offers a weak alibi defense may choose another strategic tack]; People v Park, 229 AD2d 598, 599 [2d Dept 1996 [where defendant offered a weak alibi defense, counsel had a valid tactical reason for not pursuing that defense]).

Defendant's claim that counsel was ineffective for failing to call an expert witness on DNA evidence is procedurally barred and without merit. This claim, in addition to his request for DNA testing of a jacket and shirt that were tested by the Office of the Chief Medical Examiner, has already been denied by this court. In his first motion to vacate the judgment of conviction, this court rejected both of these claims, finding that defense counsel had "conducted a vigorous and zealous defense" and that "...none of the complaints of the defendant against counsel, the prosecutor or the court are factually correct." Accordingly, this court declines to revisit those claims pursuant to CPL § 440.10(3)(b).

Defendant has also failed to establish any of the factors that would necessitate testimony by an expert, such as a lack of corroborating evidence connecting defendant to the crime or a need to provide expert testimony "on a topic beyond the ken of the average juror" (People v LeGrand, 8 NY3d 449, 452 [2007]; see People v Santiago, 654 17 NY3d 661, 669 [2011]). Rather than moving to call an expert witness, a motion which the court would have surely denied, defense counsel mounted a strenuous challenge by attacking the reliability of the eyewitness identification through cross-examination. Such a strategy has been deemed "a legitimate trial tactic which should not be second-guessed" (People v McDonald, 79 AD3d 771, 772 [2d Dept 2010]; see People v Baston, 181 AD2d 786, 787 [2d Dept 1992]). Accordingly, where defendant has failed to establish any lack of strategic explanation for counsel's conduct, defendant's claim is without merit (People v Rivera, 71 NY2d 705, 709 [1988]).

Defendant's claim that the People violated their obligations pursuant to Brady v. Maryland, 373 U.S. 83 (1963) is procedurally barred because it relies on a misapprehension of the facts. Defendant argues that the People failed to turn over property taken from him at the Dade County Jail including a bible, driver's license, New York identification card, debit card, [*5]business card, and sunglasses. Defendant further contends that when counsel demanded all Brady material in the omnibus motion, the People replied that no property was recovered from defendant and therefore failed to turn over any property to the defense. It appears from this argument that defendant has misapprehended the relevant facts in this case. Testimony concerning the recovery of defendant's jacket and wallet were adduced at trial. That property was recovered on the day of the crime, but defendant was not apprehended at that time. Inside the victims' apartment, Detective Forte recovered a bloody black, red and white jacket with a wallet inside that contained defendant's identification cards.

The testimony concerning defendant's subsequent custody in Florida, about a month after the crime, was adduced during the pre-trial suppression hearing. According to the record, several personal items were listed on a receipt from the Dade County Jail: sunglasses, a visor-type cap, miscellaneous papers and $60. Whatever property defendant had in possession when he was arrested in Miami could not have been the crime scene evidence that the police had already recovered in Brooklyn. As defendant's discovery violation claim is based on the erroneous assertion that the People used the "unreturned" Miami arrest property at trial, the court must reject defendant's argument (CPL § 440.30[4][c] [the court may summarily deny a motion where an allegation of fact essential to support the motion is conclusively refuted by unquestionable documentary proof]). In any event, to the extent that defendant claims that the seized property should have been returned to him, CPL § 240.20(1) does not require the return of any such property. Rather, it provides that the People "shall disclose to the defendant, and make available for inspection, photographing, copying, or testing" the items in question.

Defendant further seeks DNA testing, pursuant to CPL § 440.30(1-a)(a)(1), of a white jacket recovered from the bedroom and a black shirt recovered from the entryway to 2665 Bedford Avenue. Defendant raised this very same claim in his first motion to vacate the judgment of conviction, which was denied by decision and order dated March 6. 2007. This 2007 order is now a bar to defendant's claim, which this court will not review again (CPL § 440.10[3][b] [the court may deny a motion to vacate judgment where "ground or issue raised upon the motion was previously determined on the merits upon a prior motion or proceeding..."]). Moreover, the items identified by defendant were already tested by the Office of the Chief Medical Examiner. Although defendant claims the jacket in question did not belong to him, the trial evidence indicated that his DNA profile was in the scrapings taken from the jacket and that the jacket pocket contained defendant's wallet, passport, identification card and other papers. The Criminal Procedure Law does not contain any provision for retesting of evidence for DNA material (see CPL § 440.30[1-a][a][1]; People v Holman, 63 AD3d 1088 [2d Dept 2009]). Here, where DNA testing was conducted in this case and the results did not exonerate or tend to exonerate defendant, defendant has failed to show that there would have been a more favorable result at trial were the items retested and the results admitted at trial (see CPL § 440.30 [1-a][a][1]).

For all of the foregoing reasons, the motion is denied.

This constitutes the Decision and Order of the court.