Defendant Robert Maffei moves to set aside his conviction pursuant to CPL § 440.10 or, in the alternative, for a hearing. The People oppose. Defendant has replied.

Following a jury trial, defendant was convicted of depraved indifference murder and sentenced, on May 21, 2008, to a prison term of 25 years to life (Holdman, J., at trial and sentence).

Defendant raises a single claim in his motion, that his trial attorney was ineffective for failing to challenge prospective juror number 10 during jury selection.

Jury selection commenced on April 16, 2008, with the examination of the first panel of 16 prospective jurors, including prospective juror number 10. This juror informed the court that he worked construction, had never served on a jury, and had an uncle and a cousin in law enforcement in Puerto Rico.

In response to a question by the court, prospective juror number 10 responded that he had previously been charged with possession of marijuana and sentenced to community service, assuring the court that that experience would not cause him to be unfair in this case.

The court questioned two other prospective jurors about their prior experiences as crime victims, excusing them when they were unable to state that those experiences would not affect their ability to be fair and impartial. The parties did not object, and they were replaced.

Defendant's claim centers on prospective juror number 10's statement to the prosecutor when he questioned members of the panel about their ability to be fair. Upon providing a synopsis of the case, the prosecutor asked the prospective jurors whether there was anything in their backgrounds that might affect their ability to be fair and impartial. In response, prospective juror number 10 requested to speak and informed the prosecutor that he thought that he had read about the case in the newspapers and he "kind of" made up his mind. The prospective juror opined, "Didn't like the circumstances. I remember reading about it, making a decision kind of in my own head at the time." The prosecutor further questioned him, and the following exchange ensued:

[Prosecutor]: You understand it's up to me now to prove to you, beyond a reasonable doubt, who is the actual person that actually did it, right?

[Juror]: Right.

[Prosecutor]: You might have made up your mind. I believe that was a really bad act. I didn't like the way it happened. Do you understand I have to prove who did it?

[Juror]: Yes.

The court intervened, explaining that the jury would be instructed to avoid any media coverage of the case. The court further instructed this prospective juror that, although "[t]here's nobody here who is in favor of someone being shot to death in most circumstances," it is the burden of the prosecutor "to prove that this is the person who did that. Okay? You can remain fair and impartial?" When the prospective juror responded, "I hope so," the court attempted to get a more definitive answer, to which the juror replied, twice, "I am not sure."

The prosecutor later explained to the prospective jurors the difference between depraved indifference murder and intentional murder, informing the panel that the crimes involved the same punishment. When the prosecutor asked the panel if they thought this was so unfair that they could not follow the law, prospective juror number 10 responded, "I feel if it's a good case, I'll go by the law."

The prosecutor further questioned this prospective juror about his prior arrest for marijuana, asking him if he felt the police had treated him fairly. Prospective juror number 10 replied that he was treated fairly "[a]t one point" but not at the "[t]ime I was arrested," although he was not angry about the incident. When questioned about his relatives in law enforcement, he indicated that he did not speak to them about their cases and that he would judge police officers as any other witnesses.

Defense counsel proceeded to speak to the prospective jurors, reminding them about the presumption of innocence and that the People must prove defendant guilty beyond a reasonable doubt, asking, "Can each of you absorb and apply that rule of law that's been told to you this morning? Anyone who cannot?" He asked several prospective jurors for their assurance that they would follow the law regarding defendant's 5th Amendment privilege and not hold it against him should he choose not to testify. Seven unnamed jurors said they would follow the law, while one unnamed juror indicated, "I am not sure I wouldn't want him up here to hear his version and to evaluate as well as listening to all the other stuff."

Defense counsel further asked the prospective jurors, individually and collectively, about their personal exposure to law enforcement, their experience with handguns, and whether they would be surprised if witnesses appeared before them, swore to tell the truth, and proceeded to lie on the stand.

Defense counsel asked four unnamed prospective jurors whether they would be willing to acquit defendant if the prosecution did not meet its burden of proof. All four answered yes. Finally, counsel asked the entire panel to answer, by a show of hands, if they, as individual jurors, would be able to "stick to the courage of [their] convictions," even if each were the sole juror who did not believe that the prosecutor had proven defendant's guilt beyond a reasonable doubt. Counsel further asked each prospective juror for the assurance that he or she would be [*2]"accountable to the job you've been asked to do" and, conversely, urged those who could not to notify him by a show of hands.

After the conclusion of the first round of questioning prospective jurors, the trial court proposed that five jurors be excused for cause. A further discussion ensued between the court and the parties about the prospective jurors who had failed to raise their hands in response to defense counsel's question about whether they could stick to their convictions. The court pointed out that one of the jurors had failed to raise her hand. Defense counsel informed the court that another prospective juror also did not raise his hand. The court responded, "That was an oversight on my part. He's also released on consent."

Six prospective jurors were excused for cause on consent of the parties. Two were excused because they had failed to raise their hands, thereby not assuring defense counsel that they could be steadfast if they believed the prosecution failed in its burden. Prospective juror number 10 was not identified as one of these jurors, thus demonstrating that he had answered defense counsel's question affirmatively. Neither the court nor the parties sought to excuse prospective juror number 10 for cause.

There were no further cause challenges by either party in this round of jury selection. The prosecutor peremptorily challenged three prospective jurors. Defense counsel conferred with his client and then peremptorily challenged three prospective jurors. The parties consented to seating three men and one woman on the jury. Prospective juror number 10 was seated as juror number four.

After the second round of jury selection, the parties consented to the court's proposal that one of the prospective jurors be excused. Additionally, defense counsel proposed that "number 7 and number 16" also be excused for cause. The prosecutor concurred, stating that number 7 "believes he would give a leg up to police officers if they testify," and number 16 believed that the police treated her husband unfairly during his arrest, and "it would be in the back of her mind." Both prospective jurors were excused on consent. The prosecution peremptorily challenged three prospective jurors. Defense counsel peremptorily challenged seven prospective jurors. The parties consented to seating three additional men and one woman on the jury.

At the conclusion of the third and final round of jury selection, the court proposed removing eight jurors for cause, to which the parties agreed. Defense counsel peremptorily challenged prospective juror number 9. The prosecution did not exercise any peremptory challenges in that round. When the prosecutor objected to one prospective alternate juror, the parties consented to seating three alternate jurors. After speaking with his client, defense counsel withdrew his previous peremptory challenge to prospective juror 9. The court questioned the defendant:

The Court: Mr. Maffei, you have discussed this with [counsel]?

The Defendant: Yes

The Court: You understand that you exercised your right to a peremptory challenge to juror 9 previously. But now you withdraw that peremptory challenge and are agreeing [to] seat him as number 4 alternate, is that right?

The Defendant: Yes, sir.

With that, prospective juror 9 was seated as alternative juror four, and the entire jury was sworn. The jury consisted of eight men and four women. The alternate jurors consisted of three men and one woman.

The People presented evidence that, on May 17, 2003, at approximately 2:40 AM, defendant, seated in the backseat of a white Lincoln, fired a single gunshot into a Subaru, striking and killing one of its passengers.

Defense counsel articulated a theory that defendant was not the shooter and that the prosecution's witnesses were lying about the events surrounding the shooting. This theory was consistent throughout defense counsel's opening remarks, his cross-examination of the People's witnesses, and his summation. Trial counsel cross-examined the People's witnesses, highlighting inconsistencies in their testimony, while pointing out the lack of cooperation of several eyewitnesses. In support of his theory, defense counsel obtained subpoenaed cell-phone records of the occupants of the Subaru and used those records to cross-examine them. For example, in his cross-examination of the first witness called by the prosecution—a passenger in the Subaru—defense counsel attacked his credibility by showing that, instead of calling the police, this witness made cell-phone calls to someone located at West 33rd Street in Brooklyn immediately after the shooting, contradicting his earlier testimony that he had made those calls prior to the incident.

Defense counsel further called witnesses on defendant's behalf to challenge testimony of prosecution witnesses. For example, defense counsel called the original firearms analysis detective, who had retired, to contradict testimony as to the caliber of the recovered bullet, thereby calling into question whether the recovered bullet matched the type of gun stated to have been used by defendant. Defense counsel also called a witness whose testimony suggested that the shooter was in a green Lincoln, rather than the white Lincoln as to which the People's witnesses had testified.

Additionally, defense counsel called a private investigator to introduce photographs depicting a hole in the roof of the victim's vehicle which the police investigators had apparently not observed, and who further testified that he timed and measured the mileage between Coney Island Hospital and two distinct locations—West 33rd Street and the Belt Parkway—to support defense counsel's theory that the shooting had happened at a different location and in a different manner than the People's witnesses had claimed.

And, as noted, during voir dire, defense counsel not only emphasized the People's burden and defendant's right to remain silent, but asked prospective jurors about their thoughts on law enforcement, guns, and witness credibility, among other efforts to determine which jurors he wished to seat, but also struck 10 prospective jurors peremptorily (before returning one challenge to seat that individual as an alternate) and several more for cause, including three whom the trial judge had omitted to identify as jurors whose answers to the voir dire demonstrated that they were unqualified to serve.

The court submitted two counts to the jury: murder in the second degree (depraved indifference) and manslaughter. Defendant was convicted, upon a jury verdict, of second-degree murder.

Defendant's conviction was unanimously affirmed by the Appellate Division, Second Department (People v Maffei, 165 AD3d 1173 [2d Dept 2018], aff'd 35 NY3d 264 [2020]). As to the ineffective assistance of counsel claim, the court found that, since it was "not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of [*3]counsel . . . a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety" (id. at 1174).

On January 31, 2019, defendant was granted permission to appeal to the Court of Appeals (People v Maffei, 32 NY3d 1174 [2019] (Rivera, J.). By a six to one vote, the Court of Appeals affirmed the Appellate Division (People v Maffei, 35 NY3d 264 [2020]). The argument presented to the Court of Appeals was the argument presented here - that prospective juror number 10's statements during voir dire reflected "actual bias against defendant" precluding him from rendering an impartial verdict, therefore rendering trial counsel ineffective for failing to strike him. Instead, the Court determined that, when viewing the record in totality, it "does not show a substantial risk that the prospective juror would not properly discharge his responsibilities, nor does it cast doubt on his ability to be fair" (id. at 272, citing People v Barboni, 21 NY3d 393, 407 [2013]). The Court found that "defendant has failed to demonstrate, on this record, 'the absence of strategic or other legitimate explanations' for counsel's alleged error," concluding, as had the Appellate Division, that a CPL 440.10 motion was the proper vehicle for litigating defendant's claim (id. at 273, citing Barboni, 21 NY3d at 405-06; see People v Sposito, 30 NY3d 1110, 1111 [2018]).

While defendant questions several other trial decisions made by defense counsel, his motion here, submitted subsequent to the Court of Appeals' instruction that a CPL 440.10 motion was the proper vehicle, is based on the sole claim that his trial attorney was ineffective for failing to challenge prospective juror number 10 during jury selection; in other words, that this single alleged failing was so egregious that it compromised his right to a fair trial.

Initially, this court notes that defense counsel provided a vigorous defense, capably arguing motions, including a Sandoval application. He actively participated in the voir dire of prospective jurors, as noted, striking many peremptorily, consulting with his client, and, in addition to agreeing to striking many for cause, pointed out three whom the trial judge had overlooked as not being fit for jury service. He made a cogent opening statement, asserted appropriate objections to the People's evidence, and skillfully cross-examined the People's witnesses. He called witnesses on behalf of defendant and affirmatively sought to prove, through subpoenaed phone records and defense witnesses, that the shooting had actually occurred at a different time and place than testified to, and that defendant was not the shooter. His summation articulated his specific theory of the case and highlighted the weaknesses of the People's evidence.

Nonetheless, this court recognizes that "[a] single error may qualify as ineffective assistance, but only when the error is sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial" (People v Caban, 5 NY3d 143, 152 [2005]). Such a case is rare and "counsel's efforts should not be second-guessed with the clarity of hindsight" (People v Turner, 5 NY3d 476, 480 [2005] [lawyer overlooked "a defense as clear-cut and completely dispositive as a statute of limitations" [id. at 481, citing People v Benevento, 91 NY2d 708, 712 [1998]]).

Despite defendant's arguments to the contrary, it is well settled that "[t]o prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of a strategic or other legitimate explanations" for defense counsel's allegedly deficient conduct (People v Rivera, 71 NY2d 705, 709 [1988]). The burden, in other words, is on a defendant to show that there was no legitimate explanation for defense counsel's alleged error or, put differently, that, "[v]iewed objectively, the transcript and the submissions reveal the [*4]existence of [no] trial strategy that might have been pursued by a reasonably competent attorney" (Barboni, 21 NY3d at 406, citing People v Satterfield, 66 NY2d 796, 799 [1985]).

Thus, defendant here must demonstrate the absence of a strategic explanation for defense counsel's purported failure to challenge prospective juror number 10 (Barboni, 21 NY3d at 406, citing Rivera, 71 NY2d at 709; see also People v Smith, 193 AD3d 1260 [3rd Dept 2021], citing People v Brown, 169 AD3d 1488, 1490-91 [4th Dept 2019], lv denied 35 NY3d 1064 [2020]).

Further, defendant's "ineffective assistance claim cannot succeed without a showing that the fairness of the trial was impaired" (People v Thompson, 21 NY3d 555, 560 [2013], citing People v Stulz, 2 NY3d 277, 283-84 [2004]; People v Benevento, 91 NY2d 708, 713 [1998]). Defendant can prevail on his claim "only by showing that this is one of those very rare cases in which a single error by otherwise competent counsel was so serious that it deprived defendant of his constitutional right" (Thompson, 21 NY3d at 559, citing People v Turner, 5 NY3d 476, 478 [2005] [counsel ineffective who failed to raise a clear-cut statute of limitations defense]). Defendant has failed to do so.

In his motion, defendant again asserts nothing other than the claim previously rejected by both the Appellate Division and the Court of Appeals—that prospective juror number 10 was actually biased against him, and that trial counsel's failure to remove him was therefore sufficiently egregious, in itself, to constitute ineffective assistance.

In People v. Maffei, 35 NY3d 264, 273-274 (2020), the Court found that no actual bias was evidenced on the record and concluded that "where the trial record does not reveal that the juror was actually partial to one side, defendant cannot use the absence of a challenge to the juror in question to now argue that counsel was ineffective on an incomplete record." The Court defined an actual bias as "one that precludes a juror from rendering an impartial verdict based upon the evidence adduced at trial" (id. at 270, citing CPL 270.20 [1] [b]; see Murphy v Florida, 421 US 794, 799-802 [1975]; see also People v Torpey, 63 NY2d 361, 366 [1984]).

Addressing prospective juror number 10's disquiet from having read pretrial publicity about the case, the Court r ejected defendant's argument that the juror's statements during voir dire reflected "actual bias against defendant predicated on any evidence precluding the juror from rendering an impartial verdict, as opposed to general discomfort with the case based on media coverage" (Maffei, 35 NY3d at 271). Instead, the Court concluded that "the juror's verbatim statements did not reveal what about the case gave rise to his uneasiness," for example, "whether it be the seemingly random nature of the shooting, the defendant's or victim's identity, or the manner in which the police investigated" (id.).

The Court pointed out that the prospective juror did not "convey that his uneasiness was connected to any particular personal experience or relationship, or whether his impressions risked predisposition towards prosecution or defense" (id.). The Court also noted that both the prosecutor and the trial court, upon questioning the juror, emphasized that the case "turned not on a dispute about the nature of the crime but on the prosecutor's ability to prove this defendant committed it—an issue not impacted by the juror's apprehension" (id.).

The Court rejected the contention that prospective juror number 10 could not be fair and impartial because he initially equivocated when questioned, pointing out that that exchange happened early in the voir dire, and emphasizing that in response to a later question by the prosecutor about depraved indifference murder, the prospective juror gave more definitive [*5]answers, stating he could "go by the law" "if" he felt it was a good case.^[FN1] The juror also responded that he would view police testimony just as that of any other witness (id. at 272).

Finding no actual bias in the record,^[FN2] the Court proposed that "additional statements by the prospective juror and matters outside of the record could have provided defense with reasons to retain the juror." Accordingly, the Court identified factors outside the record that may have made this prospective juror attractive to trial counsel (id.).

The Court determined that although the record failed to show the identity of the four prospective jurors who responded affirmatively to defense counsel when asked if they could acquit defendant if the People presented insufficient evidence of guilt, defendant "does not get the belated strategic benefit of his silence by now arguing on direct appeal, without support of the record, that prospective juror number 10 was not one of them" in the absence of a challenge at trial (id.).

Moreover, the Court emphasized that several prospective jurors were excused on consent of the parties for failing to raise their hands in response to defense counsel's collective questions to the panel meant to discover if any bias existed against defendant. Consequently, as to prospective juror number 10, the Court determined, "this juror evidently answered in the affirmative" (id.). Thus, although the trial court and the parties discussed and ultimately excused several prospective jurors who failed to raise their hands to affirmatively dispel defense counsel's concerns, prospective juror number 10 was evidently not one of these jurors, not having been challenged by either the trial court or the parties.

Finally, the Court noted that since the record was silent as to what was said between [*6]defendant and his counsel immediately before defense counsel peremptorily struck certain prospective jurors, the Court did not know what they said nor "how that conversation may have affected counsel's impression of prospective juror number 10" (id.).

As to defendant's criticism of defense counsel's use of collective questioning of the jury, the Court of Appeals described as "misplaced" (id. at 269) defendant's analysis of counsel's decision not to challenge prospective juror number 10 for his lack of an unequivocal assurance that he could be fair despite exposure to media coverage, after that juror had evidently satisfactorily responded to collective questions put to the panel. The Court stated that this situation was not akin to the individual assurance of fairness that is required where the record demonstrates a juror's bias and inability to give an unequivocal assurance of fairness and has been challenged for cause. As the Court explained, "[I]t does not follow that defense counsel is constitutionally ineffective for failing to challenge a juror after generally asking such questions of the entire venire, and receiving satisfactory answers" (id.). The Court further emphasized that the defense may have wanted prospective juror number 10 to sit on the jury, and "the court does not have room to err on the side of caution in this way without risking impingement of the defendant's right to choose his . . . jury" (id. [emphasis supplied]).

Concluding that the voir dire record is "inadequate to support anything more than second-guessing the reasonableness of counsel's decision," the Court instructed defendant to pursue his claim by means of a CPL 440.10 motion (id. at 273).

Despite the rejection of the record-based appeal and the instruction to amplify the record on a 440 motion, defendant merely repeats here the same on-the-record argument, namely, that prospective juror number 10 was biased, that the appellate courts rejected on the merits.

Further, despite defendant's complaint about his having to shoulder the burden, claiming it to be "an apparently impossible task," the law is clear that, "[t]o prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's failure" (Barboni, 21 NY3d at 405, citing Rivera, 71 NY2d at 709). Here, defendant has failed to do so. Noticeably missing is any showing that prospective juror number 10's presence on the jury was so egregious and prejudicial that it compromised defendant's right to a fair trial (see Caban at 152; Thompson at 561).

Trial tactics which terminate unsuccessfully do not automatically indicate ineffectiveness. 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, the constitutional requirements will have been met (People v Baldi, 54 NY2d 137, 146-47 [1981]).

As the Court of Appeals noted in the appeal of this conviction, trial counsel may have wanted prospective juror number 10 to sit on the jury (see Maffei, 35 NY3d at 273). "[J]ury selection involves the quintessentially tactical decision of whether defendant's interests would be assisted or harmed by a particular juror" (People v Horton, 181 AD3d 986, 997 [3rd Dept 2020], citing People v Molano, 70 AD3d 1172, 1176 [3rd Dept 2010] [internal quotation marks and citation omitted], lv denied 15 NY3d 776 [2010]). For instance, in Barboni, the Court of Appeals noted that defense counsel may have been influenced by the juror's demeanor, which "may include such entirely nonverbal clues as eye contact and posture" (Barboni, 21 NY3d at 406).

Substantively, defendant's ineffective assistance of counsel claim must be summarily denied, as defendant's motion papers do not contain sworn allegations of fact tending to prove that counsel's decision to retain prospective juror number 10 was not based on a legitimate [*7]reason, such as one of those identified by the Court of Appeals. Instead, other than mischaracterizing as "speculative" the reasons given by the Court (which merely suggested avenues for the defense to explore on a 440 motion), defendant's current attorney submits only an affirmation that recounts that trial counsel told him that he (understandably, in the court's view) had no "independent recollection" — 13 years after the trial - as to why he had decided to keep prospective juror number 10. That lack of recollection does not demonstrate that 13 years ago he lacked a strategic reason for not challenging prospective juror number 10.

On the contrary, in the absence of a showing of the lack of any legitimate strategy, "it will be presumed that counsel acted in a competent manner and exercised professional judgement" (Barboni, 21 NY3d at 406, citing Rivera, 71 NY2d at 709).

Nor does the bare-boned affidavit from defendant—the only other submission that was produced in response to the Court of Appeals' instruction to complete the record—create an issue of fact that would necessitate a hearing. The affidavit merely claims that trial counsel did not consult with him about selecting prospective juror number 10, and that he did not ask his attorney to keep that juror. Even if those statements are true, they do not demonstrate that trial counsel lacked a legitimate reason for retaining the prospective juror.

Again, although the trial record clearly shows that counsel conferred with his client prior to peremptorily challenging three jurors in the round in which prospective juror number 10 was selected, and although "[a] defendant's view at trial about a prospective juror as conveyed to counsel are relevant to an ineffectiveness claim based on the joint decision to accept that juror" (see Maffei, 35 NY3d at 272), defendant's statements provide no support for his claim that trial counsel had no legitimate reason to retain prospective juror number 10.

In sum, defendant has made no showing of the possible merit of his claim of ineffective assistance of counsel to warrant a hearing. Defendant fails to "demonstrate the absence of strategic or other legitimate explanation for counsel's allegedly deficient conduct" (see Rivera, 71 NY2d at 709). This court concludes that defendant has failed to substantiate his claims with any evidence (CPL 440.30 [4] [b]) and has not shown in either the trial record or the supplementation afforded by the present motion that he was denied "meaningful representation" (Stulz, 2 NY3d at 283).

A review of some of the relevant caselaw demonstrates that courts cannot, without evidence, as defendant here would have this court do, assume that an error occurred "without risking impingement of the defendant's right to choose his . . . jury" (Maffei, 35 NY3d at 273).

For example, in People v. Thompson, 21 NY3d 555, 558 (2013), the Court of Appeals held that "a failure to exercise a peremptory challenge against a juror who was a longtime friend of the prosecuting attorney did not amount to ineffective assistance of counsel." There, significantly, the defense had challenged the juror for cause. Although the trial court denied the challenge, defense counsel did not strike that juror peremptorily. As the Court of Appeals reasoned,

defense counsel may reasonably have thought [the juror] an acceptable juror from the defense point of view. Defense counsel may have liked [his] demeanor, or may have believed that his relationship with the prosecutor would make him bend over backwards to be fair . . . . [L]awyers selecting juries are not ineffective because they make unconventional choices or play hunches.

To the same effect is People v. Hecker, 15 NY3d 625 (2010):

We observe that jury selection is, if not an art, an inexact science. In general, as a review of all these cases bears out, it is impossible to learn everything about a particular prospective juror during the screening process. Consequently, in deciding whether to challenge a prospective juror, the parties often rely on past experiences or "gut feelings" in making their selections. So long as race or gender is not a factor in the decisionmaking process, the parties are free to exercise their allotted peremptory challenges as they deem appropriate.

The Barboni case, previously cited, is particularly instructive in this regard. There, a prospective juror indicated that he was unsure whether he would give more credence to a police officer than a civilian witness (Barboni, 21 NY3d at 397). On appeal, the defendant claimed, similarly to the claim made here, that no competent attorney would fail to challenge such a juror. The Court of Appeals rejected that assertion:

We disagree. A defense counsel may legitimately decide not to challenge a prospective juror in such circumstances because the prospective juror is attractive to the defense in other respects, which outweigh his or her willingness to attach more credibility to police officers' testimony when it directly contradicts civilian testimony. This is particularly likely in a case, such as this one, where there was no expectation of a conflict between the police officers' and civilians' testimony, such that defense counsel would seek to undermine police testimony. "The record does not reveal on what basis counsel might have concluded that" the prospective juror was a "desirable juror[ ] for the defense, and that further inquiry was unnecessary. In particular, counsel may have been influenced by the[ ] juror['s] demeanor, which is not reflected in the record" (People v Vilfort, 33 AD3d 368, 369, 822 NYS2d 62 [1st Dept 2006]). Demeanor may include such entirely nonverbal cues as eye contact and posture . . . . Importantly, the record does not show a substantial risk that the prospective juror would not properly discharge his responsibilities, nor does it cast doubt on his ability to be fair. In sum, defendant's ineffective assistance argument fails because he does not meet his burden of showing the absence of a legitimate explanation for the perceived error.

Here, as in Barboni, prospective juror number 10's discomfort with pretrial publicity would not be expected to affect his decisionmaking, in particular because the defense theory was that defendant was not the shooter. Here too, as in Barboni, prospective juror number 10's demeanor is not reflected in the record and may also have contributed to defense counsel's finding him attractive (as he may also have, for example, because prospective juror number 10 recounted a poor interaction with the police at the time of an arrest or, as noted in footnote 1, supra, he demonstrably understood the People's burden). To the extent that there are gaps in this record, the burden on this motion is on defendant to fill them.

In that regard, even defendant at least implicitly acknowledges that the burden is squarely on his shoulders to identify, by expanding the record if necessary, the absence of a legitimate [*9]reason for counsel's alleged failure to strike a juror. As the Court of Appeals recently reiterated, "The burden of proof is on the defendant" on a 440 motion (People v Tiger, 32 NY3d 91, 99 [2018]). Despite defendant's (telling) request that this court switch the burden, "[c]ourts, of course, cannot broaden the scope of the remedy afforded by CPL 440.10 beyond what the Legislature unambiguously specified" (id. at 100 [citations omitted]). The rationale for this rule is that there is a societal interest in the finality of judgments, and a convicted defendant "no longer enjoys the presumption of innocence and, in fact, is presumed guilty" (id.; see also People v Taylor, 1 NY3d 174, 177 [2003] [incumbent on defendant to demonstrate absence of explanation for counsel's supposed failure]).^[FN3]

Indeed, the United States Supreme Court has stated, in language fully applicable here, "the absence of evidence cannot overcome the 'strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance'" (Burt v Titlow, 571 US 12, 23 [2013] [quoting Strickland v Washington, 466 US 668, 689 [1984]]). Here, the court has nothing before it but the "absence of evidence." Although invited to expand the record by the Court of Appeals, defendant submitted a motion bereft of "evidence" of ineffectiveness.^[FN4] Instead, only the argument of bias already rejected by two appellate courts is repeated, as to which no evidence is submitted.

As previously noted, defendant's only two additions to the unsuccessful appellate record in his present 440 submission create no factual issue as to defense counsel's effectiveness. The first, the statement of defense counsel that he has no recollection of this case, is akin to — but less meaningful than — the statement of the defense lawyer in People v. Green, 190 AD3d 1094 [3rd Dept 2021], lv denied 36 NY3d 1097 [2021], who "averred that he did not know why he failed to inquire further into . . . statements" of a potential juror for whom the District Attorney had worked while in private practice. That averment was insufficient to demonstrate juror bias or ineffective assistance of counsel. The second additional piece of evidence, defendant's statement that he did not discuss prospective juror number 10 with defense counsel, also does not create any fact issue as to whether defense counsel lacked any legitimate reason to retain that juror. It is simply evidence that prospective juror number 10 was not the subject of their attorney-client colloquy.

For these reasons, defendant's motion to vacate his conviction pursuant to CPL § 440.10 is denied (CPL § 440.30).

The foregoing constitutes the decision and order of the court.