| People v Arroyo |
| 2010 NY Slip Op 07236 [77 AD3d 446] |
| October 12, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v LuisArroyo, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Andrew Seewald of counsel), forrespondent.
Order, Supreme Court, New York County (William A. Wetzel, J.), entered on or about July 9,2008, which denied defendant's CPL 440.10 motion to vacate his judgment of conviction on theground of ineffective assistance of counsel, unanimously affirmed.
Defendant was convicted of shooting and permanently disabling one victim, and, in a prior relatedincident, of forcibly entering an apartment for the purpose of assaulting an occupant, who was theshooting victim's cousin. Defendant asserts that his trial counsel rendered ineffective assistance by failingto interview the burglary victim's friend, who would have allegedly provided helpful testimony on severalissues, by failing to investigate a potential alibi defense regarding defendant's alleged presence at alaundromat at the time of the shooting, and by failing to conduct sufficient trial preparation andcross-examination of witnesses. However, we find that defendant received effective assistance underboth the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714[1998]; see also Strickland v Washington, 466 US 668 [1984]), and that no hearing on theCPL article 440 motion was necessary.
With regard to the burglary victim's friend, we conclude that regardless of whether counsel shouldhave interviewed her, defendant has not shown that she would have provided exculpatory or otherwisehelpful testimony. Initially, we note that although factual allegations in support of a CPL article 440motion may be made on information and belief (CPL 440.30 [1]), the absence of an affidavit by thepotential witness delineating, in her own words, the testimony she might have given weakensdefendant's position on the motion. According to an investigator's affidavit, the potential witness wouldhave testified that she had a conversation with the burglary victim shortly after the shooting, in which theburglary victim gave the potential witness the "impression" that she had told the police defendant hadshot her cousin. Defendant claims that a chain of inferences leads from this "impression" to theconclusion that the burglary victim (who undisputedly was not a witness to the shooting) may haveinfluenced her cousin to name defendant falsely as the person who shot him. However, the potentialwitness's testimony would have been too speculative to have undermined the shooting victim'stestimony, and it may not have been admissible, given issues of hearsay and relevance. Defendant alsoasserts that the potential witness would have cast doubt on whether the burglary incident actuallyinvolved an [*2]unlawful entry. However, this witness was not presentduring that incident, and her testimony about defendant's presence at the apartment on prior occasionshad little or no relevance.
As for counsel's failure to investigate the possibility that defendant may have been at a nearbylaundromat at the time of the shooting, counsel explained in an affidavit submitted by the People inopposition to the motion that he never pursued an alibi defense because defendant told him he wasguilty. Since an attorney may not assist a client in presenting false evidence (Nix v Whiteside,475 US 157, 166 [1986]), counsel had an objectively reasonable explanation for his actions.Furthermore, defendant has not shown that an investigation by counsel had any reasonable possibility ofyielding useful evidence. Although defendant has presented some evidence that the laundromat mayhave had a surveillance camera in operation at the time, his assertion that his presence may have beencaptured on videotape or remembered by an unidentified witness is extremely speculative. Moreover,evidence that defendant was in this laundromat at the time of the shooting would have had little alibivalue because of the close proximity between the two locations.
Defendant has not substantiated his claim of inadequate trial preparation. The trial recordestablishes that counsel conducted reasonably competent cross-examinations of prosecution witnesses,and that there are reasonable strategic justifications for the omissions cited by defendant.
We conclude that the various deficiencies alleged by defendant in his motion and on this appeal,whether viewed individually or collectively, did not deprive defendant of a fair trial, affect the outcomeof the case, or cause defendant any prejudice. Regardless of whether counsel's omissions were"unprofessional errors," there is no "probability sufficient to undermine confidence in the outcome"(Strickland, 466 US at 694) that, but for these errors, the verdict would have been morefavorable to defendant with regard to either the shooting incident or the burglary.
Finally, the court properly exercised its discretion in denying the motion without holding a hearing.The trial record and the parties' submissions were sufficient to decide the motion, and there was nofactual dispute requiring a hearing (see People v Satterfield, 66 NY2d 796, 799-800 [1985]).In particular, with regard to the issue of whether it was reasonable to avoid presenting an alibi defense,defendant never specifically denied admitting his guilt to his counsel, and the court had sufficientinformation upon which to resolve that issue without a hearing. Concur—Mazzarelli, J.P.,Sweeny, Moskowitz, Acosta and RomÁn, JJ.