| People v Kurkowski |
| 2014 NY Slip Op 03069 [117 AD3d 1442] |
| May 2, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vCharles Kurkowski, Appellant. |
Michael J. Dowd, Lewiston, for defendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court inthe Fourth Judicial Department from an order of the Erie County Court (Thomas P.Franczyk, J.), dated July 13, 2012. The order denied the motion of defendant to vacatethe judgment of conviction pursuant to CPL 440.10.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted following a nonjury trial of assault in thesecond degree (Penal Law § 120.05 [4]), and the judgment of convictionwas affirmed on appeal (Peoplev Kurkowski, 83 AD3d 1595 [2011], lv denied 16 NY3d 896 [2011]).Defendant thereafter moved pursuant to CPL 440.10 to vacate the judgment on theground of ineffective assistance of counsel and, after a hearing, County Court denied themotion. We granted defendant leave to appeal from that order, and we now affirm.
"To prevail on his claim that he was denied effective assistance of counsel, defendantmust demonstrate that his attorney failed to provide meaningful representation" (People v Caban, 5 NY3d143, 152 [2005]; see People v Benevento, 91 NY2d 708, 712-713 [1998];People v Baldi, 54 NY2d 137, 147 [1981]). "In applying this standard, counsel'sefforts should not be second-guessed with the clarity of hindsight to determine how thedefense might have been more effective" (Benevento, 91 NY2d at 712). To thatend, "a reviewing court must avoid confusing 'true ineffectiveness with mere losingtactics and according undue significance to retrospective analysis' " (id.,quoting Baldi, 54 NY2d at 146). Moreover, " 'it is incumbent ondefendant to demonstrate the absence of strategic or other legitimate explanations' forcounsel's alleged shortcomings" (id., quoting People v Rivera, 71 NY2d705, 709 [1988]).
Here, defendant contends that he was denied effective assistance of counsel becausetrial counsel failed to conduct an adequate investigation into the facts, and failed to call awitness for the purpose of testifying that another person had confessed to the assault. Wereject that contention. "A defendant's right to effective assistance of counsel includesdefense counsel's reasonable investigation and preparation of defense witnesses" (People v Jenkins, 84 AD3d1403, 1408 [2011], lv denied 19 NY3d 1026 [2012]; see People v Oliveras, 21NY3d 339, 346 [2013]), and thus "the failure to investigate or call exculpatorywitnesses may amount to ineffective assistance of [*2]counsel" (People v Nau, 21 AD3d 568, 569 [2005]; see People v Dombrowski, 87AD3d 1267, 1268 [2011]). Here, however, the record establishes that defensecounsel sufficiently investigated the facts and searched for potential witnesses, and thatthere are legitimate explanations for defense counsel's failure to locate the three allegedlyexculpatory witnesses identified in defendant's motion (cf. People v Blackman, 90AD3d 1304, 1311-1312 [2011], lv denied 19 NY3d 971 [2012]; seegenerally Benevento, 91 NY2d at 712).
Defense counsel testified at the CPL article 440 hearing that, in preparing hisdefense, he visited the bar where the assault occurred at least 50 times; tookmeasurements of the scene in an attempt to show that defendant could not have assaultedthe victim based upon defendant's location at the time of the incident; obtainedsurveillance videotapes from the bar and a nearby police camera; reviewed thevideotapes with defendant on multiple occasions; and obtained the victim's clothing fromthe night of the assault in order to identify him on the videos. As for witnesses, defensecounsel testified that he questioned employees about potential witnesses during his manyvisits to the bar, and that he had numerous telephone conversations with the bar ownerconcerning the existence and identity of witnesses to the incident. Further, defensecounsel sought the owner's assistance in trying to locate those witnesses. Defense counselalso identified other potential witnesses by reviewing the surveillance videos withdefendant. Ultimately, defense counsel obtained two exculpatory witnesses who testifiedon defendant's behalf at trial—a bouncer at the bar and a bar patron. We thusconclude that the record does not support defendant's contention that defense counselmade only a "cursory" investigation of the crime scene or that he "abdicate[d]" hisresponsibility to investigate potential witnesses (cf. Oliveras, 21 NY3d at 348; People v Fogle, 10 AD3d618, 618-619 [2004]; People v Bussey, 6 AD3d 621, 622-623 [2004], lvdenied 4 NY3d 828 [2005]).
With respect to the three allegedly exculpatory witnesses identified in defendant'sCPL article 440 motion, defense counsel testified that one of the three names never cameup during the course of his investigation and, indeed, that name does not appear in thepolice records. The first name of another witness, who was identified by defendant andothers as a drug dealer, was mentioned during the investigation and defense counselobtained a telephone number for that individual. Defense counsel, however, was unableto reach the individual. As for the third witness, defense counsel testified that his namecame up during the investigation, but that defense counsel was never able to locate thewitness. Defense counsel was told that the witness had moved to Florida and, althoughhe obtained several telephone numbers for that witness, all had been disconnected. Thepolice were likewise unable to locate the alleged witness. Notably, the record indicatesthat defendant knew or at least was familiar with each of the three alleged exculpatorywitnesses. We thus conclude that any failure to identify or locate those three witnessesprior to trial was not the result of ineffectiveness on the part of defense counsel. In anyevent, we conclude that defense counsel's failure to locate and call the three witnessesidentified by defendant "did not prejudice the defense or defendant's right to a fair trial"(People v Hobot, 84 NY2d 1021, 1024 [1995]; see Benevento, 91 NY2dat 713-714). As the court noted, the statements provided by the three witnesses were "insome respects, inconsistent with each other and with the defendant's own version ofevents," and the court, which presided over defendant's bench trial, ultimately concludeddespite the conflicting testimony that defendant assaulted the victim.
Contrary to the further contention of defendant, we conclude that defense counselhad a strategic reason for failing to subpoena the bar owner to testify that anotherindividual had allegedly confessed to the crime in a written statement (see generallyBaldi, 54 NY2d at 146). The People called that individual as a witness and, oncross-examination, defense counsel confronted him with his alleged confession and headmitted that he authored it. Thus, there was no reason to call the bar owner to testify tothat fact.
[*3] Finally, we conclude that therecord, viewed as a whole, demonstrates that defense counsel provided meaningfulrepresentation (see generally id. at 147). Present—Smith, J.P., Fahey,Peradotto, Carni and Sconiers, JJ.