| People v Maxwell |
| 2017 NY Slip Op 05622 [152 AD3d 622] |
| July 12, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Eugene Maxwell, Appellant. |
Lynn W. L. Fahey, New York, NY (Melissa S. Horlick of counsel), for appellant, andappellant pro se.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and AmyAppelbaum of counsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County(Dowling, J.), dated March 31, 2014, which, after a hearing, denied his motion pursuant to CPL440.10 to vacate a judgment of the same court rendered July 18, 2007, convicting him of murderin the second degree, upon a jury verdict, and imposing sentence.
Ordered that the order is affirmed.
Contrary to the defendant's contention, the judgment of conviction should not be vacated onthe basis that the defendant proved that he was actually innocent. A freestanding claim of actualinnocence is cognizable in New York, and a defendant who establishes his or her actualinnocence by clear and convincing evidence is entitled to relief under CPL 440.10 (1) (h) (see People v Tiger, 149 AD3d 86[2017]; People v Hamilton, 115AD3d 12, 15 [2014]). " '[A]ctual innocence' means factual innocence, not mere legalinsufficiency of evidence of guilt, and must be based upon reliable evidence which was notpresented at the trial' " (People vGriffin, 120 AD3d 1257, 1257 [2014], quoting People v Hamilton, 115 AD3d at23). "Mere doubt as to the defendant's guilt, or a preponderance of conflicting evidence as to thedefendant's guilt, is insufficient, since a convicted defendant no longer enjoys the presumption ofinnocence, and in fact is presumed to be guilty" (People v Hamilton, 115 AD3d at 27).Here, at the hearing, the defendant failed to establish by clear and convincing evidence that hedid not fire the bullet that struck and killed the victim. Accordingly, the Supreme Court properlyheld that the defendant's conviction should not be vacated pursuant to CPL 440.10 (1) (h) basedon actual innocence.
Furthermore, the Supreme Court properly denied that branch of the defendant's motion whichwas to vacate the judgment of conviction on the ground that the prosecution committed aBrady violation (see Brady v Maryland, 373 US 83 [1963]), by allegedly failing todisclose certain DVDs of security camera footage. The evidence elicited at the hearingestablished that the prosecution provided the defendant with, or permitted him to review prior totrial, copies of eight DVDs, and the defendant failed to demonstrate that the prosecution was everin possession of any [*2]additional DVDs of security camerafootage (see People v Broxton, 34AD3d 491, 492 [2006]).
The evidence, the law, and the circumstances of this case, viewed in totality and as of thetime of the representation, reveal that the defendant's trial counsel provided the defendant withmeaningful representation by, inter alia, conducting an adequate investigation into thecircumstances of the shooting, engaging in meaningful cross-examination of the People'switnesses, and pursuing a reasonable trial strategy. Contrary to the defendant's contention, he wasnot deprived of the effective assistance of counsel when, based on the defendant's request, histrial counsel pursued a misidentification defense and did not pursue a justification defense orrequest that justification be charged to the jury (see People v Clark, 129 AD3d 1, 11 [2015], affd 28 NY3d556 [2016]). The evidence, viewed objectively, demonstrates that the misidentification defensewas at least as strong as the justification defense, and that it constituted a strategy that might wellhave been pursued by a reasonably competent attorney. Additionally, the defense of justificationcould not have resulted in an acquittal of all charges, which was the defendant's ultimate goal,because the defendant was also charged with two counts of criminal possession of a weapon, andjustification on the basis of self-defense would provide no defense to those charges (seePeople v Pons, 68 NY2d 264, 265 [1986]; People v Dockery, 107 AD3d 913, 913 [2013]; People v Khan, 89 AD3d 750, 751[2011]).
Moreover, although it is now settled that, based upon the decision in People v Colville (20 NY3d 20[2012]), the decision whether to seek a jury charge on lesser-included offenses ultimately restswith defense counsel (see People vHenley, 145 AD3d 1578, 1580 [2016]; People v Gangaram, 132 AD3d 776, 777 [2015]; People v Lowery, 127 AD3d 1109,1110 [2015]; People v Brown, 117AD3d 1536, 1536-1537 [2014]), Colville was decided more than five years after theconclusion of the defendant's trial, and counsel cannot be found ineffective for failing toanticipate changes in the law (see People v Clark, 129 AD3d at 14; People v Lewis, 102 AD3d 505,506 [2013], affd 23 NY3d 179 [2014]; People v Abner, 101 AD3d 1628, 1629 [2012]; People v Sanchez, 76 AD3d 122,130 [2010]; People v Brisson, 68AD3d 1544, 1547 [2009]).
The defendant's remaining contentions regarding ineffective assistance of counsel, includingthose raised in his pro se supplemental brief, are without merit. Accordingly, the Supreme Courtproperly denied that branch of the defendant's motion which was to vacate the judgment ofconviction on the ground that his trial counsel was ineffective.
The defendant's remaining contention raised in his pro se supplemental brief is without merit.Chambers, J.P., Roman, Miller and Connolly, JJ., concur.