| People v Little |
| 2021 NY Slip Op 01235 [192 AD3d 408] |
| March 2, 2021 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Charles Little, Appellant. |
Stephen Chu, Interim Attorney in-Charge, Office of the Appellate Defender, New York(Mandy E. Jaramillo of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (David A. Slott of counsel), for respondent
Order, the Supreme Court, Bronx County (Denis J. Boyle, J.), entered on or about June 7,2019, which denied defendant's CPL 440.10 motion to vacate a judgment of conviction renderedJanuary 17, 2014, unanimously affirmed.
Defendant received effective assistance of counsel under the state and federal standards(see People v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland vWashington, 466 US 668 [1984]). Defendant has not established that his failure to consult orcall an expert on eyewitness identification was objectively unreasonable, the trial court wouldhave permitted such an expert to be called, or that there was a reasonable possibility that suchexpert testimony would have affected the outcome or fairness of the trial.
Defendant's guilt was established by compelling circumstantial evidence that was separatefrom the victim's identification testimony. After the robbery, the victim found defendant'sbenefits cards, one of which contained defendant's picture, in the back seat of the victim's car;given the circumstances, these cards could only have been left by the person who robbed thevictim. A detective testified that defendant made a statement placing himself near the scene ofthe crime, and that when shown his benefit cards, defendant became visibly upset andvolunteered that he had not left them in the back seat of a car (despite not having been told thatthe robbery took place in a car). At trial, defendant gave testimony, which this Court found"highly implausible" on the direct appeal (151 AD3d 531, 532 [1st Dept 2017]), about how hisfriend had allegedly acquired the cards. Defendant also admitted at trial that he had lied in hisgrand jury testimony about his cards having been "missing."
Given that the eyewitness identification was not the sole evidence connecting defendant tothe crime, rendering speculative any argument that expert testimony would have been allowed, orthat such an expert would have changed the outcome of this case, there is no basis for findingthat it was unreasonable for counsel to proceed without an identification expert (see People v Santiago, 17 NY3d661 [2011]; People v Abney, 13NY3d 251 [2009]). In any event, counsel vigorously attacked the accuracy of the victim'sidentification on cross-examination and in summation, based on many of the same factors that anexpert would have discussed, including the suggestiveness of the victim's seeing defendant'sphoto on one of the cards found in the car.
The court providently exercised its discretion in declining to hold a hearing on the branch ofdefendant's motion that sought to vacate his conviction based on actual innocence, because themotion was not supported by "sworn allegations substantiating or tending to substantiate all theessential facts" (CPL 440.30 [4] [b]). On the motion, defendant offered evidence, similar toevidence he unsuccessfully sought to present at trial, that allegedly corroborated his story abouthis friend's acquisition of the cards [*2]found in the victim's car.However, this evidence consisted of multiple layers of hearsay, as well as lacking exculpatoryvalue, and it did not require a hearing (see People v Jimenez, 142 AD3d 149, 155-158 [1st Dept 2016]; see also People v Velazquez, 143AD3d 126, 136-137 [1st Dept 2016], lv denied 28 NY3d 1189 [2017]).Concur—Gische, J.P., Mazzarelli, González, Mendez, JJ.