Opinion
5264/02.
Decided April 13, 2010.
Following a trial by jury, defendant was convicted of Robbery in the First Degree in connection with the gunpoint robbery of Mohammed Habib, a taxi driver, on September 23, 2002. On May 25, 2005, defendant was sentenced as a second felony offender to a determinate term of incarceration of thirteen years, and a five-year period of post-release supervision.
Defendant's Pro Se C.P.L. § 440 Motion
By papers dated September 2, 2008, defendant filed a pro se motion to set aside his judgment of conviction pursuant to C.P.L. § 440.10. Defendant claimed that he did not receive effective assistance from his attorney, William Flack ("counsel"), at the suppression hearing and trial.
Defendant claimed that counsel failed to cross-examine the People's witness at the pretrial hearing regarding the identity of the driver of the cab that defendant was riding in at the time of his arrest. He also claimed that counsel failed to investigate the identity of the cab driver and call him as a witness at the hearing. With respect to his claim of ineffectiveness at trial, defendant alleged that counsel failed to present an alibi defense despite having served alibi notice.
In response, the People submitted an affirmation from William Flack refuting defendant's claims and explaining his defense strategy. In his affirmation, counsel cited numerous reasons why he decided against calling the cab driver as a witness including the likelihood that the driver would testify that he (1) feared defendant and (2) did not own the imitation pistol found inside the cab.
In the affirmation, counsel also explained his decision to forego an alibi defense. Counsel stated that while defendant's mother initially indicated that defendant was "at home with her when the charged crimes occurred," she gave a much different version of events when he interviewed her "more thoroughly" before trial. During a second interview, defendant's mother told counsel that she was "sleeping in her home when the charged crimes occurred, and she could not verify if [defendant] was at her home at that time." Thus, counsel did not call defendant's mother as an alibi witness because she had informed him that she could not provide defendant with an alibi.
In reply to counsel's affirmation, defendant submitted an affidavit from his mother, Augusta Frieson, disputing counsel's allegations. In her affidavit, Ms. Frieson averred that she spoke with counsel regarding her son's whereabouts on September 23, 2002, between 2:00 a.m. and 3:00 a.m. Ms. Frieson stated that she told counsel that defendant was with her because "he had injured his legs in an accident and was on crutches the entire time." She claimed that she "never told [counsel] that [she] was sleeping and didn't know if [defendant] was in the house during the time" the crime occurred. She also stated that she spoke with counsel on only one occasion.
In a decision, dated April 2, 2009, this Court denied defendant's claim that he was denied meaningful representation at the suppression hearing. It found that viewing the evidence and circumstances in this case in totality, counsel provided defendant with meaningful representation at the hearing and trial. It further found that counsel's decision not to present the cab driver as a witness was entirely tactical in nature. With respect to counsel's failure to call an alibi witness at trial, however, there was an issue of fact created by the conflicting affidavits submitted by the parties. Accordingly, the Court granted defendant's request for an evidentiary hearing pursuant to C.P.L. § 440.30(4)(c) solely as to the issue of ineffectiveness with respect to counsel's failure to present an alibi defense. The Court assigned David Bertan, Esq. to represent defendant at the hearing.
Pursuant to this Court's decision, a hearing was conducted on September 30, 2009. Defendant's mother, Augusta Clarke, testified on behalf of defendant. William Flack testified for the People. At the hearing, the sole issue for the Court's determination was whether Clarke had, in fact, informed Flack that she had actual knowledge of defendant's whereabouts at the time of the crime.
Hearing Evidence
A. Defendant's Case
Defendant's mother, Augusta Clarke, testified on behalf of defendant. In September of 2002, Clarke resided at 11-25 University Place, Apartment 12D, in the Bronx. Clarke lived there with her forty-year-old son, defendant, and her twenty-seven-year-old daughter. According to Clarke, defendant lived with her his entire life except for when he was in the army.
Clarke admitted that she could not recall the events of September 23, 2002. However, despite her failure to have any specific recollection, she claimed that defendant was always at home with her every evening. Clarke stated that her children were "always in the house every day" of their lives because that was her "rule." While acknowledging that defendant was a grown man, Clarke testified that he needed her permission to go out at night, and was not "allow[ed]" to stay out late. According to Clarke, her children had to obey her "rules and regulations" because it was her apartment and she "paid the rent." She testified that if her children did not like her rules, they had to move out. She further stated that she would "use force" if necessary to get her children to obey her rules.
Clarke testified that every night between 11:00 p.m. and 1:00 a.m., she checked to make sure her children were in their rooms before she went to bed. Once she knew that they were home, she locked the front door. According to Clarke, there was only one entrance to the apartment, which required a key to lock and unlock the door. Clarke testified that she always locked the apartment door before going to bed. According to Clarke, defendant could not enter or leave the apartment once she locked the door. She claimed that her children did not have their own keys to the apartment. She took away their keys "a long time ago" because they would often lose them.
Although Clarke testified about her usual practice in September 2002, she conceded that she had no specific recollection of whether defendant was actually at home with her on September 23, 2002. However, she insisted that her son was home every night when she locked the door, and had no memory to the contrary. She claimed that both children were usually in the house between 10:00 p.m. and 11:00 p.m. because they both had favorite television shows they liked to watch. She also stated that they had to be home by a certain time on school nights.
In response to Clarke's claim that defendant was always at home every evening, the prosecutor asked Clarke about defendant's arrest on September 30, 2002, at 10:45 p.m. Clarke claimed that the time of his arrest was incorrect, and that he had been arrested hours earlier.
During her testimony, Clarke recalled that defendant had been injured in August of 2002. She stated that defendant had difficulty walking and had scraped skin from his leg. She did not know the cause of his injury. She testified that while he initially needed assistance walking, he was "healing" by September 2002, and no longer required crutches. On cross-examination, the prosecutor asked about the affidavit Clarke signed on defendant's behalf. In her sworn statement, Clarke averred that defendant "injured his legs in an accident and he was on crutches the entire time." Addressing the conflict between her affidavit and her testimony, Clarke explained that defendant prepared the affidavit, and she had merely signed it. She admitted that the affidavit was incorrect and should have stated that the injuries were present in August, not September. She expressly stated that defendant was not on crutches in September of 2002.
The affidavit was admitted into evidence as People's Exhibit One.
While defendant was at Rikers Island Correctional Facility, Clarke visited him once. During the visit, prison officials confiscated her electronic Bible. Consequently, she never visited defendant again. Nor did she attend his trial. She testified that while she did speak with defendant over the telephone, they never discussed the night of the crime, his arrest or his trial. When asked why defendant did not tell her about the trial, she replied, "Children don't tell you everything."
Clarke testified that she spoke to defendant's attorney on only one occasion over the telephone in 2005. She had no recollection of the specific date of their conversation. They spoke for a few minutes. Counsel asked her if she knew where defendant was on September 23, 2002, between 2:00 a.m. and 2:30 a.m. Clarke stated that she told counsel that defendant was at home with her in accordance with her "rules and regulations." Clarke claimed that she never again heard from defendant's attorney. As a result, she had no knowledge of defendant's trial.
Clarke testified that defendant had notified her that his attorney would be contacting her about an alibi. She claimed that defendant did not tell her what to say to counsel.
B. People's Case
William Flack testified for the People. Throughout his legal career, Flack has handled hundreds of criminal cases as both a prosecutor and defense attorney. On January 16, 2004, Flack was assigned to represent defendant in the instant case. Defendant was charged with several counts of robbery relating to the robberies of two separate livery cab drivers on September 23, 2002, and September 25, 2002. He was also charged with possessing an imitation pistol on September 30, 2002. Upon Flack's motions, the robbery counts relating to the incident on September 23, 2002, were severed from the remaining counts. Flack represented defendant at the suppression hearing, trial and sentencing.
He was the third attorney assigned to represent defendant.
Upon his assignment to the case, Flack interviewed defendant and discovered he had a potential alibi defense. Defendant told Flack that he was at home with his mother on September 23, 2002, when the robbery allegedly occurred. He asked defendant for his mother's name and address. Flack subsequently learned that defendant's mother's name was Augusta Clarke, and that she resided in Syracuse.
Defendant initially told Flack that his mother's last name was Frieson. However, Clarke testified that Frieson was her maiden name.
Upon obtaining this information, Flack called Clarke. He introduced himself and told her that he was representing her son. He told Clarke that defendant named her as his alibi at the time both robberies were alleged to have occurred. Ms. Clarke confirmed that she could provide defendant with an alibi, and stated that defendant was at home with her on September 23, 2002. She expressed a willingness to testify on his behalf. After speaking briefly with Clarke, Flack told her he would contact her again. Following this conversation, Flack filed a late notice of alibi with the Court on March 1, 2004. Despite its untimeliness, the Court accepted notice.
Although Flack did not recall the exact date of his first conversation with Clarke, he stated it was definitely before he filed alibi notice on March 1, 2004.
Flack testified that in the course of trial preparation, he contacted Clarke a second time on March 17, 2005, sometime between 5:00 p.m. and 6:00 p.m. Flack was certain of the date of this second conversation because he made a contemporaneous note on defendant's file. During this conversation, he spoke with both defendant's mother and sister. Defendant's sister told Flack that she did not "get along" with defendant and was unwilling to cooperate with his investigation. She also indicated that her mother would not be helpful to defendant's case.
Flack then spoke with Clarke. During this second conversation, Clarke told him that she would not be a good defense witness. Clarke admitted that she was asleep during the time of the robbery, and did not know when defendant entered or left the apartment that evening. She also told Flack that she had no specific recollection of September 23, 2002. She further stated that there were nights when defendant did not come home, and stayed elsewhere. She never told Flack that it was her practice to lock the apartment door before going to bed. Flack "vaguely recalled" that Clarke did not want to "come down" for defendant's trial.
As a result of this conversation, Flack determined that Clarke would not be helpful to the defense. Based on his past experience with alibi defenses, he felt it was dangerous to present such a witness to the jury. He decided to forego an alibi defense, and rely instead on a reasonable doubt defense, focusing on the flaws in the eyewitness's identification. Flack spoke to defendant about his conversation with Clarke, and explained the decision to forego the alibi defense.
Although counsel acknowledged that he decided not to call Clarke before trial, he had indicated to the Court during the preliminary stages of the trial that he intended to call her as an alibi witness. Flack explained that although he did not intend to call her as a witness, he would still, as a matter of practice, include her name on the witness list.
Flack testified that he recalled speaking with Clarke a third time. However, he did not have an "absolute" recollection of that conversation, and made no notes about it defendant's file. He surmised that the third conversation was brief.
According to Flack, Clarke was not involved in defendant's case. She was never present in court during any court appearances or at trial. She never contacted Flack about her role as a potential witness on her son's behalf.
Flack testified that during the course of his conversations with her, Clarke never mentioned that defendant was on crutches during this time period. He had learned that defendant had a leg injury in August of 2002, and had difficulty walking. However, his investigation revealed that defendant's injury did not coincide with the alleged robbery. A review of the medical documents indicated that defendant had been injured before the robberies but that in late September 2002, defendant no longer had any symptoms associated with his injury.
C. Findings of Fact
Upon review of the hearing testimony, this Court makes the following findings of fact with respect to the issues material to the resolution of defendant's motion:
Clarke did not recall the events of September 23, 2002, and did not have any specific recollection as to whether defendant was actually at home with her at the time of the robbery. However, there is a major dispute with respect to whether she told Flack that, while she did not recall that specific date, defendant was always at home with her every evening. In direct conflict with Clarke's testimony, Flack testified that Clarke never informed him of this claim, but had actually stated that she did not know when defendant had entered or left her apartment that evening, and that he did not always sleep at home.
In resolving this factual dispute, this Court rejects Clarke's version of events in its entirety. Many key aspects of Clarke's testimony were simply incredible. It strained credulity to believe that defendant — a grown man of forty — was forbidden to go out at night because of Clarke's "rules and regulations," and that, throughout his adult life, he always abided by this rule. In light of the fact that defendant resided with his mother for most of his life, it is difficult to believe that he was always at home every night by 11 p.m. Clarke's claim that she had used "force" upon both of her adult children to ensure that they lived by her rules was also not credible. Finally, it seemed most unlikely that defendant never possessed keys to his own home, and thus, could not freely come and go as he pleased. In referring to her "rules and regulations," and her "curfews" on school nights, Clarke testified as if she were referring to a school-age child and not a forty-year-old man.
This Court also rejects Clarke's claim that she spoke with Flack on only one occasion. If this were true, Flack had ignored a perfectly proper alibi witness for no reason and perjured himself about the second telephone conversation.
In addition to the extremely unlikely aspects of her account, Clarke's testimony conflicted with her sworn affidavit submitted in support of defendant's motion. In the affidavit, Clarke averred that she told Flack that defendant was with her at the time of the robbery because "he had injured his legs in an accident and was on crutches the entire time." The affidavit made no reference to her "rules and regulations" with respect to defendant. However, at the hearing, Clarke testified that defendant had been injured in August of 2002, but by September 2002, he was healing and no longer required crutches. Admitting the error in the affidavit, Clarke claimed that she had not written the affidavit but merely signed it.
Accordingly, because her account was incredible and inconsistent, Augusta Clarke's testimony is rejected by this Court. On the other hand, there is no reason to doubt the veracity of counsel. Flack testified candidly, credibly and to the best of his recollection. This Court fully credits Flack's testimony that, upon his assignment to defendant's case, he fully explored the possibility of an alibi defense, and ultimately made the strategic decision to forego such a defense.
Flack testified that when he initially spoke with Clarke, she told him that she could provide defendant with an alibi, stating that defendant was at home with her on the date in question. Flack explained that his initial conversation with Clarke prompted him to file a notice of alibi with the Court. Flack credibly testified that in preparation for trial, he contacted Clarke a second time on March 17, 2005. Flack testified that he was certain of the date of this second conversation because he made a contemporaneous note of it on defendant's file. Thus, Flack's memory of the incident was strengthened by his own notes made at the time of the conversation. Flack credibly testified that during this second conversation, Clarke recanted her earlier statements, and admitted that she was asleep at the time of the robbery. Indeed, it is certainly believable that Clarke would have been asleep between 2:00 a.m and 2:30 a.m., and thus, unaware of whether defendant was actually at home at that time. Moreover, unlike Clarke, Flack has no motive to falsify his testimony regarding this second conversation.
This Court fully accepts Flack's testimony that, upon interviewing Clarke, he made a strategic decision not to present Clarke as an alibi witness since she would not be helpful to the defense. Accordingly, based on the credible, consistent and persuasive nature of his testimony, Flack's testimony is adopted in its entirety.
Defendant's Motion to Reargue
In papers filed December 16, 2009, defendant filed a motion to reargue this Court's denial of defendant's claim of ineffective assistance of counsel raised in his initial pro se C.P.L. § 440 motion. Specifically, defendant argues that the Court improperly denied defendant's motion for a new trial or evidentiary hearing on the "issue of the adequacy of his trial counsel's investigation regarding the cab driver" who was present at the time of defendant's arrest.
Legal Analysis
A. Defendant's Motion to Reargue the Prior C.P.L. § 440 Decision
Defendant moves to reargues this Court's prior C.P.L. § 440 decision, denying defendant's claim of ineffective assistance of counsel at the pretrial suppression hearing. According to defendant, the Court's decision only addressed counsel's decision not to call as a hearing witness the cab driver present at the time of his arrest. Defendant argues that neither counsel's affirmation nor the Court's decision actually addressed counsel's failure to investigate the identity of the cab driver and interview him as a potential hearing witness. Therefore, since there was no explanation for counsel's failure to conduct such an investigation, defendant argues that the Court should set aside his conviction. In response, the People argue that defendant's motion to reargue was untimely, and further, that this issue was directly addressed in the Court's decision.
Pursuant to C.P.L.R. § 2221(d), a motion to reargue a prior motion must be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion. Additionally, it must be made within thirty days after service of a copy of the order determining the prior motion ( see C.P.L.R. § 2221[d][3]). Here, defendant's motion to reargue is clearly untimely since it was filed beyond the thirty-day period required by the statute. Moreover, defendant has failed to establish that the Court has overlooked or misapprehended matters of fact or law in rendering its decision. This Court expressly held therein that "counsel's ultimate decision not to have the driver's name disclosed during Detective Schroeder's testimony, investigate his identity or call him as a witness was clearly not the result of insufficient preparation" but rather a "tactical decision." The Court carefully assessed counsel's failure to investigate the driver's identity and interview him in arriving at its ultimate determination that counsel was not ineffective at the suppression hearing. Accordingly, defendant's motion to reargue is denied because it has failed to establish that the Court has either overlooked or misapprehended an issue of fact or law pursuant to C.P.L.R. § 2221.
In any event, were this Court were to grant defendant's motion to reargue and address the merits, the claim would be denied. Assuming arguendo that counsel should have investigated the cab driver's identity and interviewed him as a potential witness, such isolated errors do not rise to the level of ineffective assistance since counsel's performance must be viewed in its entirety ( see People v. Rodriguez, 181 AD2d 643 [1st Dept. 1991]; People v. Crespo, 179 AD2d 574 [1st Dept. 1991] [counsel's ignorance of certain case law did not warrant reversal where counsel's representation was otherwise effective]; People v. Hazzard, 177 AD2d 593 [2d Dept. 1991] [failure to request suppression hearing does not constitute ineffective representation in view of totality of circumstances]). The standard of review in assessing a claim of ineffective assistance of trial counsel is whether, under the totality of circumstances, defense counsel provided meaningful representation ( People v. Davidson, 197 AD2d 701 [2d Dept. 1993]; People v. Fox, 172 AD2d 218 [1st Dept. 1991]). Here, a review of the trial record establishes beyond any question that defendant was afforded meaningful representation of counsel which did not fall outside the "wide range of professionally competent assistance" ( see Strickland v. Washington, 466 U.S. 668, 690; see also People v. Rivera, 71 NY2d 705).
As discussed in this Court's earlier decision, counsel zealously and competently represented defendant during both the suppression hearing and at trial. Counsel showed complete familiarity with the facts of the case and the relevant principles of evidentiary, substantive and procedural law ( see People v. Bennett, 29 NY2d 462; People v. Rodriguez, 94 AD2d 805 [2d Dept. 1983]). At the suppression hearing, counsel effectively examined the People's witnesses and defendant, and zealously argued for suppression of evidence. Prior to trial, counsel successfully sought to have the robbery counts pertaining to the September 23, 2002, incident severed from the remaining counts on the indictment. At trial, he delivered cogent and comprehensive opening and closing statements, made appropriate objections and motions, and vigorously cross-examined the People's witnesses, highlighting the inconsistent aspects of their testimony. He also presented a rigorous defense of reasonable doubt.
Since the totality of the circumstances reveals that counsel provided defendant with meaningful assistance throughout the course of his representation, his failure to interview a witness whose relevance was limited to the pretrial suppression hearing certainly does not amount to ineffectiveness. Indeed, appellate courts have held that far greater omissions with respect to pretrial motions and hearings do not alone constitute ineffective assistance ( see Rivera, 71 NY2d at 709; Rodriguez, 181 AD2d at 643 [failure to make pretrial motion does not alone establish ineffective assistance]; Hazzard, 177 AD2d at 593 [failure to request suppression hearing does not constitute ineffective representation in view of totality of circumstances]; People v. Belgrave, 143 AD2d 103 [2d Dept. 1988] [counsel's failure to seek Wade hearing not, in itself, ineffective assistance in view of overall meaningful representation]).
In People v. Walker, 234 AD2d 962 (4th Dept. 1996), defendant alleged that trial counsel was ineffective due to his failure to seek suppression of physical evidence seized upon his arrest and the failure to make other pretrial motions. The court found that counsel's failure to make pretrial motions does not compel a finding of ineffective assistance since counsel's representation when, viewed as a whole, was meaningful ( id. at 963). The court further held that defendant failed to demonstrate that he suffered prejudice as a result of counsel's failure to undertake an adequate investigation ( id.).
In this case, in addition to counsel's overall effective representation, defendant has failed to establish any prejudice as a result of counsel's actions. Even if counsel had located the cab driver, his testimony would have been inadmissible at trial. Defendant's trial was limited to the robbery of Mohammed Habib on September 23, 2002. The counts relating to defendant's possession of an imitation pistol upon his arrest on September 30, 2002, were severed. Accordingly, the cab driver's testimony was irrelevant and immaterial to the issue of defendant's guilt at trial, which pertained only to the events on September 23, 2002.
The cab driver's testimony would have been material only at defendant's pretrial suppression hearing. Indeed, even if the cab driver had provided testimony favorable to defendant at the hearing, it would not likely have changed the outcome at trial. If the cab driver had corroborated defendant's testimony and the hearing court had credited their accounts, it would have let to the suppression of physical evidence — namely, defendant's imitation pistol, which was not admissible at defendant's trial. It would also have resulted in the suppression of the lineup identification by the complainant Habib as the fruit of an unlawful arrest. However, in an excess of caution, the hearing court had conducted an independent source hearing in the event that the lineup identification had been suppressed. As a result of that hearing, the hearing court found that Habib had independently observed defendant, and thus, would have permitted Habib to identify defendant in court even if the lineup identification had been suppressed. Thus, even if this Court had suppressed the lineup identification, the in-court identification by Habib would have still been admissible at trial. Accordingly, the outcome of the trial would not likely have changed even if defendant had prevailed at the suppression hearing.
In any event, given the circumstances surrounding defendant arrest, it is unlikely that the cab driver would have provided testimony favorable to defendant if he had been interviewed and called to the stand. First, since the imitation pistol was found in the backseat of the cab at defendant's feet, the driver most likely would have denied ownership of the weapon, as counsel reasonably suspected. Such testimony would have directly refuted defendant's account, and actually bolstered the People's case, establishing probable cause for defendant's arrest. Second, since Detective Schroeder testified that the driver's cab was traveling the same route as the other cabs involved in the pattern robberies, the driver would most likely confirm this testimony, further bolstering the People's case. Thus, even if counsel had investigated the driver's identity and interviewed him, it is highly doubtful that such an investigation would have been helpful to the defense. On the contrary, his testimony would have probably been detrimental to defendant.
Accordingly, since defendant has failed to establish prejudice and in view of counsel's meaningful representation in its totality, defendant's motion for a new trial due to counsel's failure to investigate and interview the cab driver would have been denied even if this Court had granted defendant's motion to reargue.
B. Defendant's Claim of Ineffectiveness Due to Counsel's Failure to Present an Alibi Defense.
Defendant claims that he was denied meaningful representation because his trial counsel failed to call as an alibi witness Augusta Clarke. In view of the credible hearing testimony of his William Flack, in sharp contrast with the incredible and inconsistent testimony of Clarke, defendant's claim must be denied.
In reviewing a claim of ineffectiveness, a court must "avoid both confusing the ineffectiveness with mere losing tactics and according undue significance to retrospective analysis" ( People v. Baldi, 54 NY2d 137,146 [1981]). A defendant must demonstrate the absence of strategic or other legitimate explanation for counsel's actions ( Rivera, 71 NY2d at 709; People v. Garcia, 187 AD2d 868 [3d Dept. 1992]). Absent such a showing, counsel will be presumed to have acted competently and professionally ( Rivera, 71 NY2d at 709).
Here, defendant has failed to demonstrate the absence of any legitimate explanation for counsel's actions. On the contrary, counsel's credible testimony clearly established that during the course of his diligent trial preparation, he fully explored a potential alibi defense. Counsel's ultimate decision to forego an alibi defense was clearly not the result of insufficient preparation but was a thoughtful, tactical decision.
Upon his assignment to the case, counsel interviewed defendant who told him he was with his mother at the time of the crime. After speaking with defendant, counsel interviewed defendant's mother, Augusta Clarke, who initially corroborated defendant's claim. As a result of his conversation with Clarke, counsel filed a notice of alibi. However, as counsel credibly testified, Clarke later recanted her earlier claim. During a second interview, Clarke told counsel that she was actually asleep during the time of the robbery, and did not know when defendant entered or left the apartment the evening. She also told Flack that she had no specific recollection of September 23, 2002 — a claim she does not refute. She further stated that some nights defendant did not come home, but stayed elsewhere. She never told Flack that it was her practice to lock the apartment door before going to bed. As stated supra, Clarke's testimony in which she claimed that defendant was at home every evening, is rejected as incredible. It was also inconsistent with her sworn affidavit, in which she claimed that defendant was at home because he was on crutches and could not walk.
Thus, the hearing record establishes that counsel's decision not to call Clarke in support of an alibi defense was based on a legitimate and compelling explanation. It reflected a reasonable and intelligent trial strategy rooted in the circumstances presented ( see People v. Chung, 276 AD2d 708 [2d Dept. 2000] [counsel's decision not to call defendant and various witnesses constituted trial strategy]; People v. Washington, 184 AD2d 451 [1st Dept. 1992] [counsel's failure to call defendant's mother and brother constituted tactical decision]; People v. Benjamin, 151 AD2d 685, 686 [2d Dept. 1989] [counsel's decision not to call defendant's wife, friend and other family members constituted "well-advised trial strategy"]). Contrary to defendant's claim, trial counsel's credible testimony demonstrated that he had carefully interviewed Clarke, and that she was unable to provide defendant with an alibi for September 23, 2002. Thus, since he could not present any alibi evidence, counsel had no other choice but to forego the flawed defense and rely instead on a reasonable doubt defense ( see People v. McDonald, 255 AD2d 688 [3d Dept. 1998] [counsel's tactical decision to forego alibi defense in favor of misidentification claim does not render assistance ineffective]; People v. LaFrance, 182 AD2d 589 [1st Dept. 1992]; People v. Norris, 108 AD2d 760 [2d Dept. 1985]).
Indeed, an evaluation of the record indicates that counsel's decision was clearly a sound trial strategy given the relative weakness of the People's trial evidence ( see People v. Charleston, 161 AD2d 544 [1st Dept. 1996]). The People's case relied solely on the identification of one witness who had no prior familiarity with defendant. There was no physical evidence recovered from the crime scene or defendant to corroborate the complainant's identification. Additionally, counsel vigorously cross-examined the complainant. During summation, counsel vigorously attacked the strength of the People's case in his attempt to establish the complainant's mistaken identification of defendant ( see People v. Henry, 95 NY2d 563). Thus, in view of the inherent weaknesses present in a case involving a one-witness identification, counsel's decision to focus on the issue of reasonable doubt was clearly a logical strategy ( see generally People v. Benn, 68 NY2d 941). Since counsel's representation reflects "a reasonable and legitimate strategy under the circumstances and evidence presented," it does not fall to the level of ineffective assistance despite the ultimate lack of success ( see People v. Wright, 275 AD2d 254, 255 [1st Dept. 2000]; Baldi, 54 NY2d at 146-47 [trial tactics which terminate unsuccessfully do not automatically indicate ineffectiveness]).
In conclusion, viewed in its totality, counsel's actions during the course of his representation adequately provided defendant with meaningful representation. Accordingly, since defendant was afforded effective assistance of counsel at both the suppression hearing and at trial, his motion to vacate the judgment pursuant to C.P.L. § 440.10 is denied in its entirety.
This is the decision and order of this Court.