The People, Respondent,v.Julio Negron, Appellant.

Brief

N.Y.October 21, 2015

To be argued by LAURA T. ROSS (TIME REQUESTED: 20 MINUTES) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against JULIO NEGRON, Defendant-Appellant. W444444444444444444444444444444444444444444444444444 BRIEF FOR RESPONDENT W444444444444444444444444444444444444444444444444444 RICHARD A. BROWN District Attorney Queens County Attorney for Respondent 125-01 Queens Boulevard Kew Gardens, New York 11415 (718) 286–7033 ROBERT J. MASTERS JOHN M. CASTELLANO LAURA T. ROSS Assistant District Attorneys Of Counsel DECEMBER 22, 2014 Queens County Indictment Number 398/05 TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 FACTUAL AND LEGAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . 2 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 THE TRIAL.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 The People’s Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Defendant’s Case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 THE DIRECT APPEAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 DEFENDANT’S FIRST MOTION TO VACATE JUDGMENT.. . . . . . . . 18 DEFENDANT’S FEDERAL HABEAS CORPUS PETITION. . . . . . . . . . . 20 DEFENDANT’S SECOND 440.10 MOTION. . . . . . . . . . . . . . . . . . . . . . . 22 POINT ONE THE APPELLATE DIVISION CORRECTLY HELD THAT DEFENDANT FAILED TO E S T A B LI S H T HAT H E R E C E I V E D INEFFECTIVE ASSISTANCE OF COUNSEL. . . . . . . . . . . . 29 A. The Failure to Introduce Additional Evidence of Defendant’s Clean-shaven Appearance Did Not Render Counsel’s Performance Deficient or Prejudice Defendant.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 B. Counsel’s Application to Raise a Third-party Culpability Defense Was Not Ineffective.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 POINT TWO THE PEOPLE FULLY COMPLIED WITH THEIR OBLIGATIONS UNDER BRADY V. MARYLAND. . . . . . . . . . 57 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 ii TABLE OF AUTHORITIES Page No. Cases Gotti v. U.S., 622 F.Supp.2d 87 (S.D.N.Y. 2009). . . . . . . . . . . . . . . . . . . . . . 61 Brady v. Maryland, 373 U.S. 83 (1963). . . . . . . . . . . . . . . . . . . . . . . . . 9, 57, 58 California v. Trombetta, 467 U.S. 479 (1984). . . . . . . . . . . . . . . . . . . . . . . . 58 Harrington v. Richter, 562 U.S. __, 131 S.Ct. 770, 790 (2011). . . . . . . 39, 48 Kyles v. Whitley, 514 U.S. 419 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . 66n.15 Narrod v. Napoli, 763 F.Supp.2d 359 (W.D.N.Y. 2011) .. . . . . . . . . . 52n.12 People v. Baker, 14 N.Y.3d 266 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 People v. Baldi, 54 N.Y.2d 137 (1981).. . . . . . . . . . . . . . . . . . . . . . . . . 30, 31 People v. Benevento, 91 N.Y.2d 708 (1998).. . . . . . . . . . . . . . 30, 31, 44, 46 People v. Bennett, 79 N.Y.2d 464 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . 68 People v. Blake, 24 N.Y.3d 78 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . 53, 54 People v. Borrell, 12 N.Y.3d 365 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . 30 People v. Bryant, 50 N.Y.2d 949 (1980).. . . . . . . . . . . . . . . . . . . . . 28n.7, 60 People v. Bryce, 88 N.Y.2d 124 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . 9, 58 People v. Cummings, 16 N.Y.3d 784 (2011). . . . . . . . . . . . . . . . . . . . . . . . 53 People v. Doshi, 93 N.Y.2d 499 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 People v. Flores, 84 N.Y.2d 184(1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 People v. Gamble, 18 N.Y.3d 386 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . 51 People v. Garrett, 23 N.Y.3d 878 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . 59 People v. Hayes, 17 N.Y.3d 46 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 iii People v. Heidgen, 22 N.Y.3d 259 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . 54 People v. Henry, 85 N.Y.2d 563 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 People v. Henry, 95 N.Y.2d 563 (2000). . . . . . . . . . . . . . . . . . . . . . . . . 30, 31 People v. Kaminski, 156 A.D.2d 471 (2d Dept. 1989). . . . . . . . . . . . . . . . . 58 People v. LaValle, 3 N.Y.3d 88 (2004).. . . . . . . . . . . . . . . . . . . . . 10, 59, 61 People v. McGee, 20 N.Y.3d 513 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . 53 People v. Negron, 112 A.D.3d 741 (2d Dept. 2013). . . . . . 6, 27, 47, 59n.13 People v. Negron, 41 A.D.3d 865 (2d Dept. 2007).. . . . . . . . . . . . . . . . . 5, 18 People v. Negron, 9 N.Y.3d 924 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 People v. Novoa, 70 N.Y.2d 490 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . 9, 58 People v. Oathout, 21 N.Y.3d 127 (2013). . . . . . . . . . . . . . . . . . . . . . . 30, 31 People v. Olibencia, 45 A.D.3d 607 (2d Dept. 2007).. . . . . . . . . . . . . . . . . 48 People v. Oliveras, 21 N.Y.3d 339 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . 44 People v. Pannell, 3 A.D.3d 541 (2d Dept. 2004). . . . . . . . . . . . . . . . . . . . 58 People v. Primo, 96 N.Y.2d 351 (2001). . . . . . . . . . . . . . . . . . . . . . . . passim People v. Russo, 85 N.Y.2d 872 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 People v. Ryan, 90 N.Y.2d 822 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 32 People v. Satterfield, 66 N.Y.2d 796 (1985).. . . . . . . . . . . . . . 30, 31, 32, 40 People v. Scattareggia, 152 A.D.2d 679 (2d Dept. 1989). . . . . . . . . . . . . . 58 People v. Schultz, 4 N.Y.3d 521 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 People v. Scott, 88 N.Y.2d 888 (1996). . . . . . . . . . . . . . . . . . . . . . . 9, 59, 67 People v. Steadman, 82 N.Y.2d 1 (1993). . . . . . . . . . . . . . . . . . . . . . . . . 9, 58 iv People v. Taylor, 1 N.Y.3d 174 (2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 People v. Thompson, 21 N.Y.2d 555 (2013).. . . . . . . . . . . . . . . . . . . . . . . . 45 People v. Turner, 5 N.Y.3d 476 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 People v. Vasquez, 20 N.Y.3d 461 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . 54 People v. Vilardi, 76 N.Y.2d 67 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . 9, 59 Schultz v. Marshal, 528 F.Supp.2d 77 (E.D.N.Y. 2007), aff’d, 345 Fed. Appx. 627 (2d. Cir. 2009). . . . . . . . . . . . . . . . . 65n.14 Strickland v. Washington, 466 U.S. 668 (1984). . . . . . . . . . . . . . . 31, 32, 44 Tate v. Wood, 963 F.2d 20 (2d Cir. 1992).. . . . . . . . . . . . . . . . . . . . . . . . . . 58 U.S. v. Alchele, 941 F.2d 761 (9 Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . 62th U.S. v. Payne, 63 F.3d 1200 (2d Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . 61 U.S. v. Wilson, 901 F.2d 378 (4 Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . . 62th Statutes C.P.L. § 440.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 38 C.P.L. § 440.30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 C.P.L.R. § 2221. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Penal Law § 120.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3 Penal Law § 120.25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3 Penal Law § 125.25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Penal Law § 265.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3 Penal Law § 265.03. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3 Penal Law §§ 110.00/125.25.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 v U.S. Const., 6th Amend.; N.Y. Const., art. I, § 6. . . . . . . . . . . . . . . . . . . . . 30 vi COURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------------------- x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : JULIO NEGRON, : Defendant-Appellant. : -------------------------------------------------------------------- x BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By order of the Honorable Robert S. Smith, Associate Judge of the Court of Appeals, defendant Julio Negron appeals from a December 11, 2013, order of the Appellate Division, Second Department, which affirmed an order of the Supreme Court denying defendant’s motion to vacate his judgment of conviction, after a jury trial, of Attempted Murder in the Second Degree (Penal Law §§ 110.00/125.25[1]), Assault in the First Degree (Penal Law § 120.10[1]), Reckless Endangerment in the First Degree (Penal Law § 120.25), Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[2]), and Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02[4]). The court sentenced defendant to determinate prison terms of twelve years on the attempted-murder and first-degree assault counts, ten years on the second-degree weapon-possession count, five years on the third- degree weapon-possession count, and an indeterminate term of from two to six years on the first-degree reckless-endangerment count, all sentences to run concurrently (Lasak, J.). Defendant is currently incarcerated pursuant to this judgment. FACTUAL AND LEGAL BACKGROUND Introduction On February 6, 2005, at approximately 3:50 a.m., at Woodward Avenue and Menahan Street, in Queens, New York, Mervin Fevrier was driving home from a party when he passed defendant, who was backing down the street in order to park his green 1999 Chevrolet Monte Carlo. Defendant yelled and cursed at Fevrier through his window, and Fevrier stopped his car, got out, and walked toward defendant. As Fevrier and defendant yelled at each other, defendant took a .45 caliber weapon from his car and, from about six feet away, shot Fevrier in the leg. Defendant then fired at Fevrier two more times as he tried to run away. After Fevrier fled with a friend, Eliot Miley, in his car, defendant returned to his home at 583 Woodward Avenue. Fevrier and Miley immediately flagged down a bus, and then the police. Minutes later, police officers returned Miley to the scene, where he and two other eyewitnesses identified the shooter’s car – a 1999 Chevy Monte Carlo registered to defendant. The hood of the Monte Carlo was still warm to the touch, even though it was around 4 a.m. One witness additionally identified the building defendant went into after the shooting. Defendant subsequently admitted both that the car was his and that he was the only one 2 driving it that evening. The victim, Fevrier, later picked defendant out of a lineup. For these acts, defendant was charged with Attempted Murder in the Second Degree (Penal Law § 125.25[1]), Assault in the First Degree (Penal Law § 120.10[1]), Reckless Endangerment in the First Degree (Penal Law § 120.25), Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[2]), and two counts of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02[1], [4]) (Queens County Indictment Number 398/2005). On July 29, 2005, a Huntley/Dunaway/Mapp hearing was held to determine the admissibility of defendant’s statement made to the police prior to his arrest and the lineup identification of defendant made by the victim of the shooting. The Court declined to suppress defendant’s statement, but granted suppression of the lineup (Grosso, J.). On August 30, 2005, an1 The Honorable Joseph Grosso suppressed the lineup identification for several1 reasons. First, the court ruled that the People had failed to show probable cause for defendant’s arrest because they did not produce the police officer who informed the arresting detective that the shooter’s car was registered to defendant. Second, the court held that the lineup was suggestive because of dissimilarities between defendant and the other fillers. Initially, the court found that the fillers were older than defendant, that several fillers, unlike defendant, had facial hair, that “a couple” fillers were substantially heavier than defendant, and that their facial characteristics were not similar to defendant’s. Then, the court found that three of the fillers were “clearly” police officers, that one filler was similar in appearance to defendant, and that the remaining filler was not close to defendant in appearance. Finally, the court noted that it was uncomfortable with a conversation between the detectives and the victim after the viewing. The victim had initially stated that he “thought” defendant was the shooter. The detective then asked the victim whether he was one-hundred percent certain, and the victim responded that he was one-hundred percent certain that defendant was the shooter (A340-42, 400-04). 3 independent source hearing was held, and the court ruled that the victim would be permitted to identify defendant in court at trial (Buchter, J.). Defendant proceeded to trial before Justice Gregory Lasak of the Supreme Court, Queens County, and a jury. Before trial, the People disclosed to defendant information that another man in defendant’s building, Fernando Caban, had been arrested late in the evening on February 6, for possessing a stash of weapons and ammunition. A photo of Caban was also turned over to the defense. One .45 caliber weapon was found at that time, in the backyard of the building, but testing revealed that it was not the weapon used in the shooting. At trial, Fevrier identified defendant as the shooter. Three other witnesses identified defendant’s car as the one used in the shooting, as they had minutes after the shooting itself. One eyewitness also identified the building defendant entered after the shooting. The People also introduced defendant's admissions that the car was his and that he was the only one who drove the car on the night of the shooting. Defense counsel attempted to show that defendant wore a very distinctive jacket on the night of the shooting, one that none of the eye- witnesses had described, and that some of the witnesses gave inaccurate descriptions of defendant’s car to the police before they identified it. Defense counsel also called witnesses to testify that defendant had finished socializing 4 with his friends early on the night of the shooting in an attempt to show that defendant would have arrived home long before the incident took place. Defense counsel also attempted to introduce testimony concerning the search of Caban’s apartment and the recovery of weapons, but the trial court the application because any connection between Caban and the shooting was insufficient to justify its admission. In the course of denying the motion, the trial court used language to the effect that the evidence failed to provide a “clear link” to the shooting. At the conclusion of the trial, defendant was convicted of all counts. On April 26, 2006, defendant was sentenced as detailed above. Defendant is currently incarcerated pursuant to this judgment. Defendant’s conviction was affirmed on appeal. People v. Negron, 41 A.D.3d 865 (2d Dept. 2007). Years later, after an initial 440.10 motion and a federal habeas petition, defendant, represented by counsel, filed a new motion in the trial court alleging ineffective assistance of trial counsel and Brady violations. Specifically, defendant complained that counsel failed to elicit testimony from multiple witnesses that he did not have facial hair at the time of the crime and did not object when the trial court, in response to defense counsel’s motion to elicit evidence that Caban had been discovered with a stash of weapons, stated that defendant had failed to show a “clear link” between Caban and defendant’s shooting of a fellow motorist. Defendant also claimed that he was not told that Caban possessed .45 caliber ammunition or that Caban had tried to dispose of his weapons on the roof when the police 5 came to search his premises. The trial court denied the motion, indicating, inter alia, that its own records showed that the prosecutor has disclosed a voucher relating to Caban indicating that .45 caliber ammunition had been recovered. The trial court also explained that the “clear link” language it had used was a shorthand for the balancing of probative value versus prejudicial effect of the third-party perpetrator evidence. The Appellate Division affirmed the denial of the motion, noting the trial court’s statement that the People had disclosed information about the .45 caliber ammunition and that Caban’s actions at the time the police arrived showed only a consciousness of guilt as to his possession of weapons, not as to any shooting. See People v. Negron, 112 A.D.3d 741 (2d Dept. 2013). The Appellate Division also held that there was no reasonable probability that had the defendant corrected the trial court’s language during the application concerning Caban, he would have been allowed to introduce testimony of Caban’s arrest. A judge of this Court granted defendant leave to appeal. SUMMARY OF ARGUMENT Defense counsel provided defendant with meaningful representation. An examination of the record reveals that defense counsel acted in a competent manner, vigorously represented defendant’s position, and pursued a coherent and logical trial strategy. See People v. Ryan, 90 N.Y.2d 822, 823 (1997). Faced with an overwhelming case, counsel made a reasoned decision to pursue a defense of misidentification, and he did so by emphasizing 6 that only one out of several eyewitnesses to the incident identified defendant, and by calling witnesses on defendant’s behalf to establish that defendant would have arrived home well before the time of the shooting, and that he was wearing a distinctive jacket that none of the People’s witnesses described. The record of the proceedings, over which the C.P.L. § 440.10 court presided, establishes that defense counsel exhibited a more than adequate knowledge of criminal law, and advanced plausible theories of defense that were established through legitimate trial tactics. Defense counsel’s failure to pursue or present every minor piece of evidence that could conceivably have – but likely would not have – cast doubt on his identity as the shooter did not render his performance deficient. For example, testimony from defendant’s friends and colleagues claiming that he had a general practice of not wearing facial hair would not have been particularly helpful and could even have been harmful: only one of the four eye-witnesses described the shooter with facial hair, that witness admitted he did not have a good opportunity to view the shooter and did not identify defendant, and the witness who did identify defendant did not include facial hair in his description. Moreover, testimony from the friends with whom defendant allegedly spent the evening before the shooting that he did not have facial hair that evening would likely have been no more persuasive than their testimony that he was wearing a distinctive jacket that none of the eyewitnesses to the shooting described. They were biased witnesses and, 7 regardless of any issue over a single description that included facial hair, the evidence that defendant’s vehicle was the one used in the shooting was overwhelming. Counsel’s inability to convince the court to allow defendant to present third-party-culpability evidence also did not render his performance deficient. The evidence that approximately eighteen hours after the shooting, the police arrested Fernando Caban – who lived in defendant’s apartment building but who did not resemble defendant and who may or may not have2 even been in Queens at the time of the shooting – on unrelated weapon- possession charges did not satisfy the standard set forth in People v. Primo, 96 N.Y.2d 351 (2001), for the introduction of such evidence. The gun recovered in connection Caban’s arrest was determined through ballistics testing not to be the gun used in the shooting, and the ammunition, although the same caliber as that used in the shooting, could not be matched to it. Nor did Caban own or possess the vehicle used in the shooting. Thus, the evidence that Caban was somehow connected to the shooting of Fevrier was slight, remote, and based on conjecture, and its probative value was not sufficient to outweigh the risk of confusing or misleading the jury. Because the evidence was, therefore, inadmissible, and because counsel could not have framed his argument in any way that would have made the evidence less conjectural or more probative, defendant has failed to make out his claim of ineffectiveness. Caban’s and defendant’s arrest photos are included in defendant’s Appendix at A1069-70.2 8 Additionally, the People fully complied with their obligations under Brady v. Maryand, 373 U.S. 83 (1963), by alerting defendant that the police arrested Caban, who lived in defendant’s building, on weapon- possession charges later on the day of the shooting, and that ammunition of the same caliber as that used in the shooting was recovered from Caban. The People were not required to disclose additional information regarding the manner in which Caban attempted to dispose of his guns and ammunition or witnesses who could have testified about Caban’s attempt to dispose of them. The People are obligated to disclose to a defendant any evidence in their possession that is favorable to the defendant and material to his innocence or guilt. Brady v. Maryland, 373 U.S. 83 (1970); People v. Steadman, 82 N.Y.2d 1, 7 (1993). The duty to disclose by the prosecution is limited to evidence that is: (a) in the prosecution’s possession; (b) exculpatory, or favorable, to the defendant; and (c) material either to the defendant’s guilt or punishment. People v. Bryce, 88 N.Y.2d 124, 128 (1996); People v. Novoa, 70 N.Y.2d 490, 496 (1987). Moreover, when a prosecutor has been made aware by a specific discovery request that a defendant considers certain evidence exculpatory and materially important to his or her defense, that evidence is considered “material” if there is a “reasonable possibility” that had it been disclosed to the defense, the verdict would have been different. People v. Scott, 88 N.Y.2d 888, 890-91 (1996); People v. Vilardi, 76 N.Y.2d 67, 77 (1990). 9 Here, the allegedly undisclosed information did not constitute Brady material because it was not suppressed. As an initial matter, this Court must accept the trial court's factual finding that the People disclosed evidence of the type of ammunition possessed by Caban, as the trial court’s factual finding in this regard was affirmed by the Appellate Division and is beyond further review in this Court. See People v. Bryant, 50 N.Y.2d 949 (1980). Moreover, even had it not been turned over, defendant could have readily obtained this information himself from the material the People indisputably provided. See People v. LaValle, 3 N.Y.3d 88, 109-110 (2004) (People satisfied Brady obligations by providing names of witnesses who had exculpatory information but not any of the exculpatory information they possessed, even though witnesses declined to speak to defense). In any event, the information about the .45 caliber ammunition was not exculpatory and would not have enhanced defendant’s application for the admission of third- party-culpability evidence. The ammunition recovered from Caban could not be linked ballistically to the shooting, and the gun was conclusively determined not to have been used in the shooting – so it would actually have disproved defendant’s alternate theory. Similarly, evidence of Caban’s attempted disposal of his stash of weapons when the police arrived could easily have been discovered from the information provided by the People, and was, in any event, not exculpatory because it showed only his consciousness of guilt with respect to the 10 contraband in his possession, not as to any shooting. Finally, because none of this evidence had any meaningful probative value as to the Fevrier shooting, it would not have been admissible at trial and, even if it were introduced, would not have produced a different verdict. Thus, the trial court properly rejected both defendant’s ineffective counsel and Brady claims. Accordingly, this Court should affirm the Appellate Division’s order affirming the trial court’s denial of defendant’s 440.10 motion. THE TRIAL The People’s Case On February 6, 2005, at 3:50 a.m., at Woodward Avenue and Menahan Street in Queens, New York, Marvin Fevrier was driving his car home from a party, and Eliot Miley was sitting reclined in his passenger seat. As Fevrier drove up Woodward Avenue, where Dmitriy Khavko, Zoryana Ivaniv, and Andriy Vintonyak were sitting in a car, defendant was trying to back down Woodward in his 1999 Chevrolet Monte Carlo. Fevrier beeped his horn at defendant, and the two men exchanged words as they passed each other. At this time, Fevrier could see defendant’s face through the window of his car (A473-44, 524-25, 542-43, 617-24, 749-51).3 After Fevrier drove through the intersection at Menahan Street, he noticed that defendant had stopped and gotten out of his car, and was At trial, Mr. Fevrier identified defendant as the man who had shot him (A624).3 11 yelling at him. Fevrier thought that he must have hit defendant’s car, so he got out of his car and began walking toward defendant. As he walked, Fevrier and defendant were talking loudly to one another, and Fevrier looked continuously at defendant’s face. As Fevrier approached, defendant retrieved a handgun from inside of his car and pointed it at Fevrier’s body (A625-31, 751-52, 479- 80, 526). Fevrier started to back up with his hands raised, and defendant asked him what he was going to do. Fevrier, still looking at defendant’s face, responded that he would not do anything because defendant had a gun. Defendant then replied, “This is what I’m going to do,” and, from a distance of about six feet, shot Fevrier in the right leg. Fevrier and Miley, who was behind him, began to run away, and defendant chased them and fired two more shots. Fevrier and Miley then got back into Fevrier’s car and drove away (A632-36, 752, 482-83, 526-27, 544-47), while defendant walked into his house at 583 Woodward Avenue, across the street from where he had parked his car (A483-84, 526-29, 547, 694-96). Fevrier and Miley eventually flagged down a bus, and Police Officer Kevin Outlaw and Sergeant Ellington of the 104 Precinct pulled upth in their police car. Officer Outlaw called an ambulance that took Fevrier to the hospital for treatment of his gunshot wound, and Officer Outlaw and Sergeant Ellington drove back to the crime scene with Miley (A582-86, 637, 753). 12 Upon returning to the scene, Miley informed Officer Outlaw that defendant had been driving the 1999 Chevrolet Monte Carlo that was parked across from his apartment. Officer Outlaw felt the hood of defendant’s car and confirmed that it was still warm. Vintonyak and Kavko, both of whom had witnessed the incident from inside Khavko’s car, also told the police that defendant had been driving the Monte Carlo, which Miley specifically identified to the officer, and Vintonyak pointed out the building that defendant had entered. At 7:40 a.m., the Police Department towed the Monte Carlo away as evidence, and later confirmed that the car was registered to defendant at 583 Woodward Avenue (A 552-53, 586-90, 599-600, 753). At 5:00 a.m., Police Officer Carrie Adomeit of the Evidence Collection Team responded to the scene of the shooting, where she recovered three .45 millimeter shell casings from Woodward Avenue. She concluded that, based on the positioning of the casings, the shooter had been moving quickly towards Menahan Street as he fired the gun (A674-84). Fevrier stayed overnight in the hospital and received antibiotics and pain killers. A year later, he had surgery to remove the bullet in his right leg. He required a cane to walk for one and one-half months, and missed work and required medication for pain during that period. Initially, his wound was very sensitive to the cold, and it prevented him from being physically active at work or in sports, prevented him from driving, and limited his ability to do household work. At the time of trial, over a year after the shooting, Fevrier 13 continued to experience numbness in his thigh and had only a limited chance of improvement (A639-42). On February 6, 2005, at 9:30 a.m. – a few hours after the shooting – Detective Robert Moscoso of the 104 Precinct was investigating theth incident with Detective Dominick DiGennaro and Detective Mike Garielli. Detective Moscoso rang the outside doorbell at 583 Woodward Avenue, a white stone building, and defendant answered. The detective asked defendant if he owned a green Monte Carlo parked around the corner, and defendant responded, “No, excuse me, I parked it across the street,” and pointed across the street. Defendant told the detective that he had driven his car to a motorcycle party the previous night. Defendant said that he was the only one who drove the car and that he had been at the club until 2:00 a.m. Defendant appeared calm despite the disappearance of his car, and he went to the precinct with the detectives (A691-97). Defendant’s Case Manuel Santiago – who had known defendant since they were eleven years old – testified that, on February 5, 2005, he was with defendant at a bar-restaurant, where he drank two beers and defendant drank one or two beers. According to Santiago, they left the bar at 2:00 a.m., and he followed defendant, who was driving a green two-door Cadillac, for ten minutes before their cars separated. Santiago remembered that defendant was wearing an 14 engineer’s jacket, a Yankees cap, blue jeans, and possibly sneakers that night (A781-83, 787-88).4 Edwin Mendez testified that, on February 5, 2005, between 11:30 p.m. and 12:00 a.m., he arrived at a bar-restaurant called “Life,” where he joined defendant, Santiago, and James Martinez. He testified that he did not drink and that he did not recall whether defendant was drinking, but defendant was wearing his union jacket – which Mendez specifically remembered because he had a conversation with defendant about his ground-zero recovery patch – and a Yankees baseball hat (A822-26).5 Defendant, a custodian engineer with the Board of Education who had been convicted of a felony in 1988, testified that he had seen the People’s witnesses, Zoryana Ivaniv, Andriy Vintonyak, and Dmitriy Khavko, hanging out on his block in the past (Defendant: 397-99). According to defendant, on February 5, 2005, he left home between 10:30 p.m. and 11:00 p.m., wearing a union jacket, a Yankees cap, blue jeans, and white sneakers, and drove his green two-door Monte Carlo to Life, a trendy, yuppy place on Flushing On cross-examination, Mr. Santiago testified that he did not remember what defendant had4 worn on other occasions, but on redirect he said that that night stood out in his mind because defendant was arrested, and that defendant told him that it was important for him to remember what he was wearing that day. He also testified that he did not know where defendant was after 2:00 a.m., and that nobody drove defendant’s car except for defendant and his wife (A793, 797-99, 804, 809). On cross-examination, Mr. Mendez testified that he did not remember what defendant had5 worn on other occasions. He further testified that defendant had contacted him one week earlier to be a witness, and they spoke about what defendant had done on February 5, 2005, and what defendant had worn that date. He further testified that he did not know what defendant had done after 2:00 a.m. on that night, and that Life was not a motorcycle club (A829-33). 15 Avenue, between Central and Bogart Avenues. James Martinez and Manuel Santiago were at the bar when he arrived, and Edwin Mendez came later. Defendant testified that, while he might have sipped from a drink, he could not drink because he took pills for epilepsy and diabetes. He claimed that he and other people rode motorcycles to the bar sometimes, and, therefore, he referred to it as the “motorcycle place.” Defendant left the bar between 1:30 a.m. and 2:00 a.m. (Defendant: A837-42, 861-63). According to defendant, upon arriving home, he parked in front of 584 Woodward Avenue, which is across from his house at 583 Woodward Avenue – a three-family building where he lived on the second floor – and entered his house between 2:20 a.m. and 2:30 a.m. Defendant kissed his sleeping wife and then went to sleep between 2:30 a.m. and 2:45 a.m, and never heard gun shots. Defendant testified that he never wore a black skull cap, or a green or leather jacket (A843-49). According to defendant, he awoke the next morning between 9:00 a.m. and 9:30 a.m. because he had planned to ride motorcycles with Santiago. Instead, his doorbell rang, and, when he went outside, he saw three white men, one of whom had a badge, talking to a neighbor. The men asked if his name was Julio Negron and if he owned a green 1999 Monte Carlo. Defendant initially replied that he parked the car around the corner and then that he parked it across the street, and noticed that it was missing. Defendant thought his car was stolen and was asked to come to the 104 Precinct, where he wasth 16 placed in a cage. At the precinct, defendant gave the police consent to search his car and his apartment, and, on February 7, 2005, he was placed in a lineup (A850-58). Defendant testified that he did not own a gun, did not possess one on February 5 and 6, 2005, never fired a gun, and never shot anyone on February 6, 2005 (A858-59). Defendant testified that he was the only one who drove his car. He acknowledged that he spoke with Santiago about what clothes he had worn on February 5, 2005, and did not remember what his friends had worn on other dates that they had been together. Defendant denied that he had worn any facial hair since he started working in 2002, despite his driver’s license picture that depicted him with facial hair (Defendant: A866-78). THE DIRECT APPEAL On December 13, 2006, defendant perfected his appeal by filing a brief in the Appellate Division, Second Department, raising four claims: that the prosecutor committed misconduct during his summation, that the evidence at trial was insufficient to sustain his conviction, that the trial court deprived him of the right to a fair trial by improperly questioning witnesses, and that his counsel was ineffective for failing to object to the alleged errors by the People and the court. On February 27, 2007, the People filed a brief in response, arguing that all of defendant’s claims were meritless, and the first three claims were largely unpreserved because defendant failed to object to the alleged errors. 17 On June 26, 2007, the Appellate Division affirmed defendant’s conviction, holding that defendant’s first three claims were unpreserved and meritless, and that defendant’s trial counsel provided meaningful representation. People v. Negron, 41 A.D.3d 865 (2d Dept. 2007). Defendant subsequently applied for leave to appeal to this Court, and, on September 24, 2007, the Court denied defendant’s application. People v. Negron, 9 N.Y.3d 924 (2007) (Smith, J.). DEFENDANT’S FIRST MOTION TO VACATE JUDGMENT On December 12, 2008, defendant moved, pro se, in the Supreme Court, Queens County, to vacate his judgment of conviction under section 440.10 of the Criminal Procedure Law, alleging that the People secured his conviction with perjured testimony; that the prosecutor failed to disclose that Caban, who lived in defendant’s building, was purportedly arrested with the gun used in the shooting; and that trial counsel was ineffective for failing to6 expose the alleged perjury, for failing to aggressively pursue a defense that defendant did not have facial hair at the time of the shooting, and for failing to argue at trial that the victim’s suppressed pre-trial viewing of him was tainted. On February 24, 2009, the People filed a response to defendant’s motion. The People argued that all of defendant’s claims were procedurally barred because they were based on matters that appeared on the record of the As noted above, the .45-caliber weapon recovered from the backyard of the building was6 in reality not the gun used in the shooting. 18 trial. In addition, the People argued that defendant’s claims were meritless. First, they argued that there was no inference from the evidence at trial that the victim falsified his testimony that defendant shot him directly in the leg, and, since this claim was meritless, defendant’s attorney was not ineffective for having failed to raise it. Second, the People argued that defendant received the effective assistance of counsel because trial counsel had a coherent strategy to prove that the victim had misidentified petitioner as the shooter. Third, the People argued that they made defendant aware of the arrest of Fernando Caban, his neighbor, for possessing a stash of firearms and ammunition in his apartment, and, therefore, there could be no violation of Brady. In addition, none of the firearms matched the weapon used in the shooting, and the People were not aware of any “exculpatory” information. On March 17, 2009, the court denied defendant’s motion (Lasak, J.). The court held that, to the extent that defendant’s claim that counsel was ineffective did not appear on the record, defendant’s motion was deficient because it was based solely on his own allegations. In any event, the court held that defendant failed to demonstrate either a lack of strategic reasons for counsel’s actions or prejudice as a result of the alleged deficiencies. The court further held specifically that defendant’s Brady claim was procedurally barred because a discussion of the arrest of defendant’s neighbor for weapon possession took place on the record prior to trial, and the People disclosed relevant arrest documents to defendant as part of the Rosario materials. 19 On April 26, 2009, defendant moved for leave to appeal the motion court’s decision to the Appellate Division. On June 26, 2009, the People filed an opposition to defendant’s application. On September 10, 2009, the Appellate Division denied defendant’s application for leave to appeal (Dillon, J.). DEFENDANT’S FEDERAL HABEAS CORPUS PETITION On September 30, 2009, defendant, pro se, filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York raising two claims. First, defendant claimed that the People presented perjurious testimony from the victim regarding the bullet that was lodged in his leg. Second, defendant claimed that he was deprived of the effective assistance of counsel, because his attorney 1) failed to advocate a theory that another man in defendant’s building committed the crime; 2) failed to call witnesses who would support defendant’s claim that he did not have facial hair at the time of the shooting; 3) failed to impeach the victim with evidence that he lied about the condition of the bullet in his leg; and 4) failed to object to allegedly improper comments made by the prosecutor during his summation. On February 1, 2010, the People filed a response to defendant’s petition. First, the People argued that defendant’s claim that his attorney failed to argue properly that another man in his building was the true culprit was unexhausted, because it was raised only in a renewal motion that was never 20 calendared by the state court. The People further argued that, in any event, the underlying Brady claim had been rejected by the state court as procedurally barred because the matter was actually discussed in open court. Second, the People argued that the District Court should not address defendant’s claim that his counsel failed to call certain witnesses, because the state court rejected it as procedurally barred because defendant failed to provide sufficient documentation supporting the claim. The People further argued that, in any event, should the District Court excuse that bar, it should grant deference to the state court’s determination on the merits that counsel’s representation was effective. Third, the People argued that defendant’s claim that his counsel was ineffective for failing to challenge the victim’s alleged perjury, while not specified in the court decision, was, like the underlying claim, effectively addressed as procedurally barred. The People further argued that, in any event, should the District Court find that the decision was based upon a merits determination, counsel could not be held ineffective for failing to pursue a losing strategy that would not have been compatible with his strategy of arguing that defendant had been misidentified. Fourth, the People argued that defendant’s claim that counsel was ineffective for failing to object to allegedly offensive summation comments by the prosecutor was rejected on the merits by the state court, and that decision should receive deference from the District Court. 21 The District Court asked Joel Rudin, Esq., to pursue defendant’s unexhausted state court claims pro bono, and is holding defendant’s petition in abeyance until the instant proceedings are concluded. DEFENDANT’S SECOND 440.10 MOTION On April 20, 2012, nearly three years after his first motion was denied, defendant, through counsel, moved to renew his prior motion pursuant to section 440.10 of the Criminal Procedure Law, and, in the alternative, asked the court to deem his motion a second motion under section 440.10. First, defendant claimed that he discovered new information supporting his Brady claim – specifically that Caban’s weapons and ammunition stash included .45 caliber ammunition, and that Caban frantically tried to dispose of the weapons and ammunition when the police came to search defendant’s apartment – that constituted exculpatory evidence that the People failed to disclose at the time of trial (A36-39). Second, defendant claimed that his defense attorney was ineffective for failing to argue the third-party culpability defense properly and for failing to present evidence allegedly demonstrating that defendant was not wearing facial hair on the night of the shooting, which would have conflicted with a description given by one of the trial witnesses (A44-52). Third, defendant claimed that he is actually innocent of the crimes for which he was convicted (A57-59). On June 5, 2012, the People filed their opposition arguing that all of defendant’s claims were procedurally barred and meritless. First, the People 22 argued that they had provided defendant with evidence regarding Caban and the recovered weapons, and that the trial court properly precluded that evidence when trial counsel sought to admit it in support of a third-party culpability defense. Furthermore, the People argued that additional evidence that Mr. Caban possessed .45 caliber ammunition, which was not matched to the shells at the crime scene, was not sufficiently probative of defendant’s third-party theory to be admitted at trial – especially where the .45 caliber handgun recovered and linked to Caban did not match the shells found at the scene of the shooting. And evidence that Caban stashed weapons on the roof of his building before the police search was mainly probative to his guilty mind regarding his possession of illegal weapons and counterfeit money, and did not establish that he possessed a consciousness of guilt as to this shooting sufficient to support a claim that Caban was the real shooter (A287-98). In addition, the People argued that defense counsel had a clear trial strategy to discredit the People’s witnesses and to demonstrate that defendant and his car had been misidentified. The People further argued that defense counsel made a proper and forceful argument to introduce evidence that a third-party was responsible for the shooting, but the court properly excluded that evidence. Moreover, additional evidence about defendant’s appearance would have made no difference at trial and counsel was not required to introduce it (A299-307). 23 Finally, the People argued that there is no cognizable claim for actual innocence in section 440.10 of the Criminal Procedure Law, and that the evidence of defendant’s guilt was, in any event, overwhelming (A298). On September 26, 2012, the court denied defendant’s motion (Lasak, J.). First, in rejecting defendant’s Brady claim, the court found that the information regarding the ammunition was neither exculpatory nor material. In addition, reviewing its own materials, the court found that the Rosario materials disclosed by the People at trial included information that a large amount of ammunition was recovered from the building, including .45 caliber ammunition (A10-11). The court specifically found that, prior to trial, the People had disclosed arrest documents and a photograph of Caban (A10-11, fn. 3). Thus, the court denied the Brady claim. Second, the court denied defendant’s ineffective assistance of counsel claim. The court – which had presided over the trial – stated that, regardless of its use of the term “clear link,” it had excluded the evidence of third-party culpability because it lacked sufficient probative value “to outweigh the risk of delay, undue prejudice or jury confusion” (A11). Therefore, defense counsel could not have persuaded it to alter its ruling on the lack of the probative value of the evidence. The court further found that counsel had extensively questioned the witnesses who testified at trial (A12). Thus, after reviewing the conduct of defense counsel the court found that defendant failed to establish that he was denied the effective assistance of counsel. 24 Finally, the court implicitly rejected defendant’s actual innocence claim and stressed the strength of the evidence. The court found that this was not, as defendant claimed, merely a one-witness case, but that additional witnesses identified defendant’s car, which only defendant drove on the night of the shooting, as the car driven by the shooter (A11-12). By order dated March 22, 2013, the Appellate Division, Second Department, granted defendant’s application for leave to appeal. On May 24, 2013, defendant filed his appeal in the Appellate Division, claiming that the lower court improperly denied his motion. First, defendant claimed that he was denied the effective assistance of counsel because his attorney failed to argue properly his third-party culpability defense and because he failed to introduce evidence that defendant did not have facial hair on the night of the shooting. Second, defendant claimed that the People committed a Brady violation by failing to disclose that Caban, who lived in the same building as defendant, stashed his arms cache on the roof of his building when the police were executing the search of defendant’s apartment, and that, among other weapons and ammunition, Caban possessed ammunition of the same caliber used in the shooting. Third, defendant claimed that he was actually innocent of the shooting. On August 5, 2013, the People filed their brief in response, arguing that the Appellate Division should affirm the motion court’s decision because the trial court correctly found that defendant’s claims were all 25 meritless. First, the People argued that defendant received the effective assistance of counsel, where counsel had a sound strategy to demonstrate that defendant had been misidentified as the shooter, including the introduction of testimony that defendant wore a distinctive jacket on the night of the shooting. Moreover, counsel understood the third-party culpability defense, and he correctly, although unsuccessfully, argued at trial that he should be permitted to assert this defense. Second, the People argued that because they disclosed the arrest of Fernando Caban and the existence of the weapons cache to the defense at trial, the motion court properly rejected defendant’s Brady claim. The motion court, reviewing the Rosario material disclosed at trial, found that the People had disclosed both the existence of large amounts of ammunition and the existence of .45 caliber ammunition. The People’s failure to disclose any additional details regarding the search of the building, Caban, and the recovered weapons was not a violation of Brady. Indeed, the recovered ammunition was not matched to the shells at the crime scene, and, therefore, was not sufficiently probative of defendant’s third-party theory to be admitted at trial. And evidence that Caban stashed weapons on the roof of his building before the police search was mainly probative of his guilty mind regarding his possession of illegal weapons and counterfeit money, and did not establish that he possessed a consciousness of guilt as to this shooting sufficient to support a claim that he was the real shooter. 26 Finally, the People argued that there is no cognizable claim for actual innocence in section 440.10 of the Criminal Procedure Law, and that the evidence of defendant’s guilt was, in any event, overwhelming. Thus, the People argued, the motion court properly denied defendant’s actual innocence claim. On December 11, 2013, the Appellate Division, Second Department, affirmed the trial court’s order denying defendant’s motion to vacate judgment. People v. Negron, 112 A.D.3d 741 (2d Dept. 2013). The Appellate Division held that defendant had failed to establish that he received ineffective assistance of counsel under either the federal or state constitutional standards. Id. at 743. Specifically, the Appellate Division determined that, because the Supreme Court properly denied defendant’s motion to admit evidence supporting third-party culpability, counsel could not have been considered ineffective for failing to object to the denial of his motion. Id. Further, the Appellate Division determined that defendant’s contentions that counsel was ineffective for failing to present additional witnesses and evidence concerning facial hair were meritless, as he failed to establish that there was a reasonable probability that the introduction of the evidence would have affected the outcome of the trial, and the record established that defense counsel provided meaningful representation as a whole. Id. The Appellate Division also found that the Supreme Court properly determined that the People had not committed any Brady violations, 27 first mentioning that the trial court had noted in its decision that the Rosario materials turned over by the People to the defense indicated that Caban’s weapons’ cache included .45- caliber ammunition. Id. at 744. Then the7 Appellate Division determined, in any event, that the undisclosed material was not Brady because there was no ballistics evidence conclusively linking the shell casings recovered from the crime scene to the .45-caliber ammunition found in Caban’s cache, or to any weapons found in the cache, and Caban’s flight and attempt to discard the weapons and other contraband on the roof of his building when the police arrived showed only consciousness of guilt as to the possession of illegal guns and other contraband. Id. Further, the Appellate Division found that there was no reasonable probability that the failure to disclose the materials contributed to the verdict. Id. The Appellate Division then found defendant’s remaining contention “without merit.” Id. Defendant sought leave to appeal to this Court, and Justice Smith granted defendant’s application for leave to appeal. While defendant, in his brief, notes that, in the leave conference before Justice Smith, the7 People acknowledged that the People did not have proof in their own file that they had disclosed that particular property voucher to the defense (Defendant’s Brief at 18, fn. 6), that merely means that the People’s own file contained no such proof. The lack of confirmation of a fact does not constitute its disproof. Moreover, the trial court’s statement was a finding of fact, affirmed by the Appellate Division, which is beyond further review in this Court. See People v. Bryant, 50 N.Y.2d 949. And, even if this Court could review this fact-finding, it should not second-guess the motion court’s assertion that it had seen such proof, in its own materials, absent some indication that the assertion is false. 28 POINT ONE THE APPELLATE DIVISION CORRECTLY HELD THAT DEFENDANT FAILED TO ESTABLISH THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL (Answering Defendant’s Brief, Point I). The Appellate Division correctly held that defendant failed to establish that he received ineffective assistance of counsel under either the State or Federal Constitution. Faced with an overwhelming case, counsel had a clear trial strategy to discredit the People’s witnesses and to demonstrate that defendant and his car had been misidentified, and he pursued that strategy by emphasizing that only one out of several witnesses to the shooting identified defendant and that several witnesses described defendant’s car as being a four- door vehicle when in fact it was a two-door vehicle, and by calling witnesses on defendant’s behalf to establish his distinctive clothing that night, which was not identified or described by any witnesses. Defendant, however, claims that counsel’s alleged failure to prepare for trial and his trial errors, considered individually and cumulatively, denied him a fair trial. Defendant is wrong. The 440.10 court, which had presided over defendant’s trial, appropriately held that defense counsel made a legally sound application to advance a third-party culpability defense, thoroughly questioned all the witnesses, and provided effective assistance, and the Appellate Division correctly upheld that determination. 29 The right to the effective assistance of counsel is guaranteed under both the Federal and State Constitutions. See U.S. Const., 6th Amend.; N.Y. Const., art. I, § 6. Under the New York rule, what qualifies as effective assistance varies with the unique circumstances of each representation. People v. Oathout, 21 N.Y.3d 127, 128 (2013); People v. Benevento, 91 N.Y.2d 708, 712 (1998); People v. Baldi, 54 N.Y.2d 137 (1981). In order to succeed on a claim that trial counsel was ineffective under the state constitution, a defendant must demonstrate, viewing the totality of the evidence, the law, and the circumstances of that particular case, that counsel failed to provide “meaningful representation.” People v. Baker, 14 N.Y.3d 266, 270 (2010); see also People v. Satterfield, 66 N.Y.2d 796, 798-799 (1985). The meaningful representation standard is not a stringent one; it is, in fact, “undemanding.” People v. Borrell, 12 N.Y.3d 365, 368 (2009), quoting People v. Turner, 5 N.Y.3d 476, 482 (2005). The essential inquiry in assessing whether counsel’s representation was meaningful is not whether counsel could have achieved a better result, rather, it is whether, when viewed objectively, counsel’s actions are consistent with those of a reasonably competent attorney. People v. Borrell, 12 N.Y.3d at 368. In addition, the meaningful representation standard “includes a prejudice component which focuses on the fairness of the process as a whole rather than [any] particular impact on the outcome of the case.” People v. Henry, 95 N.Y.2d 563, 566 (2000), citing People v. Benevento, 91 N.Y.2d at 714. 30 Courts should apply a “flexible approach” when evaluating ineffective assistance of counsel claims. People v. Henry, 95 N.Y.2d at 565, citing People v. Benevento, 91 N.Y.2d at 712. The question is whether the attorney committed “egregious and prejudicial” error such that the defendant did not receive a fair trial. See People v. Benevento, 91 N.Y.2d at 713 (quoting People v. Flores, 84 N.Y.2d 184, 188-189 [1994]). What is guaranteed is a fair trial, “not necessarily a perfect one.” People v. Benevento, 91 N.Y.2d at 712; see also Flores, 84 N.Y.2d at 187; People v. Oathout, 21 N.Y.3d at 128 (test is reasonable competence, not perfect representation). When applying this standard, courts must take care not to accord “undue significance” to retrospective analysis. People v. Benevento, 91 N.Y.2d at 712; People v. Baldi, 54 N.Y.2d at 145. So long as the defendant was afforded “meaningful representation,” it is irrelevant whether a course chosen by a defendant’s counsel was the best course to pursue, or even a good one. People v. Satterfield, 66 N.Y.2d at 799-800. In order to establish a claim of ineffectiveness under the Sixth Amendment to the United States Constitution, a defendant must satisfy a similar, but somewhat different test. Strickland v. Washington, 466 U.S. 668 (1984). A defendant must demonstrate, first, that counsel’s performance fell below an objective standard of reasonableness and, second, that the deficient performance deprived the defendant of a fair result. See People v. Benevento, 91 N.Y.2d at 713. There is a “strong presumption that counsel’s conduct falls 31 within the wide range of reasonable professional assistance.” Strickland v. Washington, 466 U.S. at 689. And it is the defendant’s burden not only to overcome the strong presumption of reasonable professional assistance, but also to demonstrate a reasonable probability that, but for the substandard performance, the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. at 689, 694. Here, defense counsel afforded defendant meaningful representation under both the federal and state standards. An examination of the record reveals that defense counsel acted in a competent manner, vigorously represented defendant’s position, and chose a coherent and logical trial strategy – that witnesses had misidentified defendant and his car. See People v. Ryan, 90 N.Y.2d 822, 823 (1997). Initially, the lower court properly denied defendant’s motion without a hearing. A trial court may deny a defendant’s motion pursuant to section 440.10 on ineffectiveness grounds without holding a hearing where the motion can “be determined on the trial record and defendant’s submissions on the motion.” People v. Satterfield, 66 N.Y.2d 796, 799 (1985). Indeed, section 440.10 provides that a court may deny a motion on the merits where “[t]he moving papers do not allege any ground constituting a legal basis for the motion” or “[a]n allegation of fact essential to support the motion is conclusively refuted by unquestionable documentary proof.” C.P.L. § 440.30(a),(c). 32 Here, the trial court properly denied defendant’s motion based upon its own familiarity with the trial and the submissions of defendant and the People in support of and in opposition to the section 440 motion before the court. Indeed, even accepting defendant’s factual allegations as true, defendant failed to meet his burden of proving either that his trial counsel’s assistance was ineffective, or that he did not receive a fair trial because his counsel’s conduct was “egregious and prejudicial.” Accordingly, the 440.10 court and the Appellate Division correctly rejected defendant’s ineffectiveness claim. The totality of defense counsel’s conduct, examined as of the time of the representation, demonstrates that defense counsel acted in a competent manner, vigorously represented defendant’s position, and had a coherent and logical trial strategy. The record of the proceedings, over which the 440.10 court presided, establishes that defense counsel exhibited a more than adequate knowledge of criminal law, and advanced plausible theories of defense that were established through legitimate trial tactics. And it was in this context that the court analyzed defendant’s 440 claim that his attorney’s investigation into the facts and law that might have supported his third-party-culpability defense was inadequate. The court was correct to deny the motion on the basis of ineffective assistance of counsel because the omissions defendant challenged in his 440 motion were inconsequential. In order to prevail at trial, defense counsel needed to discredit the victim’s identification of defendant as the shooter, and needed to discredit the 33 identification, made only ten to fifteen minutes after the crime, of defendant’s car as that driven by the shooter. To this end, in his opening statement, counsel informed the jurors that the People were prosecuting the wrong person for the shooting, emphasizing that one witness – after viewing defendant face-to-face in the precinct – stated that he was “not the shooter,” that two other witnesses viewed a lineup containing defendant and one of them did not identify anyone and the other identified a filler, and that the passenger in the victim’s car also did not identify defendant in a lineup (A464-66). Counsel also cross-examined the People’s witnesses extensively, in order to support his misidentification defense, establishing that of three witnesses who viewed the shooting from down the street, one – Andriy Vintonyak – did not identify defendant in a lineup (A505-06), another – Zoryona Ivaniv – did not recognize defendant when she saw him face-to-face in the precinct on the day of the shooting (A533), and a third – Dmitriy Khavko – identified a filler in the lineup (A556-57). Counsel established through his cross-examination of the victim – Marvin Fevrier – that, when they were in the car passing the perpetrator’s car, his passenger – Eliot Miley – was closer to the perpetrator than he was. Counsel then attempted to get Fevrier to admit that when he was face-to-face with defendant, his focus was on the gun, and not defendant’s face, and successfully argued – with relevant case law – to have Fevrier precluded from testifying about a second, incidental viewing of defendant, in which Fevrier identified defendant (AA605-15, 653, 661). 34 Counsel cross-examined several witnesses about whether defendant’s jacket had writing on it, setting up the testimony of defense witnesses that defendant was wearing a distinctive jacket with writing and patches on it (A566, 670, 771). Further, when cross-examining Miley, counsel elicited that he positively identified, in a lineup, someone other than defendant as the shooter, and that he described the perpetrator as being white or Hispanic and having a beard and a moustache (A761, 765, 771-72). Next, counsel called witnesses on defendant’s behalf – including defendant – to establish that he was with them on the morning of the shooting8 but would have been home well before the shooting occurred, and that he was wearing a distinctive jacket with patches on it and a Yankees hat that were not described by any of the witnesses to the shooting (A782-83, 788, 823-26). Finally, in his summation, counsel marshaled all of the evidence that supported his argument that defendant could not have been the person who shot Fevrier that night. He noted that four out of the five people who witnessed the shooting did not identify defendant as the shooter, and discounted the testimony of those witnesses that they did not get a good look at the shooter by noting that, had that been the case, they would not have been asked to view the lineup with defendant in it (A902-03, 907-09). Counsel noted that Miley said that the perpetrator had a moustache, and that the defense witnesses all said Prior to defendant’s testimony, counsel brought to the court’s attention additional case law8 in an effort to get the court to change its Sandoval ruling (816-19). 35 that defendant was wearing a distinctive jacket with writing on it that night, but that all of the People’s witnesses on cross-examination had said that the shooter’s jacket did not have any writing on it (A918-20). Thus, counsel had a coherent strategy to prove that the victim had misidentified defendant as the shooter, and he pursued that strategy in an extremely effective way. In addition, defense counsel had to discount the identification of defendant’s car, which only he drove, as the same one used by the shooter. To that end, counsel told the jurors in his opening statement that witnesses identified defendant’s car as being a four-door sedan, when in actuality defendant drove a two-door Chevy Monte Carlo, and then supported his opening statement through his cross-examination of witnesses (A468-69). For example, counsel elicited from Police Officer Kevin Outlaw that the radio communication he received about the incident described the shooter as driving a four-door dark blue sedan, while defendant’s car only had two doors, and that Miley told him that, after the shooting, the perpetrator got back into his car and left (A594, 596-98). When cross-examining the victim, Mervin Fevrier – the only person to identify defendant at trial – counsel elicited that he described the shooter’s car to police as a four-door sedan, and that he did not identify the perpetrator’s car to the police (A648-51), and his cross-examination of Miley established that Miley also thought the shooter was driving a four-door car (A774). 36 Moreover, when cross-examining Detective Robert Moscoso, who arrested defendant, counsel elicited that defendant was at all times cooperative with the police, that he consented to the search of his car and his apartment, and that the police did not find a gun, bullets, shell casings or clothing matching the description of what the perpetrator was wearing in defendant’s two-door car (A698-99, 701-03). Finally, in his summation based on evidence9 that he elicited at trial, counsel noted that Fevrier never identified defendant’s car – but said that it was a four-door vehicle – that Miley said that the shooter drove off in his car after the shooting, and that, given the location of the recovered shell casings, defendant’s Monte Carlo could not be the shooter’s car (A926-27, 929, 932-33, 936). Thus, defense counsel had a clear and coherent strategy to demonstrate that both defendant and his car had been the victims of misidentification. Despite counsel’s dogged and logical pursuit of the misidentification defense, defendant now claims that counsel’s representation of him was ineffective. Specifically, defendant complains that counsel inexcusably failed to investigate defendant’s case and to present readily available evidence that defendant did not resemble the perpetrator, and failed to object to the motion court’s use of the incorrect standard for third-party- culpability evidence. These claims are wholly unavailing. Counsel also obtained a stipulation that the police did not recover any firearms inside of9 defendant’s address (A269). 37 As a threshold matter, to the extent that defendant based his motion upon the same facts that he originally presented to the motion court – the affidavits from witnesses stating that he did not have facial hair at the time of the incident – the motion should have been denied as an improper motion to renew. Indeed, in order to succeed in a motion to renew, defendant had to present new facts that were not brought in his prior motion and that would have changed the motion court’s decision denying his motion to vacate judgment. C.P.L.R. § 2221(e)(2). In the alternative, the court should have rejected defendant’s motion as one pursuant to section 440.10 because it had already rejected defendant’s virtually identical claim in a previous motion pursuant to section 440.10. C.P.L. § 440.10(3)(b). In any event, the motion court properly denied defendant’s motion as meritless. A. The Failure to Introduce Additional Evidence of Defendant’s Clean-shaven Appearance Did Not Render Counsel’s Performance Deficient or Prejudice Defendant. Counsel provided defendant with more than effective representation. As noted above, defense counsel vigorously pursued a misidentification defense on the part of defendant, by highlighting the failure of several witnesses to identify him as the shooter, and the descriptions of the shooter’s car that did not match the one driven by defendant. Defendant, nevertheless, claims that counsel was ineffective for failing to do even more to pursue the defense of misidentification. Specifically defendant claims that counsel’s performance rose to the level of constitutional ineffectiveness 38 because he failed to interview or present the testimony of a dozen witnesses who defendant claims would have corroborated his testimony that he was clean-shaven around the time of the incident, failed to elicit testimony from the witnesses he did call that defendant was clean-shaven hours before the shooting occurred, failed to introduce defendant’s arrest photo which showed him to be clean shaven, and failed to point out to the jury that the filler identified by one of the eyewitnesses had a moustache (Defendant’s Brief at 26-27). But that counsel did none of those things did not render his performance less than meaningful, and because defendant was not prejudiced, defendant’s claim must fail. First, that trial counsel, in the affidavit he supplied to defendant to support defendant’s second section 440.10 motion, stated that he had no strategic reason for not pursuing the facial hair angle, is of no moment. The Supreme Court has recognized that, “[a]fter an adverse verdict at trial even the most experienced counsel may find it difficult to resist asking whether a different strategy might have been better, and, in the course of that reflection, to magnify their own responsibility for an unfavorable outcome. Strickland, however, calls for an inquiry into the objective reasonableness of counsel’s performance, not counsel’s subjective state of mind.” See Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770, 790 (2011). Here, counsel’s subjective reasons – or lack thereof – for his actions are immaterial, because, viewed objectively, the transcript shows the existence of a trial strategy that a 39 reasonably competent attorney would have pursued. See People v. Satterfield, 66 N.Y.2d 796, 799 (1985). Moreover, defendant’s trial took place in the spring of 2006, and counsel wrote his affidavit in April, 2012. For counsel to remember the reasons for every decision he made in a trial that took place six years earlier would be extraordinary indeed. And valid strategic reasons existed for counsel not to emphasize that defendant was clean-shaven at the time of the shooting. Only one witness described the shooter as having facial hair, and that witness did not identify defendant in a lineup or at trial. The witness with the best opportunity to view defendant and the only witness to identify him at trial – the victim, Fevrier – never described the shooter as having facial hair. So any reasonably competent attorney would have recognized that calling countless witnesses to establish that defendant was clean-shaven at the time of the shooting would have done little to support the identification defense and, indeed, would actually have supported the identification of the only witness to identify defendant as the shooter. Moreover, testimony from defendant’s friends and colleagues claiming that he had a general practice of not wearing facial hair would have been very weak evidence of his appearance at the time of the shooting. They were after all his friends, and their testimony would have been expected to be favorable. And defendant’s driver’s license, issued on November 15, 2004, while admittedly not evidence of his appearance on the night in question, 40 would have discredited any testimony that it was defendant’s general practice not to wear facial hair. Thus, the court could not have held counsel’s10 performance ineffective for not producing this weak – and rebuttable – evidence. Furthermore, while defendant also complains about counsel’s failure to present evidence of defendant’s clean-shaven appearance through his witnesses who did testify (Defendant’s Brief at 26), he cannot claim any prejudice. The jury heard their testimony that defendant’s clothing did not match the perpetrator’s clothing described by the witnesses on the night of the shooting, and it still convicted defendant. It is simply not reasonable to think that had the witnesses also testified that defendant was not wearing facial hair that the jury’s verdict would have been different, especially given that the witness who had the best opportunity to view defendant, and who identified him at trial, never said that the shooter had facial hair. In fact, as noted above, for counsel to have pursued the facial hair angle too aggressively would likely have harmed the defense more than it would have helped, by strengthening Fevrier’s identification of defendant as the shooter and weakening defendant’s misidentification defense. Thus, defendant did not suffer prejudice from Although defendant claims in his brief that the prosecutor misled the jury about10 defendant’s appearance at the time of the crime by introducing an eight-year-old photograph showing him with facial hair (Defendant’s Brief at 26-27), that is not the case. The prosecutor did introduce defendant’s driver’s license that was issued in 2004 into evidence, but defense counsel elicited from defendant that the picture on the license was eight years old (A875-78). On summation, the prosecutor clarified that the purpose of introducing the license into evidence was merely to show that, at some time in the past, defendant had facial hair (A987). 41 defense counsel’s failure to present additional testimony about whether he wore facial hair and the court correctly rejected that claim. Moreover, any claim that the perpetrator must have had facial hair (Defendant’s Brief at 26) is weak because it is based almost entirely upon a description by Eliot Miley, whose opportunity to view defendant was much worse than the victim’s. Indeed, Miley testified that he could not see defendant when he first passed by in his car or could see him for “half a second maybe,” and that he continued to look at the victim as the victim argued with defendant (A754-55, 765). Additionally, when Miley first saw defendant on the street – at the point when defendant drew his handgun – defendant was standing on the far side of the victim and more than four car lengths away from Miley, and Miley’s view was blocked by some of the cars on the street (A756-57, 767-68). Therefore, according to Miley, he did not have a good view of the shooter at that time either (A760). Thus, while Miley testified that he described defendant to the police as having a “beard and mustache” (A771), this description was based upon a very poor viewing, and it was not the People’s position at trial that the perpetrator had facial hair. Additionally, counsel’s failure to point out that the filler identified by Khavko had a moustache could not have been ineffective, because Miley described defendant as having a moustache and a beard, so Khavko’s identification of a filler with only a mustache did little to corroborate his 42 description. Counsel, however, did cross-examine the witness extensively11 about his identification of filler number one at the lineup (A556-61). That the witness could not identify defendant at the lineup was an important fact to bring to the attention of the jury, but the appearance of the individual whom he picked had little relevance, given the witnesses’ vacillation on this point. Indeed, the filler was not the shooter, and his facial hair was different than the description Miley provided. To the extent that counsel failed to introduce the photographs of defendant taken after his arrest (Defendant’s Brief at 26), they were not competent evidence of defendant’s facial hair at the time of the shooting. Indeed, even accepting that defendant wore facial hair at the time of the shooting, he was arrested hours later, and easily could have shaved prior to his arrest. Thus, counsel’s decision not to present the photograph, or to emphasize the absence of facial hair generally, did not render his representation constitutionally deficient, and the introduction of the photo would not, in any event, have changed the outcome of the trial. Defendant nevertheless claims that the Appellate Division erred when it found, without explanation, that defendant received effective assistance “as a whole,” without discussing specifically how counsel’s lack of preparation and omissions at trial were reasonable. Defendant claims that the A photograph of the lineup was entered into evidence at trial, so the jury did have access11 to it (A493-94). 43 “as a whole” standard applied by the Appellate Division under State law cannot “swallow up” the federal test, under which specific deficiencies are analyzed for reasonableness and prejudice (Defendant’s Brief at 27-28). But there is no requirement that a court, in applying the federal standard, outline each of counsel’s alleged errors and discuss whether that error alone was reasonable or prejudiced defendant. Instead, in analyzing a claim of ineffectiveness under the Sixth Amendment to the United States Constitution, a court must determine first, whether counsel’s performance fell below an objective standard of reasonableness and, second, whether the deficient performance deprived the defendant of a fair result. See People v. Benevento, 91 N.Y.2d at 713; Strickland v. Washington, 466 U.S. 668 (1984). The Appellate Division here appropriately applied that standard in determining that counsel’s performance was acceptable under the federal standard. Although defendant cites to People v. Oliveras, 21 N.Y.3d 339 (2013), in order to support his position that the Appellate Division incorrectly applied the federal standard, that case is not applicable here. In Oliveras, the only evidence directly tying the defendant to a murder was his statements to the police. Id. at 343. Nevertheless, counsel failed to obtain the defendant’s psychiatric records or any other documents related to defendant’s mental illness or condition, which could have supported his challenge the defendant’s confession, and instead challenged the confession only through the testimony of the defendant’s mother. Id. at 342-44. There, this Court found that counsel 44 “failed to pursue the minimal investigation required under the circumstances” because his strategy to present the defendant’s mental capacity and susceptibility to police interrogation could only be fully developed after he reviewed the necessary records. Id. at 348. Here, counsel thoroughly pursued the best defense available to defendant, and did so by reviewing all of the police paperwork, cross- examining witnesses on their inability to identify defendant, calling witnesses to support his misidentification theory, and attempting to insert a third-party culpability defense. Unlike in Oliveras, here defendant’s ineffectiveness claim amounts mainly to a complaint, not that counsel did not pursue a valid defense, but that he could have done more to pursue it. But as this Court has held repeatedly, and reaffirmed recently, a defendant is guaranteed a fair trial, not a perfect one, and for an ineffective-assistance claim to succeed, a defendant must make a showing that the fairness of the trial was impaired. See People v. Thompson, 21 N.Y.2d 555, 560 (2013); People v. Henry, 85 N.Y.2d 563, 565 (2000). Given counsel’s tremendous efforts to pursue a misidentification defense through every phase of defendant’s trial, defendant has utterly failed to make this showing. Counsel was not ineffective merely because his efforts to convince the jury that the identifications of defendant and his car were faulty were unsuccessful. See People v. Taylor, 1 N.Y.3d 174, 177 (2003)(counsel not ineffective merely because efforts to discredit witness proved futile). 45 Counsel made no errors that were so egregious and prejudicial as to vitiate his overall effective representation. Indeed, this case presents a classic example of a “disappointed prisoner,” accusing his attorney of ineffectiveness because he was convicted, even though the conviction was the result of the overwhelming evidence against defendant, and occurred despite counsel’s performance, rather than as a result of it. See People v. Benevento, 91 N.Y.2d at 712. Therefore, defendant’s claim that he was denied the effective assistance of counsel is meritless. B. Counsel’s Application to Raise a Third-party Culpability Defense Was Not Ineffective. Counsel demonstrated an understanding of the third-party culpability defense when he sought to present evidence that another Hispanic man, who lived in defendant’s building and was arrested for weapon possession, committed this crime. While counsel made a vigorous attempt to introduce the evidence of Caban’s arrest, that application could never ultimately have succeeded because Caban had no connection whatsoever to the shooting. He did not possess the gun used in the shooting – in fact the only possible matching weapon in Caban’s possession was proven, after testing, not to be the weapon used in this case. Nor did Caban own or possess the car identified by three eye-witnesses to the shooting. Thus, Caban’s unrelated arrest for weapon possession simply had no connection with the shooting of Fevrier. 46 Defendant, nevertheless, argues that an objection to the trial court’s erroneous use of the “clear link” standard in denying his application would have made a difference in his application and would have produced a better result. According to defendant, this omission was, thus, constitutionally ineffective. (Defendant’s Brief at 30-32). Not so. Under any standard, the evidence of third-party culpability was inadmissible because it had no connection to the Fevrier shooting and nothing counsel could have done would have made the connection any less speculative or any more admissible. Indeed, even under People v. Primo, defense counsel could not have prevailed. Counsel’s application required a fact-specific relevance argument and there was no case law that counsel could have cited to alter the court’s decision at trial to exclude the evidence. In fact, the Appellate Division agreed that, under Primo, the trial court properly excluded the evidence, because it was “of slight, remote, or conjectural significance, and was not sufficiently probative to outweigh the countervailing risks of trial delay, undue prejudice, confusing the issues or misleading the jury.” People v. Negron, 112 A.D.3d at 743. And the fact that a different tack would not have produced a different result is reinforced by the trial court’s observation that it used the “clear link” language as a short-cut for the prejudice-versus-probative value test – something that this Court specifically acknowledged was common practice in many courts and did not alter the analysis itself. See People v. Primo, 95 N.Y.2d at 357. Correction of the trial court’s language, then, would 47 not have altered the trial court’s analysis. Because, even if defendant had objected, the speculative third-party culpability evidence would not have been admitted by the trial court, and indeed could not have been admitted under any standard, defendant’s ineffective counsel claim must fail. Evidence of third-party culpability that is slight, remote, or based on conjecture is usually not probative enough to outweigh the risk of undue prejudice to a party or of confusing or misleading the jury. People v. Primo, 96 N.Y.2d at 355-57. The “admission of evidence of third-party culpability may not rest on mere suspicion or surmise.” Id. at 357. And the “risks of delay, prejudice and confusion are particularly acute” in cases where a defendant seeks to present evidence of third-party culpability. Id. at 356; People v. Olibencia, 45 A.D.3d 607, 608 (2d Dept. 2007). Here, defendant claims that his attorney’s failure to object to the trial court’s use of the “clear link” standard was based on ignorance of the law, not reasonable strategic judgment, and therefore was inherently unreasonable and thus ineffective (Defendant’s Brief at 30). But defendant is wrong. As noted above, counsel’s subjective reasons – or lack thereof – for failing to object to the court’s use of the “clear link” standard are immaterial, because, viewed objectively, the transcript shows that counsel acted in the way that any reasonably competent attorney would have acted, by properly seeking to admit the evidence. See Harrington v. Richter, 562 U.S. at __, 131 S.Ct. at 790. 48 Moreover, defendant cannot establish that an objection would probably have produced a different result. At trial, defendant, through counsel, moved to present evidence that Caban committed this crime, stating his intent to elicit “information from any witness or possibly through a stipulation that there was another male, a light-skinned Hispanic who lived at 583 Woodward Avenue at the time of this incident, February 6, 2005, who was arrested for possession of a weapon the following day on the 7 .” Defendant argued that this other male, Caban,th “closely matche[d]” defendant’s appearance. He also conceded that none of the weapons “matched the .45 caliber shell casings that were found on the street that day” (A738-39). The People responded that, aside from the ethnicity of the men – both defendant and Caban are white Hispanics – and their similar heights, the two men were “not alike in any way.” The People acknowledged that Caban lived on the first floor of the building and defendant lived on the second floor of that building, but argued that there was nothing remarkable about two male Hispanics living in the same building. The People further argued that Caban’s weapons did not match the recovered shell casings in this crime. Therefore, the People concluded that the evidence was “unwarranted, irrelevant, and the connection . . . tenuous at best” (A739-41). The trial court ultimately denied the motion, holding that there was no “clear link” between Caban and the shooting (A741). Defendant 49 disputed this conclusion, arguing that, while he had no witness to connect Caban to the shooting, the information was “at the very least, probative” (A742). After defendant repeated his earlier arguments, the court stated that defendant was “asking [the] jury to speculate” (A742). And, after defendant again repeated his arguments and called the evidence “extremely probative,” the court noted that defendant did not “even know if Mr. Caban was in Queens at the time of this incident” (A743). The arguments presented by counsel were proper, and the court properly excluded defendant’s proposed third-party culpability evidence. Contrary to defendant’s contention (Defendant’s Brief at 32-33), it is simply not relevant that the court used the phrase “clear link” to explain why the evidence was not sufficiently probative to admit at trial. While defendant correctly argues that People v. Primo requires a court to consider third-party culpability evidence under the general balancing analysis that governs the admissibility of all evidence (Defendant’s Brief at 31), the trial court here did so and properly excluded the evidence because defendant failed to tie Caban to the shooting in any way. Therefore, there was nothing in the court’s legal rationale that counsel could have corrected. Indeed, the trial court explained that it had used the phrase “clear link” as a shorthand for the prejudice-versus-probative value test, something this Court has acknowledged was common practice in third-party culpability cases. In Primo, this Court noted that trial courts generally use phrases like 50 “clear link” as “catch phrases” to “reinforce the notion that remote evidence of a third party's culpability – though relevant – will not be sufficiently probative to outweigh the risk of trial delay, undue prejudice or jury confusion.” People v. Primo, 96 N.Y.2d at 356. The Court found the phrase “clear link” problematic only where it is misread to suggest “that evidence of third-party culpability occupies a special or exotic category of proof.” Id. Here, as the trial court explained, the court applied proper evidentiary considerations in rejecting the admission of evidence that was simply insufficient to support the proposed defense, and its use of the word “link” merely expressed that principle. Indeed, this Court recently held that, where a defendant sought to argue that other people had a motive to murder the victim, the trial court properly precluded the third-party defense because the “defendant failed to establish a nexus between an earlier shooting where [the victim] had been assaulted and the shooting here.” People v. Gamble, 18 N.Y.3d 386 (2011) (emphasis added). This Court stated in Primo that “[t]o the extent that the ‘clear link’ standard implies no more than an abbreviation for the conventional balancing test, it presents no problem. A review of clear link cases reveals that the courts would very likely have made the same ruling regardless of the nomenclature.” People v. Primo, 96 N.Y.2d at 356. Here, the motion court specifically stated that, although it had used the term “clear link,” it employed a general balancing test, and it stood by its ruling that in this case the evidence of Caban’s arrest 51 was not sufficiently probative to outweigh the risk of delay, undue prejudice, or jury confusion (A11).12 And the court’s decision was correct, because, as this Court warned in Primo, even where this type of evidence is relevant, the “countervailing risks of delay, prejudice and confusion are particularly acute. If those concerns were not weighed against the probative value of evidence, the fact-finding process would break down under a mass of speculation and conjecture.” People v. Primo, 96 N.Y.2d at 356-57. Here, the trial court cited to the speculative nature of the testimony in excluding the evidence (A742-43), and properly denied defendant’s application based upon the information before it at the time – regardless of its use of the term “clear link.” Defense counsel, therefore, cannot be deemed ineffective for failing to object to the court’s terminology where the court’s rationale was entirely correct, especially given this Court’s acknowledgment that the term “clear link,” is often used as an abbreviation for the full test, and that the trial court explained in its section 440.10 decision that it had used the general balancing analysis in considering the admission of the evidence (A11). That the court in Narrod v. Napoli, 763 F.Supp.2d 359, 375-76 (W.D.N.Y. 2011) rejected12 the Appellate Division’s assumption that the trial court in that case used the proper standard in determining the admissibility of third-party culpability testimony is of no moment, despite defendant’s claim to the contrary (Defendant’s Brief at 32). Here, the court did discuss the speculative nature of the evidence; in its decision on defendant’s section 440.10 motion, it specifically stated that it had used the correct standard. And the Appellate Division here viewed the evidence under the standard enunciated in Primo and determined that the trial court properly exercised its discretion in excluding the evidence. 52 Defendant further argues that counsel should have bolstered his argument by showing the court the mugshot of Fernando Caban to support his claim (Defendant’s Brief at 31). But if counsel failed to display that photograph to the court, it was likely because the two men do not resemble one another. Indeed, Caban’s heavy-square jaw, and narrow-set eyes provide a marked contrast to defendant’s wide eyes and tapered, smaller chin (A1069- 70). Thus, the photograph would have added little to defendant’s application, and in fact would have bolstered the court’s decision not to admit the third- party culpability testimony. And even if counsel did err in not arguing differently for the admission of the third-party culpability evidence, the error was not sufficient to warrant a finding that his representation was less than meaningful, in part because there is no possibility that the trial court would have admitted the evidence regardless of the words counsel used in his application, and in part because counsel’s representation as a whole was effective. See People v. Blake, 24 N.Y.3d 78, 82 (2014)(failure to request adverse-inference charge, even if mistake, not one so obvious and unmitigated by balance of representational effort as singly to support claim for ineffective assistance); People v. McGee, 20 N.Y.3d 513 (2013)(counsel not ineffective for failing to raise sufficiency argument that was not clear-cut and dispositive in defendant’s favor); People v. Cummings, 16 N.Y.3d 784 (2011)(counsel’s failure to renew dwelling argument at close of people’s case not so egregious as to deprive 53 defendant of fair trial);People v. Vasquez, 20 N.Y.3d 461 (2013)(not obvious that counsel could have successfully sought preclusion of identification evidence, so failure to make argument not ineffective); People v. Caban, 5 N.Y.3d 143 (2005)(no denial of effective assistance of trial counsel arising from counsel’s failure to make argument that has little or no chance of success); People v. Russo, 85 N.Y.2d 872 (1995)(failure to request affirmative-defense instruction not ineffective, in and of itself, under entire circumstances of case). Finally, defendant cannot claim any prejudice from counsel’s alleged errors because, even if he had argued his claims as defendant now claims he should have, it would not have made any difference at trial. See People v. Blake, 24 N.Y.3d at 82 (failure to request adverse-inference charge not prejudicial because no reasonable possibility or probability that jury would have elected to elected to draw inference); People v. Heidgen, 22 N.Y.3d 259 (2013)(counsel not ineffective for failing to make motion to dismiss that would not have been successful). The trial court would not have, indeed logically could not, alter its ruling under any standard. Indeed, the trial court’s express statement to this effect and the Appellate Division decision holding that the evidence was properly precluded under Primo was further evidence that the testimony would not have been admitted and, therefore, could not have changed the verdict. 54 Moreover, even if the evidence of Caban’s arrest had been admitted at trial, it would not have changed the verdict. First, the evidence at trial was overwhelming. Not only was the shooter seen going into the building shared by defendant and Caban, but about ten to fifteen minutes after the shooting, three witnesses – Miley, Khavko, and Vintonyak – identified defendant’s car as the one driven by the shooter (A487-88, 552-53, 586, 753). Furthermore, the officer at the scene confirmed, on that mid-winter’s night, that defendant’s car had recently been driven by feeling the hood, which was still warm even though it was 4:00 in the morning (A586). In addition, defendant admitted to the police that he was the only one who drove the car and that he had returned home in that car at 2:00 a.m. on the night of the shooting (A694), and then repeated this story on the witness stand (A841-42, 845-48). And, although the lineup was suppressed, the victim, Fevrier, had an excellent opportunity to view defendant. Fevrier had his first viewing opportunity when he initially exchanged words with defendant through the window of his car (A621-24). Then, Fevrier and defendant got out of their cars, and Fevrier observed defendant’s face as he walked towards him and they argued (A625-26). Fevrier approached defendant until he was only six feet away on a well-lit sidewalk, and, even after defendant revealed his firearm and Fevrier began to back away, Fevrier continued to look at defendant’s face as they continued to speak to one another (A628-32). Therefore, his opportunity to observe defendant was excellent and extensive. Thus, in light of the 55 identification of defendant’s car by multiple witnesses and the identification by the victim with whom defendant argued, the People’s evidence was overwhelming. Second, the evidence of third-party culpability here was particularly weak. That another Hispanic male also lived in defendant’s building had no probative value, because no one identified Caban as the shooter, no one identified his car as belonging to the shooter – while several people identified defendant’s car – and there was no evidence that Caban was even in Queens at the time that the shooting took place. Further, although defendant continues to maintain here that he and Caban were similar in appearance, the two men’s arrest photographs show that they do not resemble one another in any way (A1069-70). Finally, although the evening after the shooting, Caban was arrested on weapon-possession charges after the police caught him with a cache of weapons, ammunition, and counterfeit bills, the ammunition recovered was never linked to the shooting, and .45 caliber gun recovered was excluded as a source of the shell casings recovered from the scene of the shooting. * * * In sum, counsel provided defendant with meaningful assistance and cannot be held ineffective for failing to introduce additional evidence about defendant’s appearance that would have had little probative value or for failing to make additional legal and factual arguments for a third-party 56 culpability defense that would not have been admitted in any event. Therefore, this Court should uphold the Appellate Division’s affirmance of the motion court’s denial of defendant’s section 440.10 motion. POINT TWO THE PEOPLE FULLY COMPLIED WITH THEIR OBLIGATIONS UNDER BRADY V. MARYLAND (Answering Defendant’s Brief, Point II). The Appellate Division correctly upheld the motion court’s determination that defendant’s “new”evidence was neither exculpatory nor material. The People and defendant discussed on the record the weapon’s stash possessed by Caban – the target of defendant’s third-party culpability defense – and the People disclosed to defendant a photograph of Caban. Moreover, the motion court found – and the Appellate Division properly credited – that, in the disclosed discovery documents, the People revealed both the existence of a large amount of ammunition and .45 caliber ammunition in the material recovered from Caban. Defendant, nevertheless, claims that the People violated their obligation under Brady v. Maryland, 373 U.S. 83 (1963), by failing to inform him of the hurried manner in which Mr. Caban disposed of the weapons when he saw the police entering his building, failing to disclose to him police and civilian witnesses who could have testified to Caban’s guilty behavior, and failing to inform him that Caban possessed .45 caliber ammunition. But defendant is wrong for several reasons. First, the circumstances surrounding 57 Caban’s disposal of his weapons cache could not be Brady material because materials related to them were accessible to defendant. Second, the material in question was largely known to defendant. Finally, the material was insufficiently probative to have been admissible at trial in support of a third- party defense, and, therefore, would not have affected the outcome at trial. The People are obligated to disclose to a defendant any evidence in their possession that is favorable to the defendant and material to his innocence or guilt. Brady v. Maryland, 373 U.S. 83 (1970); People v. Steadman, 82 N.Y.2d 1, 7 (1993). The duty to disclose by the prosecution is limited to evidence that is: (a) in the prosecution’s possession; (b) exculpatory, or favorable, to the defendant; and (c) material either to the defendant’s guilt or punishment. People v. Bryce, 88 N.Y.2d 124, 128 (1996); People v. Novoa, 70 N.Y.2d 490, 496 (1987). Evidence in the prosecutor’s possession does not constitute Brady material and need not be disclosed to a defendant if its exculpatory value is speculative. See California v. Trombetta, 467 U.S. 479, 488-89 (1984); Tate v. Wood, 963 F.2d 20, 25 (2d Cir. 1992)(rationale underlying Brady not to supply defendant with all evidence in Government’s possession that might conceivably assist in preparation of defense); People v. Pannell, 3 A.D.3d 541, 542 (2d Dept. 2004); People v. Kaminski, 156 A.D.2d 471 (2d Dept. 1989); People v. Scattareggia, 152 A.D.2d 679 (2d Dept. 1989). The disclosure mandate of Brady v. Maryland is further limited to evidence that is “material.” 58 People v. Garrett, 23 N.Y.3d 878, 884-85 (2014); People v. Hayes, 17 N.Y.3d 46, 50 (2011). Whether evidence in the prosecutor’s possession is “material” is dependent upon the specificity of the defendant’s discovery request for such evidence. See People v. Vilardi, 76 N.Y.2d 67, 77 (1990). When a prosecutor has been made aware by a specific discovery request that a defendant considers certain evidence exculpatory and materially important to his or her defense, that evidence is considered “material” if there is a “reasonable possibility” that had it been disclosed to the defense, the verdict would have been different. People v. Scott, 88 N.Y.2d 888, 890-91 (1996); People v. Vilardi, 76 N.Y.2d at 77. The Brady doctrine does not13 “require prosecutors to supply a defendant with evidence when the defendant knew of, or should reasonably have known of the evidence and its exculpatory nature.” People v. LaValle, 3 N.Y.3d 88, 110 (2004)(quoting People v. Doshi, 93 N.Y.2d 499, 506 [1999]). As a threshold matter, defendant’s claim that the People withheld Brady material is factually incorrect because the motion court found that the People disclosed the existence of recovered .45 caliber ammunition in their Rosario materials. The court found that the “prosecutor produced to the Court Defendant correctly contends in his brief (Defendant’s Brief at 38) that the Appellate13 Division determined that there was no reasonable probability that the People’s failure to disclose certain materials contributed to the verdict. See People v. Negron, 112 A.D.3d at 744. But the Appellate Division also determined, correctly, that the material was not exulpatory, since there was no ballistics evidence linking the shell casings from the shooting to any of Caban’s ammunition or weapons. Id. Moreover, the People have always maintained that the evidence was not material under the reasonable possibility standard. 59 a copy of the Rosario materials given to defendant at trial which included various arrest documents relating to and including a photo of Fernando Caban” (A11). In a footnote, the court further specified that, despite the allegations of both defendant and the People, “a review of the materials indicate that a large amount of ammunition was recovered. Furthermore, an additional list (inventory notes of property vouchered on February 7, 2005) ‘bag #4’ lists .45 caliber ammunition’” (A11, fn 3) (italics in original). Moreover, the trial court’s factual determination in this regard was affirmed by the Appellate Division, and, as such, is beyond further review in this Court. See People v. Bryant, 50 N.Y.2d at 950. Thus, to the extent that defendant claims that “the ADA also did not inform the defense that Caban’s weapons cache included .45 caliber ammunition,” (Defendant’s Brief at 40), he is wrong. Although defendant claims that, “in opposing [defendant’s] claim on this appeal, the People cannot rely on the Supreme Court’s bizarre ‘finding’ that the People did, in fact, disclose the evidence that Caban’s weapons cache included .45 caliber ammunition” (Defendant’s Brief at 40), he offers no support for that assertion. While the People did not claim in their motion response – because they did not have proof in their file – that such information was disclosed, if the motion court had information in its file – which apparently it did – establishing that the information was disclosed, there is no reason for the court to refuse to rely on it. While defendant claims that the court’s finding had no support in the record (Defendant’s Brief at 41), the trial 60 court stated in its section 440.10 motion decision that, prior to the commencement of trial, the prosecutor produced to the court a copy of the Rosario materials provided to defendant, and defendant fails to suggest why else the court would have the document it quoted. There is thus no reason for this Court to hold that the trial court, armed with specific evidence of disclosure, may not rely on that evidence to make a factual determination that the People disclosed the evidence to the defense. Moreover, defendant himself could have obtained the records of Mr. Caban’s proceedings. Even had defendant initially been unaware of those proceedings, once the People identified a particular Hispanic male, who lived in the same building as defendant and who was arrested with a stash of guns and ammunition, defendant was in a position to obtain further details about Caban’s case. Indeed, the suppression hearing in Caban’s case was conducted on November 3, 2005 – well before defendant’s trial in this matter. Thus, there was a complete, available record of what transpired during the search of the building, and defendant, having been made aware of the other case, could have sought to obtain that information. See People v. LaValle, 3 N.Y.3d at 110 (evidence not suppressed where defendant knew of or reasonably should have known of evidence and its exculpatory nature); Gotti v. U.S., 622 F.Supp.2d 87, 96 (S.D.N.Y. 2009)(documents part of public records not deemed suppressed if defense should know of them and fails to obtain them due to lack of diligence); U.S. v. Payne, 63 F.3d 1200, 1208 (2d Cir. 1995)(Brady does not 61 require government to turn over evidence if defendant knew or should have known essential facts permitting him to take advantage of exculpatory evidence); U.S. v. Alchele, 941 F.2d 761 (9 Cir. 1991)(no suppression byth government where defendant has enough information to ascertain supposed Brady material on his own); U.S. v. Wilson, 901 F.2d 378, 380 (4 Cir.th 1990)(Brady rule does not apply if evidence available to defendant from other sources). In any event, the material that defendant claims supported a third- party culpability defense was not exculpatory material that the People were required to disclose under Brady. As discussed in Point One, supra, evidence of third-party culpability that is slight, remote, or based on conjecture is usually not probative enough to outweigh the risk of undue prejudice to a party or of confusing or misleading the jury. People v. Primo, 96 N.Y.2d at 355-57. Here, defendant claims that additional information regarding the execution and fruits of the search warrant would have supported a third-party culpability defense, which would have created a possibility of a different outcome at trial. This evidence, however, would have added little to the third- party defense that the trial court properly precluded. The motion court – which also tried this case – stood “behind the ruling that the evidence of Caban’s (who lived in the same building as defendant) arrest was not sufficiently probative to outweigh the risk of delay, undue prejudice, or jury prejudice in this case” (A11). As the court found at trial, defendant was “asking [the] jury 62 to speculate” (A742), and defendant did not “even know if Mr. Caban was in Queens at the time of this incident” (A743). Thus, the court properly excluded defendant’s proposed third-party culpability evidence and the evidence that defendant now claims was not disclosed to him would not have enhanced his application. Defendant, nevertheless, claims that Caban’s frenzied behavior as the police approached his building, shortly after the shooting, constituted “powerful evidence” of Caban’s consciousness of guilt for the shooting (Defendant’s Brief at 41). But defendant’s argument is not logical. If the fact that Caban possessed ammunition on the day of the shooting was not sufficient to support a third-party culpability defense – which it was not – then the timing and manner of his disposing of the ammunition did not make it any more so. Had Caban actually been the shooter, he would not have waited hours and hours – until the police arrived to execute a search – to dispose of the ammunition that could link him to the crime. Instead, he would have done what defendant – the actual shooter – did, and dispose immediately of any evidence that would tie him to the shooting. The evidence presented by defendant to the motion court only marginally enhanced his original application – if it enhanced it at all – and, had he provided this information to the court at trial, it still would have denied his application. Essentially, defendant’s claim remains that Caban is a similar- looking Hispanic man, who possessed a large amount of illegal weaponry and 63 lived in the same building as defendant, and, therefore, was the real shooter. His contention that he was never informed of the existence of .45 caliber ammunition is contrary to the motion court’s determination that this evidence was, in fact, disclosed. And he has presented no ballistics evidence tying any of the weapons or ammunition found on the roof – or the .45 caliber weapon found in the backyard – to the shells discharged in the shooting; in fact, the .45 caliber weapon was conclusively determined not to have been the gun used in the shooting. Nor has he provided any other evidence establishing, for instance, that Caban had been out of his apartment and was arriving home by car at about the time of the shooting – or that he was even in the area at the time. And, where defendant’s car was identified by three witnesses as the car used in the shooting, defendant has failed to allege that Mr. Caban had any access to that car. By contrast, in Primo, there was strong evidence linking a third- party to the shooting with which the defendant was charged. In that case, the defendant sought to introduce a ballistics report directly linking bullets found at the crime scene to a gun used by another man in an unrelated assault. People v. Primo, 96 N.Y.2d at 353. In addition, one of the People’s witnesses placed that same man at the deli where the crime took place. Id at 354. Thus, this Court held that the excluded ballistics report was “relevant evidence” because it “link[ed] a third person . . . to the gun” used in the shooting, and when “coupled with proof that [the third person] was at the scene of the 64 shooting, its probative value plainly outweigh[ed] the dangers of delay, prejudice and confusion.” Id. at 357. Instead, this case is analogous to this Court’s subsequent case of People v. Schultz, 4 N.Y.3d 521 (2005). There, the defendant, who was14 charged with robbery, sought to introduce a photograph of a third person, who matched the description of the perpetrator and who had committed robberies before and after the incident at issue. Id. at 526. The trial court refused to admit the photograph, ruling that “there was no evidence linking that person to the restaurant robbery.” Id. After the defendant’s conviction, in a motion to vacate judgment pursuant to section 440.10(1)(g) of the Criminal Procedure Law, defendant submitted an affidavit from a trial witness stating that she was “90%” certain that the third-person had committed the crime. Id. at 527. Ultimately, this Court found that defendant had offered no evidence demonstrating “a modus operandi, a witness who saw [the other person] at the scene or even a remote connection between the getaway car and [the person].” Id. at 528. The Court found that the evidence offered on appeal – a newspaper article describing the third-person’s “crime spree,” the witness’s affidavit, the witness’s “inability to identify defendant at trial as the robber, a picture which allegedly shows that defendant and [the other person] resemble one another, and the fact that” the other person committed robberies in Schultz’s habeas petition was subsequently granted on ineffective-assistance-of-counsel14 grounds. Schultz v. Marshal, 528 F.Supp.2d 77 (E.D.N.Y. 2007), aff’d, 345 Fed. Appx. 627 (2d. Cir. 2009). 65 proximity to the date and location of the crime at issue – was insufficient to support a third-party defense. Id. at 527-28. Thus, the Court in Schultz found that there was “no evidence linking” the third party to the crime. And it distinguished that case from Primo, “where the alleged suspect was at the scene of the crime, identified as the shooter, and where the ballistics report matched a gun of the person who defendant said committed the crime.” Id. at 528. Here, like in Schultz, defendant has failed to connect Caban to the shooting in any way. There is no information that Mr. Caban was out driving at the time, that any of his guns could have been used in the shooting, or that he any access to defendant’s car. Thus, as in Schulz, the court properly would have excluded this evidence if it had been presented at trial. Defendant also claims that the Appellate Division’s reasons for concluding that the undisclosed evidence was not exculpatory were wrong, because for evidence to be disclosable as Brady material, it must merely be “favorable” (Defendant’s Brief at 42). But, as argued above, the additional15 evidence that defendant claims should have been disclosed but was not, did nothing to enhance the materials that he did have. Evidence of the ammunition and weapons that Caban was trying to discard was not favorable because they In Kyles v. Whitley, 514 U.S. 419 (1995), the case defendant cites to support this15 argument, the materials the prosecution failed to disclose included: statements of witnesses that seriously undermined their trial testimony, various inconsistent statements by a witness who might also have been a suspect in the murder and therefore had a motive to have defendant arrested, and a list of cars at the scene of the murder that did not include defendant’s car. 66 did not tie him to the shooting, and neither did anything else. In fact, the evidence was equivocal at best, because the jury would likely have assumed that the .45 caliber ammunition in Caban’s stash was for the .45 caliber gun that was recovered and that was conclusively determined not to have been the one used in the shooting. Moreover, the method and manner of Caban’s attempted disposal of his stash was merely because the police were at the door of his building and, because he was in possession of contraband, he assumed they were there for him. Additionally, as noted above, in order to be considered Brady, the evidence must also be material to the defendant’s innocence or guilt. Here, the evidence defendant contends should have been disclosed but was not was not material either. Although defendant claims that the jury would not have been required to draw the conclusion that Caban’s frantic disposal of his weapons cache had only to do with his consciousness of guilt as to his possession of that material, and could have drawn the conclusion that his consciousness of guilt had to do with the shooting (Defendant’s Brief at 43), that is not the standard for determining whether material is Brady or not. Evidence is considered “material” if there is a “reasonable possibility” that had it been disclosed to the defense, the verdict would have been different, People v. Scott, 88 N.Y.2d at 890-91. Here, even were the trial court to have admitted the excluded evidence, including evidence that Caban possessed .45 caliber ammunition and hid his stash of weapons on the roof of 67 a neighboring building, there would have been no reasonable possibility of a different verdict. Indeed, there was simply nothing to connect any of the weapons or ammunition to this crime. And, where a .45 caliber gun was also recovered from the backyard of the location, there is no reasonable inference that the recovered bullets belonged to the missing weapon in this shooting. Moreover, Caban’s attempt to hide his vast store of weapons on the roof in response to police activity outside of his building is consciousness of guilt only as to his own possession of illegal guns and counterfeit currency. And a determination that Caban’s disposal of his weapons and ammunition cache showed consciousness of guilt for the shooting was not reasonable at all, since, had he truly been worried about possessing a weapon or ammunition related to the shooting, he would have disposed of it immediately, and not waited for the police to arrive on his doorstep. In any event, the weapon used in the shooting was not in Caban’s possession. Thus, this evidence is of negligible probative value as to defendant’s proposed third-party culpability defense. Moreover, even if the jury did decide to view the evidence as showing a consciousness of guilt, that would have been the only evidence supporting an inference of Caban’s responsibility for the shooting, and consciousness of guilt evidence is recognized as a particularly weak form of evidence, so it would have had no influence on the jury’s verdict. See People v. Bennett, 79 N.Y.2d 464, 470 (1992)(consciousness of guilt evidence weak 68 because even innocent persons, may flee or lie to extricate themselves from situations that look damning). In addition, contrary to defendant’s arguments, as discussed in Point One, supra, the evidence at trial was overwhelming, providing another reason that this marginal evidence would have made no difference in the outcome of the trial. The victim had an excellent opportunity to view defendant, and identified him as the shooter. Moreover, about ten to fifteen minutes after the shooting, three witnesses – Miley, Khavko, and Vintonyak – identified defendant’s car as the one driven by the shooter, and the officer at the scene confirmed that defendant’s car – which defendant admitted only he drove – had recently been driven by feeling the hood, which was still warm. In sum, the People disclosed evidence that .45 caliber ammunition was recovered from Caban. And, where a hearing had already been held in Caban’s case on the recovery of the weapons, defendant could have procured the evidence concerning the circumstances of Mr. Caban’s arrest at the time of trial. In any event, defendant cannot claim that the failure to provide this material constituted a Brady violation because it would not have been admissible at trial in support of a third-party culpability defense. And, even if it had been admitted, there was no reasonable possibility that it would have resulted in a different outcome in light of its marginal probative value and the overwhelming evidence of defendant’s guilt. 69 CONCLUSION The order of the Appellate Division affirming the denial of defendant’s motion to vacate judgment should be affirmed. Respectfully submitted, RICHARD A. BROWN District Attorney Queens County By: __________________________ LAURA T. ROSS Assistant District Attorney ROBERT J. MASTERS JOHN M. CASTELLANO LAURA T. ROSS Assistant District Attorneys of Counsel December 22, 2014 70