Charles Testagrossa, Executive Assistant District Attorney, John Castellano, Deputy Executive Assistant District Attorney and Jennifer Hagan, Assistant District Attorney of the Queens District Attorney's Office, for the People. Joel B. Rudin, Esq. and Terri S. Rosenblatt, Esq., for Defendant.
Charles Testagrossa, Executive Assistant District Attorney, John Castellano, Deputy Executive Assistant District Attorney and Jennifer Hagan, Assistant District Attorney of the Queens District Attorney's Office, for the People.
Joel B. Rudin, Esq. and Terri S. Rosenblatt, Esq., for Defendant.
STEPHEN A. KNOPF, J.
The defendant, David Lou, moves for an order vacating his conviction and granting a new trial pursuant to Criminal Procedure Law § 440.10. In support of his application, the defendant advances four claims: (1) trial counsel's conflict of interest (2) ineffective assistance of trial counsel (3) newly discovered evidence and (4) actual innocence. This Court conducted a hearing on April 22, 2013, June 11, 2013 and October 31, 2013. The defendant presented at the hearing the following witnesses: Mr. Thomas Ognibene, Esq., Mr. John Liu and the defendant, Mr. David Lou. The People did not present any witnesses (the People placed four photographs into evidence). Following the hearing, the defendant filed a post-hearing memorandum of law in support of his application. The People responded to the defendant's memorandum arguing that the defendant's motion must be denied in all respects. The defendant filed a reply memorandum of law.
The defendant was charged with murder in the second degree and other crimes relating to the death of the decedent, Mr. Said Ghanem. Mr. Ghanem was a taxi driver who was killed on December 24, 1990 inside of a Chinese restaurant located at 94–03B 63rd Drive, Rego Park, Queens County. At the jury trial in which Justice Stanley Katz, (now retired) presided, the prosecution contended that the defendant entered the restaurant with the decedent and that he turned around and shot the decedent in the head The defense maintained that the shooter was Mr. Ferdinand Topino (a/k/a Bong) who, after observing the decedent holding Mr. Lou, shot the decedent in the head.
Charges for murder against Mr. Topino were dismissed prior to the trial of this indictment and he pled guilty to an A misdemeanor and received a sentence of 3 years probation. The defendant was subsequently convicted of all charges. On May 13, 1992, the defendant was sentenced to concurrent sentences of imprisonment of 25 years to life as to his conviction for murder in the second degree, and 5 to 15 years as to his conviction for criminal possession of a weapon in the second degree and 1 year as to his conviction for criminal possession of a weapon in the fourth degree.
FINDINGS OF FACT
Mr. Thomas Ognibene is the attorney who represented the defendant during his 1992 trial for the murder. At the time of the trial, Mr. Ognibene was an attorney practicing real estate and criminal law for approximately 17 years. Aside from being an attorney, Mr. Ognibene was also a New York City councilman, a position he maintained from January 1, 1992, until December 31, 2001. Mr. Ognibene currently works as a real estate attorney.
In preparation for trial, Mr. Ognibene spoke to Mr. Lou and discussed with him the names of people who could be called as witnesses on his behalf. He received the names or nicknames and the beeper numbers of approximately four to six individuals. (Mr. Ognibene's testimony is inconsistent with that of David Lou who indicated that he gave Mr. Ognibene a list containing a total of eight names). None of the individuals named by Mr. Lou witnessed the actual shooting. Rather, this list contained the names of people who purportedly heard Mr. Topino (who died in July of 2010), at one time or another indicate that he was the person who shot and killed Mr. Ghanem.
In an effort to locate these potential witnesses, Mr. Ognibene instructed Mr. Lou to inform the people on the list that he wanted to speak with them. In addition, Mr. Ognibene utilized the services of a private investigator. (Mr. Ognibene was unable to tell this Court the name of the private investigator. (This unidentified private investigator was used by Mr. Ognibene previously on an unrelated rape case.) The primary responsibility of this investigator was to locate and make contact with the people on the aforementioned list. This investigator was instructed by Mr. Ognibene to search for witnesses at a billiards parlor, school and at an unspecified Queens apartment, among other places. Mr. Ognibene himself also went to Flushing, Queens and attempted to locate people. Eventually, Mr. Ognibene made contact with three individuals, Mr. Nelson Lin and Mr. Liang Ying, both of whom ultimately testified at the trial, and a third person whose name Mr. Ognibene could not recall. (Mr. Ognibene was also unable to tell this Court the names of any additional persons given to him by the defendant). The remaining individuals on the list, despite Mr. Ognibene's efforts, did not respond to Mr. Ognibene or his investigator's inquires and could not be found.
Prior to trial, Mr. Ognibene conducted an interview of Mr. Nelson Lin, who at the time was incarcerated for robbery charges on an unrelated matter. The interview was conducted after Mr. Lin was produced in court and placed in a holding area in the basement. The unnamed third witness (hereinafter witness number three), informed Mr. Ognibene, via telephone, that he did not want to be involved in the trial because he was afraid.
On April 13, 1992, the trial began with preliminary instructions to the jury, opening statements and the presentation of one prosecution witness. On this first day, Mr. Ognibene informed the Court that he was having difficulty getting witnesses as would-be witnesses were afraid of Mr.Topino.
The defense presented its case on Wednesday, April 15, 1992. The trial was then adjourned to Monday, April 20, 1992 for summations and charge because of the Passover and Easter holidays.
In the evening hours of April 13, 1992, Mr. Ognibene met with the parents of witness number three. (Mr. Ognibene could not tell this Court specifically where this meeting took place or any of names of the people present). At this meeting, the unidentified parents informed Mr. Ognibene that they did not want their son to testify at trial because they were concerned about his safety. Furthermore, the unidentified parents told Mr. Ognibene that they heard that Mr. Topino was angry that Mr. Ognibene was looking for him, and if Mr. Ognibene continued his search, harm could come to him. (There was no evidence presented at this hearing as to the source of this information). Mr. Ognibene never met Mr. Topino or spoke to anyone purporting to be Mr. Topino or representing Mr. Topino at any time. Mr. Ognibene himself did not see any point to pressuring a reluctant witness to testify.
According to Mr. Ognibene, the day after the aforementioned meeting, he stopped using his “best efforts” to locate possible witnesses on behalf of the defendant. As an example, Mr. Ognibene stated that he had planned on going to a billiards parlor to look for witnesses but, because of the threat, decided not to do so. This Court does not find Mr. Ognibene's testimony credible as to this critical issue regarding the search for witnesses. Despite this perceived danger, Mr. Ognibene did not instruct his unnamed private investigator to discontinue his efforts in locating potential witnesses. In fact, Mr. Ognibene informed Justice Katz on April 14, 1992, that his investigator was actively searching for Mr. Topino. This investigator never found Mr. Topino or any additional witnesses to testify on the defendant's behalf.
Despite being an officer of the court, and being aware of his obligations as such, at no point during the trial or thereafter, did Mr. Ognibene inform Justice Katz, the prosecutor, his client or even his own secretary of the threat. According to Mr. Ognibene, he did however, in a matter-of-fact way, reveal this threat in the morning hours of April 15, 1992, to a person he described as his close personal friend, Mr. Barry Tivin, now deceased. At the time of the trial, Mr. Tivin was the law secretary to Justice Katz. According to Mr. Ognibene, he did not intend for the substance of this conversation to be shared with Justice Katz as this was “... just a private, personal conversation” between friends.
Meanwhile, Mr. Ognibene continued his work as Mr. Lou's counsel. He made an application to the trial court regarding the testimony of Mr. Ying and Mr. Lin. He argued that their testimony as to Mr. Topino's purported confession to the murder was admissible hearsay because Mr. Topino was unavailable. This application was granted and Mr. Ying and Mr. Lin were permitted to testify on April 15, 1992. Although, Mr. Ognibene initially informed the Court that the defendant intended to testify, a strategic decision was made not to call the defendant.
Under these circumstances, this Court finds that the specific testimony of Mr. Ognibene relative to the threat affecting his defense was embellished and tailored to support the defendant's present motion. Indeed, such testimony is internally contradicted by Mr. Ognibene's testimony which totally calls into question the seriousness of how he viewed such threat. He did not consider it a reason to go to Justice Katz himself to relate the threat to him directly and to relate his concerns about his ability to defend the defendant herein. Mr. Ognibene was an experienced attorney; it does not appear to this Court that he was indifferent to his ethical obligations but rather that he did not have any serious concerns. This specific testimony, in relevant portion, is contradicted by Mr. Ognibene's own conduct and that of his investigator.
At the close of the trial, during the pre-charge conference, prior to summations, Justice Katz ruled that he would be charging the jury on the charge of “acting in concert”. Mr. Ognibene stated that he did not object to the Court's ruling because based his research and the evidence at trial, he concluded that Justice Katz could lawfully instruct the jury on acting in concert.During summations, Mr. Ognibene focused on the individual actions of Mr. Topino and the defendant and argued that the defendant passively accompanied the victim into the restaurant, where they encountered Topino, who drew his weapon and killed the victim. Mr. Ognibene intentionally chose not to use words “acting in concert” to the jury. According to Mr. Ognibene, he reasoned that if he did not use those words, the jury would not focus on it.
In charging the jury as to acting in concert, Justice Katz included in the charge, instructions which in sum and substance, stated to the jury that the defendant could still be found guilty even if the defendant was only 1% involved and the another person was 99%. Mr. Ognibene did not object to the court's choice of words in its instructions. The defendant was convicted of all charges in the indictment on April 22, 1992.
Mr. Ognibene never discussed the threat with anyone besides Mr. Tivin until 2009 when he spoke to present defense counsel, Mr. Joel Rudin. During this lengthy passage of time, and despite defendant's numerous appeals and motions, Mr. Ognibene claimed that he did not hold the view that he was withholding critical information as he believed the two defense witnesses who testified were excellent and gave credible testimony.
There was evidence presented at this hearing that showed that Mr. Ognibene was associated with a person identified as Ronald Lattanzio. Mr. Lattanzio, pled guilty on October 1, 1999 to bribery in the third degree in New York County Supreme Court after claiming he bribed councilman Thomas Ognibene. Mr. Ognibene was never prosecuted or charged with any crimes, and this Court concludes that such an association with Mr. Lattanzio has no bearing on the credibility of Mr. Ognibene.
Mr. John Lui is a 38 old resident of Flushing, Queens county. He was born in Taiwan but moved to the United States approximately 30 years ago. The highest level of education he received is a GED Diploma. He currently works as a paramedic for the City of New York. He has been employed in this capacity for approximately 14 years. He has known the defendant since they were approximately 15 years old. During the winter of 1990–1991, Mr. Lui was sixteen years old and lived for part of the time with the defendant, Mr. Nelson Lin and a friend known to Mr. Lui only as “Bong” (a/k/a Mr. Topino). (In this decision, “Bong” and “Mr. Topino” will be used interchangeably to refer to the same person). The young men lived in an apartment located inside of a private house at 150th Street near Northern Boulevard, in Queens County. According to Mr. Lui, during this time, Bong, the defendant as well as Nelson Lin were members of or affiliated with the White Tigers Chinese gang. Mr. Lui knew White Tiger members to carry guns and to commit acts of violence and extortion but claimed he himself was not a member.According to Mr. Lui, he learned of the shooting at the Chinese restaurant a few weeks after the incident while riding in a taxi cab with the defendant. Approximately one week after this taxi ride, Mr. Lui had a conversation with Bong and another friend identified as Morgan Wei in which, according to Mr. Lui, Bong informed him of the following: a few weeks earlier, Bong and the defendant were riding in a taxi cab when they stopped at a Chinese restaurant so that Bong could get money to pay for the fare. He left the defendant inside of the cab and went inside. While there, he observed the defendant being hauled into the restaurant by the cab driver. Upon seeing this happen, Bong pulled out a gun, pointed it at the taxi driver, and demanded that he let defendant go. When the taxi driver did not comply to these demands, Bong shot the taxi driver in the forehead. The bullet, he said, went straight into the taxi driver's head. Mr. Lui had only known Bong for approximately two months when he allegedly made these inculpatory statements to him.
Approximately two months after Bong's statements, Mr. Lui learned from his mother as well as from the newspaper that the defendant had been arrested in connection with this incident. Despite the fact that the defendant telephoned and spoke to Mr. Lui on a number of occasions after his arrest, at no point did Mr. Lui inform the defendant or anyone of Bong's confession. According to Mr. Lui, although at the time of the defendant's arrest he recognized he had what he believed to be important information, he just went on with his life. Furthermore, for more 20 years, Mr. Lui never inquired about the status of the defendant's case.
Mr. Shih Wei Su was a White Tiger gang member who at the time of the shooting, interacted frequently with Mr. Lui and the defendant. Over the years, Mr. Lui would occasionally see Mr. Wei Su as he belonged to some of the same organizations as Mr. Lui's parents. Yet, according to Mr. Lui, it was only in December 2012 or January of 2013, that he and Mr.Wei Su discussed the defendant's case for the first time. Soon thereafter in January 2013, Mr. Lui met with present counsel Mr. Rubin and Ms. Rosenblatt.
This Court concludes that the relationship of Mr. Lui with a known White Tiger gang member Mr. Shih Wei Su and other gang members, including Mr. Topino, and the length of time it took him to reveal the relevant information raises serious doubts about the truthfulness of his testimony that he heard Mr. Topino confess to the murder.
Mr. David Lou testified on his own behalf. He is a 38 year old man who currently is incarcerated in the Sing Sing facility. Mr. Lou migrated to the United States at the age of 14 from Shanghai, China. Mr. Lou had just completed the ninth grade when he was arrested in this case. While incarcerated, he received a GED Diploma and is currently one class credit away from completing Bard College with a Bachelor of Arts degree in Behavioral Science. Mr. Lou currently works as a program assistant for the Office of Mental Health in the Sing Sing facility. There, his responsibilities for the last five years include processing paperwork for prisoners soon to be released and conducting group sessions.
According to Mr. Lou, he left home in August/ September of 1990 because of the physical abuse he suffered at the hands of his mother. He then moved into an apartment in Long Island City with Bong, a person he only met for the first time a month before. At that time, Mr. Lou believed Bong to be approximately 18 or 19 years old. In this apartment, the people who lived there either on a full time or part time basis included Mr. Lou, Bong, Bong's girlfriend, Nelson Lin and a person identified only as Grandon. Mr. Lou also lived part of the time in a second apartment located in Flushing, Queens County. In this apartment he lived with Bong and John Lui. Mr. Lou, who did not have a job at the time, contributed to the rent with money he received from the extortion of Chinese restaurants.
According to Mr. Lou, upon instruction from Bong, he, often alone, would enter a Chinese restaurant to collect so called “protection money”. Between October and December 1990, Mr. Lou went to approximately twenty restaurants and took between $200 and $300 from each restaurant. Mr. Lou was often paid between $50 and a $100 for these services by Bong. Although hand guns at that time were easily accessible at the apartments, Mr. Lou claimed that he never carried a weapon to collect money from the restaurants. Mr. Lou further claimed that when he went to a restaurant, he simply collected the money. He offered no explanation and there was no confrontation. If the owner of a restaurant refused to pay, he claimed he simply walked away from the establishment. Mr. Lou stated that while he knew White Tiger gang members, those that claimed to be members, and people affiliated with the gang, he himself was not a White Tiger. According to Mr. Lou, a person only became a White Tiger after a specialized ceremony and he never participated in such ceremony.According to Mr. Lou, on the night of the shooting, December 24, 1990, he and Mr. Topino left their Long Island City apartment and got into a taxi to go to a party at an unspecified location. Mr. Topino directed the driver to stop at a Chinese restaurant. Mr. Topino instructed Mr. Lou to stay in the cab while he alone entered the restaurant. The taxi driver, after the lapse of some time and anxious to receive payment for the ride, grabbed Mr. Lou and took him inside of the restaurant, demanding payment from anyone who knew him. According to Mr. Lou, Mr. Topino then turned around, pointed a gun at the taxi driver and demanded that he let go of Mr. Lou. Instead of immediately complying, Mr. Lou stated that the taxi driver placed Mr. Lou in front of him and said words to the effect of “I'll let him go”. According to Mr. Lou, Mr. Topino then shot the taxi driver in the head and Mr. Lou felt his body fall to the ground behind him. Mr. Lou was armed with a .38 caliber loaded handgun at the time of the murder. (Mr. Lou was unable to tell this Court whether this weapon was displayed at any point during the shooting).
After the crime, Mr. Lou, with Mr. Topino following behind, fled the restaurant. They returned to their Long Island City apartment, where according to Mr. Lou, Bong's girlfriend, Grandon, Ying, and a person identified as “Chi” were present. Mr. Lou stated that he immediately went to the bathroom to clean up and when he returned he was asked by this group to verify the story of the shooting Bong had told the group. Shortly thereafter, according to Mr. Lou, Bong and his girlfriend took the guns belonging to Bong and Mr. Lou and left the apartment. Mr. Lou claims he has no idea what happened to these guns. Mr. Lou was arrested for the murder approximately seven weeks after the crime occurred.
In preparation of his defense, Mr. Lou stated that he gave his attorney, Mr. Ognibene, approximately eight names or nicknames and beeper numbers of the people who he believed would establish that Mr. Topino confessed to being the shooter. These names included those who were present in the Flushing apartment after the shooting. According to Mr. Lou, when only two witnesses testified in his behalf, he never asked his attorney where the other witnesses were or why they were not testifying and Mr. Ognibene never disclosed his reasons.
During Mr. Lou's incarceration at Sing Sing, he requested telephone privileges to call a person he indicated was Peter Jacob at telephone number 212–620–2605. However, during the period May 2012 through January 2013, the defendant used this number to exclusively speak to his friend Shih Wei Su.
Mr. Wei Su has been a friend to Mr. Lou for more than 20 years. Mr. Wei Su was part of the group of young people who were friends at the time of shooting. He was also incarcerated with the defendant at one point in Coxsackie Correctional Facility. Mr. Wei Su had been incarcerated for charges related to an attempted murder but has since had his conviction overturned with the assistance of Mr. Lou's present attorney, Mr. Joel Rudin. Mr. Wei Su received a settlement from the City of New York for such wrongful conviction. Mr. Wei Su visited Mr, Lou in prison frequently throughout the years. There was evidence presented at this hearing that Mr. Wei Su and Mr. Lou discussed his successful wrongful conviction suit as well as other pending suits. The men also discussed the possibility that Mr. Lou may himself be able to avail himself of this remedy one day. The defendant and Mr. Wei Su also discussed the possibility of witnesses, such as John Lui who drives the ambulance, who would be willing to testify on Mr. Lou's behalf.
Aside from the conviction in this case, Mr. Lou was also convicted in August 1990 of a B misdemeanor, attempted petit larceny involving the stealing of video games. Mr Lou also pled guilty to burglary in the first degree for an incident that took place on February 3, 1991. In that case the defendant was charged with acting in concert with one of the witnesses at trial, Nelson Lin, who was armed with a 9mm handgun at the time of the burglary. The defendant who carried a BB gun at the time of the crime received a sentence of 3 to 6 years to run concurrent with the sentence in this case.
CONCLUSIONS OF LAW
It is the burden of the defendant to prove by a preponderance of the evidence, every fact essential to support a motion under Criminal Procedure Law (hereinafter CPL) § 440.10. See CPL § 440.30(6), (except as to defendant's claim as to actual innocence where it is the burden of the defendant to prove this by clear and convincing evidence). As noted previously, the defendant advances four claims in his motion. Despite any claimed procedural bars to adjudicating defendant's claims, this Court will address the merits of each claim separately. This Court will first address the defendant's claims of conflict of interest and ineffective assistance of counsel.
Under the Sixth Amendment of the United States Constitution, defendants in criminal cases have a constitutional right to effective assistance of counsel. See also New York Constitution, Article I § 6.
In evaluating an ineffective assistance of counsel claim under the theory of conflict of interest, a two prong test must be satisfied. First, this Court must decide whether there was a conflict. Secondly, if there was a conflict of interest, this Court must determine whether this conflict affected trial counsel's representation of the defendant. See People v. Ennis, 11 NY3d 403, 410 (2008) ; People v. Abar, 99 N.Y.2d 406, 409 (2003) ; People v. Ortiz, 76 N.Y.2d 652, 657 (1990). Although, as noted by the People, conflict of interest cases traditionally have involved cases where there was a conflict in client representation or where the defense attorney had to become a witness against a client, courts, however, are not limited by these categories. See People v. Payton, 22 NY3d 1011 (2013), (finding the first prong satisfied if a trial counsel, whose law offices were searched 15 days before trial by the District Attorney's Office, was aware that he was a target of investigation).
This Court credits the testimony of Mr. Ognibene inasmuch as he was told of Mr. Topino's threat by the parents of witness number three. Although, as noted by the People, this threat was relayed to Mr. Ognibene by a third party and almost by chance, given the violent nature of this case, Mr. Ognibene could not automatically dismiss the possibility that Mr. Topino would consider killing or harming a lawyer. Therefore, this Court finds that Mr. Ognibene's awareness of this threat, just as the defense prepared to begin its case, created a potential personal and professional conflict at a critical stage of the trial. “The right to effective counsel ensures not only meaningful representation but also the assistance of counsel that is ‘conflict-free and singlemindedly devoted to the client's best interests' “ People v. Berroa, 99 N.Y.2d 134, 139, (2002), quoting People v. Longtin, 92 N.Y.2d 640, (1998). See also LoCascio v. US, 395 F3d 51, 57 (2nd Cir.2005) (holding that: “with regard to the existence of a conflict of interest, no one would question that a credible death threat from a co-defendant ordering a lawyer to sacrifice a client's interests constitutes an actual conflict of interest.”).
However, in light of Mr. Ognibene's overall conduct after learning of the aforementioned threat, this Court is hard pressed to find that this conflict affected or “operated” on Mr. Ognibene as required by the second prong. See People v. Smart, 96 N.Y.2d 793, 795 (2001) ; People v. Alicea, 61 N.Y.2d 23, 31 (1983).
First, upon learning of these threats, Mr. Ognibene's unnamed investigator continued to look for potential witnesses, including Mr. Topino himself. At no point did Mr. Ognibene instruct his investigator to discontinue his efforts. While Mr. Ognibene attempted to understate the role of this unnamed investigator, this Court can only conclude that this investigator was reliable given the fact that Mr. Ognibene had previously utilized his services in a prior rape case. Furthermore, despite Mr. Ognibene's efforts prior to trial and prior to the threat, most of the people he attempted to contact were non-responsive, leading Mr. Ognibene to conclude that these were people who would never be willing to testify. Mr. Ognibene's testimony reveals a man who regrets in hindsight, that he did not use additional pressure to convince reluctant witness number three to come forward but not a man particularly concerned about his safety. This regret, with the benefit of hindsight, is insufficient as a matter of law, to conclude that the threat operated on counsel. See People v. Benevento, 91 N.Y.2d 708,712 (1998) (noting that: “... counsel's efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective ...”). The defendant argues that the threats caused Mr. Ognibene to personally stop using his “best efforts” to look for additional witnesses and therefore the threats “operated” on counsel's mind. This Court is not persuaded that a distinction can be made between the efforts of Mr. Ognibene and that of the private investigator hired. Furthermore, had the unnamed investigator found any additional witnesses willing to testify at trial at the eleventh hour, this Court has no reason to conclude that Mr. Ognibene would have declined to put them on stand, given the fact that despite the threat, Mr. Ognibene proceeded to trial with the two witnesses he had.
Secondly, despite learning of the threat, Mr. Ognibene continued to vigorously defend the defendant throughout the Court proceedings. He successfully argued for the admission of Mr. Topino's alleged confession as admissible hearsay. After the testimony of the witnesses, who Mr. Ognibene concluded were “excellent” and gave credible testimony, a deliberate and strategic decision was made not to put the defendant on the stand as a witness on his own behalf. In addition, Mr. Ognibene in his summation challenged the credibility of the People's witnesses and argued that this it was Mr. Topino and not his client who was responsible for the death of the decedent. See People v. Dolisca, 61 AD3d 890, (2d Dept 2009) (finding meaningful representation where counsel was an active participant throughout the trial, called several witnesses including the defendant and gave a vigorous summation); See also People v. Echavarria, 53 AD3d 859, 864,(3d Dept 2008) (holding that while counsel's performance was not “error-free,” the defendant was not deprived of effective assistance of counsel where: “... counsel put forth a reasonable defense theory with cogent opening and closing statements, submitted proper pretrial motions, successfully advocated for a favorable Molineux ruling, made many competent objections during the trial, and aptly challenged the key witnesses on cross-examination regarding their motives and the weaknesses in the proof against defendant.”). This Court finds that in this case counsel's overall performance after he became aware of the threat, in presenting a formidable defense case, and delivering a summation that both challenged the credibility of the people's witnesses and advanced the defendant's theory, all demonstrate that counsel continued to be the zealous advocate he had been since the very beginning of the trial.
Finally, the failure of Mr. Ognibene, an experienced attorney for approximately 17 years at the time of the trial, to notify the Court of this threat demonstrates to this Court, that Mr. Ognibene was neither affected nor concerned about it. While this Court credits Mr. Ognibene's testimony that he disclosed to Mr. Barry Tivin the existence of the threat, the manner and nature of this conversation is significant. Mr. Ognibene mentioned in a causal conversation and in a matter-of-fact-way the threat he learned from the parents of witness number three. This was a passing by chance conversation in which Mr. Ognibene had no expectations or desire for the details to go elsewhere. Surely, if Mr. Ognibene's representation of the defendant who had been charged with murder had been compromised, the nature and tone of this conversation would have been entirely different and the trial Court would have been notified. The casual manner in which Mr. Ognibene regarded this threat is further evident in the eighteen years following the defendant's conviction. In all that time, this veteran attorney never once considered this threat and the supposed effect it had on his representation of the defendant. Never once in eighteen years did he consider this threat to be important information to disclose to anyone, including the defendant or his attorneys throughout his numerous appeals.
Therefore, in viewing the actions of Mr. Ognibene after receiving the threat in its entirety, this Court finds that the defendant has failed to demonstrate that defense counsel's potential conflict of interest adversely affected the conduct of his defense, as required under the second prong to support a claim of ineffective assistance under the theory of conflict-of-interest. See People v. Konstantinides, 14 NY3d 1, 14 (2009). As such the defendant's motion to vacate his conviction on this ground is denied in all respects.
The defendant next argues that trial counsel's failure to object to the language of the acting concert charge, his failure to address the acting in concert theory in his summations, as well as his failure to investigate and call additional witnesses who allegedly heard Mr. Topino admit to being the shooter amounts to ineffective assistance of counsel.
The Court of Appeals has held that constitutional requirements of effective assistance of counsel are met when the defense attorney provides “meaningful representation”. See People v. Baldi, 54 N.Y.2d 137, 147 (1981).
Mr. Ognibene chose not to object to Justice Katz's decision to charge acting in concert after doing research and considering the evidence. Where, as here, a reasonable and legitimate strategy explains the actions of an attorney at trial, the Court will presume that the defense counsel acted capably. See People v. Taylor, 1 NY3d 174, 177, (2003). See also People v. Rivera, 71 N.Y.2d 705, 709, (1988) (finding that in the absence of a showing of strategic or legitimate reasons for counsel's failure to move for particular relief, it will be presumed that defense counsel acted competently); See also People v. Alicea, 229 A.D.2d 80, 86, (1st Dept.1997) (ruling that a defendant must demonstrate the “ ‘absence of strategic or other legitimate explanations' for counsel's conduct ... and overcome the presumption that counsel's performance falls within the wide range of reasonable professional competence ...”). Whether or not counsel's decision not to object to this charge was foolish in hindsight does not in of itself make an otherwise meaningful representation ineffective. Furthermore, although the trial court chose unconventional language in charging the jury as to “acting in concert”, this Court finds that this language, and counsel's failure to object to it, did not prejudice the defendant or deprive him of a fair trial. See People v. Miller, 64 AD3d 471, (1st Dept 2009). See also People v. Fairley, 63 AD3d 1288,(3d Dept 2009).
In addition, while Mr. Ognibene during his summations never used the words “acting in concert” he did argue issues relevant to acting in concert such as that the defendant passively accompanied the victim into the restaurant where they encountered Topino, who drew his weapon and killed the victim. Mr. Ognibene, deliberately and purposefully, and in his professional judgment, believed that emphasizing “acting in concert” was not appropriate for his client's defense. “A claim of ineffective assistance of counsel will not lie where the purported failures of counsel are the result of a calculated trial strategy which, in the final analysis does not work....” People v. Washington, 184 A.D.2d 451, 452 (1st Dept 2002) ; see also People v. Walker, 2 AD3d 656, (2d Dept 2003). As a result, although Mr. Ognibene now admits in hindsight that choosing to ignore the words “acting in concert” in his summation arguments was a poor strategy, this Court cannot find this intentional decision amounts to ineffective assistance. As noted by the Court of Appeals in People v. Satterfield, 66 N.Y.2d 796, 798 (1985), in reviewing claims of ineffective assistance, care must be taken to “avoid both confusing true ineffectiveness [of counsel] with mere losing tactics and according undue significance to retrospective analysis.” Citing Baldi, at 146.
Furthermore, this Court finds that the defendant's remaining arguments, namely that Mr. Ognibene's failure to investigate additional witnesses who heard Mr. Topino's confession and failure to explore the possibility that the parents of witnesses number three would testify about the threat, to be without merit. First, as noted previously, the investigator continued to search for witnesses even after the threat so this Court cannot and does not find that Mr. Ognibene discontinued his efforts to find witnesses. Secondly, Mr. Ognibene met with the parents of witness number three for the purpose of convincing this witness to testify. Based on this lack of cooperation, this Court can reasonably infer that the parents of witness number three had no desire that their child (or they themselves) testify in court. Mr. Ognibene could have sought court process to force the reluctant witness to appear before the court. The fact that he did not do this is consistent with an informed decision that it would not be useful to compel a reluctant witness to testify rather than a defense failure. The failure to call a witness does not automatically deprive a defendant of meaningful representation. See People v. Majors, 59 AD3d 738, (2d Dept 2009) (failure to call alibi witness did not render counsel ineffective); See also People v. Kirby, 133 A.D.2d 652 (2d Dept 1987) (finding that representation by attorney not ineffective because attorney failed to call landlady as a witness).
In advancing his arguments that actions of trial counsel amounted to ineffective assistance of counsel, the defendant relies on several cases. A brief review of these cases, however, show that they are clearly distinguishable from the case at bar. In People v. Bennett, 29 N.Y.2d 462 (1972) the Court of Appeals concluded that a defendant was denied effective assistance of counsel when he failed to prepare for an insanity defense by failing to read any of defendants hospital records before trial, the trial judge had to ask the prosecutor to assist the defense attorney regarding the insanity defense, defense counsel was unable to properly phrase hypothetical questions for the psychiatrists who testified, and both psychiatrists that he called as witnesses testified that the defendant was sane.In People v. Maldonado, 278 A.D.2d 513 (2d Dept 2000), the Court found an attorney in a retrial ineffective for failing to call a participant in the defendant's first trial who had testified that the defendant was not involved in the robbery and who also failed to interview or call four alibi witnesses, without any sound reason. In People v. Green, 37AD3d 615 (2d Dept 2007), the Second Department affirmed a lower court ruling finding ineffective assistance of counsel where: “The defendant established at the hearing on his motion that his the trial counsel, without a reasonable strategic reason, failed to interview or even contact potential witnesses known to counsel prior to the trial, including an eyewitness to the crime, who could have offered exculpatory testimony substantiating the defense of misidentification ...”. In People v. Bussey, 6 AD3d 621 (2d Dept 2004), trial counsel never obtained a report from an investigator he hired to interview two alibi witnesses, failed to conduct an investigation into defendant's alibi and failed to call seven potential alibi witnesses because he did not want to risk having the prosecution elicit potentially damaging testimony on cross-examination of these witnesses. In People v. Baba–Ali, 179 A.D.2d 725 (1992), the defendant was accused of sexual abuse during a divorce and medical examinations of the child at that time showed no evidence of such abuse. The defendant's conviction was reversed for ineffective assistance of counsel in a child molestation criminal case where defense counsel failed to obtain the exculpatory medical testimony. Finally, in People v. Rodriguez, 94 A.D.2d 805 (2d Dept 1983), the defendant's's conviction was reversed where trial counsel withdrew a previously granted application for a Huntley hearing, one week before trial, failed to interview exculpatory witnesses, failed to object a prejudicial jury charge, failed to challenge clearly insufficient scientific evidence and elicited statements from the informant that were prejudicial to the defendant that could not have been elicited by the prosecution.
This Court does not find the defendant's argument that Mr. Ognibene's so called errors at trial and inability to locate additional witnesses who heard Mr.Topino confess is akin to the cases cited above. An important distinction in the case at bar is that evidence that would be given by the unfound witnesses was indeed presented at trial, considered and rejected by a jury of the defendant's peers. None of the witnesses that counsel allegedly failed to pursue would be eyewitnesses to the crime, alibi witnesses or offer a new theory to the defense's case. In addition, as already discussed, the record demonstrates evidence of counsel's preparation and knowledge of basic principles of criminal law. Therefore, in reviewing counsel's overall performance, this Court finds the defendant was afforded meaningful representation. This Court also rejects defendant's argument that any single one of defense counsel's so called failures was sufficient as a matter of law to render him ineffective. See People v. Osborne, 60 AD3d 1310, (4th Dept 2009). Nor does this Court agree that the cumulative affect of counsel's claimed shortcomings amounts to ineffective assistance of counsel. See People v. Oathout, 21 NY3d 127, 132 (2013) ; People v. Salsbery, 78 AD3d 1624 (4th Dept.2010) ; People v. Benevento, 91 N.Y.2d 708 (1998) ; People v. Marcial 41 AD3d 1308 (4th Dept.2007).
Finally, this Court also rejects the defendant's argument that a jury note asking for the acting in concert charge to be reread means that if the defense had yet another witnesses who testified about Mr. Topino's alleged statements, in all likelihood the jury would have acquitted the defendant. This conclusion calls for this Court to purely speculate on the motivations of the members of the jury in making this request for clarification on the law.
Therefore, this Court finds that defendant was afforded meaningful assistance of trial counsel and his motion to vacate his conviction on the claims of conflict of interest and ineffective assistance of counsel is denied in all respects.
This Court next turns to the defendant's claim that his conviction should be vacated based on newly discovered evidence. A motion to vacate judgement based on newly discovered evidence must satisfy the following six criteria as enumerated by the Court of Appeals in People v. Salemi, 309 N.Y.208, 215–216 (1955) :1. It must be such as will probably change the result if a new trial is granted;
2. It must have been discovered since the trial;
3. It must be such as could have not been discovered before the trial by the exercise of due diligence;
4. It must be material to the issue;
5. It must not be cumulative to the former issue; and,
6. It must not be merely impeaching or contradicting the former evidence.
Applying this criteria to the facts of this case, it cannot be said that the defendant has met his burden by a preponderance of the evidence. The defendant bases his claims of newly discovered evidence on the testimony on John Lui. Given the fact that both Mr. Nelson and Mr. Ying's already provided this evidence at trial, Mr. John Lui's testimony would provide no new theories for a jury to consider. Therefore, this Court finds that this “newly discovered evidence” is merely cumulative as to an issue whose merits was already considered and rejected by a jury. See People v. Latella, 112 A.D.2d 321 (2d Dept1985) (finding the potential testimony of an alleged second eyewitness to the defendant's arrest cumulative as its only purpose was to bolster previously discredited testimony). See also People v. Yoli, 150 A.D.2d 741 (2d Dept 1989).
The defendant speculates that the testimony of John Lui along with his professional background would serve to counter the testimony of Anthony Salamack, the eyewitness at trial who indicated the Mr. Lou was the shooter. However, despite Mr. Lui's background, a jury could easily find, as this Court has, that parts of Mr. Lui's testimony were simply incredible and unworthy of belief. This includes the testimony of Mr. Lui, that despite only knowing Mr. Topino for two months, Mr.Topino confessed to him, in great detail, that he was the shooter. Furthermore, Mr. Lui's credibility is additionally damaged by his claims that he did not believe the information he possessed to be pertinent and that in more than twenty years he never inquired or wondered what happened to the defendant but rather “simply moved on with his life”. Thus, contrary to the defendant's contention, based upon Mr. Lui's background, it is this Court's conclusion that it is likely a jury would discredit his testimony, just as it did with the same testimony by Mr. Lin and Mr. Ying. Furthermore, any inconsistency in the eyewitness's recollection was amply highlighted and already considered by the jury. Therefore, this Court does not find that the testimony of Mr. Lui was of such character to create a probability that such evidence would have resulted in a verdict more favorable to the defendant. See People v. Suarez, 98 A.D.2d 678 (1st Dept 1998) (finding that evidence that merely contradicted the victims testimony provided only a possibility, not the necessary probability, that the verdict would have been different). Furthermore, this Court finds not merit in defense counsel's arguments that three or more, rather than two witnesses testifying to Mr. Topino's alleged confession increases the likelihood that a jury would believe it.
The defendant has not established that this claimed new evidence is not cumulative or that the result will probably change if a new trial is granted. Therefore, the defendant's motion to set aside his conviction on the grounds of newly discovered evidence is denied in all respects.
Finally, the defendant makes a claim of actual innocence based on the testimony of the defendant, Mr. Lui, Mr. Ognibene, all motion papers, the court record, and all of the evidence previously presented. The Second Department recently held in People v. Hamilton, 115 AD3d 12 (2014), that a claim of actual innocence requires that a defendant prove by clear and convincing evidence that he was actually innocent of the crimes for which he was convicted of. In Hamilton, the Court found that defendant made a prima facie showing of actual innocence that warranted further exploration based upon evidence of a credible alibi, the manipulation of the witnesses, and the fact that the eyewitness against the defendant recanted.
In the case at bar, this Court's finds incredible specific details in the defendant's version of the shooting. The defendant's testimony as to the supposed actions of the decedent, disobeying Mr. Topino's demand at gunpoint to let go of Mr. Lou and defendant's claim that Mr. Topino shot the decedent as he held Mr. Lou directly in front of him is a highly questionable scenario. Furthermore, this Court notes that the defendant took no responsibility for any of his actions in the months leading up to the murder and instead blamed everyone around him for every choice he made, including the choice to extort money from Chinese restaurants and the choice to be armed. Given the defendant's gangster lifestyle at the time of the murder, his convenient memory lapse with regard to whether or not he displayed the loaded .38 caliber handgun he carried the night of the shooting and his claimed lack of knowledge as to the whereabouts of said weapon, this Court finds that there is insufficient support for the claim that the defendant is actually innocent of the crimes for which he has been convicted. It is more appropriate that this Court draw the inference that the defendant continues to blame a dead man, Mr. Topino, for his own actions.
With regard to Mr. Ognibene's testimony, this Court notes its limited value with regard to a claim of actual innocence. Furthermore, this Court is not persuaded that the testimony of Mr. Lui, and the minor inconsistences of the witnesses at trial meets the standard set forth in Hamilton as these issues were fully explored and rejected at the trial. The Hamilton court ruled that the actual innocence means factual innocence. It is not a claim that merely challenges the legal insufficiency of evidence of guilt. Rather, actual innocence must be based on reliable evidence which was not presented at the trial. See Hamilton at 18. Furthermore, the Hamilton court noted that: “Mere doubt as to the defendant's guilt, or a preponderance of conflicting evidence as to the defendant's guilt, is insufficient, since a convicted defendant no longer enjoys the presumption of innocence, and in fact is presumed to be guilty ...”. See Hamilton at 27, citing Schlup v. Delo, 513 U.S. 298, 326 (1995) ; Herrera v. Collins, 506 U.S. 390, 398 (1993).
Therefore, this Court finds that the defendant has not met his burden of establishing by clear and convincing evidence that he is actually innocent for the crimes he was convicted of. As such, the defendant's motion to vacate his judgment of conviction on this ground is denied.
Accordingly, the defendant's motion to vacate his judgment of conviction is denied in all respects.
The foregoing constitutes the order, opinion and decision of the Court.