Peoplev.Urena

Supreme Court, New York CountyMay 10, 2019
01841/12 (N.Y. Sup. Ct. 2019)
01841/122019 N.Y. Slip Op. 50972

01841/12

05-10-2019

The People of the State of New York, Plaintiff, v. Robert Urena, Defendant.

Defendant, Pro Se Appearing on behalf of the People: Assistant District Attorney Caitlin Nolan New York County District Attorney's Office 1 Hogan Place New York, NY 10013


Defendant, Pro Se Appearing on behalf of the People: Assistant District Attorney Caitlin Nolan New York County District Attorney's Office 1 Hogan Place New York, NY 10013 Jill Konviser, J.

In the early morning hours of April 11, 2012, the defendant, a leader and elder in the Trinitario gang, and his subordinates, administered a fatal beat down to twenty-four year old Jonathan Delarosa. After sucker punching the victim, who immediately collapsed to the sidewalk, the defendant had to be held back by others, while the victim got up and attempted to escape. The victim was caught by one of the defendant's crew, who then took his turn at beating the victim. As the victim attempted to flee his attackers once again, the defendant and his subordinates pursued him, grabbed him, beat him, punched him, and bashed him over the head with a jagged wooden plank. The coup de grace, though, came at the hands of the defendant, the lone weapon wielder, who dealt the fatal blow by stabbing the victim in the chest, twice. As the victim bled out from a knife wound that had penetrated his heart and lung, his last words, "I love you," were uttered twice before he died. The defendant, his job done, was the first to flee the scene, leaving his victim in a heap on the street, pausing just long enough to dispose of the murder weapon in a pile of garbage.

History of the Case

By Indictment Number 01841/12, the defendant was charged, while acting in concert with others, with Murder in the Second Degree and Gang Assault in the First Degree. A pre-trial suppression hearing was held before this Court on July 10 and 19, 2013, and a jury trial commenced on November 21, 2013. On December 16, 2013, the defendant was convicted of Murder in the Second Degree and Gang Assault in the First Degree. On January 13, 2014, this Court sentenced the defendant to a prison term of from twenty-five years to life on the murder count, concurrent to a prison term of twenty-five years with five years of post-release supervision on the gang assault count.

Carlin Batista, Anthony DeJesus, and Rafy Hidalgo were charged by that same indictment — the defendant's case was severed by a prior judge. Twenty-one year old Batista was convicted of gang assault following a separate jury trial, seventeen-year old DeJesus was convicted of gang assault by plea, and twenty-four year old Hidalgo, who testified against both Batista and the defendant pursuant to a cooperation agreement, was subsequently convicted of gang assault by plea.

On December 2, 2016, the defendant filed a pro se motion to vacate the judgment of conviction pursuant to Criminal Procedure Law Section 440.10. The People did not file a response until July 10, 2017. Additionally, despite repeated attempts to obtain the trial transcript and trial exhibits, neither were available until late 2018 and early 2019, respectively, due to a court-wide digitization project, and the assignment of a new Assistant District Attorney. After a thorough review of the trial transcript, the trial exhibits, including myriad video surveillance recordings, and the papers submitted by the parties, the defendant's motion is denied in its entirety.

The caption of the defendant's pro se motion further references C.P.L. § 440.20 — the statutory provision for a motion to set aside a sentence. The motion, however, is devoid of any factual information or legal argument related to a motion pursuant to that section. As the sentence imposed was legal, and the defendant fails to identify any issue to warrant relief, the motion, to the extent that such a motion was made, must be denied.

Brief Summary of the Evidence at Trial

In the early morning hours of April 11, 2012, twenty-four year old gang member Rafy Hidalgo, was roused from his bed by several calls and text messages from his friend, Carlin Batista. (TR: 126-27). Batista said that Jonathan Delarosa, the victim, a long-time foe, was in the same Washington Heights club with him — Lucky 7. (TR: 128-29). Video showed Batista inside of Lucky 7 at approximately 3:04 a.m., making those phone calls while standing near the victim. (TR: 1234-35, 1237). Hidalgo, while leaving his apartment, received another phone call, this time from high ranking Trinitario gang member Robert Urena, the defendant, known to him as Venom, who confirmed that he, too, was going to Lucky 7. Hidalgo met up with Venom, the defendant, hailed a cab and headed to Lucky 7 to settle the score. (TR: 134-138). Hidalgo did not bring a weapon with him, but the defendant did — he had a six inch kitchen knife in his sleeve, and showed it to Hidalgo in the cab en route to Lucky 7. (TR: 140-42). The defendant and Hidalgo met up with Batista outside of the club, and Batista told them that the victim was still inside and that the two had exchanged words. (TR: 142). The defendant and Hidalgo told Batista to get the victim from the club so that they "could beat him up." (TR: 142). Video showed Batista going back into the club and once inside of the club, speaking to the victim — their conversation, which lasted for approximately twelve minutes, appeared to get heated — the club bouncers intervened, separating the two. (TR: 1259, 1266-68). As Batista did not emerge for some time, the defendant and Hidalgo called him, but he did not answer. (TR: 147). Meanwhile, the defendant took the knife from his sleeve, and concealed it in some dirt near the base of a tree — video showed the defendant doing so. (TR: 299-300, 1208-09, 1219, 1261-63). As the defendant and Hidalgo were waiting for Batista and the victim to emerge, seventeen-year old Anthony DeJesus, another Trinitario gang member in their crew, joined them. (TR: 1263, 1264-66). Eventually, and as the video showed, Batista came out of Lucky 7 — a few minutes later, the victim emerged. (TR: 1271). By that time, other Trinitario gang members had also descended on the club. (TR: 148). Although the defendant, Hidalgo, and Batista did not have a discussion about their plans, Hidalgo knew that everyone would be involved in the beat down, as, they were Trinitarios. (TR: 150-51).

Parenthetical references are to a page number or numbers in the trial transcript.

Numerous video surveillance recordings were introduced into evidence at trial. Those recordings captured most of the events about which the witnesses testified.

Myriad cell phone records were introduced into evidence at trial, corroborating the aforementioned calls.

According to cell phone records, at approximately 3:20 a.m., the defendant called DeJesus. (TR: 1251).

As Trinitarios, Hidalgo and his cohorts frequently went on "missions" to attack members of rival gangs — those missions were ordered by the defendant. (TR: 64).

The victim came out of the club acting as if "he owned the club." (TR: 151-54). The video then showed Venom, the defendant, tightening the strings on his hoodie, walking towards the tree where he had earlier placed something. (TR: 1273). The defendant approached that tree, picked up the object, and then walked back towards Lucky 7, with that object in his hand. (TR: 1201-02, 1218, 1273-74). The object "gleamed," and appeared to be long, like a knife. (TR: 1205, 1220-22, 1223). The defendant approached the victim and "sidelined" him "from behind" with a "punch[]" to the "jaw" that "knocked" him out — the victim dropped to the ground. (TR: 156-57). Video showed the defendant, who appeared to be trying to get to the victim, with that gleaming object in his hand, being held back by others. (TR: 1203-04, 1287-90). The victim "got up" and "started running." (TR: 157- 58). As an unrelated fight had spilled out from the club, there was some confusion, so Hidalgo pointed to the victim and said, "he is right there." (TR: 158-59). DeJesus then punched the victim in the face — that punch was caught on video. (TR: 160, 1207, 1291). The victim then ran "a little more" and "faster," and the Trinitarios gave chase. (TR: 160-61). Video showed the victim running, pursued by, in order, DeJesus, the defendant, Batista, and finally, Hidalgo. (TR: 1292-93, 1297). DeJesus caught up to the victim and the two started fighting, with the victim appearing to have the upper hand. (TR: 162-63). Batista picked up a piece of wood — a "two by four" — and "pumm[eled]" the victim over the head with it. (TR: 164-66). At the same time, the defendant rushed the victim and "twice" made "a stabbing motion" into the victim's "chest." (TR: 63). In between pummels to the head with the two by four, and the stabbing motions to his chest, the victim said, "I love you," but the defendant, Batista, and DeJesus continued the beat down until the victim "dropped" to the ground. (TR: 166-67). Hidalgo arrived at the tail end of the carnage. The defendant fled. (TR: 168-69). Video showed the defendant running from the scene, momentarily stopping to bury the object in his hand in a pile of garbage, before walking away. (TR: 1211, 1214-17, 1224, 1300-01). Hidalgo and the others then "separated" and left the scene. (TR: 170).

Although Hidalgo, who was less lean and not very fast, lagged behind his cohorts he, nonetheless, saw the defendant stab the victim twice. (TR: 164, 356-57).

As the garbage had been removed by the time the video surveillance recordings were obtained, that object was not recovered. (TR: 1225).

Twenty-five year old Nestor Nova was celebrating his friend's birthday in the early morning hours of April 11, 2012, at Lucky 7. He left the club approximately ten minutes before the club closed as a fight had broken out. (TR: 988-89). In the street, about a block away, Nova saw the body of an individual whom he believed "was dead." (TR: 993-94). Nova called 911. (TR: 995).

Police Officer Brian Jay, a seventeen-year veteran of the New York Police Department (hereinafter "NYPD") and former army combat field medic testified that he was directed by a 911 call to the area of West 182nd Street and Audubon Avenue. There, he observed an individual on the pavement in the middle of the street, lying in the fetal position. (TR: 612-18, 620). Jay immediately requested an ambulance and began to render aid to the individual. (TR: 618). He rolled the individual onto his back and saw "a large amount of blood on his shirt." (TR: 619). Jay opened the individual's shirt and observed "a large hole in his chest" on the left side, as well as an additional wound on the lower right side of the chest area. (TR: 619, 621). Feeling no pulse, however, he ceased rendering aid, as, "there was nothing that was going to help." (TR: 619). An ambulance arrived shortly thereafter, but, after confirming Jay's finding that the individual was deceased, left. (TR: 620). Near the body, Jay observed two pieces of wood that appeared to have blood spatters on them. (TR: 622).

The victim's body was later removed by the Office of the Chief Medical Examiner.

Detective Carlos Pantoja, an eight-year veteran of the NYPD Crime Scene Unit, responded to the crime scene at approximately 6:30 a.m. (TR: 577, 580-81). He photographed the scene, including the victim's body, recovered two pieces of wood that were located near the victim's body and "possibly had blood" on them, and "bagged" the victim's hands "for possible trace evidence." (TR: 582-83). The larger piece of wood measured 3 feet by 3.5 feet and had what appeared to be metal nails embedded in it — both pieces of wood were sent to the laboratory for analysis. (TR: 586).

The photographs and pieces of wood were entered into evidence at trial.

Criminologist Alynka Jean, a ten-year veteran of the NYPD, assigned to the Latent Print Unit of the police lab, examined two pieces of wood that had been collected from the crime scene. (TR: 664-66, 673-75). As Jean could not see fingerprints on the wood, she performed additional testing to try to develop fingerprints — she was unable to do so. (TR: 676-79). She also took samples of what appeared to be blood from the wood for testing by the Office of the Chief Medical Examiner (hereinafter "OCME"). (TR: 673-75).

Dr. Jennifer Adams, a Forensic Pathologist employed by OCME, concluded that the victim died "as a result of a stab wound to his torso" that caused "injuries to his heart and lungs." (TR: 926). More specifically, the victim had two "sharp force injuries" to his chest — one on each side, and several "blunt force injuries" to his face, head, arms, and legs. (TR: 933). The injury to the left side of his chest "was consistent with a stab wound" inflicted by "a traditional kitchen knife" that had penetrated all the way through the pericardial sac of the heart and into the upper lobe of the left lung. (TR: 934-36). That injury caused bleeding that continued until the victim, in a matter of minutes, weakened, lost consciousness, and died. (TR: 945). The injury to the right side of the victim's chest, also a stab wound inflicted by a kitchen knife, was shallower, penetrating only the skin and underlying muscles. (TR: 937-38). The shallower injury would have caused "pain and some bleeding," but "likely would not have caused death." (TR: 947-48). Additionally, the victim had a few small abrasions or scrapes on the left side of his face and inside his ear, a contusion or bruise on the back left side of his head, a contusion or bruise inside of his upper lip, and small abrasions on both of his elbows, knees, and ankles. (TR: 938-39). The contusion to the back of the head was consistent with being hit with a blunt object and/or falling and hitting his head on the ground. (TR: 951, 963). The abrasions to the face were consistent with the victim being hit with a piece of "wood that [had] an irregular surface." (TR: 956). The abrasions to the elbows, knees, and ankles, were consistent with the victim "falling down." (TR: 952-53). When the victim's body arrived, there were bags on both hands, as his hands had blood on them. (TR: 940). Swabs from the victim's fingers were taken for further testing. (TR: 941).

Jaheida Perez, a Criminalist employed by OCME in the Biology Department, examined two pieces of wood and swabs taken from the victim's fingers during the autopsy. (TR: 1017-18, 1027-28, 1032-33). Human blood and DNA material were detected on one of the pieces of wood and from a swab taken from under one of the victim's fingernails. (TR: 1033-34). A DNA profile was generated from the piece of wood, that DNA profile matched the victim. (TR: 1036). DNA profiles were generated from the material under the victim's fingernail — there were two contributors, with the victim being the major contributor. (TR: 1034-35). OCME later received DNA samples from the defendant, Hidalgo, Batista, and DeJesus, and a DNA profile was developed for each. (TR: 1040-42). Those profiles were compared to the profile developed from under the victim's fingernails — there was no match. (TR: 1042-44).

Natasha Rodriguez testified that the victim, Jonathan Delarosa, was her older brother (TR: 1122, 1126). At the time of the murder, her brother, who was twenty-four years old, was employed at Columbia University, and was not in a gang. (TR: 1122-23). On April 12, 2012, Rodriguez went to the Medical Examiner's Office, where she identified her brother's body in a photograph. (TR: 1127).

The defendant was arrested on April 25, 2012 by Detective Edward McHugh. (TR: 1308-09). McHugh provided the defendant with Miranda warnings and took a statement from him. (TR: 1311). At first, the defendant denied knowing anything about the homicide. (TR: 1312-13). McHugh then showed the defendant some of the video surveillance recordings that he had obtained. (TR: 1313). The defendant admitted that it was him on the surveillance recordings, but said that he had only punched the victim. (TR: 1313-14). McHugh then showed the defendant additional video of him and the others chasing the victim just before the victim was stabbed — the defendant had nothing to add. (TR: 1314-15). McHugh, therefore, transcribed what the defendant had told him. The defendant reviewed that statement and edited it, but refused to sign it. (TR: 1315).

Several days after the murder, Hidalgo learned that the defendant and DeJesus had been arrested, and he was arrested shortly thereafter. (TR: 200-02). At some point, Hidalgo made the decision to cooperate and entered into a plea agreement with the District Attorney's Office. Pursuant to the plea agreement, Hidalgo plead guilty to Murder in the Second Degree and to Gang Assault in the First Degree. (TR: 236, 239). In order to receive a reduced sentence, however, Hidalgo had to testify truthfully against the defendant, Batista, and DeJesus. (TR: 241-42).

When Hidalgo was initially interviewed by detectives about the murder, he did not tell the truth. (TR: 207-08). For example, Hidalgo told Detective McHugh that he had not seen what happened and that when he arrived at the location where the victim had been stabbed, the victim was already on the ground. (TR: 427). He was then interviewed, on video, by an Assistant District Attorney (hereinafter "ADA"), but, again, he did not tell the truth. (TR: 208). For example, Hidalgo told the ADA that the knife that the defendant had shown him in the taxi was very small, and that the defendant only had the knife with him in the event that anyone needed protection. (TR: 428-30). Hidalgo testified that he lied to avoid getting into trouble and to avoid implicating his friends in the murder. (TR: 438).

Motion to Vacate the Judgment of Conviction

The defendant now moves, pro se, to vacate the judgment of conviction, pursuant to C.P.L. § 440.10, on myriad grounds. Specifically, the defendant contends that: (1) the People committed a Brady violation; (2) the case detective violated his Miranda rights; (3) prosecutorial misconduct during the People's summation deprived him of a fair trial; (4) he received ineffective assistance of counsel; and, (5) he is actually innocent of the crimes for which he stands convicted. The defendant's claims are without merit and, therefore, the motion is denied in its entirety.

Alleged Brady Violation

First, the defendant contends that a Brady violation occurred when the Court precluded him from introducing at trial a video recorded statement that Rafy Hidalgo made to an Assistant District Attorney following his arrest. Although even a cursory review of Hidalgo's prior recorded statement would suggest that the statement contained potential Brady material, the defendant does not allege that that statement was withheld from him. Rather, the defendant appears to conflate the Brady doctrine with the Court's evidentiary ruling, about which he continues to take issue. The defendant's complaint, however, is without merit, and, therefore, the motion to vacate the judgment of conviction on that basis is denied.

Of course, it is axiomatic that the People must provide to a defendant favorable evidence in their possession that is material to a defendant's guilt or innocence. Brady v. Maryland, 373 U.S. 83 (1963). In order to prevail on a Brady claim, a defendant must show that: "(1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and, (3) prejudice arose because the suppressed evidence was material." People v. Fuentes, 12 NY3d 259, 263 (2009) (internal citations omitted). Here, there is no dispute that the defendant was in possession of Hidalgo's video recorded statement from the very outset of the trial. Quite simply, then, there was no Brady violation.

Specifically at trial, during cross examination of Rafy Hidalgo, the defendant sought to admit Hidalgo's prior recorded statement into evidence. Hidalgo, however, acknowledged that he had given that statement and acknowledged all the inconsistencies between that statement and his trial testimony. There was, therefore, no legal basis for admitting the video recorded statement into evidence as a prior inconsistent statement. See People v. Person, 8 NY3d 973 (2007).

Accordingly, the defendant's motion to vacate the judgment on that basis is denied.

Alleged Miranda Violation

The defendant further moves to vacate the judgment of conviction as, he contends, Detective McHugh, had a "personal obsession" with him and a "personal vendetta" against him "since 2004," and, therefore, violated his Miranda rights. Specifically, the defendant alleges that he was never informed of his Miranda rights, was tricked into signing a Miranda rights waiver, and was questioned after having invoked his right to counsel. The defendant's contentions, however, are wholly without merit and, therefore, the motion to dismiss based on an alleged Miranda violation is denied.

A Huntley hearing was held on July 10 and 19, 2013. At that hearing, Detective McHugh testified with respect to the defendant's oral and written statements. Further, the People introduced the completed Miranda rights form that McHugh testified he had used to inform the defendant of his Miranda rights. On that form, "Y" is printed after each question and "UR" is printed next to each "Y." On the line for the defendant's signature, "Robert Urena" appears in script. Additionally, the People entered into evidence the written statement — dictated and edited by the defendant and transcribed by McHugh. As McHugh testified, the defendant refused to sign that statement. Indeed, McHugh wrote at the bottom of that statement, "Mr. Urena refuses to sign."

The transcript of the pretrial suppression hearing is incorporated by reference herein.

Notably, the script used for the signature appears to match closely each "Y" and "UR" placed next to each question.

In its decision, the Court credited McHugh's testimony and concluded that the post-Miranda oral and written statements were voluntary.

Notwithstanding, the defendant now claims that none of the foregoing — the administration of Miranda warnings, his express waiver of those warnings, his oral statement, his viewing of the video surveillance recordings, McHugh's memorialization of their conversation in writing, his editing of that written statement, and his refusal to sign that statement — ever occurred. There is, however, no reason to believe the alternative version of events that the defendant belatedly offers. Indeed, the defendant received the hearing to which he was entitled, and was provided with effective representation at that hearing, see discussion infra. And, notably, the defendant's oral and written statements fell far short of a confession to the murder. That the defendant, who believes that McHugh had a personal vendetta against him, of which there is simply no evidence, continues to take issue with McHugh's credibility, does not entitle him to vacatur of the conviction. Accordingly, the defendant's motion to vacate the conviction on the ground of an alleged Miranda violation is denied.

Alleged Prosecutorial Misconduct

Additionally, the defendant moves to vacate the judgment of conviction as, he contends, prosecutorial misconduct deprived him of a fair trial. Specifically, the defendant argues that the People impermissibly elicited testimony from Detective McHugh that he had invoked his right to remain silent, and that during summation, the People vouched for the credibility of their primary witness, repeatedly claimed that the defendant had a knife despite the absence of "expert" testimony to that effect, and played on the sympathy of the jury. The defendant's contentions, however, are unconvincing. Thus, the motion to vacate the conviction on the basis of alleged prosecutorial misconduct is denied.

Additionally, the defendant contends that the People, in summation, repeatedly referred to him as a "boss," purposefully violating the Court's pretrial Molineux ruling. The Court's Molineux ruling, limiting the People's use of the term "boss" to describe the defendant, nevertheless, allowed the People to elicit general information about the hierarchy of the Trinitario organization, to provide background information and explain the relationship between the defendant and his cohorts, as well as additional information, albeit circumscribed in nature, that the defendant had, on occasion, directed gang subordinates to carry out "missions." In summation, the People made one general reference to the Trinitario hierarchy, and not impermissibly so. (TR: 1449). Additionally, the People argued that DeJesus had been "told by the boss to come and do this mission" — a single, unrepeated argument that was, nonetheless, fair comment on the evidence, as it explained the sequence of events and how DeJesus came to be at the scene of the murder. (TR: 1515). --------

Of course, testimony that a defendant refused to answer questions or invoked the right to silence, is generally impermissible. See People v. Williams, 25 NY3d 185 (2015); People v. Hollis, 215 AD2d 777 (2d Dept. 1995). That, however, is not what happened here. Rather, McHugh was asked to describe for the jury, the circumstances under which the defendant made the oral and written statements. McHugh explained that after providing the defendant with Miranda warnings, he started questioning the defendant — the defendant responded, minimizing his role in the murder. McHugh then showed the defendant video surveillance recordings from the murder scene and the defendant conceded that that was him on those recordings. Then, when asked what happened next, McHugh responded that the defendant had nothing further to add. McHugh then transcribed the defendant's oral statement, stopping after he had written each line for the defendant to read, edit, and approve what he had written. Notably, the defendant asked that a line in the statement be excised and McHugh complied, crossing out that line, before concluding the interview.

The foregoing makes plain that the defendant neither refused to answer questions nor invoked his right to silence. Rather, with nothing else to add, McHugh and the defendant then worked to transcribe their conversation. McHugh's response at trial, therefore, was an explanation of how the interview unfolded, not an impermissible comment on the defendant's silence.

So, too, the People's summation comments did not prosecutorial misconduct make. Indeed, while a prosecutor is generally held to a more stringent standard of advocacy, it is, nonetheless, axiomatic that a prosecutor has broad latitude in responding to a defendant's trial strategy and summation arguments. See People v. D'Alessandro, 184 AD2d 114 (1st Dept. 1992). What a prosecutor must not do is express a personal opinion about the veracity of a witness. See People v. Bailey, 58 NY2d 272 (1983).

Here, in summation, the defendant argued that the People's primary witness, Rafy Hidalgo, "lies just about all the time, just about everything." (TR: 1395). Additionally, he argued, Hidalgo told "[l]ie after lie after lie to cops, to district attorneys . . . as though it has no consequence." (TR: 1396). So, too, Hidalgo "is a guy . . . who just lies because that's who he is, it's in his nature." (TR: 1402). Further, the defendant argued that the jurors "already know that [Hidalgo] is a liar, can't be relied on, not telling the truth." (TR: 1416). The People responded by arguing that Hidalgo was "careful" in his testimony and when he did not know an answer, he said so — an indication of "him being honest." (TR: 1492). Additionally, the People argued, "I submit to you, all of his testimony there is no lies there . . . [h]e was careful because he knows about the [cooperation] agreement . . . [a]nd he understands that he will do more jail time if he lies." (TR: 1500). The People, therefore, argued that Hidalgo "is constrained by the truth." (TR: 1501).

Clearly, the theme of the defendant's summation, and his defense, was the lack of credibility of the People's primary witness, Rafy Hidalgo. Indeed, the defendant, from the very outset of the case, argued that Hidalgo was a liar, unworthy of belief. The defendant carried that theme into his summation when he unequivocally and repeatedly called Hidalgo a liar. The People's comments must, therefore, be considered through the prism of the credibility contest that the defendant created. And, when considered through that prism, the People's comments appropriately and precisely outlined for the jury the multitude of reasons that proved Hidalgo was a credible witness. See People v. Overlee, 236 AD2d 133 (1st Dept. 1997). Indeed, at no time did the ADA express her own opinion about Hidalgo's credibility.

Additionally in summation, the defendant argued that Hidalgo's testimony was uncorroborated, as, he contended, Detective McHugh was also untrustworthy and his testimony similarly incredible. In fact, the defendant argued that McHugh's testimony was "rather extraordinary." (TR: 1422). McHugh, the defendant contended, assumed that the defendant was in possession of a knife and, therefore, repeatedly claimed that he could see a knife in the defendant's hand on the video surveillance recordings. To be sure, the defendant encouraged the jury to decide "how much of" McHugh's testimony was "what he thinks, or his opinions or his assumptions or what he would like the video to show but it doesn't." (TR: 1422). Indeed, the defendant argued, "[t]here ain't no big shiny knife anywhere in any of the how many hours of video . . . [t]here may be other things, things that kind of look like objects, dark things, but there is no big shiny knife." (TR: 1424). The defendant told the jury, "it's nobody's fault that the videos don't show what McHugh says." (TR: 1431). The People then encouraged the jurors to "look at the video . . . the visual images," to "make your own decision" about whether the video surveillance recordings showed the defendant holding something that was "the same shape" as Hidalgo had "described." (TR: 1503-04). The People argued that it was further reasonable to conclude that the videos showed the defendant holding a knife as he had a "knife before" the victim was "stabbed" in "the chest." (TR: 1509). Additionally, the People contended that the jury could conclude that the object in the defendant's hand was a knife based on the Medical Examiner's testimony — that the victim had died of two stab wounds that were consistent with having been inflicted by a kitchen knife. (TR: 1511-12).

The foregoing makes plain that both attorneys did what advocates are supposed to do — encourage jurors to reach their own conclusions with respect to what the video surveillance recordings had captured. Nevertheless, the People were entitled to argue what they believed the evidence had shown — that the defendant had used a kitchen knife to murder the victim. To be sure, the lack of an "expert," assuming one such expert even exists, to testify that the video surveillance showed the defendant in possession of a kitchen knife did not foreclose the jurors from reaching that conclusion on their own.

So, too, the People did not impermissibly play on the sympathy of the jury. Indeed, the People argued that the defendant's intent could be inferred, at least in part, from the circumstances surrounding the murder. That the victim, Jonathan Delarosa, was "vulnerable . . . alone, drunk . . . outnumbered," therefore, was fair comment on the evidence. (TR: 1499). Finally, the ADA's reference to the "loss" that the murder had caused, particularly for the victim's sister who identified her brother's body, while perhaps better left unsaid, did not deprive the defendant of a fair trial. See People v. Cruz, 292 AD2d 196 (1st Dept. 2002); People v. Williamson, 267 AD2d 487 (3d Dept. 1999).

Moreover, the Court repeatedly instructed the jury that neither attorneys' arguments constituted evidence. Additionally, the Court instructed the jury that as the finder of fact, it was for the jury to determine what the video surveillance recordings showed. To be clear, the Court instructed the jury more than once that its verdict must not rest on sympathy. Of course, the jury is presumed to have followed the Court's instructions. See People v. Davis, 58 NY2d 1102 (1983); People v. Washington, 26 AD3d 222 (1st Dept. 2006). Accordingly, the defendant's motion to vacate the judgment of conviction on the ground of prosecutorial misconduct is denied.

Ineffective Assistance of Counsel Claim

Additionally, the defendant moves to vacate the judgment of conviction as, he claims, trial counsel provided ineffective assistance. Specifically, the defendant faults counsel for not seeking suppression of a post-Miranda oral statement, not hiring an expert to examine the video surveillance recordings, and failing to object to comments made during the prosecutor's summation that he contends were improper. As the defendant received the effective assistance to which he was entitled, the motion to vacate the judgment of conviction on the basis of ineffective assistance of counsel is denied.

The right to effective assistance of counsel is guaranteed by both the Federal and State Constitutions. See U.S. Const., Amend. VI; N.Y.S. Const., Art. I, § 6. To prevail on a claim of ineffective assistance of counsel, however, a defendant must overcome the strong presumption that counsel rendered effective assistance. See People v. Hobot, 84 NY2d 1021 (1995). The standard for effective assistance consists of a "flexible approach" that considers "the circumstances of a particular case" in determining whether a defendant has received "meaningful representation." People v. Henry, 95 NY2d 563, 565 (2000), citing People v. Baldi, 54 NY2d 137 (1981). Thus, a court must analyze "the evidence, the law, and the circumstances . . . as of the time of the representation." People v. Henry, 95 NY2d at 565. To determine whether meaningful representation was provided, a court must focus on the "fairness of the process as a whole" and refrain from "confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis." People v. Benevento, 91 NY2d 708, 712, 714 (1998).

In the instant matter, counsel zealously represented the defendant at every stage of the case. Indeed, counsel made all relevant and appropriate pre-trial motions. See e.g. People v. Ramirez, 22 AD3d 334 (1st Dept. 2005); People v. Relford, 186 AD2d 91 (1st Dept. 1992); People v. Baveghems, 137 AD2d 822 (2d Dept. 1988). Based on counsel's comprehensive motions, Dunaway, Huntley, and Mapp hearings were ordered. At those hearings, counsel rendered appropriate objections and vigorously cross examined the People's witnesses. Further, at counsel's request, the hearing was held open so that he could review the case detective's testimony in connection with a suppression hearing held previously as to a co-defendant, to determine whether additional cross examination was warranted. Thereafter, counsel presented a coherent argument in support of the defendant's suppression motion. Counsel then submitted a written post-argument memorandum to the Court in support of that motion. That counsel was ultimately unsuccessful in persuading the Court that suppression was warranted, did not eviscerate his effectiveness. See e.g. People v. Jordan, 157 AD3d 413 (1st Dept. 2018); People v. Carter, 276 AD2d 347 (1st Dept. 2000); People v. Turner, 265 AD2d 588 (2d Dept. 1999).

So, too, counsel's familiarity with the case and its attendant legal issues was readily apparent from counsel's performance at myriad pre-trial conferences. Indeed, counsel objected to a previously issued protective order and successfully argued that the defendant required access to protected information to prepare for trial — information that the Court then directed the People to turn over immediately. Counsel also urged the Court to preclude testimony with respect to the defendant's gang membership. Although the defendant was clearly a "boss" in the Trinitario organization, and the leader of the gang responsible for the victim's murder, the Court, in an abundance of caution, and at counsel's urging, limited the use of that term to prevent any undue prejudice to the defendant. Additionally, the People moved, pursuant to Molineux, for permission to introduce, inter alia, evidence that the defendant's modus operandi was to carry a knife, as he had done so on numerous prior occasions. Following counsel's argument in opposition, the Court agreed with counsel that that evidence was highly prejudicial to the defendant and, therefore, precluded the People from introducing it. Finally, the Court heard a Sandoval application, and as a result of counsel's argument in opposition, denied the majority of the application. Counsel's many and important victories at the pre-trial stage, underscore the meaningful representation that he provided. See e.g. People v. Thompson, 106 AD3d 527 (1st Dept. 2013); People v. Marshall, 193 AD2d 818 (2d Dept. 1993).

Counsel's effective advocacy continued during voir dire. Indeed, counsel engaged in a conversation with the potential jurors, building rapport while discussing the relevant and applicable legal standards. See e.g. People v. Wragg, 26 NY3d 403 (2015); People v. Holman, 14 AD3d 443 (1st Dept. 2005); People v. Smith, 265 AD2d 175 (1st Dept. 1999). Counsel's opening statement further demonstrated his familiarity with the case, his theory, and his continued effectiveness. Indeed, counsel outlined his trial strategy, sowing seeds of doubt in the jury's mind by highlighting the lack of forensic evidence connecting the defendant to the murder and undermining the credibility of the People's primary witness — a reputed gang member testifying pursuant to a cooperation agreement in an effort to earn a significantly lower state prison sentence for his own role in the crime. See e.g. People v. Walker, 141 AD3d 678 (2d Dept. 2016); People v. Colon, 61 AD3d 772 (2d Dept. 2009); People v. Hendricks, 243 AD2d 396 (1st Dept. 1997).

Throughout the trial, counsel raised appropriate objections and thoroughly cross-examined all of the People's witnesses. See e.g. People v. Prescott, 63 AD3d 1090 (2d Dept. 2009); People v. Ramirez, 22 AD3d 334 (1st Dept. 2005). Counsel artfully sought to undermine the testimony of the People's primary witness by asking pointed questions and challenging the answers provided by the witness. Moreover, counsel repeatedly impeached that witness, by confronting him with prior inconsistent statements. So, too, counsel moved for a trial order of dismissal both at the close of the People's case and after the defendant had rested, arguing to the Court that the People had failed to prove the defendant's guilt beyond a reasonable doubt.

During a pre-summation charge conference, counsel requested specific charges in support of the strategy he had implemented at trial. Counsel obtained a copy of the Court's draft charge, which he painstakingly reviewed. In fact, he contacted the People and the Court over the weekend to request changes to two portions of the proposed charge and, at his urging, the Court so revised its charge. Finally, counsel offered a strategically sound summation, emphasizing the lack of forensic evidence, and highlighting various inconsistencies in the testimony of the People's witnesses, who he concluded, were incredible and untrustworthy. Most notably, counsel assailed the testimony of the People's primary witness, ferreting out what he believed to be significant deceptions. Then, during the People's summation, counsel rendered appropriate objections. Despite counsel's reasoned trial strategy and meaningful advocacy, the defendant was convicted as a result of the compelling evidence presented against him.

Counsel's effectiveness did not end with the completion of the trial. Indeed, counsel appeared at the defendant's sentencing and continued fiercely representing him. See e.g. People v. Corie, 222 AD2d 602 (2d Dept. 1995). To be sure, counsel acknowledged the pain of the victim's family members who were present in the courtroom and had made victim impact statements, while arguing that the defendant, nonetheless, deserved a sentence lower than the maximum. Then, immediately following sentence, counsel informed the Court that he was having the defendant execute documents in preparation for an appeal.

Unquestionably, from the very beginning of this case, and over the course of the pre-trial suppression hearing, jury trial, and sentencing hearing, counsel ably and zealously represented the defendant. That counsel's well-reasoned legal arguments and adroitly executed trial strategy failed to secure an outright acquittal does not render moot his otherwise effective and meaningful representation. See e.g. People v. Williams, 162 AD2d 569 (2d Dept. 1990).

Notwithstanding, the defendant still faults trial counsel for what he perceives to be major failings. The defendant's complaints, however, neither singly nor collectively render the assistance provided to him ineffective. Indeed, counsel's decision not to call at trial a so-called video expert, was not unreasonable. After all, what could an expert say — that it was difficult to discern that the object in the defendant's hand was the very six-inch kitchen knife that he had brought along to the beat down — a fact already well known to the jury? Additionally, counsel's decision not to object to specific portions of the People's summation was not unreasonable. Indeed, viewed in the context of the defendant's summation, where he argued that the People's witnesses had lied and lied and lied, the People's summation was responsive and proper, see discussion infra. In any event, failing to render an objection to a comment during the People's summation, could not have eviscerated the effective advocacy that counsel demonstrated throughout the case. See e.g. People v. Shepard, 2019 NY Slip Op. 02727 (2d Dept.); People v. Gomez, 305 AD2d 238 (1st Dept. 2003). Accordingly, the defendant's motion to vacate the judgment of conviction on the basis of ineffective assistance of counsel is denied.

Actual Innocence Claim

Finally, the defendant argues that the judgment of conviction should be vacated as he is actually innocent of the charges for which he was convicted. In support of his argument, the defendant contends that the DNA recovered from under the victim's fingernails was not his, no one observed him "wedge[] a knife into the victim," and the testimony of Rafy Hidalgo was "incredulous [sic] and unworthy of belief," and, therefore, the People's case — based solely on a videotape of him in the vicinity of the murder — was entirely circumstantial and lacking in proof of guilt beyond a reasonable doubt.

Of course, no statutory authority exists for a court to consider a claim of actual innocence. The Second Department, however, has held that a claim of actual innocence is cognizable pursuant to C.P.L. § 440.10(1)(h), which authorizes a court to vacate a judgment of conviction that is obtained in violation of a defendant's constitutional rights. See People v. Hamilton, 115 AD3d 12 (2d Dept. 2014). The First Department, while adopting the holding in Hamilton, nevertheless, concluded that the standards applicable to all C.P.L. § 440.10 motions apply equally to a claim of actual innocence. See People v. Jimenez, 142 AD3d 149 (2016). Notably, "[m]ere doubt as to [a] defendant's guilt, or a preponderance of conflicting evidence as to [a] defendant's guilt, is insufficient, since a convicted defendant no longer enjoys the presumption of innocence and is in fact presumed to be guilty." Id. at 157 (internal citations omitted).

Here, it is readily apparent that the defendant's contentions are without merit. For example, the defendant assigns great significance to the lack of his DNA under the victim's fingernails. Of course, the lack of DNA evidence connecting an accused to a crime can be a compelling indication of innocence. Not so here. To be sure, the uncontradicted testimony at trial was that the defendant sucker punched the victim, chased him as he fled, and stabbed him in the heart, before himself fleeing the scene. The unsuspecting victim, who had no opportunity to fend off the sucker punching knife-wielding defendant, never came into physical contact with the defendant — the victim only came into contact with the defendant's fist and knife. There was, therefore, no means by which the defendant's DNA could have been trapped under his victim's fingernails.

So, too, the defendant contends that no one witnessed him stabbing the victim. Of course, the lack of an eyewitness can be a compelling indication of innocence. Again, not so here. Indeed, Rafy Hidalgo's testimony at trial was that the defendant arrived at the club armed with a knife to orchestrate the beat down of a long-standing Trinitario foe, pursued the victim while clutching an object in his hand, and made stabbing motions into the victim's chest. Within a few moments, the victim, with stab wounds to the heart and lung, bled out and died. That the glint of steel from the kitchen knife in the defendant's hand was not readily apparent in the darkness as the defendant plunged that knife into the victim's chest, does not vitiate the powerful evidence of his guilt. Indeed, the defendant, cognizant of Hidalgo's riveting and damning testimony, dismisses it altogether and concludes, therefore, that the People's case was entirely circumstantial and lacking in proof of guilt beyond a reasonable doubt. There is no doubt, however, that Hidalgo was an eyewitness to the murder. To be sure, Hidalgo's compelling testimony remained consistent throughout, despite defense counsel's impressive efforts to undermine it. And, notably, the jury was fully aware of Hidalgo's role and the parameters of the cooperation agreement pursuant to which he testified. Moreover, Hidalgo's testimony was corroborated, in large part, by the remainder of the evidence, inter alia, the cell phone records, showing calls and text messages between the co-conspirators, the autopsy, revealing that the victim had suffered two stab wounds to the chest, the forensic pathologist's conclusion that those two stab wounds were inflicted by a kitchen knife and, of course, the numerous surveillance recordings that were entered into evidence. Indeed, far from being the only evidence of the defendant's guilt, the surveillance recordings afforded the jury a bird's eye view of the events surrounding the murder, and a means by which to weigh the testimony of all of the People's witnesses — Rafy Hidalgo included. That the defendant now offers a different and far less flattering opinion of Hidalgo and his testimony — testimony that the jury, by its verdict, clearly credited — does not render the surveillance recordings the only evidence of his guilt.

As the foregoing demonstrates, the defendant's arguments — arguments that he contends demonstrate that he is actually innocent — are arguments that the jury heard and, by its verdict, rejected. The defendant, no longer cloaked with the presumption of innocence, is not entitled to vacatur of the conviction simply because he takes issue with that verdict. Accordingly, the motion to vacate the judgment of conviction on the basis of actual innocence is denied. See People v. Velazquez, 143 AD3d 126 (1st Dept. 2016); People v. Griffin, 120 AD3d 1257 (2d Dept. 2014).

Conclusion

The defendant's motion, having failed to raise any issue of fact, is denied in its entirety without a hearing. See People v. Campbell, 148 AD3d 821 (2d Dept. 2017); People v. Chu-Joi, 26 NY3d 1105 (2015); People v. Wayman, 65 AD3d 708 (2d Dept. 2009); see also C.P.L. § 440.30. This constitutes the Decision and Order of the Court. The Clerk of the Court is directed to mail copies of this Decision to the defendant and to the District Attorney's office. Dated: May 10, 2019 New York, New York __________ J.S.C.