Summary
This New York Appellate Division decision affirms the denial of a defendant's CPL 440.10 motion to vacate his convictions for attempted murder in the second degree and criminal possession of a weapon in the third degree. The defendant claimed ineffective assistance of counsel for failing to interview and call his mother and niece as defense witnesses. The court found no prejudice because the hearing court properly credited trial counsel's testimony and discredited the family members' late affidavits and testimony, concluding the defendant failed to meet his burden of proof.
Topics
Practice areas
Questions Presented
- Whether trial counsel’s failure to investigate and call the defendant’s mother and niece as witnesses constituted ineffective assistance of counsel under CPL 440.10.
- Whether the lack of credibility attributed to the family members precludes a finding of prejudice.
Holdings
- The motion to vacate the judgment is denied; counsel is not ineffective because the alleged failure did not prejudice the defense.
Key quotations
“[t]here is little to no credibility attributable to these family members [of defendant] who logically could have come forward much sooner if in fact they had authentic, exculpatory information.”
“are 'entitled to great weight' in light of its opportunity to see the witnesses, hear the testimony, and observe demeanor”
Factual background
Michael Ross was convicted after a jury trial of attempted murder in the second degree and criminal possession of a weapon. At a hearing on his CPL 440.10 motion, he claimed his trial counsel failed to call his mother (deceased) and niece as witnesses. The niece testified at the hearing but had not testified at trial; her affidavit was signed years later. The court found the family members' testimony lacking credibility.
Procedural history
The trial court convicted the defendant of attempted murder in the second degree and criminal possession of a weapon. The defendant later moved to vacate the judgment under CPL 440.10, alleging ineffective assistance for failure to call his mother and niece. The motion was denied; the defendant appealed the denial.