        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

434
KA 08-02049
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, AND CARNI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SHAWN M. CAMPBELL, DEFENDANT-APPELLANT.


ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR DEFENDANT-APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH, FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Steuben County Court (Joseph W. Latham, J.), entered July 1, 2008.
The appeal was held by this Court by order entered February 10, 2011,
decision was reserved and the matter was remitted to Steuben County
Court, for further proceedings (81 AD3d 1251). The proceedings were
held and completed.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     Memorandum: We previously held this case and remitted the matter
to County Court for a hearing on defendant’s motion pursuant to CPL
440.10 to vacate the judgment convicting him upon his plea of guilty
on the seventh day of trial of, inter alia, two counts of murder in
the second degree under Penal Law § 125.25 (1) and (3) (People v
Campbell, 81 AD3d 1251). Defendant contended that he was denied
effective assistance of counsel by both trial counsel and the attorney
who represented him on his motion to withdraw the plea (motion
counsel). We directed the court on remittal to conduct a hearing to
determine whether defendant’s trial counsel knew of potentially
exculpatory evidence, i.e., letters from an inmate to the District
Attorney alleging that he had information about the crime, and whether
trial counsel related the contents of those letters to defendant.
Motion counsel admitted that he did not see the letters in defendant’s
file and did not use that information as a basis to support the motion
to withdraw the plea.

     Following the hearing, the court credited the testimony of trial
counsel that the prosecutor had provided him with copies of the
letters, that he discussed the letters with defendant on three
occasions, and that he and defendant determined that they had no
exculpatory value. The court also credited the prosecutor’s testimony
                                 -2-                           434
                                                         KA 08-02049

that the subject of the letters was raised by defendant in a
conference during jury selection between the prosecutor, defendant and
trial counsel. The prosecutor testified that trial counsel stated to
defendant during the conference, which was requested by defendant,
that they both knew that the letters were “bulls---t.” The prosecutor
further testified that the author of the letters refused to speak with
law enforcement officials without the promise of a benefit. The court
refused to credit defendant’s testimony that he did not know about the
letters until after he was sentenced, when his file was provided to
him by motion counsel. We will not disturb the court’s determination
that defendant knew about the letters before he pleaded guilty, which
is supported by the record and is entitled to deference (see People v
Lard, 71 AD3d 1468, 1469, lv denied 14 NY3d 885, reconsideration
denied 15 NY3d 771; People v Smith, 16 AD3d 1081, 1082, lv denied 4
NY3d 891).

     Based upon the evidence adduced at the hearing and the court’s
credibility determinations, we conclude that defendant was not denied
effective assistance of counsel either by trial counsel or by motion
counsel. Defendant failed to establish that trial counsel’s failure
to conduct a further investigation into the reliability of the
information contained in the letters or to use the letters in his
defense lacked a strategic basis (see People v Benevento, 91 NY2d 708,
712). Further, defendant received an advantageous plea agreement on
the last day of the People’s case, and “nothing in the record casts
doubt on the apparent effectiveness of counsel” (People v Ford, 86
NY2d 397, 404). Inasmuch as the evidence at the hearing supports the
court’s determination that defendant knew about the letters before he
pleaded guilty, we conclude that the failure of the motion attorney to
use the letters in further support of the motion to withdraw the plea,
which was based upon allegations that trial counsel coerced him into
pleading guilty, did not deprive him of meaningful representation (see
generally People v Baldi, 54 NY2d 137, 147).

     Contrary to defendant’s contention, the court did not abuse its
discretion in refusing to recuse itself from conducting the hearing on
remittal. The court’s determination that it could be impartial was
solely a matter of discretion, and there is no basis on this record to
determine that the court abused its discretion (see People v Moreno,
70 NY2d 403, 405-406; People v Votra, 104 AD3d 1160, ___; People v
Bedell, 84 AD3d 1733, 1733, lv denied 17 NY3d 857).

     Although defendant preserved for our review his contention that
the court erred in refusing to remove his wrist shackles during the
hearing on remittal, he failed to preserve for our review his further
contention that the court erred in failing to articulate a finding of
necessity that he remain in leg irons (see generally People v
Robinson, 49 AD3d 1269, 1270, lv denied 10 NY3d 869), and we decline
to review that contention as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]). Even assuming, arguendo, that
defendant correctly contends that he had the right to be free of wrist
shackles in this postconviction hearing (cf. People v Best, 19 NY3d
739, 743), we nevertheless conclude that the court’s error in failing
to articulate a finding of necessity to free only one of defendant’s
                                 -3-                           434
                                                         KA 08-02049

wrists from the shackles is harmless beyond a reasonable doubt because
the error
“ ‘did not contribute to the [decision] obtained’ ” (People v Clyde,
18 NY3d 145, 153, quoting Deck v Missouri, 544 US 622, 635).

     We reject defendant’s contention that the trial prosecutor was
disqualified from testifying at the hearing based on the advocate-
witness rule inasmuch as that prosecutor did not represent the People
at the hearing (see generally People v Paperno, 54 NY2d 294, 299-300).
Defendant failed to demonstrate a “ ‘substantial likelihood that
prejudice resulted’ ” from the trial prosecutor’s participation in a
prehearing conference wherein the District Attorney, who represented
the People at the hearing, opposed defendant’s request for an
adjournment (see People v Shoga, 89 AD3d 1225, 1230-1231, lv denied 18
NY3d 886). Finally, defendant did not seek the appointment of a
special prosecutor and thus failed to preserve for our review his
contention that the court erred in failing to appoint one (cf. id. at
1230).




Entered:   May 3, 2013                          Frances E. Cafarell
                                                Clerk of the Court
