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

317
KA 12-01568
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHARLES KURKOWSKI, DEFENDANT-APPELLANT.


MICHAEL J. DOWD, LEWISTON, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), 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 Erie County Court (Thomas P. Franczyk, J.), dated July 13, 2012.
The order denied the motion of defendant to vacate the judgment of
conviction pursuant to CPL 440.10.

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

     Memorandum: Defendant was convicted following a nonjury trial of
assault in the second degree (Penal Law § 120.05 [4]), and the
judgment of conviction was affirmed on appeal (People v Kurkowski, 83
AD3d 1595, lv denied 16 NY3d 896). Defendant thereafter moved
pursuant to CPL 440.10 to vacate the judgment on the ground of
ineffective assistance of counsel and, after a hearing, County Court
denied the motion. We granted defendant leave to appeal from that
order, and we now affirm.

      “To prevail on his claim that he was denied effective assistance
of counsel, defendant must demonstrate that his attorney failed to
provide meaningful representation” (People v Caban, 5 NY3d 143, 152;
see People v Benevento, 91 NY2d 708, 712-713; People v Baldi, 54 NY2d
137, 147). “In applying this standard, counsel’s efforts should not
be second-guessed with the clarity of hindsight to determine how the
defense might have been more effective” (Benevento, 91 NY2d at 712).
To that end, “a reviewing court must avoid confusing ‘true
ineffectiveness with mere losing tactics and according undue
significance to retrospective analysis’ ” (id., quoting Baldi, 54 NY2d
at 146). Moreover, “ ‘it is incumbent on defendant to demonstrate the
absence of strategic or other legitimate explanations’ for counsel’s
alleged shortcomings” (id., quoting People v Rivera, 71 NY2d 705,
709).
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                                                         KA 12-01568

      Here, defendant contends that he was denied effective assistance
of counsel because trial counsel failed to conduct an adequate
investigation into the facts, and failed to call a witness for the
purpose of testifying that another person had confessed to the
assault. We reject that contention. “A defendant’s right to
effective assistance of counsel includes defense counsel’s reasonable
investigation and preparation of defense witnesses” (People v Jenkins,
84 AD3d 1403, 1408, lv denied 19 NY3d 1026; see People v Oliveras, 21
NY3d 339, 346), and thus “the failure to investigate or call
exculpatory witnesses may amount to ineffective assistance of counsel”
(People v Nau, 21 AD3d 568, 569; see People v Dombrowski, 87 AD3d
1267, 1268). Here, however, the record establishes that defense
counsel sufficiently investigated the facts and searched for potential
witnesses, and that there are legitimate explanations for defense
counsel’s failure to locate the three allegedly exculpatory witnesses
identified in defendant’s motion (cf. People v Blackman, 90 AD3d 1304,
1311-1312, lv denied 19 NY3d 971; see generally Benevento, 91 NY2d at
712).

     Defense counsel testified at the CPL article 440 hearing that, in
preparing his defense, he visited the bar where the assault occurred
at least 50 times; took measurements of the scene in an attempt to
show that defendant could not have assaulted the victim based upon
defendant’s location at the time of the incident; obtained
surveillance videotapes from the bar and a nearby police camera;
reviewed the videotapes with defendant on multiple occasions; and
obtained the victim’s clothing from the night of the assault in order
to identify him on the videos. As for witnesses, defense counsel
testified that he questioned employees about potential witnesses
during his many visits to the bar, and that he had numerous telephone
conversations with the bar owner concerning the existence and identity
of witnesses to the incident. Further, defense counsel sought the
owner’s assistance in trying to locate those witnesses. Defense
counsel also identified other potential witnesses by reviewing the
surveillance videos with defendant. Ultimately, defense counsel
obtained two exculpatory witnesses who testified on defendant’s behalf
at trial—a bouncer at the bar and a bar patron. We thus conclude that
the record does not support defendant’s contention that defense
counsel made only a “cursory” investigation of the crime scene or that
he “abdicate[d]” his responsibility to investigate potential witnesses
(cf. Oliveras, 21 NY3d at 348; People v Fogle, 10 AD3d 618, 618-619;
People v Bussey, 6 AD3d 621, 622-623, lv denied 4 NY3d 828).

     With respect to the three allegedly exculpatory witnesses
identified in defendant’s CPL article 440 motion, defense counsel
testified that one of the three names never came up during the course
of his investigation and, indeed, that name does not appear in the
police records. The first name of another witness, who was identified
by defendant and others as a drug dealer, was mentioned during the
investigation and defense counsel obtained a telephone number for that
individual. Defense counsel, however, was unable to reach the
individual. As for the third witness, defense counsel testified that
his name came up during the investigation, but that defense counsel
was never able to locate the witness. Defense counsel was told that
                                 -3-                           317
                                                         KA 12-01568

the witness had moved to Florida and, although he obtained several
telephone numbers for that witness, all had been disconnected. The
police were likewise unable to locate the alleged witness. Notably,
the record indicates that defendant knew or at least was familiar with
each of the three alleged exculpatory witnesses. We thus conclude
that any failure to identify or locate those three witnesses prior to
trial was not the result of ineffectiveness on the part of defense
counsel. In any event, we conclude that defense counsel’s failure to
locate and call the three witnesses identified by defendant “did not
prejudice the defense or defendant’s right to a fair trial” (People v
Hobot, 84 NY2d 1021, 1024; see Benevento, 91 NY2d at 713-714). As the
court noted, the statements provided by the three witnesses were “in
some respects, inconsistent with each other and with the defendant’s
own version of events,” and the court, which presided over defendant’s
bench trial, ultimately concluded despite the conflicting testimony
that defendant assaulted the victim.

     Contrary to the further contention of defendant, we conclude that
defense counsel had a strategic reason for failing to subpoena the bar
owner to testify that another individual had allegedly confessed to
the crime in a written statement (see generally Baldi, 54 NY2d at
146). The People called that individual as a witness and, on cross-
examination, defense counsel confronted him with his alleged
confession and he admitted that he authored it. Thus, there was no
reason to call the bar owner to testify to that fact.

     Finally, we conclude that the record, viewed as a whole,
demonstrates that defense counsel provided meaningful representation
(see generally id. at 147).




Entered:   May 2, 2014                          Frances E. Cafarell
                                                Clerk of the Court
