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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Jose CASTRO, Defendant-Appellant.

Decided: July 08, 1999

SULLIVAN, J.P., ROSENBERGER, TOM, RUBIN and ANDRIAS, JJ. Bruno C. Bier, for respondent. Bonnie B. Goldburg, for defendant-appellant.

Judgment, Supreme Court, New York County (Patricia Williams, J., on motion to file late alibi notice;  Sheila Abdus-Salaam, J., at jury trial and sentence), rendered June 1, 1995, convicting defendant of attempted murder in the second degree, criminal use of a firearm in the first degree, criminal possession of a weapon in the second degree, assault in the second degree and criminal possession of a weapon in the third degree, and sentencing him to concurrent terms of imprisonment of from 3 1/313 to 10 years, 5 to 10 years, 1 1/212 to 4 1/212 years, 1 to 3 years and 1 to 3 years, respectively, unanimously affirmed.

Order, Supreme Court, New York County (Antonio Brandveen, J.), entered on or about October 23, 1998, which denied, without a hearing, defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction on the ground of ineffective assistance of counsel, unanimously affirmed.

We previously held defendant's appeal from the judgment of conviction in abeyance pending the determination of a motion pursuant to CPL 440.10 on the issue of ineffective assistance of counsel (249 A.D.2d 171, 672 N.Y.S.2d 675).   That motion has now been denied and defendant's appeal therefrom consolidated with his appeal from the judgment of conviction.

 On the day of trial, nearly a year after the arrest, defense counsel moved to file a late notice of alibi pursuant to CPL 250.20.   The only reasons given for this late notice were simple forgetfulness, and an unexplained failure to interview the prospective witnesses until the eve of trial.   We find that the court properly exercised its discretion in denying the motion under these circumstances (People v. Bernard, 210 A.D.2d 419, 620 N.Y.S.2d 414, lv. denied 85 N.Y.2d 906, 627 N.Y.S.2d 329, 650 N.E.2d 1331).

 We also agree with the denial of defendant's CPL 440.10 motion and the court's findings that at defendant's arraignment the only defense mentioned was misidentification;  that defendant did not provide counsel with the names of the purported alibi witnesses until the first day of trial;  and, in light of the uncertain value of the proposed alibi testimony and defense counsel's vigorous pursuit of the misidentification defense, that trial counsel's failure to file a timely notice of alibi did not deprive defendant of the effective assistance of counsel (People v. Alvarez, 223 A.D.2d 401, 636 N.Y.S.2d 331, lv. denied 88 N.Y.2d 980, 649 N.Y.S.2d 386, 672 N.E.2d 612;  see People v. Hobot, 84 N.Y.2d 1021, 1024, 622 N.Y.S.2d 675, 646 N.E.2d 1102).

Moreover, given the defendant's failure to provide sworn allegations of fact to support his vague claim of possible alibi witnesses and the nature of their testimony, the court properly denied his CPL 440.10 motion without a hearing.


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