The record reveals that defense counsel actively participated in Huntley and Wade hearings, and made posthearing submissions that County Court characterized as โvery good.โ Defendant has not shown that other pretrial motions or hearings were necessary or had any likelihood of success ( see People v. Workman, 277 A.D.2d 1029, 1031โ1032, 716 N.Y.S.2d 198 [2000], lv. denied96 N.Y.2d 764, 725 N.Y.S.2d 291, 748 N.E.2d 1087 [2001]; compare People v. Kirk, 290 A.D.2d 805, 807โ808, 736 N.Y.S.2d 778 [2002] ). Counsel also appliedโalbeit unsuccessfullyโfor funds to retain a DNA expert.
Supreme Court's refusal to give defendant a missing witness charge was not error as the testimony of the uncalled witness would be cumulative ( see People v. Macana, 84 NY2d 173, 180; People v. Chaney, 298 AD2d 617, 620, lv dismissed and denied 100 NY2d 537). The single error that defendant argues resulted in ineffective assistance of counsel is, in the context of the entire trial, so insubstantial as to have virtually no impact on defendant's right to a fair trial ( see People v. Kirk, 290 AD2d 805, 807). Moreover, the totality of the record demonstrates unequivocally the effectiveness of counsel ( see People v. Baldi, 54 NY2d 137, 146-147; People v. Gaddy [Turner], 2 AD3d 891, 892, lvs denied 2 NY3d 799, 808).
Counsel's single error in failing to request such a charge did not constitute ineffective representation as it was not so serious as to compromise defendant's right to a fair trial. Based on the trial evidence, there was not a reasonable likelihood that the error alone changed the outcome of the case ( see People v. Douglas, 296 AD2d 656, 657, lv denied 99 NY2d 535; People v. Kirk, 290 AD2d 805, 806). Defendant's claims that counsel failed to satisfactorily meet with him prior to trial and counsel's alleged failure to disclose a plea offer are unsubstantiated in the record. The moving papers for defendant's CPL article 440 motion contain only defendant's affidavit, without any other proof that a plea offer was made, and defendant even fails to conclusively state that he would have accepted such an offer at the time.
The two cases were properly joinable ( see CPL 200.20[c]; People v. Marengo, 276 A.D.2d 358; cf. People v. Kirk, 290 A.D.2d 805). The People's right to such joinder would not necessarily have been defeated had the defense counsel asserted that it was his intent to employ this defense, which the trial court would likely have been justifiably skeptical of, given that this defense had an inculpatory aspect that a reasonable person might find at least as significant, if not more significant than its exculpatory one ( cf. People v. Rodriguez, 91 A.D.2d 591). The defendant also argues that his trial attorney had no reason to elicit, both from the owner of the delicatessen and from a police officer investigating that robbery, the circumstances surrounding a photographic identification that the witness made shortly after the robbery.
The right to the effective assistance of counsel is guaranteed by the Federal and State Constitutions (see US Const 6th Amend; N.Y. Const, art I, ยง 6). "To obtain relief on this ground under the Federal Constitution, defendant must show that counsel's performance was deficient and that this deficiency prejudiced defendant" (People v. McDonald, 296 A.D.2d 13, 17-18, lv granted 99 N.Y.2d 561 [citations omitted]; see Strickland v. Washington, 466 U.S. 668, 687). In order to prevail on such a claim under the N.Y. Constitution, defendant must demonstrate that he did not receive meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712;People v. Baldi, 54 N.Y.2d 137, 146), "which entails a review of the totality of `the evidence, the law, and the circumstances'" as of the time of representation (People v. Kirk, 290 A.D.2d 805, 806, quoting People v. Baldi, supra at 147). "[A] simple disagreement with strategies, tactics or the scope of possible cross-examination, weighed long after trial, does not suffice" (People v. Flores, 84 N.Y.2d 184, 187).