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IR testified that as an express train was pulling in, he observed, at a distance of 10 feet away, three men in conversation on the platform: KJ, HT and defendant

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IR testified that as an express train was pulling in, he observed, at a distance of 10 feet away, three men in conversation on the platform: KJ, HT and defendant. A few passengers exited the train. The trio boarded the second subway car and stood near a door. MD followed. IR and RM entered the same car and sat directly behind KJ, HT and defendant. The other officers were located in the rear portion of the first car.

KJ positioned himself behind MD. HT stood on MD’s right side and criminal defendant flanked MD on the left. As the train took off, HT, while looking in the direction of Lieutenant KC and Sergeant AR, said to KJ and defendant, those guys are cops. KJ stated, fuck it I’m going to take it. HT replied, go ahead we got you, we will cover for you. Then, HT and defendant shifted their bodies. KJ moved close to the decoy officer, bumped him, removed the iPhone from the backpack and placed it on his person. KJ, HT and criminal defendant sat down. They were arrested at the next station, the 59th Street stop.

MD testified that on December 2, 2009, the decoy team was working the Lexington Avenue subway line patrolling back and forth. MD did not state where he had boarded the train. Nor did he did mention observing KJ, HT and defendant chatting on the 42nd Street platform. MD testified: when I entered the train I noticed both defendants in front of me. A third person was with them. MD testified that he was facing the third individual and observed him with his own two eyes. The third person repositioned himself behind MD. As the subway car moved between stations, MD heard speech in back of him but was not sure who was talking or what was said. MD felt a bump. IR then pulled on his collar, signaling to MD that the iPod had just been stolen. MD exited the train at 59th Street and saw the two defendants being placed on the wall.

MD made no in-court identification of defendant as one of the three assailants. Nor did MD state that defendant was one of the two men placed on the wall. Aside from gender, MD offered no description of the perpetrators.

Defense counsel did not cross examine MD. I held a hearing on December 7, 2010. The motion was marked submitted on February 4, 2011. Defendant testified on his own behalf. The People called defendant’s trial lawyer. I find both men credible, except in one respect. I adopt defense counsel’s claim that he advised defendant that it was his call as to whether he would testify. I reject defendant’s allegation that his attorney never informed defendant that he was the ultimate decision maker.

Defendant is an independent daycare provider, pursuant to a program run by the New York City Administration for Children’s Services. The agency pays him to care for minors eligible for ACS subsidized child care services.

On the morning of December 2, 2009, defendant visited the ACS office at 151 William Street in Manhattan. He had planned to travel from there to a program on 125th Street. After concluding business at ACS, defendant walked to the nearby Broadway/Nassau subway stop. In the station, he ran into KJ and HT, whom he had not seen in 16 years. According to defendant, the three boarded a northbound Lexington Avenue line express train and did not exit at the 42nd Street stop. They had been on the train for about 10 minutes when it pulled into Grand Central Station.

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