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Magistrate Judge Pitman http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=46278 PETITIONER IN a habeas corpus proceeding moved to amend his petition and for an evidentiary hearing. Petitioner had been convicted after a jury trial of attempted murder in the second degree, arising out of an attempt to murder his acquaintance. The court denied the motion, except to the limited extent that petitioner’s claim of ineffective assistance is based on his counsel’s failure to call alibi witnesses. The court noted that although counsel served an appropriate alibi notice, the only witness to testify to petitioner’s alibi was petitioner himself, adding that petitioner’s sole defense to the charges against him was his contention that he was not present when the crime was committed. The court concluded, therefore, that the presence of a disinterested witness was a matter of clear importance at trial, and the failure to offer an alibi witness in such a circumstance may constitute ineffective assistance.

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