207 Cal.App.3d 88 (1989)
254 Cal. Rptr. 707
THE PEOPLE, Plaintiff and Respondent,
v.
ANTHONY DENNIS BOBB, Defendant and Appellant.
Docket No. C003680.
Court of Appeals of California, Third District.
January 12, 1989.
*90 COUNSEL
Thomas J. Cooke, under appointment by the Court of Appeal, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Roger E. Venturi and Anthony L. Dicce, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PUGLIA, P.J.
(1a) In this appeal we hold that contributing to the delinquency of a minor (Pen. Code, § 272) is not a lesser included offense within unlawful sexual intercourse (Pen. Code, § 261.5).
Convicted of unlawful sexual intercourse, defendant appeals. His principal contention on appeal is that contributing to the delinquency of a minor ("contributing") is a necessarily lesser included offense in unlawful sexual intercourse; given that there was substantial evidence of the lesser offense, the trial court erred in failing sua sponte so to instruct the jury.
The victim, 16-year-old Regina R., ran away from home and went to a nearby park where in the company of several males she drank "two beers and some whiskey." That evening she went to Richard Barlese's apartment where she drank more beer and some vodka. She felt the effects of the alcohol and fell asleep on a couch. Barlese woke her and called her into the bedroom. Regina got into bed with Barlese and he tried to touch her "privates." Defendant joined them in the bed and Barlese left.
Regina testified defendant "started taking my clothes off and feeling me." Then he put his penis in her vagina. Jim Edwards walked in during the incident.
Jim Edwards testified that when he walked into the bedroom defendant had his clothes on and was on top of the blankets. Edwards observed no physical activity between defendant and Regina.
Officer Yardic, the investigating officer, testified he had talked to Edwards and told him he was trying to determine if the incident was rape or normal intercourse. Edwards told him "it was just intercourse." Yardic also took a statement from defendant. He asked defendant if he had sex with Regina. Defendant denied that he did, stating that "We just sort of fooled *91 around. There was no penetration. All that we had done is foreplay." On cross-examination counsel asked Yardic if defendant had not "really said to you ... they were just playing around, drinking and partying and having fun, and he never really did admit a rape; did he?" Yardic responded: "Correct."
The defense produced no evidence. In argument defense counsel asserted the victim was confused due to intoxication and that the jury should believe Edwards's testimony instead of Yardic's impeaching testimony of what Edwards had told him before trial. Counsel's argument continued: "The District Attorney points out the facts that in Detective Yardic's conversation with the defendant he answered, `Not really. It was just foreplay.' Is that so impossible? Everybody in there was fooling around."

I
(2) The trial court has a duty sua sponte to instruct on necessarily included offenses which are not inconsistent with the defense. (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351 [216 Cal. Rptr. 455, 702 P.2d 613]; People v. Sedeno (1974) 10 Cal.3d 703, 715-716 [112 Cal. Rptr. 1, 518 P.2d 913].) (3) Where an offense cannot be accomplished without committing a lesser offense, the lesser offense is a necessarily included offense. (People v. St. Martin (1970) 1 Cal.3d 524, 536 [83 Cal. Rptr. 166, 463 P.2d 390]; People v. Greer (1947) 30 Cal.2d 589, 597 [184 P.2d 512]; People v. Krupa (1944) 64 Cal. App.2d 592, 598 [149 P.2d 416].)
(1b) It has been held that contributing is necessarily lesser included within the crime of unlawful sexual intercourse. (Greer, supra, 30 Cal.2d at pp. 597-598.) Here, there was substantial evidence not inconsistent with the defense that defendant engaged in sexual foreplay with the 16-year-old victim but did not sexually penetrate her. We must decide whether contributing remains an included offense despite an amendment to one of the statutes which defines its elements.
Penal Code section 261.5 provides: "Unlawful sexual intercourse is an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years."
Penal Code section 272 defines contributing and provides in part: "Every person who commits any act or omits the performance of any duty, which ... causes or tends to cause or encourage any person under the age of 18 years to come within the provisions of Sections 300, 601, or 602 of the Welfare and Institutions Code ... or to do or to perform any act or to follow any course of conduct or to so live as would cause or manifestly tend *92 to cause any such person to become or to remain a person within the provisions of Sections 300, 601, or 602 of the Welfare and Institutions Code, is guilty of a misdemeanor...."
The question is whether a violation of Penal Code section 261.5 can be committed without first violating Penal Code section 272. Stated otherwise, is it possible to accomplish an act of intercourse with a female under age 18 without first necessarily causing or tending to cause or encouraging her to come within, become or remain a person within the provisions of Welfare and Institutions Code sections 300, 601 or 602? Although Greer authoritatively concluded that it was not possible, we are convinced that the calculus has been altered by an intervening amendment to Welfare and Institutions Code section 601.
Welfare and Institutions Code section 601 formerly conferred juvenile court jurisdiction over a minor who "from any cause is in danger of leading, an idle, dissolute, lewd or immoral life...." (Further statutory references to sections of an undesignated code are to the Welfare and Institutions Code.) Similar language first appeared in 1911: "Who from any cause is in danger of growing up to lead an idle, dissolute, or immoral life." (Stats. 1911, ch. 369, § 1, p. 659.) An earlier statute conferred juvenile court jurisdiction over a minor whose father is incapable of providing a home and who "is in danger of being brought up to lead an idle or immoral life...." (Stats. 1909, ch. 133, § 1, p. 214.) The former language of section 601 quoted above derives most immediately from a predecessor statute enacted in 1915 (Stats. 1915, ch. 631, § 1, p. 1226) and modified in 1961.
As we have indicated, case law held the crime of unlawful sexual intercourse necessarily included the lesser offense of contributing. (People v. Greer, supra, 30 Cal.2d at pp. 597-598; People v. Norris (1967) 254 Cal. App.2d 296, 299 [62 Cal. Rptr. 66]; People v. Chester (1956) 138 Cal. App.2d 829, 830-831 [292 P.2d 573]; People v. Lopez (1941) 46 Cal. App.2d 857, 858-859 [117 P.2d 10].) As is typical of these cases, the court in Greer did not expressly relate the elements of the greater offense to the danger of leading an idle, dissolute, lewd or immoral life. Greer simply holds "[i]t is inconceivable that the acts [constituting unlawful sexual intercourse] would not contribute to the delinquency of a minor." (Greer, supra, 30 Cal.2d at p. 597.)
For its holding, Greer relies on four cases, none of which contains an analysis of the relationship between the elements of the greater and the lesser offenses. In Rodriguez v. Superior Court (1946) 27 Cal.2d 500 [165 P.2d 1], the court simply concluded that "acts constituting [unlawful sexual intercourse] may also constitute [contributing], since those acts by their *93 very nature would contribute to the delinquency of the minor...." (At p. 502.) People v. Lopez, supra, 46 Cal. App.2d 857 upheld a conviction for contributing where defendant was charged with aiding and abetting an act of unlawful sexual intercourse. Lopez implicitly assumes without analysis that contributing is necessarily included within unlawful sexual intercourse. (At p. 858.) In People v. Tenner (1944) 67 Cal. App.2d 360 [154 P.2d 9] the court explicitly asserts in dictum the identical proposition that Lopez assumes. (At p. 366.) People v. Krupa, supra, 64 Cal. App.2d merely recites the holding of Lopez in determining that contributing is necessarily included within the crime of transportation of marijuana. (At pp. 600-601.)
Nevertheless, a number of early cases in which the charged offense was contributing hold that involving the minor in sexually related conduct places her in danger of leading an idle, dissolute, lewd or immoral life thereby constituting the crime of contributing. (People v. Oliver (1916) 29 Cal. App. 576 [156 P. 1005] [defendant enticed the minor into staying with him overnight]; People v. Young (1919) 44 Cal. App. 279 [186 P. 383] [defendant had intercourse with a female minor]; People v. Cohen (1923) 62 Cal. App. 521 [217 P. 78] [defendant fondled the minor's limbs and private parts]; People v. McDougal (1925) 74 Cal. App. 666 [241 P. 598] [defendant offered the minor money to go to a hotel room]; People v. Wortman (1934) 137 Cal. App. 339 [30 P.2d 565] [defendant caused the minor to share a bed with a man].) And in People v. Lowell (1946) 77 Cal. App.2d 341 [175 P.2d 846], a case not cited in Greer, the court upheld the convictions of two women for contributing to the delinquency of minor boys by having intercourse with them. The opinion repeatedly asserts the defendants' conduct tended to cause the minors to lead idle, dissolute, lewd and immoral lives. (At pp. 344-348.) Thus we are satisfied that what the Greer court found "inconceivable" was that an act of unlawful sexual intercourse would not also place the minor female in danger of leading an idle, dissolute, lewd or immoral life.
In 1975, the Legislature deleted from section 601 the language referring to a minor "in danger of leading an idle, dissolute, lewd or immoral life." (Stats. 1975, ch. 1183, § 2, p. 2917.) Case law has not addressed the effect of the 1975 amendment as it concerns the relationship between the crimes of unlawful sexual intercourse and contributing. The People maintain the amendment effectively uncoupled the lesser offense as necessarily included in the greater. We agree.
After the 1975 amendment to section 601, none of the acts remaining as bases for juvenile court jurisdiction in that section is so closely related to the elements of unlawful sexual intercourse that it is necessarily implicated in the commission of the latter offense. The same may be said also of sections *94 300 and 602. Thus having sexual intercourse with the minor does not bring her within section 602, which confers juvenile court jurisdiction over minors who commit crimes, for the female minor is a victim of unlawful sexual intercourse and has committed no crime.[1] (Michael M. v. Superior Court (1979) 25 Cal.3d 608 [159 Cal. Rptr. 340, 601 P.2d 572], affirmed (1981) 450 U.S. 464 [67 L.Ed.2d 437, 101 S.Ct. 1200].) Similarly, section 601 now confers juvenile court jurisdiction over minors who "persistently or habitually refuse[] to obey the reasonable and proper orders or directions" of parents or who violate a curfew based on age (subd. (a)), or who are habitually truant. (subd. (b).)[2] Even if we presume the "orders or directions" of parents commonly enjoin or encourage their children to refrain from engaging in sexual intercourse, a single act of intercourse does not constitute "persistent[] or habitual[]" refusal to obey. Similarly, a single act of sexual intercourse has no necessary relationship to curfew violation or habitual truancy.
(4a) The defendant contends the crime of unlawful sexual intercourse necessarily involves conduct which would bring the victim within the provisions of Welfare and Institutions Code section 300.[3] The defendant relies on *95 a 1970 legislative committee report which recommended repeal of section 601 as unnecessary. The report states: "In substance, practically every minor ever processed through the courts under Section 601 could have been processed under subdivision (a) of Section 600. No matter how you describe a truant, runaway, promiscuous girl, or an unruly, disobedient teen-ager it boils down to the simple fact that their parents are either unwilling or unable to control them...." (Rep. of the Assem. Interim Com. on Crim. Proc. (1970) p. 33.) (Italics added.) (See also Review of Selected Legislation (1976) 7 Pacific L.J. 496, 497-499.)
At the time of the legislative committee report, Welfare and Institutions Code section 600 conferred juvenile court jurisdiction over dependent children including any child as described in subdivision (a) of section 600 "Who is in need of proper and effective parental care or control and has no parent or guardian, or has no parent or guardian willing to exercise or capable of exercising such care or control, or has no parent or guardian actually exercising such care or control." (Stats. 1965, ch. 535, § 1, 1850-1851.) Section 600 was repealed in 1976 (Stats. 1976, ch. 1068, § 20, p. 4782). It was replaced by section 300 (Stats. 1976, ch. 1068, § 2, p. 4759), subdivision (a) of which has continuously defined as a dependent within the jurisdiction of the juvenile court any child "Who is in need of proper and effective parental care or control and has no parent or guardian, or has no parent or guardian willing to exercise or capable of exercising care or control, or has no parent, guardian, or custodian actually exercising care or control."
For present purposes we may accept the conclusion of the 1970 legislative committee report that a minor who leads a promiscuous life, conduct that was formerly deemed to place her in danger of leading an idle, dissolute, lewd, or immoral life, is also a minor who has "no parent ... willing to exercise or capable of exercising care or control, or has no parent ... actually exercising care or control."[4] Thus it may be said that one who *96 engages in conduct encouraging a minor to be promiscuous "causes or tends to cause and encourages" her to come within the provisions of section 300, thereby contributing to her delinquency within the meaning of Penal Code section 272. (See, e.g., People v. Mathis (1985) 173 Cal. App.3d 1251, 1257 [219 Cal. Rptr. 693] [contributing is lesser included in the crime of pandering where the age of the victim is specified in the information].)
(1c), (4b) However, engaging a minor in a single act of sexual intercourse does not cause her to be "promiscuous", nor does it "[cause or tend] to cause" her to have "No parent ... willing to exercise or capable of ... or ... actually exercising care and control." Were it otherwise, dependency could be established under section 300, subdivision (a) simply by proof that without her parents' knowledge or consent and perhaps in violation of their express orders to her, the minor engaged in an act of sexual intercourse. We do not believe the statute contemplates state interference in the parent-child relationship on this basis alone.
(5), (1d), (4c) Although it is true the activities sufficient to support a conviction for contributing need not actually result in the minor's delinquency (People v. Norris, supra, 254 Cal. App.2d at p. 300; People v. Wilhite (1920) 49 Cal. App. 246, 250-251 [193 P. 151]), a single act of sexual intercourse neither "causes [nor] tends to cause [or] encourages" the minor to escape parental control. We therefore conclude the 1975 amendment to section 601 has changed the definition of contributing so that it no longer is a necessarily lesser included offense within unlawful sexual intercourse. (6) (See fn. 5.), (1e) The trial court did not err in failing sua sponte to instruct the jury on the lesser offense of contributing.[5]

II
(7) At sentencing, defendant's attorney argued for the lower term. The court stated the lower term would be imposed. Counsel then submitted the issue and the court sentenced defendant to the lower term, stating only that "this was not an aggravated offense, and I agree there are mitigating circumstances." While these are adequate reasons to justify the lower term, they do not justify imprisonment and the court gave no reasons for that sentencing choice.
*97 Defendant characterizes this omission as error in failing to "state reasons for denying probation." However the error is characterized, denial of probation is almost always the precursor to imposition of a term of imprisonment and imprisonment is a sentencing choice for which reasons must be given. (Pen. Code, § 1170, subd. (c); see rule 439(d), California Rules of Court; People v. Gopal (1985) 171 Cal. App.3d 524, 548 [217 Cal. Rptr. 487].) Reasons for imprisonment implicitly explain the decision to deny probation (People v. Ramos (1980) 106 Cal. App.3d 591, 599 [165 Cal. Rptr. 179]). While failure to give reason for imprisonment as the sentencing choice is error, the error is harmless where the upper term is imposed, since it is assumed the same reasons given to justify the upper term would suffice to justify imprisonment. (Id., at p. 600; People v. Butler (1980) 107 Cal. App.3d 251, 254-255 [165 Cal. Rptr. 709].) The same rationale does not apply here, for the court imposed the lower term because of the absence of aggravating factors and the presence of mitigating factors.[6] Though counsel did not argue for or apparently expect probation, the court was not relieved of its obligation to make a record of the reasons for its sentence choice.

III
(8) Defendant contends he has earned two days of conduct credits by serving three days of actual custody.
Penal Code section 4019, specifies how prisoners may obtain certain credits. Subdivisions (b) and (c) of that section provide: "for each six-day period in which a prisoner is confined in or committed to a specified facility" one day shall be deducted from his period of confinement for performing labors, and one day shall be deducted for compliance with the rules and regulations of the facility. Subdivision (f) of that section provides "if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody." (Italics added.)
Defendant did not serve four days; he served only three days. Therefore he cannot be deemed to have served six days and he is entitled to no "good-time" credits. Defendant argues In re Jackson (1986) 182 Cal. App.3d 439 [227 Cal. Rptr. 303] alters this simple result. Jackson is distinguishable. Jackson served eight days, stretched over two weekends, and the issue *98 before the court was whether custody for conduct credit purposes needs to be continuous. The court held it does not. (Id. at pp. 443-446.) The case does not address whether a defendant who has served less than four days can receive "good-time" credits.

IV
The conviction is affirmed but the sentence is vacated and the cause remanded to the trial court with directions to resentence defendant in accord with the views expressed herein.
Blease, J., and Marler, J., concurred.
Appellant's petition for review by the Supreme Court was denied March 30, 1989.
NOTES
[1]  Section 602 provides: "Any person who is under the age of 18 years when he violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime other than an ordinance establishing a curfew based solely on age, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court."
[2]  Section 601 provides: "(a) Any person under the age of 18 years who persisently or habitually refuses to obey the reasonable and proper orders or directions of his parents, guardian, or custodian, or who is beyond the control of such person, or who is under the age of 18 years when he violated any ordinance of any city or county of this state establishing a curfew based solely on age is within the jurisdiction of the juvenile court which may adjudge such person to be a ward of the court. [¶] (b) If a school attendance review board determines that the available public and private services are insufficient or inappropriate to correct the habitual truancy of the minor, or to correct the minor's persistent or habitual refusal to obey the reasonable and proper orders or directions of school authorities, or if the minor fails to respond to directives of a school attendance review board or to services provided, the minor is then within the jurisdiction of the juvenile court which may adjudge such person to be a ward of the court; provided, that it is the intent of the Legislature that no minor who is adjudged a ward of the court pursuant solely to this subdivision shall be removed from the custody of the parent or guardian except during school hours."
[3]  At the time of the offense section 300 provided: "Any person under the age of 18 years who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶] (a) Who is in need of proper and effective parental care or control and has no parent or guardian, or has no parent or guardian willing to exercise or capable of exercising care or control, or has no parent or guardian actually exercising care or control. [¶] (b) Who is destitute, or who is not provided with the necessities of life, or who is not provided with a home or suitable place of abode. [¶] (c) Who is physically dangerous to the public because of a mental or physical deficiency, disorder, or abnormality. [¶] (d) Whose home is an unfit place for him or her by reason of neglect, cruelty, depravity, or physical abuse of either of his or her parents, or of his or her guardian or other person in whose custody or care he or she is. [¶] (e) Who has been freed for adoption from one or both parents for 12 months by either relinquishment or termination of parental rights and for whom an interlocutory decree has not been granted pursuant to Section 224 of the Civil Code or an adoption petition has not been granted. [¶] (f) It is the intention of the Legislature in enacting the amendments to subdivision (a) enacted at the 1985-86 Regular Session, to assure that courts, in making a determination pursuant to subdivision (a) shall not focus upon the fact that a parent has a physical disability. The Legislature declares that a physical disability, such as blindness or deafness, is no bar to the raising of happy and well-adjusted children and that a court's determination pursuant to subdivision (a) should center upon whether a parent's disability prevents him or her from exercising care and control. (Stats. 1985, ch. 1548, § 1.)
[4]  In fact, we implied as much when in 1916 we posed this rhetorical question. "A wayward minor female, with a strong inclination toward a wild and indifferent life, obtuse to perceptions of morality, without a parent or guardian capable of properly controlling her or her conduct, holding clandestine meetings at late hours of the night with a married man, almost old enough to be her father, and permitting him to take liberties with her person which, in nine cases out of ten, will lead to immoral practices of the grossest character, what more should be required to establish a case of contributing to the dependency of a minor, within the contemplation of the juvenile court law?" (People v. Oliver, supra, 29 Cal. App. at pp. 583-584.)
[5]  There was no request for an instruction on contributing and the court is not required sua sponte to instruct on lesser related offenses. (People v. Geiger (1984) 35 Cal.3d 510, 526 [199 Cal. Rptr. 45, 674 P.2d 1303, 50 A.L.R.4th 1055]; italics added.)
[6]  The probation report stated in part: "The defendant does not appear to be a good candidate for probation. Due to the fact that the defendant abuses alcohol and due to the nature of his crime, he would be considered a high risk for probation. Another fact that I consider disturbing is that the defendant still does not admit the crime. He insists that he never touched the victim, only talked to her. [¶] Because of the defendant's prior record and for the protection of society, it will be recommended that probation be denied. Considering all of the circumstances of this offense however, it would seem that the lower term would be appropriate."


31 Cornelia Props. Corp. v Lemma (2016 NY Slip Op 01390)

31 Cornelia Props. Corp. v Lemma

2016 NY Slip Op 01390

Decided on February 25, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 25, 2016

Mazzarelli, J.P., Renwick, Manzanet-Daniels, Kapnick, JJ.

306 152808/13

[*1]31 Cornelia Properties Corp., Plaintiff-Appellant,
vJoseph Lemma, et al., Defendants-Respondents.

Amsterdam & Lewinter, LLP, New York (Joseph P. Mitchell of counsel), for appellant.
David E. Frazer, New York, for respondents.

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered July 30, 2014, which, to the extent appealed from as limited by the briefs, granted defendants' motion to dismiss the causes of action for breach of representations and warranties, fraudulent inducement, and tortious interference with contract, unanimously affirmed, without costs.
The cause of action for breach of representations and warranties as to the rent-regulatory status of an apartment, made as part of defendants' sale of a building to plaintiff, was correctly dismissed, since the representations and warranties had expired. Moreover, for public policy reasons, landlords and tenants are prohibited from making private agreements to effectively deregulate apartments (Georgia Props., Inc. v Dalsimer, 39 AD3d 332, 334 [1st Dept 2007]).
The cause of action for fraudulent inducement is duplicative of the claim for breach of representations and warranties (Glanzer v Keilin & Bloom, 281 AD2d 371, 372 [1st Dept 2001]).
The allegations that support the claim for tortious interference are speculative and conclusory, and fail to make out all the elements of that cause of action (Lama Holding Co. v Smith Barney, 88 NY2d 413, 424 [1996]; Ferrandino & Son, Inc. v Wheaton Bldrs., Inc., LLC, 82 AD3d 1035 [2d Dept 2011]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 25, 2016
CLERK


847 F.2d 834
Ferkinsv.Scully
NO. 87-2113
United States Court of Appeals,Second Circuit.
APR 19, 1988

1
Appeal From:  S.D.N.Y.

2
AFFIRMED.


993 F.2d 1306
Charles J. BAFIA, Plaintiff-Appellee,v.NORTHERN INDIANA PUBLIC SERVICE COMPANY, Defendant-Appellant.
No. 92-1926.
United States Court of Appeals,Seventh Circuit.
Argued Dec. 8, 1992.Decided May 21, 1993.

Matthew J. Morrissey, Magiera & Morrissey, Chicago, IL (argued), Ronald Layer, Sachs & Hess, Hammond, IN, for plaintiff-appellee.
David C. Jensen, Eichhorn, Eichhorn & Link, Hammond, IN (argued), Jon M. Pinnick, Eichhorn, Eichhorn & Link, Merrillville, IN, for defendant-appellant.
Before CUDAHY and COFFEY, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
CUDAHY, Circuit Judge.

1
The plaintiff, an elevator repairman, sued the defendant utility company for injuries he sustained while servicing an elevator in the defendant's building.   After a bench trial, the district court found in favor of the plaintiff and awarded him $475,000.   The defendant appeals.   We affirm.

I.

2
The defendant, Northern Indiana Public Service Company (NIPSCO), an Indiana corporation, operates an electrical power generating station, the R.M. Schahfer Generating Station, in Wheatfield, Indiana.   NIPSCO contracts with Otis Elevator Company (Otis) for the maintenance of several elevators in the Wheatfield facility.   Otis maintenance workers provide preventive maintenance by regularly inspecting the elevators and lubricating and changing worn mechanical parts.   The standard Otis maintenance contract excludes the elevator cab, however, which is not considered a maintenance item because it is not a mechanical device.   Otis conducts regular routine preventive maintenance on the NIPSCO elevators and also repairs elevators upon specific request.

3
On July 7, 1988, a NIPSCO security guard was trapped in the No. 17 boiler house elevator when it unexpectedly stopped between floors.   Two NIPSCO master electricians helped rescue the guard by directing him to climb through a hatch door in the ceiling, walk across the top of the elevator car and climb up to the third floor landing.   In the course of the rescue, the security guard and one of the NIPSCO employees, John Yurtanas, were on top of the elevator for no more than five minutes.

4
The next day, Charles Parsons, an Otis service man, was sent to the Wheatfield facility to service the No. 18 boiler house elevator.   The plaintiff, Charles Bafia, a resident of Illinois, was assigned as Parsons' helper.   Upon checking in, Parsons and Bafia met with Yurtanas, who served as a liaison between NIPSCO and Otis.   Yurtanas informed them that the No. 17 elevator was inoperable and asked them to work on it first.

5
Parsons and Bafia rode the No. 18 elevator to the fourth floor and walked back to the No. 17 elevator, finding the hoistway door, which leads into the elevator shaft, to be open.   A key, held by NIPSCO's maintenance department, is required to open the door.   Parsons and Bafia then rode the No. 18 elevator to the top floor and crossed over to the No. 17 elevator's machine room.   They brought the elevator up to where they had access to the top of it and proceeded to repair the car.   Bafia then stepped onto the car top while Parsons entered the car to check its operation.   Once the elevator was working properly, Parsons rode it to the ground floor and instructed Bafia to walk across the car top and enter the car through the emergency exit.   At that time, Parsons heard a loud bang as the rear panel of the car's ceiling fell to the elevator floor, together with Bafia, who was badly injured.

6
Bafia and NIPSCO stipulated at trial that Bafia sustained injuries when he stepped on a rear panel of the elevator cab roof and both he and the panel fell through to the floor of the cab.   After paramedics took Bafia to a hospital, Parsons observed that the ceiling panel was hinged in two places so it could be lifted upward, allowing NIPSCO to carry long lengths of pipe in the elevator during the construction of the facility.   The pins in the hinges were inserted with one end "peened over" so they would not vibrate out of position;  they thus required a hammer and a tool called a drift pin to be removed.   Parsons noticed that one pin was missing from one hinge, but his search for that pin was unsuccessful.   The Otis repair man who later reinstalled the ceiling panel in the No. 17 elevator also looked for the missing pin in the elevator car and on top of the elevator but to no avail.

7
On one side of the hinge, the bolts and screws are flat, but on the other side a hex bolt was used;  the hex bolt was shiny, but the flat bolts and screws were darkened and discolored, like the hinge.   Parsons opined that the presence of different types of screws or bolts of apparently varying ages meant that someone must have repaired the hinge.

8
Otis's work is divided among three departments:  service, maintenance and construction.   The maintenance workers maintain elevators according to contracts prescribing a schedule of maintenance;  service calls, on the other hand, are requested in each instance by a customer, charged to the customer and specifically documented in service records.   Otis's "call-back sheets," which document customer service requests, do not indicate any service requested or performed on the No. 17 ceiling panels or hinges between 1982 and 1990.   Lawrence Verzak, Otis's service superintendent, did not recall ever sending a service crew to NIPSCO to repair the car top of an elevator.   Parsons also testified that he had never provided any service or maintenance to the hinge, which is not mechanical and is therefore not considered a maintenance item.   Because NIPSCO is obligated to pay for service and repair separately from the maintenance agreement, there would normally be a record of any NIPSCO request that Otis send an employee to repair No. 17's car top.

II.

9
Bafia filed this diversity action against NIPSCO on May 30, 1989, in the U.S. District Court for the Northern District of Indiana, contending that NIPSCO was negligent because NIPSCO altered or modified the ceiling panel on the No. 17 elevator, rendering the car top unsafe.   In his conclusions of law, the district judge admitted that there was no direct evidence as to how the pin was removed from the hinge, and also rejected Bafia's argument that the doctrine of res ipsa loquitur applied.1  The court nevertheless concluded that NIPSCO was negligent because it knew or reasonably should have known that the pin was missing from one of the hinges on the elevator car top.   Based upon NIPSCO's tight security measures, the unlikelihood that the pin would vibrate out of the hinge or that an Otis employee would intentionally remove it and fail to replace it, the lack of a service record for any such maintenance or repair and the evidence that the hinge had been altered, the district court concluded that "[t]he reasonable, logical inference that NIPSCO, or someone other than an Otis employee who was subject to NIPSCO's direction or control, intentionally removed the pin and negligently failed to replace it may be drawn from the evidence without undue speculation."   Order at 42.   The court accordingly entered judgment against NIPSCO in the amount of $475,000.   NIPSCO appeals.

III.

10
The sole issue on appeal is whether the findings of fact on which the district court based its determination of liability are clearly erroneous.   See Fed.R.Civ.P. 52(a).   A trial court finding may be set aside as clearly erroneous when, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed."  United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948);  see also Ratliff v. City of Milwaukee, 795 F.2d 612, 617 (7th Cir.1986) (district court's findings clearly erroneous when "implausible, illogical, internally inconsistent or contradicted by documentary or other extrinsic evidence").   Reasonable inferences from the evidence are permissible, Ruthig v. Saginaw Transfer Co., 337 F.2d 393, 395 (7th Cir.1964), but inferences must be reasonably supported by the evidence and cannot be mere speculation or surmise.  Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir.1982);  National Indus., Inc. v. Republic Nat. Life Ins. Co., 677 F.2d 1258, 1267 (9th Cir.1982).

11
The case before us essentially turns on whether the district court's determination of negligence rests upon reasonable inference or speculation.   Under Indiana negligence law, a landowner owes a duty to a business invitee such as Bafia to exercise reasonable care to discover possibly dangerous conditions and to take reasonable precautions to protect the invitee.  Persinger v. Marathon Petroleum Co., 699 F.Supp. 1353, 1360 (S.D.Ind.1988).   A landowner is liable to an independent contractor if it actively participates in the negligent act causing injury or if it fails to warn of hidden dangers on the premises that it knew of or ought to have known of and that the contractor did not know of.  Id. at 1361-62;  Nagler v. United States Steel Corp., 486 F.2d 794, 797 (7th Cir.1973).   We therefore must determine whether the district court's finding that NIPSCO had the requisite knowledge of the danger or defect had a sufficient evidentiary basis.

12
On this record it is impossible to know with certainty what actually happened to the pin from the elevator's top panel.   Nevertheless, we believe the evidence supports the district judge's conclusion that NIPSCO or someone subject to NIPSCO's direction removed the pin and therefore that NIPSCO had knowledge or constructive knowledge of the missing pin.   The judge is not permitted to speculate, but his conclusion--though necessarily based on inference--is not merely guesswork.   Admittedly, many inferences supporting the district court's conclusion were negative:  for example, the court presumed that Otis could not have removed the pin because service records would have documented such maintenance work, and that an outsider could not have removed it because of the facility's tight security.   Yet no one disputes that the pin was removed.   Consequently, when coupled with the evidence that NIPSCO was responsible for the care of the elevator cab and that Otis employees evidently did not service the ceiling panel prior to the accident, these inferences are sufficiently substantiated by the evidence and the district court's findings are not clearly erroneous.

IV.

13
For the foregoing reasons, we AFFIRM the ruling of the district court.

1
 The court noted that to apply res ipsa loquitur, the court would have to find, by permissible inference, that the pin was rendered missing when the elevator was in NIPSCO's exclusive control between the time the security guard was rescued and the point that Bafia and Parsons began work on it.   In its conclusions of law, however, the court stated that "[t]his inference is not reasonable and will not support the application of the doctrine."   Order at 40-41


533 F.Supp.2d 359 (2008)
Alex RESTREPO, Petitioner,
v.
UNITED STATES of America, Respondent.
No. 05 Civ. 2680(SAS) No. 99 Cr. 1113(SAS).
United States District Court, S.D. New York.
January 22, 2008.
*360 *361 *362 Susan M. Damplo, Esq., Ardsley, NY, Nancy Lee Ennis, Esq., Quijano & Ennis, P.C., New York City, for Petitioner.
Helen Cantwell, Ronnie Abrams, Assistant United States Attorneys, New York City, for Respondent.

OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge.
Alex Restrepo moves to vacate, set aside, or correct his sentence pursuant to section 2255 of title 28 of the United States Code ("section 2255"). Restrepo, a Colombian citizen, challenges his sentence on the ground that he was denied his due process right to a fair trial when the Government' failed to turn over discovery relevant to his extradition. Restrepo also claims that he was denied his right to counsel when: (1) defense counsel failed to adequately investigate his extradition; (2) defense counsel failed to move to suppress statements he made to United States officials in Bogota on the ground that Colombian counsel was not present; (3) defense counsel was absent from a pre-trial conference; (4) defense counsel failed to argue to the jury that there was no physical evidence that Restrepo had been present at the Pagani murder; and (5) defense counsel failed to move for an acquittal based on the theory of dual incrimination.[1] For the reasons set forth below, Restrepo's motion is denied.
I. BACKGROUND
A. The Offense Conduct
Restrepo participated in a racketeering organization that engaged in robbery, murder, and narcotics trafficking in New York, New Jersey, and elsewhere. The organization, whose members included Restrepo and numerous other individuals; had a modus operandi for many of its robberies.[2] After targeting a potential victim, members of the organization used several cars, communicating by radio, and followed the victim in his or her car. After members of the crew forcibly stopped the victim's car, some of the robbers exited their cars with masks covering their faces and guns drawn. They forcibly took jewelry, money, and other property from the victim, firing shots if they encountered resistance, and then fled. Specifically, following a jury trial, Restrepo was convicted of the following: robbery at gunpoint of jewelers at the Hilton Hotel; robbery at gunpoint of a Bravo Supermarket employee; robbery at gunpoint of people at an apartment in Jackson Heights; robbery of drug dealers and a subsequent sale of narcotics; robbery at gunpoint of employees of the American Sirloin Meat & Poultry Company ("ASMPC"); and felony murder of Donald Pagani, a retired New York City Police Detective.[3] Following the murder of Pagani, which occurred during the ASMPC robbery, Restrepo fled to Colombia.
*363 B. Procedural History
On September 3, 1999, the Government filed a complaint against Restrepo and several others. Restrepo was indicted on October 26, 1999. On November 26, 1999, the United States, through a diplomatic note to Colombia, requested the provisional arrest and detention of Restrepo for the purpose of extradition.[4] Colombia's Attorney General authorized the arrest on November 30, 1999, and. Restrepo was arrested the following day by the Colombian authorities. Superseding Indictment S1 99 CR. 1113(SAS) was filed on December 28, 1999, containing fourteen counts. That same day, the United States formally requested Restrepo's extradition.[5]
On August 29, 2000, the Colombian Supreme Court of Justice approved the extradition of Restrepo from Colombia to the United States on Counts One, Two, Twelve, and Thirteen of the Superseding Indictment. Count One charged Restrepo with conducting the affairs of an enterprise through a pattern of racketeering activity, including narcotics distribution, armed robbery, attempted murder, and murder, in violation of section 1962(c) of title 18 of the United States Coda Count Two charged Restrepo with conspiracy to conduct the affairs of an enterprise through a pattern of racketeering activity in violation of section 1962(d) of title 18 of the United States Code. Count Twelve charged Restrepo with murder in violation of section 1959(a)(1) and (2) of title 18 of the United States Code. Finally, Count Thirteen charged Restrepo with felony murder in violation of section 1959(a)(1) and (2) of title 18 of the United States Code.[6]
Following the ruling by the Supreme Court of Justice, the Colombian Ministry of Justice and Law issued Resolution No. 44, granting the extradition of Restrepo for Counts One, Two, Twelve, and Thirteen.[7] However, Resolution. No. 44 also provided that Restrepo would not be extradited unless the United States guaranteed that, in the event the death penalty was imposed, it would be commuted.[8] The United States responded in Diplomatic Note 1060, assuring "the Government of Colombia that the death penalty will not be sought or imposed in this case."[9] On October 11, the Colombian government also requested an assurance that Restrepo would "not be subjected to a sentence of life imprisonment"[10] The United States responded to this request in Diplomatic Note No. 1206, assuring Colombia that
should Mr. Restrepo be convicted of the offenses for which extradition has been granted, the United States executive authority, with the agreement of the attorney for the accused, will not seek a penalty of life imprisonment at the sentencing proceedings in this case. The Government of the United States also assures the Government of Colombia that, should the competent United States judicial authority nevertheless impose a sentence of life imprisonment *364 against Mr. Restrepo, the United States executive authority will take appropriate action to formally request that the court commute such sentence to a term of years.[11]
Restrepo was transferred to the United States on October 27, 2000.
The trial against Restrepo commenced on February 19, 2002 and ended on March 25, 2002. He was convicted on all four counts for which he was extradited and tried. The Government proved Restrepo's guilt through voluminous evidence, including the testimony of, more than seventy-five witnesses and more than four hundred items of physical evidence.[12]
At the sentencing proceedings, the Government, in accordance with Diplomatic Note 1206, requested that Restrepo be sentenced to a term of years and not a term of life.[13] I denied the Government's request and sentenced Restrepo to a term of life, imprisonment.[14] I noted that Diplomatic Note 1206 constituted a contract between the United States executive branch and Colombia, and that it did not bind the judicial branch.[15] Pursuant to the agreement with Colombia, the Government then requested that I commute the sentence, which I declined to do.[16]
Restrepo appealed the judgment and sentence. Gregory G. Smith, who represented Restrepo during the trial, continued to represent Restrepo on, appeal. Restrepo raised two arguments. First, he claimed that his life sentence violated the terms of Diplomatic Note No. 1206. Second, Restrepo argued that the Court improperly admitted evidence of uncharged crimes during the trial. The Court of Appeals for the Second Circuit rejected these arguments and affirmed the conviction and sentence.[17] The Second Circuit held that Diplomatic Note No. 1206 did not obligate this Court to sentence Restrepo to a term of years:
The note expressly contemplated the possibility that, a sentencing court might impose a term of life imprisonment and assured Colombia that, if that occurred, the executive authority of the United States would seek to have the sentence commuted to a term of years.[18]
Restrepo, proceeding pro se, filed a section 2255 motion on March 9, 2005. On April 13, 2005, I granted Restrepo's motion for the appointment of counsel. Thereafter, appointed counsel filed a section 2255 motion on Restrepo's behalf on July 28, 2006.
*365 II. APPLICABLE LAW.
A. Section 2255
Section 2255 allows a convicted person held in federal custody to petition the sentencing court to vacate, set aside, or correct a sentence. A properly filed motion under section 2255 must allege that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence Is otherwise subject to collateral attack.[19] Accordingly, collateral relief Under section 2255 is available "only for a constitutional; error, a lack of jurisdiction in the sentencing court, Or an error Of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice.'"[20]
B. Brady Evidence
Under the Brady doctrine, state and federal prosecutors must, disclose, material evidence favorable to the defendant, whether or not requested.[21] Failure to disclose such evidence is a violation of due process "irrespective of the good faith or bad faith of the prosecution."[22] The Brady rule does not require a prosecutor to "deliver his entire file to defense counsel," but: only toy produce, information that is material to the defendant's guilt or punishment.[23] Material evidence includes exculpatory as well as impeaching evidence.[24] "[E]vidence is material and constitutional error results from its suppression by the government if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different"[25] The test for "reasonable Probability" is not "whether the defendant would more"likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence."[26]
C. Ineffective Assistance of Counsel
The right to effective assistance of counsel applies to those Stages of criminal prosecution that are deemed "critical stages."[27] If a defendant's counsel is either totally absent, or prevented from assisting the accused during a critical stage "of the proceeding," the defendant's rights are violated even absent a showing of prejudice.[28]
*366 A critical stage is a stage that holds "significant consequences for the accused."[29] Thus, a defendant whose attorney is not permitted to provide a summation has been denied counsel at a critical stage,[30] as has a defendant who is not permitted to consult with his attorney during an overnight recess in the midst of trial.[31]
A petitioner seeking to attack his sentence based on ineffective assistance of counsel must: (1) show that counsel's performance fell below "an objective standard of reasonableness" under "prevailing professional norms," and (2) "affirmatively prove prejudice," namely, demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."[32]
In analyzing a claim that counsel's performance fell short of constitutional standards, "it is not sufficient for the, habeas petitioner to show merely that counsel omitted a nonfrivolous argument."[33] Instead, the court "must `indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . .'"[34] As explained by the Supreme Court,
strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.[35]
Moreover, "[i]n assessing, the attorney's performance, a reviewing court must judge his conduct on the basis of the facts of the particular case, `viewed as of the time of counsel's conduct,' and may not use hindsight to second-guess his strategy choices."[36] Thus, a petitioner cannot prevail on a claim of ineffective assistance merely because he disagrees with his counsel's strategy.[37]
A habeas petitioner "may establish constitutionally inadequate performance if he shows that counsel omitted significant and *367 obvious issues while pursuing Wines that: were clearly and significantly weaker."[38] However, "[t]he failure to include a meritless argument does not fall outside the wide range of professionally competent assistance to which [a][p]etitioner [i]s entitled."[39] Finally, even if an attorney's Performance were objectively unreasonable, a petitioner must still prove prejudice. That is, the petitioner must show "`a reasonable probability' that, but for the deficiency, `the result of the proceeding would have been different.'"[40]
III. DISCUSSION
A. Alleged Brady Violation
Restrepo contends that his send, fence must be vacated because the Government failed to turn over evidence showing that his extradition was' conditioned on the promise that he would not be subject to life imprisonment without pa/tie or to an equivalent term in years.[41] Restrepo is wrong. The fact that. Colombia had, made such a demand was not hidden from Restrepo prior to trial, at trial or at his sentencing.[42] In Diplomatic Note 1206, the United States clearly stated that Colombia requested, "as a condition for the extradition of Alex Restrepo, an assurance that Mr. Restrepo will not be subject to life imprisonment in the United States."[43] This request, and the United States' response in Diplomatic Note 1206, were extensively litigated during Restrepo's sentencing proceedings and on appeal. This Court and the Second Circuit have already determined that the United States did not assure Colombia, that Restrepo would not receive a life sentence, and none of Restrepo's current claims cast any doubt on those findings. Restrepo is foreclosed by the Second Circuit's decision from rearguing this issue "[a] § 2255 motion may not relitigate issues that were raised and considered on direct appeal."[44]
However, Restrepo argues that Diplomatic Note 1206 does not reflect the full agreement between Colombia and the United States.[45] As on appeal, the Government agrees that because Restrepo was not extradited pursuant to an extradition treaty between Colombia, and the United States, the request for extradition, diplomatic correspondence, the opinion of the Colombian Supreme Court, and resolutions passed by the Colombian executive branch provide the complete terms of the extradition.[46] Restrepo claims that the Government withheld relevant diplomatic documents and that "later disclosed documentation shows that [Restrepo] not being subject to life imprisonment was a precondition of extradition."[47]
Restrepo mentions several documents that he claims were improperly withheld. *368 He asserts that United States' Diplomatic Note No. 1060 dated September 25, 2000,[48] in which the United States assured Colombia that "the death penalty will not be sought or imposed," was not provided until August 11, 2006.[49] However, the Note only concerns the death penalty, and does not alter the understanding between the parties regarding a life sentence. Moreover, Diplomatic Note 1060 was referenced and described in Diplomatic Note 1206 and therefore known to Restrepo ahead of his sentencing. Thus, any failure to disclose Note 1060 fails the materiality test of Brady.
Restrepo also states that Colombia's Diplomatic Note OJ.E. 29006 dated October, 11, 2000[50] was not produced by the United States until April 28, 2003.[51] In this Note, Colombia requested that the United States include "[a] formal, agreement that [Restrepo] shall not be subjected to a sentence of life imprisonment." This Note was available to the Second Circuit on appeal. Moreover, the fact that Colombia had requested that Restrepo not be subjected to a life sentence had been known to Restrepo before his trial. OJ.E. 29006 is referenced and described in Diplomatic Note 1206, which was the United. States' response to OJ.E. 29006. Because the essential content of the Note was already known to the parties, Restrepo cannot satisfy the materiality standard of Brady. Likewise, Colombia's Diplomatic Note OJ.E 30263 dated October 23, 2000,[52] which was produced to Restrepo simultaneously with OJ.E. 20006, is dot material under Brady. In this Note, Colombia forwarded Resolution No. 59 and reiterated its request in OJ.E 29006. Nothing in OJ.E. 30263 affects the agreement between the United States and Colombia regarding a life sentence.
Restrepo also claims that Diplomatic Note 067 dated January 28, 2000, in which the United States formally requested Restrepo's extradition, was never produced.[53] However, Restrepo's Colombia law expert, Pedro Pablo Camargo, discussed this Note in his sentencing memorandum dated October 4, 2002, which demonstrates that it was available to the defendant before sentencing.[54] Restrepo also asserts that Diplomatic Nate No. 1263 dated November 26, 1999[55] was not produced until August 2006.[56] In this Note, the United States requested "the provisional arrest and detention for extradition purposes of Alex Restrepo." Petitioner notes that the United States cited both Colombian and international law in the Note.[57] However, this language is identical to that of Diplomatic Note 067, which was available to Restrepo before sentencing. Because the relevant language is identical, any failure to produce Diplomatic Note 1263 is not material under Brady.[58]
*369 Restrepo fails to identify any documents or other evidence showing that, the terms of the extradition agreement were any different from what was known to this Court at sentencing and to the Second Circuit on appeal. Restrepo does not identify any express or, implied statement in any diplomatic correspondence that either guaranteed that a life sentence would not be imposed or required this Court to sentence him to a term of years. The documents Restrepo claims were withheld fall far short of satisfying the materiality requirement necessary to establish a Brady violation. They only confirm what was already evident in the previous proceedings: Colombia requested "an assurance that Mr. Restrepo will not be subject, to life imprisonment,"[59] and the United States responded to that request in Diplomatic Note 1206. Colombia did not request additional guarantees from the United States after receiving Diplomatic Note 1206 and before extraditing Restrepo a few days later,[60] Accordingly, Restrepo has failed, to show that he was denied his clue process right to a fair trial because the Government failed to turn over discovery relevant to his extradition.
B. Ineffective Assistance of Counsel
Restrepo claims that he was denied his right to counsel on five different grounds: (1) defense counsel failed to adequately investigate Restrepo's extradition; (2) defense counsel failed to move to suppress Restrepo's statements to United' States officials in Bogota on the ground that Colombian counsel was not present; (3) defense counsel was absent from a pre-trial conference held on September 25, 2001; (4) defense counsel failed to argue to the jury that there was no physical evidence that Restrepo had been present at the Pagani murder; and (5) defense counsel failed to move for an acquittal based on the theory of dual incrimination.
1. Failure to Investigate Extradition
Restrepo contends that his trial counsel failed to adequately investigate the extradition, causing him to be sentenced to life imprisonment without parole in violation of the agreed upon terms of his extradition.[61] As discussed above, the, Second Circuit has already affirmed this Court's interpretation of the extradition agreement and no new facts have been alleged in the instant motion to alter this interpretation. Accordingly, Restrepo was not sentenced in violation of the extradition agreement, and he therefore cannot show any prejudice from his attorneys' alleged failure to investigate his extradition.
Moreover, Restrepo's attorneys extensively investigated the extradition and had access to all relevant facts and documents concerning the extradition prior to sentencing. I also granted Restrepo's request for the appointment of a Colombian, law expert of his own choosing to assist him at sentencing and to investigate "how American Law and Colombian law interact under the extradition treaty between, the countries."[62] Colombian Law Expert Pedro Camargo submitted a sentencing memorandum *370 to the Court and also presented arguments during the sentencing, discussing how Colombian law, American law, and international law affected the extradition agreement and the sentence.[63] Camargo did not limit his arguments to Diplomatic Note 1206. He also noted that United States invoked Colombian law in the formal request for extradition in. Diplomatic Note 067, arguing that Restrepo therefore should be sentenced according to Colombian law.[64] Consequently, Restrepo has failed to establish that counsel performed ineffectively with regard to investigating the extradition.
2. Restrepo's Statements to United States Officials in Bogota
Restrepo asserts that he was denied his Sixth Amendment right to counsel when his trial counsel failed to challenge the admission of his statements to United States officials in Bogota on the ground that he was not informed of his right to counsel as provided by Colombian law. He concedes that he was told that he had a right to an attorney,[65] but argues that (1) had he been informed that that right arose from Colombian law as well as American law, there is a reasonable probability that he would have been acquitted of the Pagani murder, presumably because he would not have made the statements; and (2) his trial attorney erred by failing to object to the introduction of the statements he made in Bogota on this ground.
As a threshold matter, there is no evidence that Restrepo would have acted differently had he known that his right to counsel was provided by Colombian law as well as American law. The officers properly advised Restrepo that he had a right to counsel and he knowingly and voluntarily waived that right. Further, even without Restrepo's statement, in light of the strength of the government's evidence; there is no indication that the verdict would have been different. In the absence of a showing of a reasonable probability that the disclosure would have affected the outcome of the trial, Restrepo's habeas petition cannot be granted on this ground.[66]
3. Pre-Trial Conference Held on September 25, 2001
a. Structural Issues
Restrepo argues that his trial counsel's absence from the pre-trial conference held on September 25, 2001 resulted in a denial of his right to counsel. Attorney Alex Eisemann who represented a co-defendant, agreed to "stand in" for Restrepo's attorney.[67] At the September 25th conference, the parties discussed discovery and the motion schedule and the Court set a provisional trial date. Assuming, arguendo, that a scheduling and status conference is "critical," because Restrepo was represented by Eisemann, there was no actual or constructive denial of counsel. Therefore, there was no structural violation of Restrepo's Sixth Amendment rights that would require automatic reversal of either the conviction or the sentence.
*371 b. Inadequate Representation
Restrepo further argues; that Eisemann's representation was so deficient as to rise to the level of a constitutional violation.[68] First, Restrepo argues, that Eisemann failed to correct the, government's assertion that all discovery had been produced, and as, a result of this error, Restrepo was prejudiced because he did not receive documents relating to his extradition in time to make certain pretrial motions.[69] But Restrepo has not met his burden of demonstrating a reasonable probability that the outcome of the trial or sentencing would have been different had Eisemann not failed to correct this assertion. Accordingly; this error does not rise to the level required to grant Restrepo's petition.
Restrepo next contends that Eisemann's agreement to a trial date prejudiced him because his attorney was riot prepared to proceed to trial on that date.[70] This argument has no merit. The trial date Set at the conference was almost five months in the future.[71] Restrepo has not argued that Smith was not promptly informed of the trial date. If the date had been problematic, Smith had almost half a year to object. In the absence of farther evidence, Smith's failure to complain about the trial date conclusively demonstrates that Restrepo was not prejudiced by the decision to set the trial date in the absence of his counsel.
4. Lack of Physical Evidence That Restrepo Bad Been Present at the Pagani Murder
Restrepo contends that he was denied effective' assistance of counsel because his trial counsel failed to elicit from witnesses or argue to the jury that there was no physical evidence that Restrepo had been present at the Pagani murder.[72] Restrepo further asserts that the jury may have had the, false impression that his fingerprints were found at the crime scene.[73] The record indicates that the parties arid the Court were concerned that the jury might have formed this impression, and in response to a question sent by the jury'' during deliberations, the jury was given detailed information on where Restrepo's fingerprint was discovered.[74] Restrepo argues that his trial counsel failed to argue' this point specifically,' but there is no reason to believe that such argument would have been effective. In the absence of a reasonable probability of prejudice, Restrepo's Sixth Amendment right to counsel was not violated.[75]
*372 5. Failure to Move for Acquittal Based on a Theory of Dual Incrimination
Restrepo argues that he received ineffective assistance because counsel failed to move for acquittal based on the doctrines of dual incrimination and specialty. Specifically; Restrepo contends that there was insufficient evidence to convict him because: (1) the Government did not prove a pattern of activity relating to drug trafficking with regard to Counts One and Two; and (2) no nexus to drug trafficking had been established for Counts Twelve and Thirteen.[76]
"The rule of specialty, which is derived from principles of international comity, `generally requires a country seeking extradition to adhere to any limitations placed on prosecution by the surrendering country.'"[77] Under Colombian law, the principle of dual incrimination requires that for an extradition to be granted "the act on which [the] extradition is based must be considered an offense in Colombia, and must be punishable by a term of incarceration of not less than four (4) years."[78]
The Colombian Supreme Court of Justice held that Counts One, Two, Twelve, and Thirteen of the Superseding Indictment satisfied Colombia's dual incrimination requirement. Specifically, it explained that Counts One and Two of the Superseding Indictment "have a counterpart in the rules of conduct codified in Item 2, Article 186 of the Penal Code, that is, agreement to commit crime related to drug trafficking."[79] It also concluded that Counts Twelve and Thirteen "correspond in the Colombian legislation to aggravated homicide."[80] There is no evidence to suggest that the Colombian government or courts misunderstood the extradition request or imposed a requirement that the Government prove multiple acts of narcotics trafficking for Counts One and Two. The United States' accurately informed Colombia of the elements of each charge for which extradition was granted[81] The Government also correctly conveyed that the Superseding Indictment only contained one racketeering act that made specific reference to drug activity.[82] Furthermore, there is no evidence to suggest that Colombia required a nexus to drug trafficking be established for Counts Twelve and Thirteen. The Colombia Supreme Court of Justice's determination that Counts Twelve and Thirteen correspond to "aggravated homicide" contradicts such an assertion.
Furthermore, the Government clearly established at trial that the racketeering *373 organization robbed narcotics dealers and then distributed the stolen drugs. Thus, the Government proved that the enterprise as defined in the Superseding Indictment' engaged in drug trafficking activity. Restrepo was convicted of the crimes for which he was extradited. Consequently, Restrepo's contention that counsel was ineffective for not moving for acquittal based on the doctrine of dual incrimination is without merit.
IV. CONCLUSION
For the foregoing reasons, Restrepo's section 2255 motion is denied and his case is dismissed. The remaining question is whether to grant a certificate of appealability. For a certificate of appealability to issue, petitioner must, make a "substantial showing, of the denial of a constitutional right."[83] A substantial showing does not require a petitioner An demonstrate that he would prevail on the merits, but merely that "reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'"[84] Petitioner has made no such showing in this case. Accordingly, I decline to issue a certificate of appealability. The Clerk of the Court is directed to close this case.
SO ORDERED.
NOTES
[1]  See Memorandum of Law in Support of Defendant's Motion Under 28 U.S.C. Sec. 2255 ("Pet.Mem.") at i-ii. Restrepo also claims he was denied effective assistance of counsel when his trial attorney did not admit that he provided ineffective assistance. See id. at 65. Because Restrepo has failed to demonstrate that his counsel was providing ineffective assistance, this argument is without merit.
[2]  See Government's Memorandum of Law in Opposition to Petitioner's Petition Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence ("Gov't Mem.") at 4.
[3]  See Presentence Investigation Report ("PSR") at 32.
[4]  See 11/26/99 Diplomatic Note No. 1263, Ex. 2 to Reply Memorandum of Law in Support Of Defendant's Motion' Under 28 U.S.C. Sec. 2255 ("Pet. Reply Mem.").
[5]  See 1/28/00 Diplomatic Note No. 067.
[6]  See Superseding Indictment.
[7]  See 9/13/00 Republic of Colombia Ministry of Justice and Law Resolution No, 44, Ex. 2 to Pet. Mem. Restrepo appealed the decision, but Resolution No. 44 was upheld by 9/30/00 Resolution No. 59.
[8]  See Resolution Number 44, art. 3.
[9]  9/25/00 Diplomatic Note No. 1060, Ex. 4 to Pet. Reply Mem.
[10]  10/11/00 The Republic of Colombia Ministry of Foreign Affairs Diplomatic Note OJ.E. 29006, Ex. 2 to Pet. Mem.
[11]  10/23/00 Diplomatic Note No. 1206.
[12]  See Gov't Mem. at 4.
[13]  See Transcript of Sentencing ("Sent.Tr.") at 11.
[14]  See id. at 36-37.
[15]  See id. at 12.
[16]  See id. at 38-39.
[17]  See United States v. Baez, 349 F.3d 90 (2d Cir.2003).
[18]  Id. at 92-93. Although the Second Circuit held that the district court was not bound by the diplomatic note to sentence Restrepo to a term of years, it cautioned:

In sentencing a defendant extradited to this country in accordance with a diplomatic agreement between the Executive branch and the extraditing nation, a district court delicately must balance its discretionary sentencing decision with the principles of international comity in which the rule of specialty sounds. Courts should accord deferential consideration to the limitations imposed by an extraditing nation in an effort to protect United States citizens in prosecutions abroad. Moreover, in evaluating the exact limitations set by the extraditing nation, courts should not elevate legalistic formalism over substance. To do otherwise would strip comity of its meaning.
Id. at 93 (citations omitted).
[19]  See 28 U.S.C. § 2255.
[20]  Cuoco v. United States, 208 F.3d 27, 29 (2d Cir.2000) (quoting Hilt v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)).
[21]  See United States v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
[22]  Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
[23]  See Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); Bagley, 473 U.S. at 675, 105 S.Ct. 3375.
[24]  See Bagley, 473 U.S. at 676, 105 S.Ct. 3375.
[25]  Kyles, 514 U.S. at 433-34, 115 S.Ct. 1555 (quoting Bagley, 473 U.S. at 682, 105 S.Ct. 3375).
[26]  Id. at 434, 115 S.Ct. 1555.
[27]  See United States v. Davis, 239 F.3d 283, 285-86 (2d Cir.2001) ("[I]t is well settled that a defendant's Sixth Amendment right to counsel attaches `at all critical stages in the proceedings after the initiation of formal charges.'") (quoting. United States v. Gordon, 156 F.3d 376, 379 (2d Cir.1998)) (internal quotation marks omitted).
[28]  United States v. Cronic, 466 U.S. 648, 659 n. 25, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
[29]  Bell v. Cone, 535 U.S. 685, 696, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (citations omitted).
[30]  See Herring v. New York, 422 U.S. 853, 865, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975).
[31]  Geders v. United States, 425 U.S. 80, 91, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976).
[32]  Strickland v. Washington, 466 U.S. 668, 688, 693-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
[33]  Aparicio v. Artuz, 269 F.3d 78, 95 (2d 2001).
[34]  Id. (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052).
[35]  Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052.
[36]  Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.1994) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). Accord Bell, 535 U.S. at 698, 122 S.Ct. 1843 (noting that to demonstrate ineffective assistance of counsel at trial, "a defendant must overcome the `presumption that, under the' circumstances, the challenged action might be considered sound trial strategy'") (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052).
[37]  See Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) (explaining that an indigent appellant does not have a constitutional right to compel appointed counsel to press every nonfrivolous point on appeal, thus recognizing "the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review"); Mayo, 13 F.3d at 533 ("[I]t is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every nonfrivolous argument that could be made.").
[38]  Clark v. Stinson, 214 F.3d 315, 322 (2d Cir.2000).
[39]  Aparicio, 269 F.3d at 99 (quotation marks and citations omitted).
[40]  Id. at 95 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).
[41]  See Pet. Mem. at 42.
[42]  See, e.g., 5/7/02 Letter from (former) Assistant United. States Attorney Vernon Broderick to the Court, at 1-2 (stating that the Colombian Government had "requested, an, assurance that Restrepo would not be subject to a life sentence" and also stating that the Government provided defense counsel with Diplomatic Note No. 1206 both during discovery and then again during the trial).
[43]  10/23/00 Diplomatic Note No. 1206.
[44]  United States v. Perez, 129 F.3d 255, 260 (2d Cir.1997) (citing Riascos-Prado v. United States, 66 F.3d 30, 33 (2d Cir.1995)).
[45]  See Pet. Mem. at 48.
[46]  See Gov't Mem. at 24 n. 16.
[47]  Pet. Mem. at 48.
[48]  Ex. 4 to Pet. Reply Mem.
[49]  Pet. Reply Mem. at 7. However, the Government claims that Diplomatic Note 1060 was available to the Second Circuit on appeal. See Gov't Mem. at 30-31.
[50]  Ex. 2 to Pet. Mem.
[51]  See Pet. Mem. at 11.
[52]  Ex. 4 to Pet. Mem.
[53]  See Pet. Mem. at 5.
[54]  See 10/4/02 Dr. Pedro Pablo Camargo, Sentencing Memorandum ("Camargo Sent. Mem.") at 1 (noting that Diplomatic Note 067 invoked Colombian law).
[55]  Ex. 2 to Pet. Reply Mem.
[56]  See Pet. Reply Mem. at 5.
[57]  See id.
[58]  Petitioner also cites diplomatic correspondence from Colombia to the United States in 2005 and 2006 regarding Restrepo. See Pet. Reply Mem. at 3-5. Since this correspondence occurred well after Restrepo's trial and sentencing, the" Government has committed no Brady violation by not producing these documents. In fact, it is not clear whether the Government even had these documents in its possession as Restrepo obtained them directly from Colombia's Consul General in Chicago. Petitioner asserts that these documents support his interpretation of the extradition agreement. However, they do not provide any new factual information about the extradition agreement. As stated previously, the interpretation of the extradition agreement was thoroughly litigated during the sentencing proceedings and on appeal and cannot be relitigated here.
[59]  Diplomatic Note 1206.
[60]  See Gov't Mem. at 32.
[61]  See Pet. Mem. at 50.
[62]  5/20/02 Letter from Gregory Smith (defendant's counsel).
[63]  See Sent. Tr. at 20-24.
[64]  See Camargo Sent. Mem.
[65]  See Pet. Mem. at 55 (observing that the officers read Restrepo his rights off of a "Miranda card").
[66]  There is apparently some question as to whether Restrepo's trial attorney raised the issue when he moved to suppress the statements on the ground that Restrepo was not informed of his Miranda rights. Defendant concedes that his trial counsel provided the Court with the relevant Colombian statute as part of this, motion. See id. In light of Restrepo's failure, to demonstrate a reasonable possibility of prejudice, I need not reach this issue.
[67]  See 9/2-5/01 Transcript ("9/25 Tr.") at 2.
[68]  See Pet. Mem. at 59.
[69]  Restrepo adds that Eisemann "only added to the confusion by repeatedly and incorrectly telling this Court that Smith had filed motions." Id. In fact, the Court stated that it had received motions and believed that they were oh behalf of Restrepo, at which point Eisemann added that "My client says Mr. Smith did file motions, and I remember in our meeting he mentioned he was going to or had filed them." 9/25 Tr. at 4. In fact, Smith did not file the Motions in question until two weeks later. Regardless, there is no indication that this led to any sort of prejudice, let alone a reasonable possibility of an effect on the outcome.
[70]  See Pet. Mem. at 60.
[71]  See 9/25 Tr. at 7 (setting provisional trial date of February 19, 2002).
[72]  See Pet. Mem. at 60.
[73]  See id. at 61.
[74]  See Trial Transcript ("Trial Tr.") at 2672.
[75]  Again, there is serious question as to whether, Restrepo's trial attorney erred by failing to argue this point to the jury. His attorney did argue at summation that the only evidence against his client was testimonial. See Trial Tr. at 2512. Not dwelling on the fingerprint may have been a strategic decision  a reasonable attorney could judge the risk of focusing the, jury's attention on the fingerprint to outweigh the benefit of planting a seed of doubt as to the fingerprint's probative value. Reasonable strategic decisions by trial counsel cannot rise to the level of constitutional error. "A court may not use hindsight to second-guess' counsel's tactical choices." McKee v. United States, 167 F.3d 103, 106 (2d Cir.1999) (quoting Mayo, 13 F.3d at 533). Because I find that there has been no showing of prejudice, I need not reach this issue.
[76]  See Pet. Mem. at 62.
[77]  United States v. Cuevas, 496 F.3d 256, 262 (2d Cir.2007).
[78]  8/29/00 Colombia Supreme Court of Justice Opinion ("Colombia Opinion") at 27, attached to Appendix to Petitioner's Brief on Appeal, at 139-177.
[79]  Id. at 33.
[80]  Id. at 36.
[81]  See 1/28/00 Diplomatic Note 067.
[82]  In its opinion, the Colombia Supreme Court of Justice cited the Superseding Indictment in full. See Colombia Opinion at 4-18.
[83]  28 U.S.C. § 2253(c)(2).
[84]  Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (internal quotation marks and citation omitted)).


145 F.Supp.2d 350 (2001)
Verne LYDE, Plaintiff,
v.
NEW YORK CITY, P.O. Morales, Shield # 11398, Fox 5 News and Fox Broadcasting Company, Defendants.
No. 00 CIV. 1764(WCC).
United States District Court, S.D. New York.
May 30, 2001.
*351 Verne Lyde, Fishkill Correctional Facility, Fishkill, Plaintiff Pro Se.
*352 Michael D. Hess, Corporation Counsel for the City of New York, Attorneys for Defendants New York City and P.O. Morales, New York, Stacy Laine Matthews, Asst. Corporation Counsel, Of Counsel.

OPINION AND ORDER
WILLIAM C. CONNER, Senior District Judge.
Plaintiff pro se Verne Lyde brings this action against defendants New York City ("NYC"),[1] Police Officer Morales, Fox 5 News and Fox Broadcasting Company pursuant to 42 U.S.C. § 1983. He alleges that in violation of his rights guaranteed under the Fourth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution, he was: (1) forced to submit to a staged "perp walk;" (2) denied his right to counsel; and (3) denied his right to a prompt probable cause hearing.[2] Defendants NYC and Morales now move to dismiss the complaint pursuant to FED. R. CIV. P. 12(b)(6) based upon the failure to state a claim.[3] For the reasons stated hereinafter, the motion is granted in part and denied in part.

BACKGROUND
The relevant facts, as alleged in plaintiff's Amended Complaint, are as follows:
On April 10, 1997, at approximately 3:13 p.m., plaintiff was arrested without a warrant. At 6:49 p.m., a search warrant was signed. On April 11, 1997, at approximately 1:00 a.m. and after a confession had been coerced, plaintiff was instructed by defendant Morales to stand on the steps of the 49th Precinct and pull a jacket over his head while defendant Fox 5 News videotaped him. The videotape was aired that night. After the airing, plaintiff appeared before an alleged "non-partial" judge. (Am.Complt.¶ IV.) As a result of the staged "perp walk," plaintiff has suffered emotional distress and mental anguish. He was also placed in protective custody. (Id. ¶ IV-A.)
Plaintiff was also denied his right to counsel and was not arraigned for over 30 hours. (Id. ¶ IV.) He seeks damages in the amount of $10 million: $5 million against defendant NYC; $5 million against defendant Morales; and $1 million against defendants Fox 5 News and Fox Broadcasting Company. (Id. ¶ V.)

DISCUSSION

I. Applicable Standard

On a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept as true all of the well pleaded facts and consider those facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); Hertz Corp. v. City of New York, 1 F.3d *353 121, 125 (2d Cir.1993); In re AES Corp. Sec. Litig., 825 F.Supp. 578, 583 (S.D.N.Y. 1993). On such a motion, the issue is "whether the claimant is entitled to offer evidence to support the claims." Scheuer, 416 U.S. at 236, 94 S.Ct. 1683. A complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Padavan v. United States, 82 F.3d 23, 26 (2d Cir.1996) (quoting Hughes v. Rowe, 449 U.S. 5, 10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980)). Generally, "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." 2 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 12.34[1][b] (3d ed.1997); see also Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1088 (2d Cir.1995). Allegations that are so conclusory that they fail to give notice of the basic events and circumstances of which the plaintiff complains, are insufficient as a matter of law. See Martin v. New York State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir.1978).

II. Section 1983

Section 1983 creates a cause of action against any person who, acting under the color of state law, abridges rights guaranteed by the Constitution or laws of the United States. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). The section does not create any new substantive rights. See Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). It merely provides a remedy for the violation of federal constitutional or statutory rights. See id.

A. Perp Walks in Violation of the Fourth Amendment

The Fourth Amendment prohibits "unreasonable searches and seizures." U.S. Const. Amend. IV. Its protection does not end when an individual is taken into police custody. Instead, the protection afforded by the Amendment is implicated by "police conduct that unreasonably aggravates the intrusion on privacy properly occasioned by the initial seizure." Lauro v. City of New York, 219 F.3d 202, 212 (2d Cir.2000).
Plaintiff claims that defendant Morales subjected him to a staged perp walk. A perp walk occurs when an individual, after being arrested, is "`walked' in front of the press so that he can be photographed or filmed." Id. at 203. On July 28, 2000, the Second Circuit, in Lauro, declared certain perp walks to be unconstitutional as violative of an arrestee's Fourth Amendment right to be free from unreasonable seizures. See id. at 206-13.
In that case, the plaintiff had been arrested and had remained in the precinct for several hours when the arresting detective received a telephone call from the Police Department's Office of the Deputy Commissioner of Public Information. See Lauro, 39 F.Supp.2d at 356. It was suggested that the plaintiff be taken on a perp walk for the benefit of the media. Pursuant to this request, the plaintiff was handcuffed, escorted out the front door and down the stairs into an unmarked car. The plaintiff was driven around the block and then escorted back into the precinct. During this procedure, the plaintiff was filmed by Fox 5 News. See id.

1. Defendant Morales

The threshold issue is whether defendant Morales is afforded immunity from the suit. The general rule is that "`doctrine of qualified immunity shields public officials performing discretionary functions from civil liability insofar as their *354 conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Whitton v. Williams, 90 F.Supp.2d 420, 429 (S.D.N.Y.2000) (Conner, J.) (quoting Bradway v. Gonzales, 26 F.3d 313, 317-18 (2d Cir.1994)); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). "Even where the law is `clearly established' and the scope of an official's permissible conduct is `clearly defined,' the qualified immunity defense also protects an official if it was `objectively reasonable' for him at the time of the challenged action to believe his acts were lawful." Warren v. Dwyer, 906 F.2d 70, 74 (2d Cir.1990) (quoting Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).
In this case, it is obvious that defendant Morales is entitled to qualified immunity. On April 11, 1997, three years prior to the Second Circuit's decision in Lauro, it was objectively reasonable for her to believe that a perp walk was constitutional. Indeed, to date, the Second Circuit has never declared that all perp walks are unconstitutional. In Lauro, it specifically stated that:
[W]e do not hold that all, or even most, perp walks are violations of the Fourth Amendment. Thus, we are not talking about cases in which there is a legitimate law enforcement justification for transporting a suspect. Accordingly, we do not address the case  seemingly much more common than the kind of staged perp walk that occurred here  where a suspect is photographed in the normal course of being moved from one place to another by the police. Nor do we reach the question of whether, in those circumstances, it would be proper for the police to notify the media ahead of time that a suspect is to be transported.
219 F.3d at 213. See also Caldarola v. County of Westchester, 142 F.Supp.2d 431, 442 (S.D.N.Y. 2001) (holding that Lauro should be limited to its facts).[4]
Furthermore, in Lauro, the arresting detective was granted qualified immunity "because the unconstitutionality of the staged perp walk was, until today, not clearly established." Id. at 216. The Court of Appeals recognized that "[t]here have been no reported decisions of which we are aware establishing the proposition that staged perp walks violate the Fourth Amendment," id. at 215, and that the plaintiff's "Fourth Amendment challenge to the perp walk may seem, in some respects, to be a case of first impression." Id. at 209.
In this case, defendant Morales did not violate the clearly established rights of plaintiff. At the time of the alleged walk, there appears to be no case law that would provide any guidance to police officers concerning the lawfulness of the walk. Accordingly, defendant Morales is granted qualified immunity with respect to the staged perp walk claim.

2. Municipality

Pursuant to § 1983, a municipality can be held liable for damages and either injunctive or declaratory relief. See Monell v. Department of Soc. Servs. of the City of New York, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). However, liability is not predicated on the theory of respondeat superior. See id. at 691, 98 S.Ct. 2018. Instead, the plaintiff must show that the deprivation of his constitutional right, privilege or immunity was the result of a "policy statement, ordinance, *355 regulation, or decision officially adopted and promulgated by [the municipality's] officers" or by the municipality's custom or policy. Pembaur v. City of Cincinnati, 475 U.S. 469, 497, 106 S.Ct. 1292, 89 L.Ed.2d 452 (quoting Monell, 436 U.S. at 690, 98 S.Ct. 2018). A municipal custom may be established by showing facts that circumstantially support such an inference. See Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.1993).
The statements alleged in plaintiff's complaint are sufficient to withstand a motion to dismiss. In Lauro, the Second Circuit recognized that perp walks are a "widespread police practice in New York City." See 219 F.3d at 203; see also Lauro, 39 F.Supp.2d at 367 & n. 14 (recognizing that perp walks have been routinely performed by members of the NYPD for many years). Therefore, it appears that prior to July 28, 2000, perp walks were a time-honored (or dishonored) custom of the NYPD. However, the fact that the policy was not declared unconstitutional until July 28, 2000 does not imply that the practice was constitutional until that date.

B. Denial of Right to Counsel and Failure to Receive Prompt Judicial Decision of Probable Cause

In addition to the claims surrounding the staged perp walk, plaintiff also alleged that he was denied his constitutional rights to counsel and a prompt probable cause hearing. He claims that his probable cause hearing was unreasonably delayed in excess of 30 hours, during which time the NYPD gathered evidence to justify his arrest. In response to the instant motion to dismiss, plaintiff further alleged that "defendants ... then presented themselves as the arresting officer, which she was not, to circumvent the violation." (Pl. Mem. Opp. Mot. Dismiss at 3.)
It is well settled that a probable cause determination within 48 hours of the arrest may be unconstitutional if such determination was "delayed unreasonably." County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). "Examples of unreasonable delays are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay's sake." Id. However, in this case, plaintiff's allegations that the NYPD used this time to gather additional evidence to justify the arrest are conclusory. Plaintiff failed to allege facts tending to establish that a search for additional evidence was conducted. Similarly, plaintiff's claims concerning his denial of the right to counsel are vague and are not supported by any factual allegations. Accordingly, these claims are dismissed without prejudice for failure to state a claim.

CONCLUSION
For the above stated reasons, the motion to dismiss served on behalf of defendants NYC and Morales is granted in part and denied in part. It is denied with respect to the claim against defendant NYC for the violation of his constitutional rights by being subjected to a staged perp walk. However, as against defendant Morales the motion is granted for the reason that she is entitled to qualified immunity. Finally, the motion is granted with respect to the claims of denial of the right to counsel and failure to receive a prompt probable cause hearing and those claims are dismissed without prejudice. Plaintiff may file within 20 days a Second Amended Complaint supplying the deficiencies in the allegation of those claims.
SO ORDERED.
NOTES
[1]  Plaintiff's Amended Complaint includes "New York City (N.Y.PD)" as a defendant. The New York City Police Department ("NYPD") is not a suable entity. See Lauro v. City of New York, 39 F.Supp.2d 351, 368 (S.D.N.Y.1999), aff'd in part and rev'd in part, 219 F.3d 202, 205 n. 2 (2d Cir.2000). Therefore, any claims asserted against the NYPD are dismissed with prejudice.
[2]  In response to the instant motion to dismiss, plaintiff conceded that all state law claims were time-barred. (Pl. Mem. Opp. Mot. Dismiss at 3.)
[3]  Defendants Fox 5 News and Fox Broadcasting Company have also moved to dismiss the complaint pursuant to FED. R. CIV. P. 12(b)(6), (c) or in the alternative for summary judgment pursuant to FED. R. CIV. P. 56. At this time, the motion has not been fully submitted.
[4]  The Second Circuit also declined to consider whether perp walks are violative of the Due Process Clause of the United States Constitution. See Lauro, 219 F.3d at 208 n. 5.