Opinion
Civ. 2286 (WK).
April 17, 2001.
For Petitioner: Irving Anolik, Esq. New York, New York.
For Respondent: Marc Frazier Scholl, Esq., Assistant District Attorney, New York, New York.
ORDER
Since our December 15, 2000 Memorandum and Order we have received two letters from petitioner's attorney, Irving Anolik, one of which included an affidavit by petitioner. The second of these letters noted "that there was apparently a substantial mistake made by your office because the decision and opinion you wrote assumed he was acting Pro Se which of course is not true." The two letters and the affidavit several times refer to that alleged mistake one way or another. None of them suggests a reason for thinking that any such mistaken assumption would in any way have affected my decision.
Petitioner's affidavit refers to the fact that the identity of one Wallace Johnson had not been disclosed. Mr. Johnson had told the police shortly after the event that he had heard the witness Dorothy Cooper exclaim "They shot him! They Shot him!" rather than "he shot him." In our December 15 Memorandum and Order we concluded that any testimony by Mr. Johnson would have been "consistent with and corroborate[d] Cooper's testimony that she knew who killed Gratton and that his death was the result of a long feud between the two groups;"and that presenting to the jury testimony that Cooper had been heard to say "they" instead of "he" would not have been significant. We see no reason for changing our view.
Petitioner's affidavit also calls attention to technical errors in our opinion, for example, we refer to petitioner's ten claims and then list only nine. None of these technical mistakes alter our decision made on the merits.
However, we are correctly charged with one serious error which requires comment. We assumed that the petitioner had suggested that Justice Florence M. Kelley, who had presided over the trial that ended in a hung jury, should have recused herself, whereas it is quite apparent that petitioner was making an ineffective assistance of counsel claim because his attorney did not seek recusal of Justice Benjamin Altman, before whom the conviction was obtained. It is also evident that we made no ruling on petitioner's claim that his attorney was to be blamed for not insisting on Justice Altman's recusal.
However, the New York Court of Appeals decision in People v. Moreno (N Y 1987) 70 N.Y.2d 403 clearly establishes that Justice Altman's decision not to recuse himself could not be challenged unless it could be established that it was an abuse of his discretion; and there is nothing in the record that even suggests such abuse.
Since no viable reason has been suggested why the outcome of our December 15, 2000 Memorandum and Order was incorrect, we deny petitioner's request for rehearing and reconsideration of this matter.