Opinion
48888C-2005.
Decided March 23, 2011.
Robert T. Johnson, Esq., District Attorney, Bronx County, by: Christopher J. Blira-Kossler, Esq., Of Counsel, for People of the State of New York.
Curtis Abraham, Pro Se, Green Haven Correctional Facility, Stormville, New York, for Defendant.
Pursuant to CPL § 440.10, Defendant Curtis Abraham moves to vacate the judgment of conviction, after jury trial, finding him guilty of manslaughter in the first degree (see, Penal Law § 125.20) and attempted assault in the second degree (see, Penal Law § 120.05). The judgment was rendered on October 26, 2007; he was thereupon sentenced as a second felony offender to concurrent terms of 20 years and two to four years. The sentence was subsequently modified to correct the second felony offender adjudication and Defendant was re-sentenced to a term of 20 years, including the concurrent two to four years and five years' post release supervision (see, People v. Abraham , 66 AD3d 412 [1st Dept. 2009]). Defendant is presently incarcerated at Greenhaven Correctional Center in Dutchess County.
Defendant submitted no exhibits with his motion. His conviction involves the killing of one Tishon Freeman and the wounding of another individual on September 17, 2005, in the Gun Hill Houses in Bronx County. According to Defendant, the prosecutor's theory was that Freeman, who was involved with Abraham's girl friend, disrespected Abraham and Defendant violently retaliated with a group of his friends. At trial, Abraham says his trial attorney, Sam Braverman, Esq., argued a defense that the victims were actually aggressors but failed to question whether Abraham was at the crime scene although Defendant told him to do so. Among Defendant's other criticisms of his attorney, Defendant says counsel told him that he requested a "missing witness" jury charge when the prosecutor did not call one of the then co-defendants as a witness. In realty, Defendant says, such an application was never made.
On appeal, the First Department affirmed Defendant's conviction (see, People v. Abraham, supra.). As relevant here, the Appellate Division rejected Defendant's challenges to the sufficiency and weight of the evidence supporting his attempted assault conviction. The Court also rejected Defendant's arguments concerning the content of the trial court's "missing witness" charge. However, because the People failed to file a predicate felony statement, the Appellate Division found Defendant was improperly adjudicated a second felony offender, and, therefore, he was entitled to a remand for a proper sentence. Subsequently, the Court of Appeals denied, without opinion, Defendant's application for leave to appeal the Appellate Division's decision, (see, People v. Abraham, 898 NYS2d 101).
Defendant's Motion
In its essence, Abraham's instant motion is grounded upon claimed ineffective assistance of his trial counsel. Citing a litany of supposed errors, Defendant says he was denied effective counsel because his attorney, among other things, (a) failed to advise him to accept a plea bargain; (b) told the jury, in an opening statement, that Defendant fired shots at the victims when Defendant had told counsel that he was not at the scene, (c) failed to investigate until the day before trial; (d) failed to subpoena a certain alibi witness whom the District Attorney later subpoenaed; (e) neglected to object to hearsay police testimony about Laaiqua Jones' statement; (f) failed to attack the identification testimony of another witness; (g) failed to focus the jury upon the issue of identification during summation; and (h) failed to object to the trial court's "adverse inference" charge. Defendant also generally alleges speedy trial violations. Taken together, Defendant says his attorney's claimed errors resulted in unprofessional representation, which caused the results to change adversely to Defendant's interests.
Prosecutor's Response
In answering papers, the District Attorney argues that Defendant claims are procedurally barred and otherwise meritless. He says Defendant neither explained nor substantiated his position that there was ineffective assistance of counsel or that a speedy trial violation occurred.
The prosecutor disputes that Defendant's counsel was ineffective. Noting that defense counsel negotiated an advantageous plea agreement, the prosecutor stresses that Defendant rejected this settlement and consequently received a harsher sentence after trial. The District Attorney says counsel zealously represented Defendant at all stages and, in fact, obtained acquittal upon two counts. This shows counsel was effective and successfully represented his client (see generally, People v. Ennis , 11 NY3d 403). Further, criticism of trial tactics is unjustified because counsel prudently argued self defense and not alternative defenses (see generally, People v. Bradley, 88 NY2d 901 ["interposition of inconsistent defenses is a hazardous tactic' because it creates a risk of juror confusion and may well taint a defendant's credibility in the eyes of the jury'").
Concerning speedy trial, the prosecutor rejects Defendant's claims stressing that Defendant failed to clarify whether his claim was statutory or constitutional. Further, because the speedy trial claim is record based it needed to have been raised on direct appeal of the conviction and cannot be raised in a motion to vacate judgment (see generally, People v. Wright, 12 Misc 3d 1164[A] [Kings County 2006]). Defendant did not even calculate the amount of time that he claimed elapsed that resulted in his speedy trial denial.
In summary, the prosecutor's case is that Defendant provided no corroboration or substantiation of either his claim of ineffective assistance of counsel or denial of Defendant's right to a speedy trial.
Legal Discussion
Article 440 of the Criminal Procedure Law sets forth procedure for post judgment motions. CPL § 440.10 provides the grounds for vacating a criminal judgment. Curiously, Defendant cites no subdivision under CPL § 440.10 upon which to base his relief and, therefore, the Court finds his motion is vague and unclear. As best the Court can determine, the thrust of Defendant's claim appears to be based upon ineffective assistance of trial counsel and includes a reference to speedy trial violations.
Initially, the Court notes the Appellate Division previously affirmed Abraham's conviction, finding that the evidence was sufficient to support it and rejecting Defendant's arguments concerning the "missing witness" charge. This Court sees no reason to change that conclusion or otherwise modify the conviction.
Setting aside any dispute concerning whether raising assistance of counsel is proper at this stage of the proceeding, the Court focuses on the issue.
First, the Court finds that to sustain a claim of ineffective assistance of counsel, New York courts examine the trial as a whole to determine whether defendant was afforded meaningful representation (see generally, People v. Cummings, 2011 NY Slip. Op 1362 [Ct. of Appeals 2011]). In the instant case, Defendant inartfully cites a series of claimed trial blunders, ranging from failures to object, not calling a certain alibi witness, summation and charge errors, and failure to properly conduct pre-trial investigatation, as constituting ineffective assistance of trial counsel. The benchmark for judging any ineffectiveness claims must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result (see generally, Strickland v Washington, 466 US 668). In determining whether a defendant has been deprived of effective assistance of counsel, courts must examine whether the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of representation, reveal that the attorney provided meaningful representation. All of the evidence must be weighed in context and as of the time of representation to assess the alleged deficient representation (see generally, People v. Carncross , 14 NY3d 319).
Here, there is no showing whatsoever that trial counsel was deficient in failing to provide a meaningful defense in light of the circumstances presented. Defendant fails his high burden of demonstrating that he was deprived of a fair trial by less than meaningful representation (see generally, People v. Hobot, 84 NY2d 1021). The Court can only conclude that Defendant received meaningful representation. It rejects any claim that tactical errors resulted in ineffective assistance of counsel warranting vacature (see generally, People v. Baldi, 54 NY2d 137). Concerning "speedy trial," there is no record presented upon which the Court can make any conclusion that Defendant's rights were violated in this regard. The Court finds Defendant fails to persuade that the judgment of conviction should not be overturned upon this ground.
Conclusion
Upon this record, the Court finds that Defendant fails to set forth adequate grounds upon which to set aside his conviction. Accordingly, Defendant's motion is in its entirety denied.
In deciding the instant motion, the Court read (1)Defendant's Notice of Motion to Vacate Judgment, affidavit, and memorandum of law; and (2) affirmation in opposition of Christopher J. Blira-Koessler, Esq,, with exhibits.
The foregoing constitutes the Decision and Order of this Court.