Opinion
0027/2010
07-06-2015
The People of the State of New York v. David Delgado, Defendant.
For People of the State of New York: Robert T. Johnson, Esq. District Attorney, Bronx County: By: Katherine A. Gregory, Esq. Assistant District Attorney For Defendant David Delgado, Pro Se
For People of the State of New York:
Robert T. Johnson, Esq.
District Attorney, Bronx County:
By: Katherine A. Gregory, Esq.
Assistant District Attorney
For Defendant
David Delgado, Pro Se
Dominic R. Massaro, J.
Defendant pro se moves pursuant to CPL §440.10(1)(h) to vacate his conviction on the grounds of ineffective assistance of counsel. The People oppose.
On July 9, 2012, following a jury trial, Defendant was convicted in Supreme Court, Bronx County, of Manslaughter in the First Degree (PL §125.20[1]). On August 1, 2012, he was sentenced to a determinate term of 25 years imprisonment plus five years post release supervision.
On appeal, Defendant argued that the court erred: (1) when it refused to submit second degree manslaughter as a lesser included offense of first degree manslaughter; (2) charge the jury on intoxication; and, (3) that his sentence of 25 years imprisonment was unduly harsh. On April 15, 2014, the Appellate Division, First Department, modified Defendant's sentence to a determinate term of twenty years imprisonment, and rejected his remaining arguments, finding that the court properly declined to submit the lesser included offense of second-degree manslaughter, or the defense of intoxication. ( see People v. Delgado, 116 AD3d 541 [1st Dept 2014]) lv denied, 23 NY3d 1061 [2014]).
Defendant now claims that his trial attorney, Robert Cantor, Esq., provided ineffective assistance of counsel because he failed to investigate his use of psychiatric medication and to call an expert witness to testify about how the medication would have affected his mental state.
The People argue that Defendant's motion should be denied pursuant to CPL §440.30 (4)(b) because beyond his own self-serving allegations, nothing in defendant's papers support the contention that he received ineffective assistance of counsel and also pursuant to CPL 440.30 (4)(d) because all his allegations are "made solely by the defendant and [are] unsupported by any other affidavit or evidence and ... under these and all other circumstances attending the case there is no reasonable possibility that such allegations are true." Also they maintain that Defendant's motion is barred pursuant to CPL §440.10[2][c] since "sufficient facts appear on the record of the proceedings ... to have permitted upon appeal... adequate review of the issue raised no such appellate review or determination occurred due failure to raise the issue on appeal."
Background
On December 25, 2009, at around 2:00 am, police were called to the Bronx apartment of Carmen Diaz, who along with friends, was hosting a Christmas Eve party. According to several witnesses, Defendant had fatally stabbed their friend, George Talavera, and then fled the scene.
Defendant was brought to the party by his girlfriend, Carmen Matos, who was friends with the hosts and other partygoers.
On January 11, 2010, Defendant was indicted for Murder in the Second Degree and Manslaughter in the First Degree. At his trial, during the People's case, several witnesses testified that everyone at the party had been drinking, but that Defendant had not, and that he had overreacted to Talavera's drunken warnings that he'd better treat Matos well.
Defendant testified on his own behalf. He recounted a personal history of sexual abuse and mental illness, which included suicide attempts, hospitalizations and medications. He stated that at the party, he consumed numerous drinks of hard liquor and several beers even though several hours before, he had taken Ambilify, a medication prescribed for his depression. Defendant recounted that he felt "tipsy" and that Talavera had threatened him bodily harm if he failed to treat Matos well. After the second threat, Defendant and Matos went to Matos' nearby apartment, to get more refreshments. While there Defendant took a kitchen knife, put it in his pants pocket, and returned to the party. According to Defendant, back at the party, Talavera made a third threat with punches to Defendant's face, Defendant swung the knife at Talavera. Defendant testified that he blacked out during the stabbing and did not know that he had inflicted harm. He fled the apartment and took a taxi back to Brooklyn.
Matos also testified that defendant had been drinking at the party.
The Law
All judgments of conviction are presumed to be valid. In order to prevail on a motion to vacate a judgment of conviction, a defendant has the burden of coming forward with sworn allegations creating issues of fact to be resolved at an evidentiary hearing (see People v. Session, 34 NY2d 254 (1974); People v. Braun, 167 AD2d 164 [1st Dept 1990]). If defendant's moving papers do not contain sufficient allegations to support the claim, the Court may deny it without a hearing. CPL §440.30(4)(b), (d).
In Strickland v. Washington, 466 US 668 (1984), the United States Supreme Court set forth a two-prong test for establishing when an attorney renders ineffective assistance of counsel: (1) the representation must fall below an objective standard of reasonableness and (2) there must be a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Under New York law, "[s]o long as 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, the constitutional requirement will have been met." (People v. Baldi, 54 NY2d 137, 147 [1981]). The analysis focuses on the "fairness of the process as a whole rather than its particular impact on the outcome of the case."
(People v. Caban, 5 NY3d 143, 156 [2005] citing People Benevento, 91 NY2d 708, 714 [1998]). In order for Defendant to sustain his burden he must exclude any possible legitimate basis for counsel's conduct (People v. Rivera, 71 NY2d 705 [1988]).
Besides his own general statements , Defendant's motion is lacking any documentation or specifics concerning his mental condition, the details of any treatment or the medication he was taking at the time of the incident that would warrant calling an expert witness. Nor, does he demonstrate that such testimony was available to support his defense (see People v. Hunter, 70 AD3d 1388 [4th Dept 2010]). Defendant offers little more than speculation that an expert's testimony would have assisted the jury (see People v. Muller, 57 AD3d 1113 [3d Dept 2008]). Thus, Defendant's motion to vacate his judgment is denied pursuant to CPL 440.30 [4][b] because the motion is based on the existence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts; and pursuant to CPL 440.30[4][d] because the allegations are made solely by the Defendant and unsupported by any other affidavit or evidence and under the circumstances of the case there is no reasonable possibility that such allegation is true.
Defendant has attached a letter, dated December 29, 2014,that he allegedly mailed to Cantor along with a copy of his CPL 440.10 motion requesting an affidavit. In his reply affirmation, Defendant also claims that his girlfriend called Cantor but he refused to speak with her.
--------
While challenges to a conviction based on strategic decisions by counsel are generally not reviewable on direct appeal, the effect of an attorney's decision not to call a particular witness is evident on the face of the record (see Muller, supra). At trial, Defendant testified extensively concerning his mental health history and his emotional state at the time of the incident. In opening and closing statements, counsel vigorously argued that Defendant was emotionally scarred, mentally unstable and under the influence of psychiatric medication and alcohol during the incident. At the charge conference, counsel reviewed the relevant evidence and requested that the Court charge the jury with manslaughter in the second degree. Counsel argued that there was ample evidence for a jury to conclude that Defendant acted recklessly in causing the death of the deceased ( see trial transcript 1806). Counsel also requested that the Court charge the jury with criminally negligent homicide. Following the Courts refusal to charge either crime, counsel stated, "I am constrained by virtue of the denial of ... manslaughter in the second degree and criminally negligent homicide for you to charge extreme emotional disturbance....[t]he evidence is replete with factual assertions that would well support that charge " ( see trial transcript p. 1824). The Court denied counsel's request. Since the record contains Defendant's testimony concerning his mental state and also counsel's statements referring to his strategy, Defendant's current claim could have been raised on direct appeal, and pursuant to CPL 440.10(2)(c) the Court must deny the motion.
In any case, failure to call a particular witness does not necessarily constitute ineffective assistance of counsel (see People v. Ozuna, 7 NY3d 913 [2006]; People v. King, 124 AD3d 1064 (3d Dept 2015); People v. Muller, supra; People v. Ramgeet, 277 AD2d 52 [1st Dept 2000]). Also, it is possible to establish the affirmative defense of extreme emotional disturbance (hereinafter EED) without psychiatric testimony (People v. Roche, 98 NY2d 70 [2002]) and Defendant has not demonstrated how an expert's testimony would have been any more successful than the devices counsel did employ (see People v. Bracey, 123 AD3d 419 [1st Dept 2014]). Moreover, Defendant has not demonstrated the absence of strategic or other legitimate explanations for counsel's actions (People v. Rivera, supra).
Defendant also has failed to show how he was prejudiced by counsel's alleged ineffectiveness. Contrary to Defendant's assertion, a defense of EED would not have reduced murder in the second degree to manslaughter in the second degree. EED is an affirmative defense that reduces intentional murder in the second degree to manslaughter in the first degree (PL 125.25[1][a]), the crime defendant was found guilty of by the jury.
Based on the foregoing, Defendant's motion to vacate his conviction pursuant to CPL 440.10 is denied without a hearing. Since Defendant has no matter before this court his request for poor person's relief and the assignment of counsel is also denied.
This constitutes the decision and order of the Court.
July 6, 2015______________________________Dominic R. Massaro, JSC