Opinion
68046C-09.
Decided August 5, 2010.
Andrew S. Holland, Esq., Assistant District Attorney, Criminal Court Bureau, Bronx, New York.
Karen Swiger, Esq., Assistant District Attorney, Criminal Court Bureau, Bronx, New York.
Lewis Mazzone, Esq., Jericho, NY, Attorney for Defendant.
Stephen J. Mitchell, Esq., New York, NY, Trial Counsel for Defendant.
Defendant was charged with Criminal Impersonation in the First Degree, PL 190.26(2), Criminal Impersonation in the Second Degree, PL 190.25(3), and Harassment in the Second Degree, PL 240.26(1). On December 15, 2009, after a jury already had been sworn, Defendant pleaded guilty to Criminal Impersonation in the Second Degree, PL 190.26(2), a misdemeanor, in full satisfaction of the pending docket in exchange for a sentence promise of one year probation and any mandatory surcharges. Defendant received the promised sentence.
This first felony count was dismissed by the People on November 30, 2009.
On May 28, 2010, Defendant filed a motion to vacate his plea contending that the Court did not have jurisdiction over the action and that Defendant was denied his constitutional right to the effective assistance of counsel. The Court denied that motion in its entirety in its Decision dated June 23, 2010 (the "June 2010 Decision").
On July 19, 2010, Defendant filed this motion seeking to reargue his prior motion to vacate. On July 26, 2010, the People filed a Memorandum of Law and the Affirmation of Andrew S. Holland, Esq., in opposition to the motion.
As an initial matter, the Court incorporates its findings of fact and conclusions of law in its June 2010 Decision on the motion to vacate, as if fully set forth herein. For the reasons set forth below, Defendant's motion to reargue his motion to vacate his plea is denied in its entirety.
Contrary to Defendant's assertion, this Court did not overlook or misapprehend the facts of this matter. See Notice of Motion. The facts which Defendant contends the Court "overlooked" were never before the Court; Defendant added new facts, not contained in his original motion, in three revised affidavits from three purported witnesses to the incident underlying Defendant's arrest. Although Defendant supplied affidavits from these three purported witnesses in his original motion to vacate, such affidavits averred only that the witnesses had not been contacted by defense counsel prior to the trial date.
In its June 2010 Decision, the Court noted that such statements did not constitute any basis for Defendant to claim that his counsel was ineffective because Defendant had not shown that these purported witnesses would have been available for the trial or would have provided any testimony favorable to the Defendant. See June 2010 Decision at 5.
The new affidavits — that Defendant only now has submitted — from the same purported witnesses, each state that the witness is "prepared to testify on behalf of Defendant at any future court proceeding" and that at no time did Defendant "represent himself to be a New York City Police officer or impersonate himself as a New York City Police officer." See Exhibits (unnumbered) to Defendant's Motion to Reargue. Not only does the new information contained in the affidavits fail to rehabilitate Defendant's unsuccessful effort to establish ineffective assistance of counsel, the affidavits contain entirely new information, which was not presented to the Court in Defendant's original motion to vacate. As the Court could not have misapprehended or misconstrued facts that were never presented, Defendant's motion to reargue is denied on that ground. See CPLR 2221(d)(2).
However, even if the Court were to treat Defendant's motion as a motion to renew, it would be denied. A motion to renew must be based on newly discovered facts that could not have been offered on the prior motion and is granted only when a reasonable justification is demonstrated for the failure to present such facts on the prior motion. See CPLR 2221(e); NYCTL 199-1 Trust v. 114 Tenth Ave. Assoc., Inc. , 44 AD3d 576, 577 (1st Dept. 2007); Daniel Perla Assoc. v. Ginsberg, 256 AD2d 303, 303 (2nd Dept. 1998); Ulster Sav. Bank v. Goldman, 183 Misc 2d 893, 895 (Sup. Ct., Rensselaer Co. 2000). Not only has Defendant failed to show a "reasonable justification" for his failure to present these additional "facts" in his prior motion; he provides no justification at all.
Accordingly, Defendant's motion is denied as Defendant fails to meet either prong of the requisite bases for rearguing or renewing a prior motion.
Although Defendant did not seek reargument in the interests of justice, had he done so, the motion would have been denied on that basis as well. Here, Defendant received meaningful representation insomuch as he received a sentence promise of no jail time when he faced up to one year incarceration if convicted after trial. People v. Jones , 18 AD3d 964 , 965 (3rd Dept. 2005); People v. Boodhoo, 191 AD2d 448, 448 (2nd Dept. 1993). Defendant has not alleged any facts to show that, but for his attorney's actions or inactions, he would not have pleaded guilty, People v. McDonald, 1 NY3d 109, 115 (2003); People v. Charlotten , 44 AD3d 1097 , 1099 (3rd Dept. 2007), and has not shown that any of the motions that his former counsel waived or arguments that he didn't make would have been successful. People v. Mance, 269 AD2d 188, 188 (1st Dept.), app. denied, 95 NY2d 836 (2000); People v. Seymour, 255 AD2d 866, 868 (4th Dept. 1998), app. denied, 93 NY2d 902 (1999). Defendant pragmatically chose, on the morning of trial, to plead guilty with a sentence promise of no jail time rather than proceed with his right to trial; vacation of that plea now could only prejudice the People who were ready to proceed on that December 2009 trial date but whose witnesses might now be unavailable. People v. Ebron, 116 Misc 2d 774, 779 (Sup. Ct., Queens Co. 1982).
The First Department has held that, in certain cases, when the facts dictate that the interests of justice require, a motion to renew should be granted despite the absence of reasonable justification. Mejia v. Nanni, 307 AD2d 870, 871 (1st Dept. 2003); Security Pacific Nat'l Bank v. Evans, 31 AD3d 278, 281 (1st Dept. 2006). For the reasons noted above, this is not such a case.
Finally, even if the Court were to consider Defendant's "new evidence," Defendant's motion to vacate still would be denied. First, as noted in the June 2010 Decision, there is no showing that the purported witnesses would have been available to testify at trial. Second, the three new affidavits are, at best, conclusory statements of law and fail to specify the facts about which the purported witnesses would have testified. The affidavits state no facts at all. The conclusory statements in each affidavit that the Defendant did not "represent himself to be a New York City Police officer or impersonate himself as a New York City Police officer," are insufficient to establish that the failure of Defendant's former counsel's to speak to these witnesses somehow constitutes ineffective assistance of counsel. Thus, Defendant's motion to renew his vacatur motion is denied on this ground as well.
Neither the initial affidavits nor the revised affidavits show that the witnesses were available to testify in December 2009. The fact that the witnesses are willing to testify in the future does not obviate this fact.
Accordingly, Defendant's motion to reargue or renew is denied.
The following papers were considered by the Court in deciding the motion: Transcript of proceeding in Bronx Supreme Court, Criminal Term, December 15, 2009; Notice of Motion and Affirmation of Lewis A. Mazzone in Support of Motion to Reargue, filed on July 19, 2010; Memorandum of Law in Opposition to Motion to Reargue, and Affirmation of Andrew S. Holland, Assistant District Attorney, filed on July 26, 2010; Notice of Motion, filed on May 28, 2010, and Affirmation of Lewis A. Mazzone, in Support of Motion to Vacate Plea.
This constitutes the Decision and Order of this Court.