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holding advancement of money to fund lawsuit, and contingent right to receive attorneys' fees as repayment, was not loan subject to usury laws
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No. 3030–2003.
2012-03-30
The PEOPLE of the State of New York, v. Felix MORET, Defendant.
Robert T. Johnson, Esq., District Attorney, Bronx County by Assistant District Attorney Richard J. Ramsey, for People of the State of New York. Felix Moret, Pro Se, Malone, for Defendant.
Robert T. Johnson, Esq., District Attorney, Bronx County by Assistant District Attorney Richard J. Ramsey, for People of the State of New York. Felix Moret, Pro Se, Malone, for Defendant.
DOMINIC R. MASSARO, J.
Pursuant to CPL § 440.10(1)(h), Defendant Felix Moret moves to vacate the judgment of conviction finding him guilty of Manslaughter in the First Degree (see, Penal Law § 220.44[2] ). The judgment was rendered on May 18, 2005, and imposed a prison term of twenty five years (see generally, People v. Moret, 63 AD3d 645 [1st Dept.2009] ).
In its essence, Defendant's motion is grounded upon claimed ineffective assistance by his trial counsel, Attorneys Thomas Klein and Julia Mattson of the Legal Aid Society. Defendant says the erred judgment was caused by the Legal Aid Society's ineffective assistance of counsel violating his constitutional rights under both the state and federal constitutions, i.e., trial counsel failed to object upon the grounds the jury was improperly sworn when it considered his case.
According to Defendant, the Part Clerk administered an insufficient oath to the jury before trial (see generally, People v. Hoffler, 53 AD3d 116 [3d Dept.2008] ). For this reason, Defendant says he was denied a fair trial because no juror swore to the truthfulness oath, but instead swore only to be fair and impartial. The only relief possible, Defendant says, is to reverse the judgment.
To compound matters, because of failure to object to an improper and incomplete oath, Defendant received ineffective assistance of counsel because his attorneys did not immediately demand a proper oath despite his prodding them about the problem (see, Strickland v. Washington, 466 U.S. 668 [1986];People v. Turner, 5 NY3d 476 [2005] ). As devastating, Defendant says, the Legal Aid Society attorneys advised him that the charges were proper (see, Exhibit A).
In essence, Movant alleges failure to object to the oath's form fails the reasonable representation standard used to evaluate his constitutionally protected rights to effective assistance of counsel (see generally, People v. Baldi, 54 N.Y.2d 137, 147 [1981] ). Specifically, Defendant alleges that there can be no dispute that the jury needed to swear to truthfulness for the verdict to be valid (see, CPL § 270.15[1][a] ). Accordingly, the language contained in CPL § 270.15(1)(a) is mandatory and no judicial discretion to substitute or omit is permitted. Stated another way, the Legal Aid Society's errors resulted in unprofessional representation causing the results to change adversely.
Demand for Hearing
At a minimum, Defendant claims entitlement to a hearing to explore the issues raised in his motion (see generally, People v. Alexander, 136 Misc.2d 573 [Sup.Ct. Bronx 1987] ). In this regard, he posits that the trial transcript supports and gives credence to his motion. Further, where the transcript fails to show what oath was actually administered, Defendant asserts his entitlement to resettle the transcript to properly show the wording actually used (see, CPL § 460.70). In summary, Defendant claims no question exists there is a serious factual question, which entitles him to a hearing upon his motion (see generally, People v. Steele, 8 AD3d 120 [1st Dept.2004] ).
Prosecutor's Position
In answering papers, the District Attorney argues that Defendant's motion is procedurally barred, unsubstantiated, and otherwise meritless; therefore, the motion to vacate must be summarily dismissed without a hearing. The prosecutor says Defendant neither explained nor substantiated his position that he received ineffective assistance of counsel. Clearly, there can be no dispute that Defendant waited too long, i.e., more than six years after his conviction, before raising the “oath” issue. This occurred while filing a direct appeal(see, People v. Moret, 63 AD3d 645 [1st Dept.2009]; lv. to appeal den'd,13 NY3d 837 [2009] ) and subsequently a 2010 habeous corpus proceeding (see, Moret v. Heath, 10 Civ. 6652[LTS][DF][SDNY 2010]. Defendant offers no convincing explanation why appellate counsel did not raise the issue on direct appeal, or why no claim arose in a habeas corpus proceeding which remains pending in the United States District Court. Clearly, Defendant failed to take steps to preserve the record in the years following his conviction (see generally, People v. Hoffler, supra.).
Likewise, Defendant's moving papers lack facts needed to satisfy the statutory requirements of CPL 440.10 (post trial motion to vacate judgment) because Defendant does not meet the burden of going forward. Likewise, Defendant lacks sufficient allegations to create a factual issue that would require the Court to hold a hearing upon the ineffective assistance of counsel (see generally, People v. Session, 34 N.Y.2d 254 [1974] ).
The allegations Defendant makes can only be viewed as self serving. Defendant did not provide either trial or appellate counsels' affirmations upon the oath issue. Nor does the transcript support Defendant's claim that a required oath was omitted. Most clearly, the Court should find Defendant's claim that he, as an 18 year old defendant at trial, had sufficient background to spot a sophisticated legal issue involving the Part Clerk's actions is inherently unbelievable and no credence can be given to that claim (see, CPL 440.30[4] [b] ). Concerning Defendant's demand for a hearing, the prosecutor opposes such relief and stresses that delay in raising the oath issue and failure to correct the record in a reasonable time mitigates against the right to a hearing at this time.
In summary, Movant's substantive legal and procedural arguments are illogical and contradicted by the transcript which shows the Court, prosecutor, defense counsel, and the Part Clerk, specifically discuss the distinction between sworn and unsworn jurors. Ultimately, Defendant fails to overcome the presumption of regularity to which a criminal judgment is entitled (see generally, People v. Dominique, 90 N.Y.2d 880 [1997] ). There can be no dispute that the record is devoid of evidence that the jurors were improperly sworn
and there is insufficient evidence available upon other grounds that supports Defendant's claim he received ineffective assistance of counsel caused by Legal Aid's failure to move or argue based upon a legal theory and facts that had little or no chance of success (see, People v. Caban, 5 NY3d 143 [2005] ).
Defendant cites People v. Hoffler, supra., which fails to provide support for Movant because the Hoffler trial counsel actually objected at trial to the incorrect oaths.
Turning to poor person relief,
the prosecutor similarly points out that Defendant fails to provide proper affidavits or required allegations justifying relief (see, People ex rel. Williams v. La Vallee, 19 N.Y.2d 238 [1967] ). Therefore, the poor person relief must also be denied.
Defendant does not otherwise address his claims under CPLR §§ 1101 and 1102.
Legal Discussion
Criminal Procedure Law Article 440 sets forth procedure for post judgment motions. CPL § 440.10 provides grounds for vacating a criminal judgment. In this instance, Defendant alleges that the judgment must be vacated because it was obtained in violation of a right of the defendant under the constitution of this state or of the United States (see, CPL 440.10[1][h] ) ...
Initially, the Court notes the Appellate Division previously affirmed Moret's conviction, finding that the evidence was sufficient to support the conviction and rejecting Defendant's arguments concerning the “Who speaks the truth” charge (see generally, People v. Moret, 63 AD3d 645 [3rd Dept.2009] ). The Court sees no reason to change that conclusion or otherwise modify the conviction especially in light of Defendant's failure to produce anything but his own self serving statements and his failure to provide trial counsel's affirmations.
Setting aside any dispute concerning whether rasing assistance of counsel is proper at this stage of the proceeding, the Court now focuses upon the issue of ineffective assistance of trial counsel itself.
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, 16 NY3d 784 [2011] ). In this instance, Defendant relies upon his perception that the jury was improperly empaneled. The benchmark for judging any ineffectiveness 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 U.S. 668 [1984] ). In determining whether a defendant has been deprived of effective assistance of counsel, courts examine whether the evidence, the law, and the circumstances of a particular case, viewed in totality, reveal that the attorney provided meaningful representation (see generally, People v. Carncross, 14 NY3d 319 [2010] ).
Here, there is no showing that trial counsel was deficient in failing to provide a meaningful defense in light of the circumstances presented. Defendant fails the high burden of demonstrating that he was deprived of a fair trial by less than meaningful representation (see generally, People v. Hobot, 84 N.Y.2d 1021 [1995] ). The Court can only find that no evidence exists upon which to conclude that Defedant received less than meaningful representation or even that the proper oath was not administered. The Court agrees with the prosecutor that the Legal Aid Society had no obligation to make a motion or argument that had little or no chance of success (see, People v. Caban, supra.).
Conclusion
Upon this record,
the Court determined that Defendant fails to set forth adequate grounds upon which to set aside the judgment of conviction. Likewise, without more, Defendant failed to convince the Court that he is entitled to a hearing upon his otherwise unsubstantiated claims or that he is entitled to reform the record. Accordingly, Defendant's motion is in its entirety denied.
In deciding the instant motion, the Court read (1)Defendant's Notice of Motion pursuant to CPL 440.10(1)(h); Affidavit in Support of Motion to Vacate Judgment, memorandum of law; and exhibits; and (2) affirmation in opposition of Richard J. Ramsey, Esq.
Based upon the foregoing, it is
ORDERED that the branch of Defendant Felix Moret's motion, seeking a hearing upon his motion to vacate the judgment of conviction finding him guilty of Manslaughter in the First Degree (see, Penal Law § 220.44[2] ), is DENIED, and it is further
ORDERED that the branch of Defendant Felix Moret's motion, pursuant to CPL § 440.10(1)(h), seeking to vacate the judgment of conviction finding him guilty of Manslaughter in the First Degree (Penal Law § 220.44[2] ), is DENIED.
The foregoing constitutes the Decision and Order of this Court.