Opinion
1604/04.
Decided June 2, 2005.
The defendant, although represented by counsel, proceeded pro se, in writing and orally at sentencing, to set aside the verdict. Defendant's motion was denied on the record, and this decision sets forth the basis of the court's ruling.
In deciding this motion, the court has considered defendant's motion papers, as well as his arguments made on the record at the time of sentencing, the People's affidavit in response, the trial testimony and the court file. Based on these records, this court concludes as follows:
False Testimony
The defendant alleges, in his written motion, that his constitutional rights were violated during the grand jury proceedings, the suppression hearing and trial, because the People introduced perjured testimony during these proceedings.
A moving party must establish that the People knew that the testimony was false "prior to the entry of the judgment," and that the testimony was in fact false. Inconsistencies between statements made by the same witness do not, in and of themselves, establish that the witness' testimony is perjured or false. Additionally, inconsistent testimony between prosecution witnesses does not establish perjury. The inconsistencies merely create an issue of credibility for the trier of fact to determine.
The United States Supreme Court, in dicta, in Napue (360 US at, 269) used the term "or should have known." For the purposes of this decision, the court uses the term "know" or any form of that word as including should have known. The court notes that it is unclear whether the United States Court of Appeals, Second Circuit, requires the People to know or should know of the alleged perjury ( compare Ortega v. Duncan, 333 F3d 102, 108 [2003] with Drake v. Portundo, 321 F3d 338, 345 [2003]). The United States, Court of Appeals, Second Circuit, seems to apply different standards when the prosecution knew of the perjury from when they did not ( see United States v. Wallach, 935 F2d 445, 456-457 [1991]) (concluding that a new trial depends on the materiality of the perjury to the jury's verdict and to the extent to which the prosecution was aware of the perjury. If it is established that the government knowingly permitted the introduction of false testimony, reversal is automatic. If however, the government was unaware of the perjury, a new trial is warranted only if the testimony was material and the court firmly believes that but for the perjured testimony, the defendant would not have been convicted).
People v. Brown, 56 NY2d 242, at 246-247 (1982); People v. Robertson, 12 NY2d 355, 359-360 (1963); People v. Lent, 204 AD2d 855 (1994).
Lent, 204 AD2d at 855; Torres v. Mullin, 317 F3d 1145, 1160 (2003).
People v. Watkins, 12 AD3d 165, 166 (2004); People v. Johnson, 6 AD3d 226, 228 (2004); People v. Fisher, 244 AD2d 191, 191 (1997); People v. Demetsenare, 243 AD2d 777, 779 (1997); People v. Kitchen, 162 AD2d 178, 179 (1990); Knighton v. Mullin, 293 F3d 1165, 1174 (2002) United States v. Sherlock, 962 F2d 1349, 1364 (1992).
Monteleone, 257 F3d at 219; United States v. Sherlock, 962 F2d 1349, 1364 (1992); Tapia v. Tansy, 926 F2d 1554, 1563 (1991).
See cases cited in footnotes 4 and 5.
A witness' inaccurate testimony resulting from confusion, mistake or faulty memory is not perjury. Also, a claim that the witness should not have been believed by the jury is insufficient to raise the issue of perjury.
United States v. Monteleone, 257 F3d 210, 219 (2001); see also People v. Stern, 226 AD2d 238, 240 (1996).
Johnson, 6 AD3d at 228.
In this case, the only evidence that the defendant presents of perjury are prior inconsistent statements. However, unsworn prior inconsistent statements do not establish perjury of testimony given under oath.
See cases in footnote 7.
Additionally, the defendant has failed to establish that the unsworn statements are true while the sworn testimony is false.
Therefore, the court denied this claim.
Brady at the Grand Jury
At the time of sentencing, the defendant claimed that the People failed to present exculpatory material to the Grand Jury.
Under the Federal Constitution, the People do not have an obligation to present Brady or exculpatory evidence to the Grand Jury. However, New York has consistently assumed, without discussion, that such an obligation exists. When applying the unique New York rule, the Appellate Courts hold that matters of credibility are collateral in a Grand Jury presentation because, the function of the Grand Jury differs from that of a petit jury function. Thus, evidence that the witness recanted, made prior inconsistent statements or had a motive to lie need not be introduced by the People under the theory that the evidence is exculpatory.
United States v. Williams, 504 US 36 (1992).
see People v. Golon, 174 AD2d 630, 632 (1991). People v. Valles ( 62 NY2d 36 [1984]), generally cited for this proposition, does not stand for this proposition. Valles merely holds that when evidence is submitted to the Grand Jury that could negate a charge, the People have an obligation to instruct on the effect of such evidence. People v. Lancaster ( 69 NY2d 20 [1986]) likewise does not hold that the People have an obligation to present exculpatory to a Grand Jury. The general wording of the case must be understood in context of the case.
People v. Hansen, 290 AD2d 47, 50-51(2002); People v. Dillard, 214 AD2d 1028, 1028 (1995); People v. Darrisaw, 206 AD2d 661, 663 (1994); People v. Ramjit, 203 AD2d 488, 490 (1994); People v. Perry, 187 AD2d 678, 678 (1992).
Dillard, 214 AD2d 1028.
People v. Landtiser, 222 AD2d 525, 527 (1995); People v. Frazier, 200 AD2d 510, 511(1994); People v. Suarez, 122 AD2d 861, 862 (1986); People v. Sepulveda, 122 AD2d 175, 177 (1986).
Hansen, 290 AD2d 4, at 50-51; People v. Tolliver, 217 AD2d 978, 978 (1995); People v. Kabba, 177 AD2d 506, 507(1991).
The only allegation in this case is that the People failed to present inconsistent statements to the Grand Jury. As noted above, the People are not required to present such evidence.
See footnote 14 and footnote 4.
Further, errors at the Grand Jury are not constitutionally cognizable after a jury verdict. This includes claims that the government failed to present exculpatory evidence to the Grand Jury.
United States v. Mechanik, 475 US 66 (1986); People v. Nitzberg, 289 NY 522, 530 (1943).
People v. Manwaring, 3 AD2d 952, 952 (1957).
Therefore, the court denied this branch of the motion.
Preliminary Hearing
The defendant claimed at oral argument that he was not accorded a preliminary hearing prior to indictment. However, this claim lacks merit, because there is no constitutional or statutory right to a preliminary hearing prior to indictment. In New York, the preliminary hearing is discretionary and only affects a defendant's bail status.
Goldsby v. United States, 160 US 70, 73.
People v. Hodge, 53 NY2d 313, 314 (1981); People v. Morano, 111 AD2d 273, 273 (1985); People v. Abbatiello, 30 AD2d 11, 12 (1968).
The court therefore denied this claim.
Adequacy of Counsel
The defendant claimed that defense counsel was ineffective because he failed to call an individual named Mr. Williams as a witness at trial.
Both the United States Constitution and the New York State Constitution grant a defendant in a criminal proceeding the right to the assistance of counsel. This includes the right to "effective" assistance of counsel.
Gideon v. Wainwright, 372 US 335 (1963).
People v. Linares, 2 NY3d 507, 510 (2004).
Strickland v. Washington, 466 US 668 (1984); Linares, 2 NY3d at 510.
Counsel renders effective assistance when "the evidence, the law and the circumstances of a particular case, viewed in totality and as of the time of the representation reveal that the attorney provided meaningful representation." What constitutes effective assistance, moreover, is not susceptible to precise measurement. "To prevail on a claim of ineffective assistance, defendants must demonstrate that they were deprived of a fair trial by less than meaningful representation; a simple disagreement with strategies, tactics or the scope of possible cross-examination, weighed long after the trial, does not suffice." This standard is designed to provide the defendant with a fair trial not a perfect one.
People v. Baldi, 54 NY2d 137, 147 (1981).
id. at 146-147.
People v. Flores, 84 NY2d 184, 187 (1994); People v. Benn, 68 NY2d 941, 942 (1986).
Yarborough v. Gentry, 540 US 1, 8 (2003); Flores, 84 NY2d at 187.
Generally, the failure to call a witness comes under the rubric of trial strategy. As such, the defendant is required to show the lack of a legitimate explanation for counsel's decision not to call a witness.
People v. Smith, 82 NY2d 731, 733 (1993); People v. Peake, 14 AD3d 936, 937 (2005); People v. Botting 8 AD3d 1064, 1066 (2004); Eze v. Senkowski, 321 F3d 110, 129 (2003); Pavel v. Hollis, 261 F3d 210, 217 (2001) United States v. Luciano, 158 F3d 655, 660 (1998).
People Stewart, 248 AD2d 414, 414 (1998).
In order to show that defendant's Federal constitutional right to effective assistance of counsel was violated, the defendant must establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Reasonable probability means a probability that undermines the fact finder's confidence in the outcome of the trial.
Strickland, 466 US at 694, see also Benevento, 91 NY2d at 713.
id.
Under New York law, prejudice is examined in terms of errors that deprive the defendant of a fair trial. Prejudice is a significant factor, but not an "indispensable element in assessing meaningful representation."
Benevento, 91 NY2d at 713.
People v. Stultz, 2 NY3d 277, 284 (2004).
When a claim of ineffective assistance of counsel is based upon defense counsel's alleged failure to call a witness, the moving papers must contain an affidavit from such witness setting forth the substance of the witness' proposed testimony.
People v. Ford, 46 NY2d 1021, 1023 (1979); People v. Session, 34 NY2d 254, 256 (1974); People v. Nichols, 289 AD2d 605, 607 (2001); People v. Skinner, 224 AD2d 916 (1996).
The defendant failed to submit an affidavit from Mr. Williams. The defendant also failed to establish that the failure to call Mr. Williams was not part of a legitimate trial strategy or that he was deprived of a fair trial by the failure to call Mr. Williams.
Therefore, the court denied the motion.
Other Claims
The defendant has made numerous other claims. With regard to claims regarding issues of credibility, such issues were resolved against the defendant by the trier of fact. Claims relating to the defendant's innocence or lack of evidence were resolved by the jury and this court when it denied counsel's motion to dismiss after the close of the case. Similarly, the claim that the court should exercise its discretion and dismiss the indictment in the interest of justice is without merit as there is no compelling reason for such a dismissal.
Therefore, the court denied the motion.
To the extent that the court has not addressed each and every claim that the defendant has made, the court finds them to be without legal merit.
Comment should be made regarding the People's procedural bar allegation. The prosecution correctly states that CPL 330.30 does not authorize the instant motion since most of the claims do not appear on the record and are unpreserved. However, when faced with this type of motion, the court may exercise its powers under Judiciary Law § 2-b (3) and create a proper procedure. This court has done so by entertaining the motion.
People v. Toland, 2 AD3d 1053, 1055-1056 (2003); People v. Thompson, 177 Misc 2d 803, 806-810 (1998); see also People v. Dunn, ___ NY3d ___, 2005 WL 975878, 2005 NY LEXIS 1040 (dcd April 28, 2005).
For all the reasons set forth herein, defendant's motion to set aside the verdict has been denied.
This constitutes the decision and order of the court.