Opinion
No. 3772/10.
10-03-2014
The PEOPLE of the State of New York, v. Hugues AKASSY, Defendant.
Jessica Troy, Assistant District Attorney, Office of the District Attorney, New York, on behalf of the people. Defendant appeared pro se.
Jessica Troy, Assistant District Attorney, Office of the District Attorney, New York, on behalf of the people.
Defendant appeared pro se.
JILL KONVISER, J.
Brief History of the Case
On July 27, 2010, the defendant lured a 43 year old Russian tourist, whom he had just met, to Riverside Park in Manhattan for a sunset picnic. Once there, he took her to a secluded area of the park, threw her to the ground on top of a metal subway grate, and raped her.
Over the course of the rape investigation, the New York Police Department and the New York County District Attorney's office learned that the defendant had victimized a number of other women. The defendant was ultimately indicted for multiple crimes against several women, and in October of 2011, a jury trial commenced in connection with those offenses. On November 7, 2011, the defendant was convicted of Rape in the First Degree, pursuant to Penal Law Section 130.35(1), for the July 27, 2010 Riverside Park rape. Additionally, the defendant was convicted of three counts of Aggravated Harassment in the Second Degree, pursuant to Penal Law Section 240.30(1)(a), and two counts of Stalking in the Third Degree, pursuant to Penal Law Section 120.50(3), for incidents involving three other victims. On November 17, 2011, the defendant was sentenced to a prison term of twenty years, to be followed by five years of post-release supervision.
The defendant was acquitted of additional counts related to two of those victims—two counts of Sexual Abuse in the First Degree and one count of Stalking in the Third Degree. Further, the defendant was acquitted of one count involving a fifth victim—Criminal Sexual Act in the First Degree. Additionally, while the indictment charged the defendant with one additional count of Sexual Abuse in the First Degree, two additional counts of Stalking in the Third Degree, eight counts of Stalking in the Fourth Degree, one count of Petit Larceny, one count of Criminal Possession of Stolen Property in the Fifth Degree, and one count of Criminal Trespass in the Third Degree, the Court, pursuant to C.P.L. § 300.40(6)(b), did not submit those charges to the jury in order to avoid placing an unduly heavy burden on it.
The defendant was also sentenced to one year jail on each of the misdemeanor offenses, to be served concurrently.
Procedural History of the Instant Motion
On July 29, 2013, the defendant filed a pro se motion to vacate the judgment of conviction pursuant to Criminal Procedure Law Section 440.10, based on the alleged ineffective assistance of two attorneys assigned to represent him at different phases of the case. Additionally, the defendant requested that the Court order two court reporters to “release” what he asserted were “altered” trial transcripts, and to “seize” and “place a gag order” on photographs that members of law enforcement allegedly took of his “private parts.” On August 20, 2013, the defendant filed a supplemental document asserting that the Assistant District Attorney who prosecuted the case “railroaded” him, and that this Court, as well as its predecessor, engaged in “cruel and evil transgressions to win a wrongful conviction at all costs.” The defendant subsequently carbon copied the Court on a document entitled, “Wrongful Conviction; Defamation; Forgery and Tampering Evidence by the New York County's County District Attorney Office and The Court–Appointed Counsels to Cover–Up Conspiracy and Misconduct to Wrongly Convict French TV Journalist Hugues–Denver Akassy As Appeal Record Shows.” By document dated December 31, 2013, the defendant argued that as the People had not yet responded to his motion, their response should be deemed “forfeit.” Additionally, the defendant demanded that the Court recuse itself as a result of its lack of objectivity and impartiality, its responsibility for a “gross injustice,” and its leadership over “a rampant culture of improper demeanor, cronysm [sic], backroom deal [sic], abuse of discretion and power, conflict of interest, prejudism [sic], racism, bias, favoritism, corruption and serial misconduct.” Furthermore, the defendant directed the Court to release the minutes of his testimony before the Grand Jury, and the “trial transcript's voice recording.” On January 16, 2014, after having been granted several adjournments in light of the defendant's supplemental filings, the People filed their Response. On January 31, 2014, the defendant filed a motion raising several new C.P.L. § 440.10 arguments not included in his original motion. Specifically, the defendant alleged that the People violated his Constitutional speedy trial rights and withheld Rosario and Brady material at trial. On April 21, 2014, the People filed a Supplemental Affirmation in Response to the defendant's motion. On May 6, 2014, the Court received a Reply from the defendant, arguing that the People “deliberately and maliciously” did not timely file their Response to his Reply, and that they were intentionally delaying “the process.” In order to address several of the defendant's contentions, the Court requested that the People provide the Grand Jury transcript and the search warrants issued in connection with this case to the Court. Submission of those items was completed on August 6, 2014. In light of the defendant's pro se status, the Court is deeming all of the documents filed by the defendant as one motion to vacate the judgment of conviction pursuant to C.P.L. § 440 .10. For the reasons that follow, the motion is denied in its entirety without a hearing.
The C.P.L. § 440.10 Motion to Vacate the Judgment of Conviction
The defendant raises three claims that are cognizable pursuant to C.P.L. § 440.10. First, he alleges that the representation provided to him by two court-appointed attorneys was ineffective. Additionally, he contends that the judgment of conviction must be vacated as his Constitutional speedy trial rights were violated. Finally, he asserts that the People's failure to provide him with a transcript of his Grand Jury testimony violated the tenets of both People v. Rosario, 9 N.Y.2d 286 (1961) and Brady v. Maryland, 373 U.S. 83 (1963). The defendant's claims are without merit. Accordingly, and for the reasons that follow, the defendant's motion to vacate the judgment of conviction is denied in its entirety without a hearing. See People v. Santiago, 72 AD3d 492 (1st Dept.2010).
Ineffective Assistance of Counsel Claim
The defendant first moves this Court to vacate the judgment of conviction pursuant to C.P.L. § 440.10 based on what he alleges was the ineffective assistance of two court-appointed attorneys. The defendant's allegations are without merit.
To begin, the defendant fails to provide any “sworn allegations substantiating or tending to substantiate all the essential facts.” CPL § 440.30(4)(b). Rather, the defendant relies on completely unsupported factual allegations. Indeed, the defendant provides no affidavits from either court-appointed attorney, or any other potential witnesses in support of his motion. See People v. Ozuna, 27 AD3d 339 (1st Dept.2006) ; People v. Rosario, 309 A.D.2d 537 (1st Dept.2003) ; People v. De Jesus, 39 AD3d 1196 (4th Dept.2007). And, conclusory, unsupported allegations are insufficient to obtain a hearing on the motion. See CPL § 440.30(4)(d).; People v. Vallee, 97 AD3d 972 (3d Dept.2012) ; People v. Waymon, 65 AD3d 708 (2d Dept.2009) ; People v. Broxton, 34 AD3d 491 (2d Dept.2006) ; People v. Miller, 8 AD3d 176 (1st Dept.2004). Moreover, the defendant has failed to show that the errors he complains of were not the “result of a reasoned, professional judgment.” People v. Newton, 192 A.D.2d 447 (1st Dept.1993) ; see People v. Oruche, 181 A.D.2d 448 (1st Dept.1992).
In any event, the right to effective assistance of counsel is guaranteed by both the Federal and State Constitutions. See U.S. Const., Amend. VI ; N.Y.S. Const., Art. I, § 6. To prevail on a claim of ineffective assistance of counsel, however, a defendant must overcome the strong presumption that counsel rendered effective assistance, and a defendant “bears the well-settled, high burden of demonstrating that he was deprived of a fair trial by less than meaningful representation.” People v. Hobot, 84 N.Y.2d 1021, 1022 (1995). The concept of meaningful representation “cannot be fixed with yardstick precision, but varies according to the unique circumstances of each representation.” People v. Baldi, 54 N.Y.2d 137, 146 (1981) ; see People v. Rivera, 71 N.Y.2d 705 (1988). Thus, a court must analyze “the evidence, the law, and the circumstances of a particular case” in its “totality and as of the time of the representation.” People v. Henry, 95 N.Y.2d 563, 565 (2000). To determine whether meaningful representation was provided, a court must focus on the “fairness of the process as a whole” and refrain from “confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis.” People v. Benevento, 91 N.Y.2d 708, 712, 714 (1998). An analysis of the totality of the circumstances in the instant case, as discussed below, makes plain that the defendant was provided with meaningful representation.
Defendant's First Court–Appointed Attorney
The defendant alleges that he was provided with ineffective assistance of counsel by the attorney initially appointed to represent him. That attorney represented the defendant from the Criminal Court arraignment through the Supreme Court arraignment, at which time counsel was relieved by a prior judge, at the defendant's request. Specifically, the defendant contends that that counsel violated attorney-client privilege by providing information to the police that led to the issuance of two search warrants, and failed to provide him with adequate information with respect to the charges being presented to the Grand Jury. The defendant's allegations are without merit.
First, the defendant argues that two search warrants issued in connection with this case—to seize property located at an Equinox Sports Club and an NYC Mini Storage Facility—were based on information provided by his attorney in violation of the attorney—client privilege, thus, rendering the attorney's assistance ineffective. As a preliminary matter, the defendant fails to specify the information that he claims was violative of the privilege. In any event, this Court ordered the People to provide the search warrants and has reviewed those warrants and the accompanying affidavits. Neither warrant contains any information provided by the defendant's attorney—the warrants contain information provided by other sources. Quite simply, then, there is no evidence to suggest that the defendant's attorney violated the attorney-client privilege in this regard. See People v. Martinez, 88 AD3d 513 (1st Dept.2011).
Both warrants were signed by another Court.
The defendant further contends that counsel failed to inform him of the charges under consideration by the Grand Jury, thus, rendering counsel's assistance ineffective. Specifically, the defendant alleges that he was informed by his attorney that only charges relating to the victim named in the felony complaint regarding the rape were to be presented to the Grand Jury. The defendant fails, however, to provide any evidence to support his claim. In any event, the People are under no statutory obligation to inform a defendant and his attorney that the scope of the Grand Jury proceeding has been extended beyond the offenses charged in the felony complaint. See People v. Hernandez, 223 A.D.2d 351 (1st Dept.1996) ; People v. Feliciano, 207 A.D.2d 803 (2d Dept.1994) ; People v. Choi, 210 A.D.2d 495 (2d Dept.1994). This Court can only conclude, therefore, that the defendant received meaningful representation in connection with the Grand Jury proceedings.
Trial Counsel—Defendant's Second Court–Appointed Attorney
The defendant also alleges that he was provided with ineffective assistance by his court-appointed trial counsel. In support of his contention, the defendant alleges a score of perceived errors that may be distilled into a few different themes. First, the defendant alleges that counsel “colluded” with the District Attorney's office and the Court to conceal unlawful acts against him and to hide evidence, and was part of a conspiracy to alter and/or conceal the trial transcripts. Next, the defendant contends that counsel failed to intervene when he was arrested on “trumped-up charges,” and when the People committed prosecutorial misconduct by levying “false” charges against him and withholding evidence. The defendant also takes issue with counsel's competence as an attorney, lack of preparation, and inadequate advocacy, arguing that counsel failed to investigate the charges fully, locate “key witnesses,” and hire an “independent pathologist.” Additionally, the defendant contends that counsel failed to make certain pre-trial motions, including to dismiss the indictment due to irregularities in the Grand Jury. The defendant also takes issue with counsel's performance at trial, alleging that counsel behaved “pompously” during voir dire in an effort to “alienate” the jurors, and failed to utilize evidence to impeach the People's witnesses, failed to cross examine the People's witnesses regarding “false” charges against him, neglected to impeach the People's witnesses with “lies” levied against him, and failed to introduce evidence, including emails from various women who “praised being in good company with” him. Additionally, the defendant contends that counsel failed to object to prejudicial evidence, and failed to subpoena and call witnesses at trial, including an unidentified taxi driver. Finally, the defendant alleges that counsel's ineffective representation continued at the time of sentence and faults counsel for failing to object when the People contended that he had assaulted a correction officer, not informing the Court that he had been “brutalized” by court officers and assaulted by correction officers, and for attempting to deny him an opportunity to be heard before the Court imposed sentence. Many of the defendant's claims are inaccurate and belied by the record, see People v. Richards, 78 AD3d 1221 (3d Dept.2010), and none support his theory that he was provided with ineffective assistance of counsel. Rather, the defendant's complaints reflect an attempt on his part to second-guess trial strategy. See People v. De Marco, 33 AD3d 1045 (3d Dept.2006). And, of course, a defendant's disagreement with counsel over trial strategy does not establish ineffective assistance. See People v. Benevento, 91 N.Y.2d 708 (1998) ; People v. Mackey, 5 AD3d 136 (1st Dept.2004). Indeed, the entirety of the record before this Court makes plain that the defendant received meaningful representation.
Although trial counsel was appointed well after the defendant's arrest, the defendant appears to fault counsel for failing to take action in connection with that arrest.
To begin, counsel made all relevant and appropriate pre-trial motions on behalf of the defendant. See People v. Ramirez, 22 AD3d 334 (1st Dept.2005) ; People v. Relford, 186 A.D.2d 91 (1st Dept.1992). Indeed, counsel filed a pre-trial omnibus motion requesting inspection of the Grand Jury minutes and seeking dismissal of the indictment based on legal and factual sufficiency grounds and alleged improprieties in the proceedings. Counsel also moved to suppress the defendant's statements to members of law enforcement and any physical evidence recovered from him. Additionally, counsel moved to controvert the search warrants and to suppress any property obtained pursuant to those warrants, and requested a Darden hearing. Based on counsel's motions, a prior judge ordered Huntley, Mapp, and Dunaway hearings.
A prior judge determined that a Darden hearing was not necessary as none of the warrants contained information obtained from a confidential source.
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Further, counsel took steps to investigate the charges and prepare the case for trial. See People v. Clarke, 110 AD3d 1341 (3d Dept.2013). Indeed, shortly before the commencement of the pre-trial hearings, the People informed counsel that they intended to introduce numerous emails recovered from the defendant's computer into evidence at trial. Counsel immediately sought authorization from the Court for appointment of a computer expert to assist in analyzing the emails in advance of trial, and his application was granted.
Counsel's meaningful representation continued at the pre-trial suppression hearings. As the hearings commenced, the People informed the Court that a Huntley hearing was unnecessary as they did not intend to use the defendant's statement as part of their case-in-chief. Accordingly, the Court revised the parameters of the hearing and, at the defendant's request, granted a voluntariness hearing instead. At the hearing, counsel examined the evidence introduced by the People, made appropriate objections, and vigorously cross-examined the People's witnesses. After consultation with the defendant, counsel informed the Court that the defendant wished to testify. Then, counsel skillfully directed the defendant's testimony, asking relevant, straightforward questions. Following the testimony, rather than making legal arguments that same day, counsel requested, and was granted, an adjournment to the next day to formulate his arguments. The following day, counsel presented an obviously well-prepared, coherent legal argument. Despite counsel's efforts, the Court rendered a decision denying the defendant's motion to suppress and finding the defendant's statement voluntary. Nevertheless, the transcript makes plain that counsel vigorously represented the defendant throughout the pre-trial hearings, and the Court's decision to deny suppression of the evidence did not render counsel ineffective. See People v. Santos–Rivera, 86 AD3d 790 (3d Dept.2011) ; People v. Polanco, 13 AD3d 100 (1st Dept.2004).
Additionally, counsel provided meaningful representation relative to pre-trial motions and proceedings. See People v. Thompson, 106 AD3d 527 (1st Dept.2013) ; People v. Joslyn, 103 AD3d 1254 (4th Dept.2013) ; People v. McGee, 20 NY3d 513 (2013). For example, shortly before trial, the People submitted a written motion seeking to introduce testimony with respect to five separate excited utterances. Counsel opposed the People's motion in writing, citing relevant case law and making cohesive factual arguments. Counsel then requested, and was granted, an opportunity to present oral argument to the Court. During oral argument, counsel provided the Court with additional case law to support his position. As a result of counsel's persuasive legal arguments, the Court not only limited the scope of two of the excited utterances, but precluded the People from introducing evidence of three alleged excited utterances in their entirety.
Also shortly before the trial was to commence, the People made a Sandoval motion, seeking permission to cross examine the defendant regarding alleged prior bad acts should he choose to testify at trial. Defense counsel opposed the People's motion and in a lengthy, coherent, well-prepared oral argument, urged the Court to deny the People's application. Counsel cited relevant case law and argued that the probative value of the alleged prior bad acts was outweighed by the potential for significant prejudice to the defendant. The Court, agreeing with counsel's arguments, denied the People's application in its entirety.
Then, in light of the voluminous Rosario materials that the People provided to the defendant shortly before the commencement of trial, defense counsel sought and was granted an adjournment of several days to review those materials. Counsel's application to the Court makes plain that although fully familiar with the case against the defendant, his efforts to represent his client vigorously remained ongoing.
The meaningful representation that counsel provided continued at trial. Indeed, counsel conducted a coherent, thoughtful voir dire of the potential jurors, asking insightful questions, discussing how to assess the credibility of witnesses, and ensuring the potential jurors understood the People's burden—proof beyond a reasonable doubt. Then, during the People's opening statement, counsel objected appropriately, including voicing an objection to the People's reference to evidence that had yet to be introduced. Counsel then provided a concise opening statement in which he encouraged the jurors to pay attention to the details and told them that in doing so, they would find reasonable doubt. Counsel's opening demonstrated a reasonable and well thought out defense. See People v. Benitez, 290 A.D.2d 363 (1st Dept.2002) ; People v.. Edwards, 265 A.D.2d 220 (1st Dept.1999). Additionally, counsel raised appropriate objections during the People's direct case and thoroughly cross-examined the People's witnesses. See People v. Ryan, 90 N.Y.2d 822 (1997) ; People v. D'Alessandro, 230 A.D.2d 656 (1st Dept.1996) ; People v. Harris, 198 A.D.2d 117 (1st Dept.1993) ; People v. Bell, 160 A.D.2d 477 (1st Dept.1990). Moreover, counsel thoroughly highlighted inconsistencies in the testimony of the People's witnesses, see People v. Jiminez, 239 A.D.2d 360 (2d Dept.1997), and vigorously sought to undermine the credibility of those witnesses, see People v. Morsby, 5 Misc.3d 64 (N.Y. Sup.App. Term 2004). Further, after consultation with the defendant, counsel called him as a witness. Despite the defendant being accused of multiple crimes against several different women, counsel skillfully directed the defendant's testimony, focusing on the most salient and substantive facts. Additionally, throughout the trial, counsel made appropriate and timely motions, moved for a trial order of dismissal at the close of the People's case, and again after the defendant's case, and actively participated in the charge conference. See People v. Franklin, 205 A.D.2d 470 (1st Dept.1994) ; People v. Delvalle, 184 A.D.2d 434 (1st Dept.1992). Finally, counsel presented a strategically sound summation, arguing that the People had failed to prove the case beyond a reasonable doubt, pointing out the inconsistencies in the testimony of the People's witnesses, and urging the jury to conclude that the People's witnesses lacked credibility. Despite counsel's best efforts, the defendant was convicted of a number of the charges against him. Of course, a defense that ultimately proves unsuccessful must not automatically be equated with ineffective assistance. See People v. Espinal, 220 A.D.2d 279 (1st Dept.1995). That notwithstanding, counsel secured an acquittal as to four separate charges, including a class B violent felony offense, which suggests that his representation of the defendant was entirely meaningful. See People v. Corie, 222 A.D.2d 602 (2d Dept.1995) ; People v. Holmes, 47 AD3d 946 (2d Dept.2008) ; People v. Jiminez, 239 A.D.2d 360 (2d Dept.1997).
Counsel's meaningful representation did not end with the completion of the trial. Indeed, counsel zealously represented the defendant at sentence. See People v. Corie, 222 A.D.2d 602 (2d Dept.1995). First, counsel discussed the pre-sentence report with the defendant and, having done so, informed the Court that the defendant was prepared to proceed with sentencing. Then, following the People's argument and recommendation of 25 years in state prison for the felony conviction and one year jail on each of the misdemeanor convictions, counsel urged the Court to impose a far more lenient sentence, arguing that the defendant's character and history and lack of a criminal record warranted the minimum. Further, counsel urged the Court not to consider several arguments raised by the People in their recommendation, citing relevant case law. The defendant was then given the opportunity to speak, and did so. When the defendant began to speak about facts related to an open criminal case against him, the Court assured him that it was not considering that case, and urged him to speak to his attorney before disclosing potentially incriminating information on the record, and the defendant did so.
Based on the foregoing, this Court can only conclude that the defendant received meaningful representation from his court-appointed trial counsel. In light, therefore, of the meaningful representation provided to the defendant, the instant motion to vacate the judgment of conviction based on ineffective assistance of counsel is denied without a hearing. See People v. Satterfield, 66 N.Y.2d 796 (1985).
Constitutional Speedy Trial Claim
The defendant also moves this Court to vacate the judgment of conviction, as, he alleges, the People violated his Constitutional speedy trial rights. The defendant's motion is procedurally barred and must, therefore, be denied. In any event, the defendant's claim is without merit.
Pursuant to C.P.L. § 440.10(2)(b), a court must deny a motion to vacate a judgment of conviction when “[t]he judgment is, at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof based upon such an appeal.” In the instant matter, the defendant's claim of a violation of his Constitutional speedy trial rights may be determined on the record in this case. Moreover, the defendant timely filed a notice of appeal, and was subsequently granted leave to appeal as a poor person by the Appellate Division, First Department. Accordingly, the defendant's motion is procedurally barred.
In any event, the defendant's claim is without merit. In determining whether a defendant's Constitutional speedy trial rights have been violated, a court must consider: “(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay.” People v. Taranovich, 37 N.Y.2d 442, 445 (1975). Mere delays in bringing a case to trial are insufficient to support a motion to dismiss based on Constitutional speedy trial grounds. See People v. Marrero, 259 A.D.2d 836 (3d Dept.1999). Moreover, there is no per se period of delay that has been found unconstitutional, and delays of up to 40 months have been held to be constitutional, based on the specific circumstances of the case. See People v. Brown, 90 AD3d 556 (1st Dept.2011).
In the instant matter, the defendant was arrested on July 27, 2010, and charged with Rape in the First Degree and related crimes. The defendant was arraigned, bail was set, and the case was adjourned for Grand Jury action. The defendant subsequently waived C .P.L. §§ 180.80 and 30.30 time, presumably to obtain a favorable disposition of the charges. This delay is solely attributable to him. See People v. Waldron, 6 NY3d 463 (2006). Then, on August 10, 2010, when no disposition had been reached, the defendant was indicted for twenty-four offenses, committed against five different victims, including the original rape charge. The case was transferred to Supreme Court, where the defendant was arraigned on September 15, 2010. Following the defendant's Supreme Court arraignment, the case was adjourned several times, at the defendant's request, for motion practice. First, the defendant filed an Omnibus motion, decided by a prior judge on December 6, 2010. The defendant subsequently filed a motion to controvert the search warrant, that was denied by that same judge on March 9, 2011. This delay, occasioned by the defendant in an effort to defend himself against the charges, is solely attributable to him. See People v. Parris, 106 AD3d 555 (1st Dept.2013) ; People v. Mercer, 105 AD3d 1091 (3d Dept.2013).
As the defendant successfully argued he was entitled to suppression hearings, the case was scheduled for hearings and trial. The hearings began on October 12, 2011, with the trial commencing just days later on October 17, 2011. While the People were not ready for hearing and trial on several occasions between March and October of 2011, neither was defense counsel—who submitted an affirmation that he was unavailable as he had recently undergone surgery. See People v. Johnson, 261 A.D.2d 486 (2d Dept.1999). Moreover, the People's lack of readiness during this time was attributable to the unavailability of an essential witness who resided in Russia, and the People's efforts to contact her and procure her attendance at trial. See People v. Johnson, 100 AD3d 492 (1st Dept.2012) ; People v. Brown, 90 AD3d 556 (1st Dept.2011). And, the defendant has simply failed to demonstrate that his defense was impaired as a result of any delay. See People v. Arroyo, 93 AD3d 608 (1st Dept.2012) ; People v. King, 62 AD3d 1162 (3d Dept.2009) ; People v. Castillo, 265 A.D.2d 188 (1st Dept.1999) ; People v. Gonzalez, 177 A.D.2d 418 (1st Dept.1991). Accordingly, the defendant's motion to vacate the judgment of conviction based on Constitutional speedy trial grounds is denied.
Alleged Rosario and Brady Violations
The defendant further moves this Court to vacate the judgment of conviction, claiming that the People's failure to provide him with the transcript of his Grand Jury testimony violated the tenets of both People v. Rosario, 9 N.Y.2d 286 (1961) and Brady v. Maryland, 373 U.S. 83 (1963). The defendant's motion is procedurally barred and must, therefore, be denied. In any event, the defendant's claim is without merit.
Pursuant to C.P.L. § 440.10(2)(b), a court must deny a motion to vacate a judgment of conviction when “[t]he judgment is, at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof based upon such an appeal.” In the instant matter, the defendant's claims of Rosario and Brady violations are easily discernable based on the trial record. Moreover, the defendant timely filed a notice of appeal, and was subsequently granted leave to appeal as a poor person by the Appellate Division, First Department. Accordingly, the defendant's motion is procedurally barred.
In any event, the defendant's claim is without merit. To begin, in an affirmation dated April 21, 2014, the People aver that at the defendant's arraignment in Supreme Court on September 15, 2010, they provided a copy of the defendant's Grand Jury testimony to his attorney. Nevertheless, the defendant's Grand Jury testimony does not constitute Rosario material. Indeed, as a general rule, Rosario material refers to a prior statement of a witness whom the People intend to call at trial. In the instant matter, the People certainly could not call the defendant as a witness at his own trial. His Grand Jury testimony, therefore, simply did not constitute Rosario material. See People v. Restivo, 209 A.D.2d 448 (2d Dept.1994) ; People v. Gardner, 162 A.D.2d 466 (2d Dept.1990).
Nor did the defendant's Grand Jury testimony constitute Brady material. Indeed, “there can be no withholding or suppression of exculpatory evidence where ... the defendant knows the witness[ ] and is aware of [the witness's] testimony.” People v. Cramer, 166 A.D.2d 316 (1st Dept.1990) (internal citations omitted); see People v. Barbera, 220 A.D.2d 601 (2d Dept.1995). Here, the defendant himself was the witness, and, therefore, he was fully acquainted with his own testimony. His Grand Jury testimony, therefore, simply did not constitute Brady material. Accordingly, the defendant's motion to vacate the judgment of conviction based on alleged Rosario and Brady violation grounds is denied.
The Defendant's Other Claims
Criminal Procedure Law Section 440.10(1) sets forth a number of grounds upon which a court may vacate a judgment of conviction. While the defendant's motion purports to be a motion to vacate the judgment of conviction pursuant to C.P.L. § 440.10, the defendant also appears to raise numerous additional claims not enumerated by the statute. A C.P.L. § 440.10 motion is not, therefore, the appropriate vehicle for such claims. Nevertheless, due to the defendant's pro se status, the Court has endeavored to address each of the defendant's claims and finds them to be without merit.
Recusal Motion
The defendant moves this Court to recuse itself, presumably from deciding the instant C.P.L. § 440.10 motion. In support of his motion, the defendant claims that the Court played a role in causing him to be “wrongly convicted in the flagrant violation” of his Constitutional rights, resulting in “a gross injustice.” Moreover, the defendant contends that the Court “maliciously colluded” with a prior judge, the District Attorney's office, and defense counsel, to secure his conviction “at all cost and save face in the public opinion for having lynch law [sic] a defenseless poor black foreign African–French journalist.” The defendant's motion for recusal is denied.
The Judiciary Law dictates recusal under certain circumstances specifically enumerated in the statute. See Judiciary Law § 14. In the absence of a legal disqualification pursuant to the Judiciary Law, however, the court before which the matter is pending “is the sole arbiter of recusal.” People v. Moreno, 70 N.Y.2d 403, 405 (1987). Indeed, the discretionary decision to grant recusal “is within the personal conscience of the court,”id., and only warranted “where there exists a direct, personal, substantial or pecuniary interest in reaching a particular conclusion or where a clash in judicial roles is to be seen.” Levi v. Levi, 46 AD3d 520, 521 (2d Dept.2007) (internal citations omitted).
In the instant matter, the defendant cites no legal basis pursuant to the Judiciary Law requiring the Court's recusal. Rather, he alleges what he perceives to be a generalized injustice. Moreover, he fails to provide any concrete examples of alleged improprieties committed by the Court. Thus, in the absence of any proof of actual bias or prejudice, the Court is not required to recuse itself. See Impastato v. Impastato, 62 AD3d 752 (2d Dept.2009). In any event, this Court, having examined its own thoughts and feelings, is confident that it harbors no bias, prejudice, or animosity towards the defendant, requiring recusal. See People v. Argentieri, 66 AD3d 558 (1st Dept.2009). Accordingly, the defendant's motion for recusal is denied.
Motion for Gag Order and Seizure of Photographs
The defendant alleges that members of law enforcement took photographs of his “private parts,” and urges this Court to order that those photographs be seized and that a “gag order” be placed on those members of law enforcement. The defendant, however, provides no proof that such photographs exist, no concrete evidence that those photographs are in the possession of law enforcement, and no legal basis for the Court to grant such a motion. Moreover, the Court finds no legal authority granting it the ability to seize evidence and/or direct how evidence be handled, particularly in the context of a motion to vacate a judgment of conviction pursuant to C .P.L. § 440.10. Accordingly, the defendant's motion must be denied.
Motion for Release of the Trial Transcript
The defendant, claiming that the stenographic minutes of his trial proceeding were “altered” and “conceiled [sic]” “in a conspiracy” among court reporters, trial counsel, the District Attorney's office, and the Office of the Appellate Defender, moves this Court to recover minutes that he alleges are missing, and to release the “altered” minutes. As a preliminary matter, the defendant fails to provide any evidence supporting his contention that portions of the minutes are missing, or that the minutes have been altered.
In any event, by decision dated February 22, 2012, the Appellate Division, First Department, granted the defendant leave to appeal as a poor person, and directed that the stenographic minutes of the defendant's trial be filed with the criminal court and provided to appellate counsel. To the extent that the defendant is requesting that this Court furnish a copy of the trial transcript directly to him, this Court lacks the statutory authority to grant such a request. Only a court in which an action is triable or to which an appeal has been taken has the statutory authority to provide a defendant with a trial transcript. See C.P.L.R. § 1101(a). Additionally, an appellate court is the only court with statutory authority to provide a free trial transcript in a criminal proceeding to an indigent defendant. See C.P.L.R. § 460.70(1). Moreover, neither the State nor Federal Constitutions mandate that a defendant pursuing a post-conviction motion receive a free copy of the trial transcript. See Pennsylvania v. Finley, 481 U.S. 551 (1987) ; People v. Bogle, 17 Misc.3d 1134(A) (N.Y. Sup.2007) ; People v. Duran, 2009 WL 2129435 (N.Y. Sup.2009) ; People v. Gonzalez, 7 Misc.3d 1026(A) (N.Y. Sup.2005). Accordingly, the defendant's motion must be denied.
Motion for Release of the Defendant's Grand Jury Testimony
The defendant, claiming that his grand jury testimony was “maliciously withheld” from him by the People and defense counsel, moves this Court to “release” that testimony. In an affirmation dated April 21, 2014, the People aver that at the defendant's arraignment in Supreme Court on September 15, 2010, they provided a copy of the defendant's grand jury testimony to his attorney. The defendant provides no evidence to support his claim that either of his court-appointed attorneys subsequently withheld that testimony from him. Moreover, the Court has no legal authority to order the People to provide an additional copy directly to the defendant. Accordingly, the defendant's motion must be denied.
Motion for Release of the “Trial Transcript's Voice Recording”
The defendant, again claiming that the trial transcript was altered by “corrupt” court reporters “in complicity with” trial counsel, the District Attorney's office, and the Office of the Appellate Defender, moves this court to release the “trial transcript's voice recording.” Presumably, the defendant believes that in addition to the stenographic minutes, the trial was electronically recorded in some manner. This Court notes, however, that the trial was not electronically recorded, and, therefore, no audio or “voice” recording exists. Accordingly, the defendant's motion must be denied.
Conclusion
The defendant's motion to vacate the judgment of conviction is denied. This constitutes the Decision and Order of the Court. The Clerk of the Court is directed to mail copies of this Decision and Order to the defendant and to the New York County District Attorney.