Opinion
Ind. No. 12980/88
07-15-2014
THE PEOPLE OF THE STATE OF NEW YORK v. YAHYA AS-SAKAF
:
Defendant, pro se, moves pursuant to Civil Procedure Law and Rules §2221(d) ("CPLR ") to reargue his motion, dated October 15, 2012, to vacate his judgment of conviction pursuant to Criminal Procedure Law §440.10(1)(h), ("CPL") which was summarily denied by decision, dated July 25, 2013 (Green, J).
Since the filing of defendant's motion, Judge Green has been reassigned to another county. Accordingly, this motion was randomly assigned to this part for decision.
FACTS
The factual and procedural background of the case is set forth in the prior written decisions of the court. Only the portions pertinent for present motion will be set forth herein.
On December 9, 1988, defendant learned that his teen-aged daughter was missing from her apartment in Kings County. (Affirmation in Opposition, ¶ 2). Defendant's daughter lived at the apartment with her husband and infant son. The police investigated and discovered two notes indicating that defendant's daughter planned to kill herself. (Id). The police further learned that defendant's daughter was friendly with Glen Adam who resided in her apartment building. (Id). When questioned the next day, Glen Adam advised the police that he had driven defendant's daughter to the Port Authority Terminal but he did not know where she was going. (Id).
On December 10, 1988, defendant went to Adam's apartment. After a brief conversation with Glen and his brother, John Adam, defendant shot and killed both men. (Id. at 3). Defendant also shot and severely injured Christie Livathinos, John Adam's girlfriend, and pistol-whipped Geraldine Adam, Glen Adam's mother. (Id). Defendant sustained a gunshot wound to his hand. He surrendered to the police shortly after the crime. Defendant told the police that he fired his weapon only after he was jumped by the people in the apartment. (Id).
Defendant was charged, by Kings County Indictment No. 12980/88, with four counts of murder in the second degree, two counts of attempted murder in the second degree, two counts of assault in the first degree, one count of assault in the second degree, one count of criminal possession of a weapon in the second degree, and one count of criminal possession of a weapon in the third degree. (Id. at 6). Defendant was represented at trial by Ronald G. Russo, Esq. Prior to trial, Mr. Russo argued for a plea offer of fifteen years to life based upon "substantial belief that the defendant was acting under extreme emotional disturbance" and evidence that a gun was pulled and drawn on defendant. (Sentencing minutes at 37). Defendant, however, rejected the plea offer and insisted on going to trial. (Id at 26).
Defendant was convicted at trial of two counts of murder in the second degree, two counts of attempted murder in the second degree, one count of criminal possession of a weapon in the second degree and one count of criminal possession of a weapon in the third degree. (Id at 8). On February 22, 1990, defendant was sentenced to consecutive terms of imprisonment of twenty-five years to life on each of the murder counts, and eight and one-third to twenty five years on each of the attempted murder counts. Defendant was also sentenced to terms of imprisonment of five to fifteen years on the count of second-degree criminal possession of a weapon and two and one-third to seven years on the count of third-degree to run concurrently with each other and the other sentences. (Id at 9).
With the assistance of counsel, defendant appealed from his conviction. The Second Department denied his appeal by decision dated September 26, 1994. A motion for reargument and reconsideration of his appeal was denied on December 29, 1994 and leave to appeal to the Court of Appeals was denied on February 9, 1995. (Id. at 13).
Defendant, filed motions pursuant CPL §440.10 to vacate his judgment of conviction in 1997, 1998, 2003 and 2005, raising numerous claims. (Id. at 15). Each of these motions was denied on procedural grounds and on the merits. Among the claims raised by defendant in his prior motions were claims that defense counsel was ineffective in failing to: 1) communicate to the prosecution viable defenses and mitigating factors to secure a plea offer more favorable than the one offered; 2) communicate to defendant the plea that was offered and explain the risk of going to trial; 3) hire a psychiatrist as an expert witness with respect to defendant's extreme emotional disturbance defense; and 4) explain to defendant possible defenses, including the defense of extreme emotional disturbance. (Id. at 20).
In opposition to defendant's claims, the People relied on information provided by defendant's trial counsel, Mr. Russo. (Id. at 17). Mr. Russo provided an affirmation asserting as follows:
• before trial he met with defendant on numerous occasions and communicated with defendant well in English;(Id. at 21-26).
• defendant provided counsel with a detailed account of the crime and the significant events leading up to the crime;
• counsel explained to defendant in great detail the possible defenses available to him, including justification and extreme emotional disturbance, as well as the strengths and weaknesses of those defenses;
• counsel asked whether defendant would agree to be examined by a psychologist or psychiatrist in connection with an extreme emotional disturbance defense and defendant strongly opposed such an examination;
• counsel engaged in plea negotiations with the district attorney's office securing an offer of murder in the second degree with a sentence of 15 years to life; the district attorney's office indicated that they would not accept a guilty plea to anything less then murder in the second degree;
• the plea offer was conveyed to defendant during a face-to-face meeting between counsel and defendant and the consequence of accepting or rejecting the plea were fully explained to defendant; and
• defendant adamantly opposed accepting the plea offer and insisted on going to trial.
By decision and order dated December 23, 1998, the court denied defendant's motion specifically rejecting defendant's claims that counsel was ineffective because he failed to obtain a more favorable plea and failed to have defendant examined by a psychiatrist. (Id. at 29). As to the other factual allegations, the court held that defendant's claims were unsupported by the evidence and directly contradicted the affidavit of defendant's trial counsel, thus there existed no reasonable possibility that the claims were true. (Id at 29).
Defendant raised these same arguments in various forms in his motions filed in 2003 and 2005. By decisions dated December 15, 2003 and August 29, 2005, the court summarily denied defendant's motions pursuant to CPL §440.10 (3)(a) & (c) holding that any new claims could have and should have been raised in prior motions or on appeal and that defendant's claims of ineffective assistance of counsel were previously determined on the merits. (Id. at 39).
By motion dated October 15, 2012, defendant sought again to vacate his judgment of conviction based on claims of ineffective assistance of counsel. (Notice of Motion and Affidavit in Support, dated October 15, 2012. (Id.). Specifically, defendant argued that trial counsel was ineffective because he failed to obtain a more favorable plea than fifteen years to life; failed to offer advice as to whether he should accept the plea; failed to offer advice regarding the strengths and weaknesses of his case; and failed to explain the "comparative sentencing exposure." (Id. at 11-12). Finally, citing to the Supreme Court decisions in Frye and Lafler, defendant argued that the law regarding effective assistance of counsel with respect to plea offers changed since his last CPL §440.10 motion and that Frye and Lafler should apply retroactively. (Id. at 9).
The People opposed the motion arguing that insofar as defendant was repeating claims made in his 1997 and 1998 CPL §440.10 motions those claims should be denied pursuant to CPL 44.10(3)(b) because those claims were previously determined on the merits. (People's Memo of Law, January 31, 2013). Insofar as defendant was raising new claims of ineffective assistance of counsel those claims should also be denied on procedural grounds pursuant to CPL § 440.10(3)(c) because at the time when defendant made his prior motions he was in a position to raise those claims but failed to do so. (Id.). The People further argued the law, with respect to ineffective assistance of counsel, had not changed since defendant's prior CPL §440.10 motion because federal law required effective assistance of counsel when advising defendant about a plea offer prior to the Frye and Lafler decisions. (Id.)
By decision, dated July 25, 2013, the court summarily denied defendant's motion holding that defendant's claims of ineffective assistance of counsel were previously raised by defendant in his prior CPL § 440 motions and properly denied by the court. (Decision dated July 25, 2013). To the extent defendant raised any new claims of ineffective assistance of counsel, such claims were denied on procedural grounds, pursuant to CPL §440.10(3)(c) because defendant could have but failed to raise these claims in each of his four prior motions. (Id).
DISCUSSION
In the instant motion, defendant seeks to reargue his motion pursuant to CPL §440, dated October 15, 2012, to vacate his judgment of conviction. Pursuant to CPLR §2221(d), a motion to reargue is addressed to the sound discretion of the trial court and may be granted upon showing that the court overlooked or misapprehended the facts or law or mistakenly arrived at its earlier decision. ( CPLR 2221 (d) (2); Viola v. City of New York, 13 AD3d 439, 440, 786 N.Y.S.2d 556 [2d Dept. 2004], lv denied 5 NY3d 706, 834N.E.2d 1262, 801 N.Y.S.2d 252 [2005]; see Carrillo v. PM Realty Group, 16 AD3d 611,611, 793 N.Y.S.2d 69 [2d Dept. 2005]; Loris v. S & W Realty Corp., 16 AD3d 729, 730, 790 N.Y.S.2d 579 (3d Dept. 2005)]. CPLR §2221(d) provides that motions to reargue shall not include any matters of fact not offered on the prior motion. Id.
At the outset, defendant argues that he was not provided with assistance of counsel in connection with the CPL §440.10 motion and that the court should have ordered a hearing on the motion. Defendant, however, has no federal or state constitutional right to have counsel appointed to represent him in connection with a motion to vacate the judgment pursuant to CPL §440.10. (See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 95 L. Ed. 2d 539 [1987]; People v. Richardson, 159 Misc.2d 167, 603 N.Y.S.2d 700 [1993 ] (defendant is entitled to counsel at "every stage of the [criminal] action;" a criminal action terminates after sentence; a C.P.L. § 440.10 post-conviction motion to vacate the judgment is not a "stage of the action"; thus, defendant had no right to appointed counsel in connection with § 440.10 motion); People v. Ramsey, 2001 N. Y. Misc. LEXIS 1292, 2001 WL 1875965, at *1, slip op. 50142 (N.Y. Sup. Ct. Feb. 9, 2001).
Moreover, defendant is not guaranteed a hearing on a motion pursuant to CPL §440.10. The court may deny the motion without a hearing if the moving papers fail to allege a ground constituting a legal basis for the motion or fail to allege sufficient facts to support the legal ground asserted. CPL §440.30(4)(a); CPL § 440.30(4)(b); People v. Carceras, 34 N.Y.2d 254,255-256, 313 N.E.2d 728, 357 N.Y.S.2d 409 (1974). Accordingly, to the extent that defendant seeks to reargue his prior motion based on the fact that he was not afforded counsel for the motion and he was not granted a hearing, defendant's motion is denied.
The majority of defendant's claims of ineffective assistance of counsel, (e.g. counsel was ineffective because he failed to obtain a more favorable plea and/or failed to have defendant examined by a psychiatrist), were raised in prior CPL §440.10 motions and are thus procedurally barred pursuant to CPL 440.10(3)(b). (People v. Graves, 2009 NY Slip Op 4083 [2d Dept 2009], lv denied 13 NY 3d 939 (2010) (finding that defendant's claim was either raised, or could have been raised, in the context of a first, unsuccessful motion pursuant to CPL §440.10 thus it was within the court's discretion to deny, without a hearing, defendant's current motion"); (People v. Muhammad, 2009 NY Slip Op 31474U [Sup Ct, Kings County 2009] (holding that defendant's claim was barred under CPL 440.10[2][c], because he failed to raise it on direct appeal, or in any of his previous CPL 440.10 motions, pursuant to CPL 440.10[3][c]).
To the extent that defendant raises for the first time new theories alleging ineffective assistance of counsel, at the outset, any new claims raised by defendant for the first time in the motion to reargue may be denied pursuant to CPL §440.10(3)(c) because defendant could have but, failed to raise these claims in each of his four prior motions and on appeal. Nevertheless, defendant's claims are completely lacking merit. First, defendant claims that his trial counsel should have tried harder to urge defendant to accept the pre-trial plea offer. Defendant essentially admits that he refused counsel's advice concerning the plea but that counsel should have done more to convince him. Based on the affidavit of counsel submitted in opposition to prior motions, counsel was not ineffective in his efforts to obtain a favorable plea for defendant and made efforts to convey and explain the plea to defendant. Ultimately, it is entirely defendant's right to accept or reject a plea. People v. Brundage, 83 A.D.2d 579 [2d Dept 1981]. Second, defendant claims that trial counsel should have exercised his "veto power"when defendant refused to submit to a psychiatric examination in aid of an extreme emotional disturbance defense. (Affidavit in Support, at 5). However, defendant is required to cooperate in his own defense and counsel was not ineffective for failing to hire a psychiatrist when defendant adamantly refused to cooperate with one. Accordingly, defendant's new theories of ineffective assistance of counsel are denied on the merits.
Finally, to the extent that defendant raises new facts, such that he claims that at the time of the crime his daughter was "abducted, tortured, assaulted, raped, and held for ransom" and that defendant "sought her abductors and inflicted the desired punishment" these new facts are not appropriate for consideration by this court on a motion to reargue. CPLR 2221(d)(2). Further, the court fails to see the relevance of these claims to the issues raised by defendant in his motion.
Therefore, defendant's motion pursuant to CPL § 2221 to reargue is denied in its entirety.
This constitutes the Decision and Order of the Court. 7-15-2014
Date
/s/________
J.S.C.