Opinion
2046/2008.
June 17, 2011.
The defendant was represented by Tamara Harris, Esq.The People were represented by Queens County District Attorney Ushir Pandit.
The defendant was indicted in August, 2008, for Sexual Abuse in the First Degree [PL 130.65-1] and related offenses. The People alleged that the defendant demanded sex from his wife, the complainant Blanca Mizhquiri, and when she refused, he punched her, slapped her, bit her, pulled her hair, threatened her, and subjected her to sexual contact against her will. After a bench trial conducted before this Court, the defendant was convicted of count 3 of the indictment, Forcible Touching [PL 130.52], count 4 of the indictment, Assault in the Third Degree [PL 120.00-1], and counts 5, 6, 7, 8, and 9 of the indictment, Endangering the Welfare of a Child [PL 260.10-1]. The People proved that the defendant committed the instant criminal acts against the complainant in the presence of minors, his children.
The defendant was acquitted of counts 1 and 2 of the indictment, charging Sexual Abuse in the First Degree [PL 130.65-1], both felonies.
Before he was sentenced on this matter, the defendant filed a motion to set aside the verdict, pursuant to CPL 330.30. Said motion was denied by this Court in an order dated July 20, 2009. On July 27, 2009, the defendant was sentenced to 90 days incarceration on the Forcible Touching conviction, and concurrent terms of 1 year incarceration on the Assault in the Third Degree conviction and each of the Endangering the Welfare of a Child convictions. The defendant thereafter appealed his conviction and sentence to the New York State Supreme Court, Appellate Division, Second Department, where the judgment against him was affirmed. See, People v. Bermejo , 77 AD3d 965 [2nd Dept 2010].
That CPL 330.30 motion was filed by counsel Tamara Harris, Esq., who came into the case after verdict and before sentencing, replacing trial counsel, Joseph Ramirez, Esq., who was thus relieved. Ms. Harris remains as counsel today.
The defendant now moves to vacate his conviction, pursuant to CPL Article 440, and requests that a new trial be ordered. He has submitted a motion dated January 18, 2010, a reply affidavit dated June 20, 2010, and a supplemental affidavit dated December 2, 2010. The defense argues that his conviction was obtained in violation of Brady v. Maryland, 373 US 83, that criminal conduct allegedly committed by his trial counsel caused him prejudice, and that he was denied a fair trial in that the prosecution introduced evidence in violation of People v. Molineaux, 168 NY 264.
The Notice of Motion is dated January 19, 2009.
The Court notes that the defendant filed a previous supplemental affidavit, dated December 2, 2010, that was not "complete" ( see, the minutes of December 2, 2010 calendar call). The Court has not considered this paperwork in its analysis and decision. The Court would also note the latitude extended to the defense over the People's objections in accepting from the defense four submissions, three to be considered, in support of one single CPL Article 440 motion.
The People have submitted affirmations and memoranda-of-law dated March 16, 2010, October 13, 2010, and February 17, 2011, opposing such relief. The People submit that the defense claims should be denied on both procedural grounds and on the merits. Oral argument was conducted by this Court on March 21, 2011 and March 29, 2011.
BRADY
The defendant's first argument in support of his motion to vacate his judgment is that his conviction is based upon the prosecution's concealment of exculpatory evidence and impeaching information under Brady v. Maryland, 373 US 83. The defense submits that the complainant in the instant case, Blanca Mizhquiri, has a history of making false allegations of sex crimes against others. The defense alleges that the complainant made unfounded complaints against Maria Lema, the defendant's niece, against Peter Boda, Ms. Mizhquiri's daughter's piano teacher, and against two men in Equador. The defendant argues that this alleged pattern of sexual complaints by the complainant constitutes Brady material ( see, People v. Hunter , 11 NY3d 1 ; People v. Mandel, 48 NY2d 952; and People v. Bryce, 88 NY2d 124), and that the People's alleged failure to disclose and provide it to the defense, denied the defendant the ability to meaningfully cross-examine the complainant.
In order for a defendant to prevail on a claim that the prosecution failed to turn over Brady material, the defense must show that the material in question was "exculpatory and within the possession, custody, or control of the People" ( see, People v. Carnett , 19 AD3d 703 [2nd Dept 2005]). See also, People v. Rushin, 172 AD2d 571 [2nd Dept 1991], appeal denied, 78 NY2d 926); People v. Santorelli, 95 NY2d 412. Furthermore, Brady does not "require prosecutors to supply a defendant with evidence when the defendant knew of, or reasonably should have known of, the evidence and its exculpatory nature" ( see, People v. Doshi, 93 NY2d 499, 506).
Before the Court could evaluate the issue of whether or not the People failed to turn over to the defense Brady material, it must first determine if the defendant substantiated all of the facts alleged in support of his motion, if he met his burden of presenting a "clear factual record" ( see, People v. Licitra, 236 AD2d 559 [2nd Dept 1997]), regarding his allegations.
CPL 440.30[b] states that a court may deny a motion to vacate judgment when the "motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts". This Court finds that the defendant has utterly failed to demonstrate that the complainant in this case has a history of making false sexual allegations against others. The defendant's claims are unsupported, conclusory, and in fact contrary to the evidence that was set forth by the parties in this case.
The first prong of the defendant's argument concerns the allegation that the complainant in this case lodged a formal complaint with the New York City Police Department, which was deemed unfounded, against Maria Lema, the defendant's niece, for molesting the complainant's children, as well as molesting Lema's own child. In support of this allegation, the defendant submits an affidavit, dated January 19, 2010, from Maria Lema, wherein Ms. Lema states, concerning this issue, that the complainant accused her of molesting the complainant's two children, as well as her own son, that the accusations were false and humiliating, that she was questioned by an NYPD detective regarding these allegations, and that the detective declined to arrest her. This is the quantum of facts alleged in support of this claim. However, the Court finds that there is no substance here to support it, as these factual allegations are sparse, and are completely devoid of any particularity whatsoever.
For example, the affidavit of Ms. Lema fails to describe any specifics which would support the defense position. Ms. Lema does not state the dates she was allegedly accused, questioned, or spoke to the police, where she was questioned, who may have been with her at the time, or whether she retained an attorney. Nor does she state the name of the detective who questioned her, or produce an affidavit from said detective, or even a copy of a UF61 reflecting the supposed interview. In short, Ms. Lema's affidavit provides no information which would tend to give credence to the defense claim that the complainant falsely accused her of a crime, and which would encourage any court to accept it as true.
Ms. Lema also states that she adopts the facts as recited in defense counsel's affirmation. The Court notes that defense counsel's affirmation is dated January 18, 2010, and the facts recited therein are similar to those in Ms. Lema's. The only additional facts concern the unsupported and unsubstantiated claim, made by defense counsel herself, that the accusations against Ms. Lema were made in response to Ms. Lema's name appearing on a witness list in a Family Court matter, where Ms. Lema was supposedly going to testify against the complainant in a custody case. However, defense counsel's affirmation regarding this issue also contains no details to support it. There is no information concerning the date that Ms. Lema was to testify, what specific court she was to testify in, the nature of her testimony, what attorneys were involved, whether she ever did in fact testify, or any other information which tends to support the allegation that the court proceeding ever took place.
On the other hand, the People, in asserting their position that the complainant never accused Ms. Lema of anything, have provided an affidavit, dated March 10, 2010, in which the complainant affirms that she never filed any complaint against Ms. Lema for child sexual abuse, and in fact, occasionally had Ms. Lema babysit her children. Nor is it the case that the two affidavits, one by the complainant and one by Ms. Lema, cancel each other out, as being one woman's word against another. It must be remembered that it is the defendant's burden to provide sworn facts that substantiate his allegations. He has plainly not done that.
Furthermore, the defense argues in its reply affidavit, dated June 20, 2010, that the People could have provided proof that no complaint report was filed by the complainant against Ms. Lema by contacting One Police Plaza or the local police precincts, reviewing their records, and finding documentary evidence, or the lack thereof, regarding this alleged complaint. However, the Court finds that the defendant, who again, has the burden to substantiate his claims, could just as easily have subpoenaed police records to obtain the complaint report, should such a report ever have existed. The defense has not done that. Additionally, attached to their memorandum-of-law dated October 13, 2010, as Exhibit A, and cited at page 15, footnote 1, the People have provided compelling proof to the Court, in the form of records of complaints from the database of the NYPD, that the complainant never filed accusations against Ms. Lema.
It is important to note a troubling point that was raised by defense counsel in her reply affirmation, dated June 20, 2010, on this topic. Near the bottom of the first page of said affirmation, defense counsel submits that the People "conceded on the record, during oral argument on defendant's motion to set aside the verdict, and in her motion papers, that the report did exist, by stating she simply she [sic] did not know of it at the time of the trial". Naturally, if the People conceded this point, it would lend credence to the defense's position. At first blush, the Court found it strange that the defendant failed to back up this allegation with minutes from the oral argument, or provide a copy of the People's motion papers. However, when the Court reviewed the People's response to this allegation ( see, the People's memorandum-of-law, dated October 13, 2010, at page 15), it was quite distressed to see that the defense was misleading the Court, whether intentionally or carelessly. For it is undisputed that the People's papers referred to by the defense, actually state, "This supposed allegation of sexual abuse by the victim was not known to the People at the time of the trial, is still not known to the People at this time and no indication of any such complaint appears in the prosecutor's database of criminal cases in Queens County (emphasis in original)." The Court does not take lightly that defense misrepresentation; to say the least, that misrepresentation undermines the defendant's position.
This motion was denied by this Court in an order dated July 20, 2009.
Furthermore, the Court agrees with the People's position that even if the defendant did establish that the complainant made sexual complaints against Ms. Lema, the People did not violate Brady by not turning this supposed information over to the defense. The Court finds, in agreeing with the People's position, that the defendant himself actually should have been aware of this supposed evidence if it actually existed. Ms. Lema is the defendant's niece and testified on his behalf at his criminal trial. It stands to reason, that if she had been accused of a crime by the complainant, she certainly would have informed her uncle of this fact since he claimed to be in the same position. As Brady does not require that the People turn over to the defendant evidence which he himself should reasonably be aware of, clearly, in this case, there would be no Brady violation.
The second prong of the defendant's argument that the complainant has made a series of sexual accusations against others, concerns a different New York State Supreme Court criminal trial matter, the case of People v. Peter Boda (Queens County Indictment number 680/2009). The defendant submits that during the Boda case, where the complainant in the instant matter was a witness, she testified that she accused two men in Equador of raping her. The defendant claims that these accusations constitute evidence which he should have been informed of at his criminal trial by the People, and that their failure to turn it over is a Brady violation. However, the Court finds no merit to this argument.
Peter Boda was the complainant's daughter's piano teacher. Mr. Boda was indicted for certain criminal offenses concerning allegations of inappropriate sexual contact, and ultimately, after a trial and after the conclusion of the defendant's trail, was acquitted of those offenses. The Court therefore will limit its discussion of the Boda matter to just those points that are relevant to the defendant's matter. However, it must be noted that defense counsel, who currently represents the defendant, also represented Boda at his criminal trial. She has linked these two matters together in a way which enables her to use information from the Boda trail to make some arguments in the instant matter. Apparently, many people involved in the defendant's case were also involved in the Boda case, as the parties were personally involved in each others lives to some degree.
The complainant indicated that one of the men was "a stranger, but he lived with us" ( see, minutes attached to defendant's supplemental motion dated December 2, 2010, from the Boda trial, dated October 15, 2010, no pagination, but apparently page 83, line 6).
The complainant was a prosecution witness in the Boda case, and during cross-examination by defense counsel (the same attorney who brought the instant motion), the complainant did testify that while in Equador, she accused two men of raping her ( see, minutes attached to defendant's supplemental motion dated December 2, 2010, from the Boda trial, dated October 15, 2010, no pagination, but apparently page 82, line 24 — page 83, line 11). The only other information elicited regarding this issue was the complainant's testimony on re-direct examination, by the People, that the accusations were true ( see, minutes attached to defendant's supplemental motion dated December 2, 2010, from the Boda trial, dated October 15, 2010, page 95, lines 19-25). Again, in order to prevail on a Brady claim, a defendant must demonstrate that the material in question was known to the People, and not to the defense. Regarding this information, from the complainant's past, it is clear that it was the defendant who was aware of it, not the People, as the testimony was brought out during the trial by the defense. Furthermore, there was no proof of any sort presented indicating that the People had any knowledge, whatsoever, about this issue. The Court presumes that the basis for questioning the complainant about two alleged rapes in Equador came from either the defendant himself or from someone in his social circle which, as they were husband and wife, he shared with the complainant. Clearly, the information was not in the "possession, custody, or control of the People" ( see, People v. Carnett, supra). The defendant's claim, therefore, that the accusations against the two anonymous Equadorian men constitutes Brady material, fails.
No facts were distilled as to any specifics as to what happened during these alleged crimes, or regarding what eventually may have happened with these accusations. Were the men ever arrested, indicted, tried, convicted, or prosecuted in any way? The defense did not provide the Court with any information on this topic.
The third prong of the defendant's claim of a Brady violation concerns his and the complainant's daughter, Hikma, and her piano teacher, Peter Boda. The defense alleges that the complainant accused Mr. Boda of sexually abusing her daughter, that the People knew of this allegation before the defendant's trial, and that the People did not disclose it to the defense. The defense submits that that evidence could have been used as impeachment material at trial, in that counsel could have used the information while cross-examining the complainant.
The Court does not credit the defendant's argument. The Court finds that although the People did indeed know about the sexual allegations made against Mr. Boda, prior to the defendant's trial, it is clear, despite the defense's best efforts to attempt to demonstrate otherwise, that the complainant in the defendant's case was not the complainant in the Boda matter. Therefore, the defendant is unable to establish a pattern that Blanca Mizhquiri has a habit of making sexual accusations against others.
In the case at bar, Blanca Mizhquiri was the complainant who accused the defendant of sexually abusing and assaulting her. In the Boda case, Hikma Bermejo, the young daughter of the defendant, Jose Bermejo, and of Ms. Mizhquiri, accused Mr. Boda of sexually abusing her. Ms. Mizhquiri was not involved in lodging the complainant against Mr. Boda, for it is clear that Hikma came forward and reported her accusation to the Assistant District Attorney, Elizabeth Dank, who was prepping her for her testimony, as a witness, in the defendant, Bermejo's, trial.
In an affidavit dated March 10, 2010, and attached to the People's affirmation in opposition dated March 16, 2010, the complainant, Blanca Mizhquiri, stated that she had no idea that Mr. Boda had abused her daughter, and that she was completely surprised when she found out. She stated that she was first informed of this accusation by the Assistant District Attorney, Elizabeth Dank, whom Hikma reported the events to. Furthermore, in another affidavit dated March 10, 2010, Assistant District Attorney Elizabeth Dank stated that Hikma told her that Mr. Boda had abused her, and that she, ADA Dank, was the one who informed Ms. Mizhquiri of what Peter Boda had done to her daughter, Hikma. She also stated that Hikma's mother, the complainant Blanca Mizhquiri, was surprised by the information and that Ms. Mizhquiri stated to her that she had been unaware of what had allegedly happened to her daughter at Boda's hands.
The Court notes that the defense has failed to present any credible evidence to contradict these two affidavits, which establish that Hikma was the complainant against Mr. Boda. Therefore, the defense allegation that the complainant in the defendant's matter has a history of lodging complaints fails.
See, CPL 440.30[4][b][c][d], which states that a court may deny a motion to vacate judgment if, "[b] The motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts . . .; or [c] An allegation of fact essential to support the motion is conclusively refuted by unquestionable documentary proof; or [d] An allegation of fact essential to support the motion (i) is contradicted by a court record or other official document, or is made solely by the defendant and is unsupported by any other affidavit or evidence, and (ii) under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true".
The Court finds it quite astonishing that the defense goes to such great lengths in its efforts to mislead and paint Blanca Mizquiri as the complainant against Mr. Boda and lend credence to its fundamentally flawed and unsustainable argument. Reference is made to a statement by the defense in its first reply affirmation, dated June 20, 2010. On the second page, counsel affirms, "Blanca Mizhquiri played a much more active role than the prosecution lets on. The undersigned [defense counsel] was provided with the grand jury testimony from the Peter Boda case, which includes testimony of Detective St. John, who was the arresting detective in that case. Detective St. John clearly states in front of the grand jury that it was Blanca Mizhquiri who lodged the complaint about Peter Boda, and it was Blanca Mizhquiri who provided information about his sexual misconduct against her daughter". However, the defendant has not provided the Court with these, or any, Grand Jury minutes which reflect such testimony. Instead, the Court is in receipt of Grand Jury minutes provided by the People, which reflect the testimony of Detective John Pehlan, who testified that he was the arresting detective in the Boda matter. Upon review of Detective Pehlan's Grand Jury testimony, the only information he stated he received from complainant Mizhquiri concerned the whereabouts of Mr. Boda, and nothing else ( see, Grand Jury minutes, dated March 17, 2009, page 15).
The Court has no occasion to comment in this decision on defense counsel's use of Grand Jury minutes, and the People's contention that defense counsel violated CPL 190.25[4] and PL 215.70, which speak to the secrecy of Grand Jury proceedings.
Another misrepresentation by the defense also relates to this attempt by the defense to mischaracterize Ms. Mizhquiri as the complainant in the Boda case. The defense, while repeatedly calling Ms. Mizhquiri an "active accuser" ( see, for example, amended supplemental affirmation, dated December 2, 2010, no pagination, at fourth page) of Mr. Boda, stated that Ms. Mizhquiri "witnessed Peter Boda's hands on Hikma's lap in a sexually inappropriate way, while the child was not wearing a skirt, on multiple occasions (emphasis added)". The defense then cites to Ms. Mizhquiri's testimony at the Boda trial. However, this claim turned out to be another misleading defense assertion, for when the balance of the minutes cited by the defense were reviewed, it became apparent that all Ms. Mizhquiri saw was her daughter's piano teacher touch her leg or her lap (the testimony goes back and forth between the two) while his pupil was wearing pants. It was disingenuous on the part of the defense to portray Blanca Mizhquiri as the complainant in the Boda case by falsely suggesting that the mother witnessed Boda touching a naked child.
The Court is unable to cite to specific pages of the transcript, as not all pages are numbered. Furthermore, some pages of the transcript provided by the defendant are in disorder, and some seem possibly to be missing.
It is interesting to note that defense counsel was the attorney who elicited during cross-examination that the child was wearing pants during her encounter with Mr. Boda. The Court would also note footnote number 16, in its decision and order, dated October 20, 2010, in the case of People v. Anthony Lyons, indictment number 143/2008, 29 Misc 3d 1216(A) [2010], wherein the Court found it necessary to comment on the conduct of this very defense counsel during the course of that trial. During the proceedings in the Lyons matter, the Court found that there were many similar instances where counsel made actual misrepresentations concerning the issues at hand. The People in that case moved for sanctions against counsel, but the Court chose not to stigmatize her, and denied the People's application. See, Jennifer M. Granholm, Nobility in the Practice of Law, 78 Mich B.J. 1397 [1999].
Furthermore, the defense makes other statements in an attempt to contradict the supported positions of the People, but fails to back them up in any substantial way. See, CPL 440.30[b]. For example, the defendant states at the 4th page of its amended supplemental affirmation, dated December 2, 2010, that Ms. Mizhquiri "did actively accuse Peter Boda of sexually abusing her daughter when she was present in [the People's] office . . . with Hikma", and states, see "Blanca's trial testimony in Boda case". However, the People have already established to the satisfaction of the Court that Hikma, and not Ms. Mizhquiri, complained to ADA Dank about Mr. Boda, and the defense does not direct the Court to any specific portion of the Boda trial minutes which would undermine that conclusion. In fact, at page 21, lines 8-9 of Ms. Mizhquiri's trial testimony in the Boda case, dated October 15, 2010, Ms. Mizhquiri states, when asked how did she learn about the complaint by Hikma against Mr. Boda, "I found out about the complaint through the attorney, Elizabeth Dank".
Additionally, defense counsel states in the amended supplemental affirmation, dated December 2, 2010, no pagination, at the sixth page that Hikma implicated her mother, Ms. Mizhquiri in a "scheme to falsely accuse Boda". However, in Hikma's testimony at the Boda trial, undated at pages 60-61, she states that it was not her mother's idea to tell this story.
In order to establish a pattern of the complainant accusing others of sex crimes, the defense attempts to inextricably link Blanca Mizhquiri and Hikma Bermejo, to say that a complaint by Hikma is really a complaint by Ms. Mizhquiri. The defense also alleges that Hikma was a complainant against the defendant because she was one of the named victim's in the defendant's case, for the crime of Endangering the Welfare of a Child. Therefore, the defense submits that the People were under an obligation to disclose Hikma's complaint against Mr. Boda before the defendant's trial. The argument is plainly spurious.
Black's Law Dictionary [6th edition, 1990] defines the term complainant as "one who instigates prosecution or who prefers accusation against suspected person". Black's Law dictionary defines witness as "[i]n general, one who, being present personally sees or perceives a thing; a beholder, spectator, or eyewitness". Clearly, the complainant in the defendant, Bermejo's, case, Ms. Mizhquiri, was not the complainant in the Boda case; she was, at most, simply a witness who saw her daughter's piano teacher, Mr. Boda, make contact with her daughter's lap or leg while the child was wearing pants. Furthermore, it is clear that Hikma, who testified at the Bermejo trial about what she saw the defendant do to her mother, was not a complainant in that case, but merely a witness. It is of no consequence that Hikma's name appears in one of the Endangering counts, as that does not constitute her as the complainant against her father, the defendant. To be convicted of Endangering the Welfare of a Child, one must knowingly act "in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old . . ." ( see, PL 260.10-1). Hikma's name appears in the indictment simply because she was there, watching her father assault and abuse her mother, clearly watching behavior that was injurious to her physical, mental or moral welfare. There was no need for her to affirmatively state anything against the defendant for him to be convicted of this offense. The evidence had only to prove that she was present while the defendant committed the crimes in question against her mother.
Black's law Dictionary defines prefer "[t]o bring before; to prosecute; to try; to proceed with. Thus, preferring an indictment signifies prosecuting or trying an indictment".
The Court accepts the People's contention that the defendant has not established that the prosecutor failed to turn over Brady material. Any allegation of sexual abuse by Peter Boda does not exculpate the defendant, Bermejo, of sexually abusing the complainant, as the complainant against Peter Boda was Hikma, not Blanca Mizhquiri. Moreover, the defense has failed to establish a pattern of sexual abuse claims by the complainant, under People v. Hunter , 11 NY3d 1 . In Hunter, the complainant, who was a victim of an alleged rape by a defendant, had accused another man of also raping her, subsequent to the complaint against that defendant. The Court of Appeals found that information to be Brady material, in that there were many similarities between the two alleged rapes, specifically the victim and the crimes themselves, and the circumstances of those crimes. In the case at bar, however, there are no similarities between the accusations against the defendant and the accusations against Peter Boda. The complainants are different, the victims are different, and the crimes are different.
Accordingly, the defendant's motion to vacate judgment based upon an alleged Brady violation is denied.
TRIAL COUNSEL
The defendant also moves to vacate his judgment based upon the claim that his trial attorney threatened to sabotage the defendant's case at trial if the defendant failed to provide him with a $10,000 payoff. The defendant submits that he refused to do so, and that trial counsel thereafter pursued harmful trial strategies which prejudiced the defendant. To support this claim, the defendant has submitted affidavits from two members of the defendant's family, both dated January 19, 2010, and attached to defendant's motion to vacate judgment, dated January 18, 2010.The Court rejects this contention. The Court notes that the defense has failed to provide any facts at all to support this conclusory allegation. The affidavits do not state with any specificity any detail which would substantiate this claim. There is no information provided as to when this alleged illegal action by defense counsel took place, where it took place, who was present, what specifically was stated by defense counsel, what defendant and his family replied to counsel, what they thought to do about it, why they did not report it to anyone, or anything else that would point to the reality of this naked defense claim. This Court will not permit the tarnishing of the reputation of a member of the bar and an officer of the court or order a hearing on this averment, of an attempted shakedown, without at least a shred of substantiation and proof that it occurred, sufficient to genuinely raise the claim. On the other hand, the People have submitted an affidavit from trial counsel, dated March 16, 2010, and attached to the People's affirmation in opposition dated March 16, 2010, wherein trial counsel not only denied the allegations of the defendant, but reasonably, and convincingly, explained why he conducted the trial strategies complained of by the defendant. Therefore, pursuant to CPL 440.30[b], the defendant's motion to set aside his verdict on this basis is denied. In as much as the defendant's argument on this issue may be viewed as a claim of ineffective assistance of trial counsel, regarding that attorney's performance at the trial of this matter, the claim must be denied pursuant to CPL 440.10[a]. The defendant's conviction was appealed, and the New York State Supreme Court, Appellate Division, Second Department, held, in People v. Bermejo , 77 AD3d 965 [2nd Dept 2010], that trial counsel was indeed effective. MOLINEAUX
The law contemplates that there are averments that, while they have a potentially devastating impact upon a person, are so flimsy, insubstantial and bereft of competent support as to amount to scandalous claims. See, for example, FRCP 12f; CPLR 3024(b); In re Food Management Group, LLC, 359 B.R. 543 [Bankr. SDNY 2007]; In re 2TheMart.com, Inc. Securities Litigation, 114 F.Supp 955 [CD Cal 2000]. Even the media, which are privileged, in some circumstances, for their promulgation of false statements, are open to the loss of that privilege when the false statements reflect actual malice, that is, an awareness that the statements are false or very likely false. See, New York Times Co. v. Sullivan, 376 US 254 [1964].
CPL 440.10[2][a] states that the Court "must deny a motion to vacate a judgment when [t]he ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment . . .". .
See also, footnote 1, supra.
The final basis upon which the defendant moves to vacate his judgment is the claim that at trial the People violated People v. Molineaux, 168 NY264 [1901], when they allegedly introduced evidence of an uncharged crime without a prior ruling, to wit, that the defendant allegedly threatened to injure his sister-in-law by cutting open her "pregnant belly" ( see, for example, defendant's Motion to Vacate Judgment, dated January 18, 2010, no pagination, at fourth page). This claim is devoid of merit because it concerns an on-the-record issue which should have been specifically raised on appeal, and was not. See, CPL 440.10[c]. The Court further notes that it had already determined this issue in its order dated July 20, 2009, and had already found that the claims raised by the defendant constituted behavior which was res gestae. See, CPL 440.10[b]. Therefore, the defendant's motion on this ground must be denied. CONCLUSION
The Court notes that the Bermejo opinion, insofar as it addresses a Molineux issue, relates to the defendant's sexual conduct towards the complainant prior to the date of the crimes herein. The Appellate Division held that the "defendant's contention that the People exceeded the scope of the Supreme Court's Molineux ruling is unpreserved for appellate review and, in any event, is without merit" ( see, People v. Bermejo , 77 AD3d 965 [2nd Dept 2010]).
CPL 440.10[2][c] states that the Court "must deny a motion to vacate a judgment when [a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to . . .raise such ground or issue upon an appeal actually perfected by him".
CPL 440.10[3][b] states that the Court "may deny a motion to vacate a judgment when [t]he ground or issue raised upon the motion was previously determined on the merits upon a prior motion or proceeding in a court of this state, other than an appeal from the judgment, or upon a motion or proceeding in federal court . . .".
Based upon the above discussion, the Court finds that the defendant has not demonstrated any violation of any of the defendant's rights throughout the entirety of these proceedings. The defendant's motion pursuant to CPL Article 440, vacating his conviction and requesting that a new trial be ordered, is hereby denied in all respects.
This constitutes the decision and order of the Court.
The Clerk of the Court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.