Opinion
4152/1998
09-11-2020
The PEOPLE of the State of New York, Plaintiff, v. Jerry BONTON, Defendant.
Eric Gonzalez, Esq., Kings County District Attorney, by Assistant District Attorney Andrew S. Durham, Esq., for the People of the State of New York. Defendant, Jerry Bonton, pro se.
Eric Gonzalez, Esq., Kings County District Attorney, by Assistant District Attorney Andrew S. Durham, Esq., for the People of the State of New York.
Defendant, Jerry Bonton, pro se.
Miriam Cyrulnik, J.
Defendant moves, pro se, for a Writ of Error Coram Nobis . The People oppose. In determining this motion, the court reviewed defendant's Motion for Common-Law Coram Nobis Relief; defendant's Addendum to Pro Se Pleadings [sic], the People's Affirmation in Opposition to Motion to Vacate Judgment; defendant's Pro Se Defendant Reply to Respondent's Affirmation in Opposition to Petition for Common-Law Coram Nobis [sic]; and defendant's Notice and Combined Motion/Addendum with Supporting Documentation [sic].
On April 1, 2000, defendant was convicted of Murder in the First Degree for the intentional murder of decedent Harold Burton and Murder in the Second Degree for the felony murder of decedent Worell Brown, both of which took place in the course of a burglary. The penalty phase for the first degree murder conviction was scheduled for April 10, 2000. However, on April 6, 2000 defendant acknowledged the jury's verdict and waived his right to direct appeal and state collateral review, in exchange for concurrent sentences of life imprisonment, without parole, on the first degree murder conviction and 25 years to life on the second degree murder conviction. Defendant has since compiled a long history of appeals and post-conviction motions.
See the People's Affirmation in Opposition, pages 2-12, for a comprehensive procedural history of this matter.
By the instant motion, defendant now seeks vacatur of his conviction, claiming that the trial court should not have accepted his plea of guilty without ordering a CPL § 730 examination; that errors on the verdict sheet rendered his acceptance of the verdict and waiver of appeal invalid; that his conviction consists of inclusory concurrent counts; and that his waiver of appeal violates CPL § 195.20. The People oppose. For the reasons set forth herein, defendant's motion is denied in its entirety, without a hearing.
Writ of Error Coram Nobis
The Court of Appeals has consistently recognized that CPL Article 440 was enacted, inter alia , to codify most of the relief formerly available under the common-law writ of error coram nobis . With limited exceptions, remedies previously sought by writ of error coram nobis are properly sought by CPL Article 440 motion (see People v. Grubstein , 24 NY3d 500, 503 [2014] ; People v. Bachert , 69 NY2d 593, 599 [1987] ; People v. Cooks , 67 NY2d 100, 103-104, 104 n. 3[1986] ; People v. Crimmins , 38 NY2d 407, 413-414 [1975] ). Accordingly, defendant's motion is deemed a motion to vacate the judgment of conviction under CPL Article 440 and is therefore subject to all applicable procedural bars.
People v. Crimmins was overturned, in part, by People v. Jones , 24 NY3d 623 (2014). While leaving undisturbed the Crimmins court's finding that CPL Article 440 "was intended to encompass contentions which formerly could have been raised on an application for postconviction[sic] relief in the nature of coram nobis ..." (38 NY2d at 413-414 ), the Court of Appeals in Jones overturned that part of the decision that limited its ability to review lower court denials of claims of newly discovered evidence.
Inclusory Concurrent Counts and CPL § 195.20
The issues of inclusory concurrent counts and the alleged violation of CPL § 195.20 do not require extended discussion. These issues were raised by defendant in his previous motion to vacate dated August 8, 2019. To the extent that defendant addresses these issues in his instant motion, the court will rely upon, and incorporate herein, its decision dated November 25, 2019, by which they were denied, without a hearing, on procedural grounds and on the merits. There has been no retroactively effective change in the law controlling these issues. Accordingly, to the extent that defendant argues once again that he is entitled to vacatur , based upon inclusory concurrent counts and a violation of CPL § 195.20, his motion is denied, without a hearing.
Procedural Bars
CPL § 440.10(2)(a) states:
Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when:
(a) The ground or issue raised upon the motion was previously determined on the merits upon appeal from the judgment, unless since the time of such appellate determination there has been a retroactively effective change in the law controlling such issue.
To the extent that defendant's instant motion repeats his claim that his waiver of appeal is invalid, the Appellate Division affirmed defendant's judgment of conviction without reaching the merits of his claims, finding that his "wholly voluntary" waiver of appeal precluded review (see People v. Bonton , 7 AD3d 634, 634 [2d Dept 2004], lv denied 3 NY3d 671 [2004] ). Defendant has identified no retroactively effective change in the law controlling the issue of the waiver of appeal considered by the Appellate Division. Accordingly, defendant's motion to vacate, based upon an invalid waiver of appeal, must be denied, without a hearing, as procedurally barred by CPL § 440.10(2)(a).
The court also notes that the waiver of appeal was upheld in subsequent decisions of three justices of the Supreme Court, Kings County in 2006, 2009 and 2019 (see the 2006 Decision and Order of the Honorable Plummer Lott [April 6, 2006]; the 2009 Decision and Order of the Honorable Michael Brennan [June 23, 2009]; and the 2019 decision of this court [November 25, 2019] [attached to the People's Affirmation in Opposition as Exhibits 2, 5 and 6, respectively] ).
CPL § 440.10 (2)(c) states:
Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when:
(c) Although 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 take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected.
Defendant argues that it was error for the trial court to try him or accept his plea without subjecting him to a CPL Article 730 examination. Defendant asserts that his trial counsel and the trial court knew, or should have known, that he was mentally incompetent to stand trial or enter into a plea agreement (defendant's Memorandum of Law, page 20). Defendant also asserts that the prejudice he claims affected him is "strongly substantiated" (id. , page 15). Although defendant fails to specify the substantiation to which he refers, it is clear that his argument is that it is to be found in the record of the proceedings. Defendant's failure to raise this issue on appeal is, therefore, unjustifiable. Accordingly, defendant's motion to vacate the judgment, based upon the trial court's failure to order a CPL Article 730 examination, is denied, without a hearing, pursuant to CPL § 440.10 (2)(c).
CPL § 440.10(3)(a) states:
Notwithstanding the provisions of subdivision one, the court may deny a motion to vacate a judgment when:
(a) Although facts in support of the ground or issue upon the motion could with due diligence by the defendant have readily been made to appear on the record in a manner providing adequate basis for review of such ground or issue upon an appeal from the judgment, the defendant unjustifiably failed to adduce such matter prior to sentence and the ground or issue in question was not subsequently determined upon appeal.
Defendant was represented by the Capital Defender Office at trial and for his plea. If there was an issue regarding defendant's competence to stand trial or enter into a plea agreement, such counsel would have been in the position to raise it on the record. No such issue was raised at the time of trial or the plea. Indeed, the record reflects that, during his plea allocution, defendant specifically confirmed that he had never been treated for a mental illness and acknowledged that there was no reason he would not understand what was going on in court (see transcript of proceedings, April 6, 2000, pages 1895-1896).
Had there been a genuine issue of defendant's competence, it could have, with due diligence, readily been raised and made to appear on the record so as to provide an adequate basis for review in the course of an appeal. It is clear that defendant unjustifiably failed to raise any such claim (if indeed one existed) prior to sentence, and the ground or issue in question was not subsequently determined on appeal. Accordingly, defendant's motion to vacate the judgment, based upon the trial court's failure to order a CPL Article 730 examination, is denied, without a hearing, pursuant to CPL § 440.10(3)(a).
CPL § 440.10(3)(b) states:
Notwithstanding the provisions of subdivision one, the court may deny a motion to vacate a judgment when:
(b) The 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 a federal court; unless since the time of such determination there has been a retroactively effective change in the law controlling such issue[.]
Defendant's instant claim - that errors on his verdict sheet render invalid his acceptance of the verdict and subsequent plea and waiver of appeal - must fail. By pro se petition for a writ of habeas corpus before the United States District Court for the Eastern District of New York, dated January 31, 2008, defendant argued, inter alia , that the verdict sheet violated CPL § 310.20 and that its submission to the jury resulted in a violation of his due process rights. By decision dated August 15, 2008, the District Court denied defendant's motion, specifically rejecting his claims regarding the verdict sheet (see Bonton v. Ercole , 08-CV-526 [ARR], 2008 U.S. Dist. LEXIS 63803 [E.D.NY August 15, 2008][Ross, U.S.D.J.] ). This issue having been previously determined on the merits on a motion or proceeding in a federal court, defendant's motion to vacate, based upon errors on the verdict sheet, is denied, without a hearing, pursuant to CPL § 440.10(3)(b).
CPL § 440.10 (3) (c) states:
Notwithstanding the provisions of subdivision one, the court may deny a motion to vacate a judgment when:
(c) Upon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so.
It is well-settled that a court may summarily deny a motion to vacate, pursuant to CPL § 440.10 (3) (c), where defendant presents arguments that could have been raised on a previous motion to vacate (see People v. Cochrane , 27 AD3d 650 [2d Dept 2006], lv denied 7 NY3d 787 [2006] ; People v. Brown , 24 AD3d 271 [1st Dept 2005], lv denied 6 NY3d 846 [2006] ; People v. Dover , 294 AD2d 594 [2d Dept 2002], lv denied 98 NY2d 767 [2002] ; People v. Thomas , 147 AD2d 510 [2d Dept 1989], lv denied 74 NY2d 669 [1989] ).
In the case at bar, defendant has made five previous motions to vacate, one by counsel and four pro se . His instant motion to vacate, the fifth pro se and sixth overall, is not based upon any newly-learned facts or recent developments in the law. Defendant could have raised the claim regarding his mental fitness for trial, the only new one made in the instant motion, in any of the five previous motions to vacate submitted to the Supreme Court. He failed to do so. Accordingly, defendant's motion is denied, without a hearing, pursuant to CPL § 440.10 (3)(c).
Merits
CPL §§ 440.30(4) states:
Upon considering the merits of the motion, the court may deny it without conducting a hearing if:
(a) The moving papers do not allege any ground constituting a legal basis for the motion; or
(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, as required by [ CPL § 440.30(1) ][.]
Defendant's motion papers appear to claim that at the time of his trial and the subsequent entry of his plea, he was mentally incapacitated to such an extent that his counsel and/or the court knew or should have known it.
The most direct reference defendant makes to his mental capacity, on page 12 of his papers, is the assertion "[t]hat defendant's psychological and psychiatric condition at the time of crime and prior to criminal conduct [sic] was not free of mental health issues or history, goes without saying." This is an apt turn of phrase, since defendant does not say anything more specific about his mental capacity anywhere in his papers. Although he claims that the record of the proceedings substantiates the existence of his mental incapacity, he points to nothing within it for support.
Nevertheless, it is defendant's position that a CPL Article 730 examination should have been requested by his counsel or ordered by the court, sua sponte , and their failure to do so violated his due process rights. Defendant's motion is utterly lacking in sworn allegations substantiating or tending to substantiate all essential facts regarding this claim. Accordingly, defendant's motion to vacate on this ground is denied, without a hearing, pursuant to CPL §§ 440.30(4)(b).
To the extent that defendant seems to argue that he was entitled to a CPL Article 730 examination as a matter of law, the court finds no support for this contention in any statute or case law and rejects it.
CPL § 440.30 (4) (d) states:
Upon considering the merits of the motion, the court may deny it without conducting a hearing if:
(d) An allegation of fact essential to support the motion is (i) 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.
Defendant's claim of mental incapacity is directly contradicted by the transcript of his plea allocution, during which he denied any history of treatment for mental illness (see transcript of proceedings, April 6, 2000, pages 1895-1896).
Defendant's claim of mental incapacity is further contradicted by the record of his initial appeal of his conviction. In determining that defendant's waiver of appeal was valid, the Appellate Division stated:
It is clearly evident from our review of the defendant's sworn comprehensive allocution that he had sufficient time to talk to his attorney prior to entering into the agreement, acknowledged all the rights he was relinquishing which were set forth on the record by the trial court, denied that anyone had threatened, coerced, or forced him to enter the plea, indicated that he understood everything and did not have any questions, and ultimately acknowledged the verdict of guilt against him. There is nothing in the record that would induce this court to vacate what we find to be defendant's wholly voluntary waiver of his right to appeal in exchange for a negotiated sentence. (People v. Bonton , supra at *2[internal citations omitted] ).
The court also notes that defendant's claim of mental incapacity is made solely by defendant. Defendant's motion contains no psychiatric or psychological records that would corroborate his present claim of a history of mental illness that preceded his trial and plea. Conspicuously absent are any affidavits from psychiatric or psychological experts in support of such claims. Significantly, too, defendant offers no affidavit from his trial counsel regarding any observations, discussions, or actions concerning defendant's mental capacity at the time of the trial and plea.
Defendant did submit two documents, presumably in support of his mental incapacity claim, by addendum. Exhibit A purports to be an affidavit from John Youngblood, a Deputy Capital Defender, who represented defendant at trial. This document, dated April 14, 2011, is unsigned and the circumstances under which it was written are unknown. Exhibit B consists of a letter and memorandum; however, these documents, which are dated nearly two years apart, appear to be completely unrelated. The letter, dated January 13, 1998, is addressed to the Jamaican Department of Correction Services and is a request from defendant's trial counsel for defendant's records from that agency. The memorandum, dated September 21, 1999, is entitled "Draft Verdict Sheet" and purports to be attorney work product in preparation for arguments regarding mitigating factors for the verdict sheet. Putting aside the issues of authenticity and credibility, neither of these documents addresses defendant's present claim of mental incapacity. They have no probative value and the court must reject them.
Finally, defendant offers no reasonable excuse or explanation for his delay in raising this claim of mental incapacity. Defendant was sentenced 20 years ago, after which he immediately embarked upon a virtually unceasing journey through the state and federal legal systems in his effort to vacate his judgment of conviction. In all of the long procedural history of this matter, the instant motion represents the first time he has raised his mental capacity to stand trial or enter into a plea agreement. The court may appropriately, and does, take this delay into consideration in making its determination with respect to defendant's claim of mental incapacity.
In People v. Torres , 2010 NY Slip Op 33167(U) (Sup Ct, Kings County 2010), appeal dismissed 17 NY3d 802 (2011), the court held that "defendant's credibility [was] undermined by the substantial period of time that passed before submitting" a CPL § 440.10 and 440.20 motion 15 years after appealing the decision, noting that in People v. Nixon , 21 NY2d 338 (1967), the court "held that a delay of more than a decade was an important factor to be considered in evaluating the seriousness of the defendant's claims" (see also People v. Degondea , 3 AD3d 148 [1st Dept 2003], lv denied 2 NY3d 798 [2004] ; People v. Melio , 304 AD2d 247 [2d Dept 2003], lv denied 3 NY3d 644 [2004] ; People v. Hanley , 255 AD2d 837 [2d Dept 1998], lv denied 92 NY2d 1050 [1999] ; People v. Sheppard , 2010 NY Slip Op 32887[U] [Sup Ct, Kings County 2010] ; People v. Perez , 11 Misc 3d 1093(A) [Sup Ct, Kings County 2006] ; People v. Kirkland , 1 Misc 3d 904(A) [Sup Ct, Kings County 2003] ). Delays as lengthy as those in the present case "can be considered in evaluating the validity and legitimacy of a post-judgment motion" (see People v. Torres , supra ).
Defendant's credibility on the issue of mental incapacity is adversely affected by more than just his delay in raising the claim. By his persistent pro se pursuit of vacatur for approximately two decades, defendant has demonstrated a working understanding of the criminal justice system. While he has not been successful in his efforts, he has shown the ability to perform research, identify issues and compose legal arguments within the state and federal legal systems. Additionally, when faced with adverse decisions, he has been creative and resourceful in his effort to obtain the relief he seeks by alternate means. His attempt to invoke the common law writ of error coram nobis in the instant motion is an example of such creativity and resourcefulness, whether successful or not.
The complete absence of the issue of mental capacity, from the time of trial and plea, when defendant was represented by specialized counsel, through the long procedural history of this matter to date, makes its sudden appearance in the instant motion difficult to credit. Under these and all the other circumstances attending the case, the court finds that there is no reasonable possibility that defendant's allegation of mental incapacity is true.
Accordingly, defendant's motion to vacate, based upon his claim of mental incapacity and the trial court's failure to order a CPL Article 730 examination, is denied, without a hearing, pursuant to CPL §§ 440.30 (4)(d) (i) (ii) and (iii).
With respect to defendant's claim that errors on the verdict sheet rendered his acceptance of the verdict and waiver of appeal invalid, the court notes that this is, at minimum, the third time he has brought it before a court.
Defendant's initial appeal of his conviction included his present objection to the verdict sheet. In affirming the validity of the waiver of appeal, the Appellate Division summarily rejected it as among the claims "not properly before us" (People v. Bonton , supra at *2).
More importantly, the Eastern District of New York addressed the merits of defendant's objection to the verdict sheet in denying his Petition for a Writ of Habeas Corpus in 2008. Following a lengthy analysis of state and federal constitutional law, the District Court held that "the use of an annotated verdict form briefly distinguishing among [multiple homicide counts], did not deny [petitioner] his due process right to a fair trial" (Bonton v. Ercole , supra at *62).
Defendant's instant motion offers no new argument and sheds no new light upon the issue of his verdict sheet. Therefore, this court sees no reason to revisit or disturb the determination of the Eastern District of New York. Accordingly, defendant's motion to vacate the judgment, based upon his claim that errors on the verdict sheet rendered his acceptance of the verdict and waiver of appeal invalid, is denied, without a hearing.
Based upon the mandatory and permissive procedural bars and the merits of his arguments, defendant's motion to vacate is denied in its entirety, without a hearing.
Subsequent Motion Practice
In the 20 years since he was sentenced, defendant has submitted a bevy of pro se motions in which are raised a multitude of legal arguments to advance his claims that his conviction should be vacated. The long procedural history of this matter reveals that, including the instant motion, defendant has submitted a total of five pro se motions to vacate to the Supreme Court. Defendant's motions and correspondence consist of repeated demands for the same relief previously considered and denied by this court and others. Also consistently repeated are defendant's arguments, which he advances over and over again, regardless of the form of relief sought.
An additional motion to vacate was submitted by counsel.
This court also notes that defendant has exhausted all appeals on each motion brought before the Supreme Court. He has also moved, unsuccessfully, for various relief before the federal district and appellate courts. This order addresses only those pro se motions filed by defendant in Supreme Court, Kings County.
It is clear that the defendant has had a full opportunity to litigate his claims and his motions have received full consideration by multiple judges of this court and the appellate courts of this state. While defendant has demonstrated some rudimentary legal understanding, his arguments have become repetitious. They have consistently been found to be without legal basis. This court finds that defendant has reached the point where he has moved for all relief for which he might have a good faith basis (see People v. LaRocco , NYLJ, Jan 7, 2002 at 29, col. 5 [Sup Ct, Queens County 2002] ).
In People v. LaRocco , the court employed the following language, which is clearly applicable to the case at bar:
This court finds that the defendant has engaged in a conscious pattern of baseless litigation which has resulted in vexation, harassment and needless expense, and has placed an unnecessary burden on this court and its supporting personnel. The court has expended countless hours to process and calendar these baseless applications, to read them and to issue and re-issue decisions on each application. This behavior works to the detriment of the honest litigant who is deprived of his or her fair share of these limited resources, and to the similar detriment of the administration of justice as a whole.
A court is "not without authority to curtail the waste of resources" resulting from frivolous pro se motions (see People v. Moore , 17 Misc 3d 228 [Sup Ct, Kings County 2007] ; People v. Brown , 14 Misc 3d 1237 [A] [Sup Ct, Queens County 2007]; People v. Rivera , 159 Misc 2d 556 [Sup Ct, Bronx County 1993] ). A court has the inherent power to regulate court practices, which may include the imposition of sanctions for frivolous litigation (see People v. LaRocco , supra ).
A court's inherent jurisdiction encompasses anything reasonably necessary to control its business (see Riglander v. Star Co. , 98 AD 101 [1st Dept 1904], aff'd 181 NY 531 [1905] ). The court's inherent powers have been described as "all powers reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence and integrity, and to make its lawful actions effective" (see Matter of Diane D. , 161 Misc 2d 861 [Sup Ct, New York County 1994] ; Matter of Little , 89 Misc 2d 742 [County Ct, Yates County 1977] ).
Moreover, this court takes seriously its responsibility to protect opposing parties and other litigants, as well as the court system itself, from the negative impact of repetitive pro se applications, as their consideration works to deprive others of their fair share of judicial resources. Although public policy mandates free access to the courts, "courts have imposed injunctions barring parties from commencing any further litigation where those parties have engaged in continuous and vexatious litigation" (see Robert v. O'Meara , 28 AD3d 567 [2d Dept 2006], lv denied 7 NY3d 716 [2006] ; Sassower v. Signorelli , 99 AD2d 358 [2d Dept 1984] ).
Accordingly, it is ordered that defendant is enjoined from instituting any further pro se proceedings before this court without the express prior approval of this court or the Administrative Judge of the Criminal Term of this judicial district (see People v. Moore , supra ; People v. Shaw , 50 Misc 3d 1205[A][Sup Ct Bronx County 2015] ; People v. Brito , 47 Misc 3d 1206[A][Sup Ct Bronx County 2015] ; People v. LaRocco , supra ).
Said approval shall be annexed by defendant as the cover page of any future pro se moving papers before they will be accepted for calendaring. Any papers submitted without such approval will not be considered. Any request for such approval shall be limited to one page. Additionally, any correspondence or documents defendant may send to this court or to court staff will not be answered unless they directly relate to moving papers for which defendant received express prior approval.
"One page" shall consist of one side of a standard letter-sized page, with double spaced text.
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Violation of this order may result in a contempt hearing and may ultimately result in the imposition of a substantial monetary fine upon defendant, which will be levied upon his inmate funds (see People v. LaRocco , supra ).
Defendant's right to an appeal from the order determining this motion is not automatic except in the single instance where the motion was made under CPL 440.30 (1)(a) for forensic DNA testing of evidence. For all other motions under article 440, defendant must apply to a Justice of the Appellate Division for a certificate granting leave to appeal. This application must be filed within 30 days after defendant has been served by the District Attorney or the court with the court order denying this motion.
The application must contain defendant's name and address, indictment number, the questions of law or fact which defendant believes ought to be reviewed and a statement that no prior application for such certificate has been made. Defendant must include a copy of the court order and a copy of any opinion of the court. In addition, defendant must serve a copy of his application on the District Attorney.
This constitutes the Decision and Order of the Court.