Opinion
1515-1999
04-07-2015
The People of the State of New York v. Wandee Brito, a/k/a/ WENDY BRITO, Defendant.
Defendant, Pro SeClara SalzbergAssistant District AttorneyOffice of the Bronx District Attorney718-838-7667
By motion submitted November 17, 2014, defendant moves to set aside his sentence and vacate his conviction pursuant to Criminal Procedure Law §§ 440.20 and 440.10 (1) (h), asserting that it was illegally imposed or otherwise invalid as a matter of law, and contending that he received ineffective assistance of counsel in violation the Sixth Amendment of the United States Constitution and article I, § 6 of the New York State Constitution. After review of the motion papers, papers on file with court, and prior court proceedings, defendant's motion is denied.
I. Background and Procedural History
On December 4, 2000, judgment was entered against the defendant in Supreme Court, Bronx County (Seewald, J.), upon his conviction after jury trial of murder in the second degree (Penal Law § 125.25 [4]) and criminal possession of a weapon in the second degree (Penal Law § 265.03 [2]). The basis of this conviction was that defendant stabbed and killed Juan Ferreira, and used a loaded firearm in an attempt to murder Ferreira's nephew. He was sentenced to an indeterminate term of life imprisonment with a mandatory minimum period of twenty-three years, and a determinate term of fifteen years imprisonment, respectively, such terms to be served concurrently.
On direct appeal, defendant argued that trial counsel was ineffective for having requested a justification charge in that it was inconsistent with his misidentification defense, and further lacked evidentiary support for both murder charges. Rejecting these claims, the Appellate Division, First Department, on April 1, 2003, unanimously affirmed defendant's judgment of conviction (see People v Brito, 304 AD2d 320 [1st Dept 2003].
Through appellate counsel, defendant sought leave to appeal to the Court of Appeals on April 30, 2003. By decision dated August 1, 2003, the Honorable Judith S. Kaye, Chief Judge of the Court of Appeals, denied defendant's application for leave to appeal (see People v Brito, 100 NY2d 592 [2003]).
On July 28, 2004, defendant, through appellate counsel, moved the Supreme Court, Bronx County (Seewald, J.), for an order vacating his judgment of conviction pursuant to CPL § 440.10 (1), claiming that trial counsel, Barry Kenyon, Esq., provided ineffective assistance of counsel by failing to abide by defendant's desire to not charge self-defense and assert the affirmative defense of extreme emotional disturbance. By decision dated September 23, 2004, the Honorable Robert Seewald summarily denied defendant's motion.
On January 10, 2005, defendant, through counsel, Paul Petrus, Esq., moved the Appellate Division, First Department, for a writ of error coram nobis claiming appellate counsel was ineffective for failing to argue that defendant's guilt of depraved indifference murder was not supported by sufficient evidence. By decision dated April 28, 2005, the Appellate Division denied defendant's application. By decision dated August 29, 2005, the Honorable Judith S. Kaye denied defendant's leave application to the Court of Appeals.
In the interim, on June 14, 2005, defendant, through appellate counsel, David Zapp, Esq., moved the Appellate Division, First Department, for leave to appeal the Supreme Court's denial of his CPL 440.10 motion. On August 4, 2005, the Honorable Angela Mazzareli denied defendant's application for leave to appeal.
On September 12, 2005, defendant, pro se, moved the United States District Court for the Southern District of New York for a writ of habeas corpus, asserting the same claims he brought on direct appeal, in his CPL 440.10 motion to vacate the judgment, and in his application for a writ of error coram nobis. By decision dated September 18, 2006, United States Magistrate Judge James Francis recommended that defendant's application be denied. That recommendation was adopted by United States District Judge Richard Holwell (Brito v Phillips, 485 F Supp 2d [SDNY April 10, 2007]).
On May 13, 2011, and August 19, 2011, defendant, pro se, again moved the Supreme Court, Bronx County (Marvin, J.), for an order vacating his judgment of conviction pursuant to CPL § 440.10 (1), this time faulting trial counsel for failing to 1) make a specific motion to dismiss the depraved indifference murder count, 2) object to the submission of both intentional and depraved indifference murder charges to the jury, 3) pursue an extreme emotional distress defense, and 4) request a charge to the jury that they not presume or infer anything from him not testifying. Defendant further claimed that trial counsel misadvised him not to testify on his own behalf and neglected to pursue both misidentification and justification defenses. By decision dated December 14, 2011, the Honorable Seth Marvin summarily denied defendant's motion.
On June 7, 2013, defendant, pro se, sought a second writ of error coram nobis from the Appellate Division, First Department, claiming appellate counsel, David Zapp, Esq., was ineffective for failing to argue on direct appeal that trial counsel, Barry Kenyon, was ineffective for failing to "make a specific motion to dismiss the charge of depraved indifference murder at the end of the People's case." By decision dated February 20, 2014, the Appellate Division denied defendant's application. By decision dated July 7, 2014, the Court of Appeals denied defendant's application for leave to Appeal.
Then, by motion pro se dated May 13, 2014, the defendant sought his third order to vacate the judgment pursuant to CPL § 440.10, asserting for the first time that 1) trial counsel was ineffective for failing to object to a non-English speaking juror, 2) the judgment was procured by misrepresentation and fraud on the part of the prosecution and defense, and 3) improper and prejudicial conduct occurred outside the record that would have required a reversal of the judgment on appeal. The People, in opposing defendant's motion, argue that the juror issue is procedurally barred for not having been raised on direct appeal or his two previous motions to vacate, that there is no evidence trial counsel permitted a juror who did not speak English to remain on the panel, and that his remaining claims are entirely devoid of any factual allegations.
Several months later, on August 14, 2014, defendant moved a fourth time pursuant to CPL § 440 seeking an order to vacate the sentence (see CPL § 440.20), claiming that a United States Immigration Court removal order to the Dominican Republic requires he be resentenced to a period of time served. Opposing this claim, the People argue that such removal order in no way requires or provides a basis to vacate the sentence, nor does it entitle him to any such discretionary relief. This court agrees.
II. Record
Based Claims
CPL 440.10 [2] [c] provides:
[T]he court must deny a motion to vacate a judgment when: . . . 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 by him.
Where sufficient facts appear in the record to permit adequate appellate review, the defendant must raise the issue on direct appeal or that issue is procedurally barred from collateral review (CPL 440.10 [2] [c]; People v Hall, 256 AD2d 139 [1st Dept 1998]). Courts have previously noted that the purpose of CPL 440.10 [2] [c] is to prevent post-judgment motions from being utilized as substitutes for direct appeal, and have repeatedly held that such motions must be denied (People v Cuadrado, 9 NY3d 362 [2007]; People v Cooks, 67 NY2d 100, 103 [1986]).
Here, defendant's non-English speaking juror claim is a matter entirely contained the record. And, as the People astutely observe, the defendant fails to provide such minutes with his motion. Whether such a juror was permitted to remain on the panel, then, is plainly record-based. Failing to obtain and provide such record as part of the moving papers makes it no less so. Consequently, this claim could have and should have been raised on direct appeal. Given his failure to do so, the absence of any justifiable explanation for such failure, and the void of any non-record based factual allegations this court is constrained to bar review of them.
III. Prior Post
Conviction Proceedings
CPL § 440.10 (3) (c) provides that a "court may deny a motion to vacate a judgment" where "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." As noted, defendant previously brought two CPL 440 motions seeking to vacate his conviction, the first in 2004 and the second in 2011. The Supreme Court summarily denied both, and the Appellate Division declined to grant leave to appeal either of them. Moreover, defendant brought three petitions seeking a writ of error coram nobis, two before the Appellate Division and one in the United States District Court. All were summarily denied, and the Court of Appeals twice denied leave to appeal. Interestingly, the defendant based his prior proceedings, in large part, on ineffective assistance of counsel grounds yet failed to raise any of the other ineffective assistance of counsel claims he now asserts. Inexplicably, defendant conspicuously fails to offer any reason or explanation why he neglected to raise them then, and why he waited another fourteen years before doing so. One can only conclude that this, in and of itself, indicates he had little, if any, expectation of success on these issues. It is patently obvious, then, that defendant's claims should be denied as well (see CPL § 440.10 [3] [c]).
IV. Sufficient Allegations of Fact
Defendant's motion must also be denied because he failed to allege sufficient issues of fact. A judgment of conviction is presumed valid, and a defendant moving to vacate his conviction bears the "burden of coming forward with sufficient allegations to create an issue of fact" (People v Session, 34 NY2d 254, 255-256 [1974]; People v Braun, 167 AD2d 164, 165 [1st Dept 1990]; see CPL § 440.30 [4] [b], [d] [i], [ii]). CPL § 440.30 (4) provides that a court may, upon considering the merits of such a motion, deny it without a hearing if: the motion is based upon essential facts without sworn allegations substantiating or tending to substantiate them (see CPL § 440.30 [4] [b]); an allegation of fact essential to support the motion is either contradicted by a court record or other official document; or, an allegation of fact made solely by the defendant is unsupported by any other affidavit or evidence, and there is no reasonable possibility that such allegation is true (see CPL § 440.30 [4] [d] [i], [ii]).
The People maintain that defendant's claim should be denied because his moving papers do not contain sufficient allegations tending to substantiate them (see CPL § 440.30 [4] [b], [d]). Indeed, the defendant neglected to provide an affidavit from his alleged ineffective attorneys. Statutorily, the People are correct. Failure to provide an affidavit from counsel warrants summary denial of defendant's motion because absent any other evidence that defense counsel failed to inform him of potential deportation consequences, he is unable to "substantiate all the essential facts" (see CPL § 440.30 [4] [b]; People v Morales, 58 NY2d 1008 [1983], citing People v Scott, 10 NY2d 380 [1961] [failure to supply affidavit from trial or plea counsel who is living and available warranted summary denial of motion collaterally attacking conviction based on attorney's alleged conduct]; People v Stewart, 295 AD2d 249, 250 [1st Dept 2002] [summary denial was appropriate where "defendant's papers were deficient in that they lacked an affirmation from trial counsel explaining his strategic decisions, or any explanation for the absence of such an affirmation"]; see People v Ozuna, 7 NY3d 913, 915 [2006] [defendant "neither submitted an affidavit from his father to show that he would have corroborated his son's testimony, nor explained his failure to do]).
The absence of an attorney's affidavit, however, by itself, is not dispositive (see Morales, 58 NY2d 1008). In fact, an affidavit of counsel is not required where the defendant raises an ineffective assistance claim based on alleged error or omission of trial counsel (People v Radcliffe, 298 AD2d 533 [2nd Dept 2002]). "The defendant's application is adverse and hostile to his trial attorney. To require the defendant to secure an affidavit, or explain his failure to do so, is wasteful and unnecessary" (Radcliffe at 534).
Here, though, defendant neither provided an affidavit from his attorney nor explained his efforts to obtain one. Defendant, in his affidavit, merely states in the most conclusory form possible that trial counsel failed to object to a non-English speaking juror. Defendant fails, however, to provide any specific factual allegations regarding any of this assertion. Without any evidence substantiating the defendant's allegations that counsel's performance was ineffective, then, there is simply "no reasonable possibility that the allegation is true" (CPL § 440.30 [4] [d] [ii]). Defendant's motion must therefore be summarily denied on this basis as well.
As for defendant's other claims that the judgment was procured by misrepresentation and fraud, and that improper and prejudicial conduct occurred outside the record, they too, are entirely unsubstantiated by any factual allegations. The defendant simply recites in conclusory form the text of CPL § 440.10 (1) (b) and (g). Pursuant to CPL § 440.30 (4) (a), then, this court summarily rejects the claims for failing to "allege any ground constituting legal basis for the motion" (CPL 440.30 [4] [a]).
V. Validity and Lawfulness of Defendant's Sentence
As a matter of law, defendant's CPL § 440.20 motion is is entirely without merit. CPL § 440.20 (1) permits a court to vacate a sentence that was "unauthorized, illegally imposed or otherwise invalid as a matter of law" (see CPL § 440.20[1]). While such provision applies to legally defective sentences, the defendant fails to allege any defect in his sentence of life imprisonment with a mandatory minimum term of 23 years. Instead, he argues that a removal order issued after his murder conviction somehow supersedes that sentence, thus entitling him to be resentenced to time served. It does not.
Though the defendant may wish to have his removal order supersede the life sentence he is currently serving, CPL § 440.20 neither provides a basis for this court to vacate and resentence him assuming it were inclined to do so, which it surely is not, nor does it qualify him for relief from the Parole Board. Executive Law § 259-i (2) (d) (i) allows the board to grant a conditional release for deportation only "after the inmate has served his minimum period of imprisonment imposed by the court . . . provided that the inmate has had a final order of deportation issued against him and provided further that the inmate is not convicted of either an A-I felony . . . or a violent offense. . . ." (Executive Law § 259-i [2] [d] [i]). The defendant has not served the mandatory minimum period of 23 years for his sentence, and was convicted of second degree murder, a class A-I felony. In any case, it is the Parole Board that determines whether the defendant is eligible for a conditional release (Executive Law § 259[2][a]).
Additionally, while 8 U.S.C. § 1231 (a) (4) permits the chief state official exercising authority over an incarcerated person to request the removal of an alien convicted of a non-violent offense before the end of their sentence, it provides that "[n]o cause or claim may be asserted under this paragraph against any official of the United States or of any State to compel the release, removal, or consideration for release or removal of any alien" (8 USC § 1231 [a] [4] [D]). The Second Circuit Court of Appeals and district courts have followed the plain language of the statute by rejecting any claims inmates have made to compel the Attorney General to exercise his discretion (see e.g., Thye v United States, 109 F3d 127, 129 [2d Cir 1997] [denying alien's motion under the Antiterrorism and Effective Death Penalty Act of 1996]; United States v Camposano-Baez, 317 F Supp 2d 487, 488 [SDNY 2004] [denying motion by inmate under the statue, re-codified in section 1231]). In any event, having been convicted of a violent felony offense, the defendant is ineligible even for discretionary relief.
Upon completion of his life sentence or when the Parole Board deems him worthy of parole, he will be transferred from Department of Corrections and Community Supervision (DOCCS) to Department of Homeland Security custody for removal (Executive Law § 259-i [2] [d] [i]; see Gobin v Holder, 2013 WL 3784144, *2 [WDNY July 18, 2013, No. 13-CV-241-JTC] [denying alien's challenge of his pre-removal detention by the Department of Homeland Security following release from DOCCS custody]).
VI. Further Pro Se CPL 440 Motions
It is not lost on this court that this represents defendant's third and fourth CPL 440 motions, in addition to a direct appeal, and three coram nobis applications. In so doing, he has repeatedly raised similar issues, only to be struck down by both the state and federal trial courts, and the Appellate Division, First Department. Moreover, the New York State Court of Appeals denied his petition for further appellate review. Under such circumstances, as well as the repetitive and duplicitous nature of these claims, this court finds it appropriate to enjoin this defendant from filing any further pro se CPL 440 motions without first obtaining permission from this court to do so ( see In re Moore, 17 Misc 3d 228 [Kings Co Supreme Ct 2007, Leventhal J] [enjoining defendant from filing further CPL 440.10 motions without the court's permission after defendant had moved five times in three years raising the same issues each time that were previously found to be without merit]; see also People v Richard Shaw, 23 Misc 3d 1133(A), 2009 WL 1522166 [Bronx Co Sup Ct 2009]; People v Karim Duvall, 23 Misc 3d 1121(A), 2009 WL 12509042 [Bronx Co Sup Ct 2009]). Accordingly, defendant is enjoined from filing future CPL 440 motions without first seeking written permission of this court.
VII. Conclusion
For the reasons stated above, this court finds both of defendant's motions procedurally barred and entirely without merit. Defendant's motions to vacate his judgment of conviction and sentence pursuant to Criminal Procedure Law §§ 440.10 [1] [h] and 440.20 [1] are therefore summarily denied in all respects.
This constitutes the decision and order of the court.
The clerk of the court is directed to forward a copy of this decision to the petitioner at his place of incarceration.
Dated: April 7, 2015
E N T E R
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Richard Lee Price, J.S.C.