Opinion
No. 3812–2000.
2012-08-1
The PEOPLE of the State of New York, v. Victor BRITO, Defendant.
Robert T. Johnson, Esq., District Attorney, Bronx County, by Orrie A. Levy, Esq., of Counsel, for People of the State of New York. Victor Brito, Ossining, Pro Se.
Robert T. Johnson, Esq., District Attorney, Bronx County, by Orrie A. Levy, Esq., of Counsel, for People of the State of New York. Victor Brito, Ossining, Pro Se.
DOMINIC R. MASSARO, J.
Pursuant to CPL § 440.10(1)(h),
Defendant Victor Brito, pro se, moves to vacate the judgment of conviction against him, entered on June 20, 2002, finding him guilty after a jury trial of two counts of Murder in the Second Degree ( Penal Law § 125.25[1] ). The Court thereafter sentenced him to concurrent indeterminate prison terms of 25 years to life (see, People v. Brito, 44 A.D.3d 345, 843 N.Y.S.2d 43 [1st Dept.2007], appeal den'd, 9 N.Y.3d 1004 [2007] ). In justifying his motion, Defendant alleges he was denied his constitutional right to due process and a fair trial because of prosecutorial misconduct, especially the prosecutor's conduct involving Miguel Gonzalez's trial testimony
.CPL § 440.10(1)(h) provides, in pertinent part, that “(a)t any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that:
....
(h) The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States ...”
and the bolstering of Domingo Guillen's testimony by stressing federal law enforcement's approval of his returning to the United States to testify.
Defendant and the People agree that Gonzalez was imprisoned at the time of the 1993 incident in Fulton Correctional Facility and could not have witnessed the crime scene in Bronx County.
Defendant submitted no evidence with his motion. Nevertheless, he demands an evidentiary hearing, pursuant to CPL § 440.30(5), to establish facts surrounding the alleged prosecutorial misconduct, including whether the prosecutor (1) alluded to facts not in evidence, (2) violated Brady v. Maryland and/or the Jencks Act (see, 18 USC § 3500),
(3) bolstered Guillen's testimony by referencing federal law enforcement, (4) injected his personal integrity into the summation; and (5) attempted to shift the burden of proof to Defendant.
The statute is designated “Demands for production of statements and reports of witnesses” and involves federal prosecutions.
Background
Defendant is now housed at Sing Sing Correctional Center in Westchester County where he is serving his murder sentence. Defendant, a drug gang member, was convicted of murdering Francis Ramirez and Steven Moses who tried to rob him at his brother's apartment located at 55 Evelyn Place, Bronx County. The murders occurred on January 23, 1993; the bodies were transported to Westchester County and discovered three days later near the Bronx River wrapped in garbage bags (see, Brito v. Brown, 2011 U.S. Dist. Lexis 43962 [SD N.Y.2011] ). The case remained unsolved for years until a cold case detective resumed the investigation. That investigation lead to the instant prosecution.
At the 2002 trial, the District Attorney, in his case-in-chief, produced four witnesses who testified about Defendant's relation to the drug gang headed by his brother, Osvaldo Brito. The witnesses say they overheard Defendant bragging that he committed the murders.
Defendant characterizes each of the witnesses as motivated to lie and points out that no eyewitness testimony or scientific evidence link him to the murders. On a related topic, Defendant stresses that the prosecutor admits Gonzalez committed perjury during the trial since he could not have been at the crime scene while incarcerated at a correctional facility when the murders occurred. Concerning the remaining witnesses, the prosecutor continued to use their trial testimony and even bolstered Guillen by allegedly telling the jury that the Justice Department and the Federal Bureau of Investigation, in a “post—9/11” atmosphere, permitted him to return to America to testify on the government's behalf. According to Defendant, the result was his conviction for both murders.
Defendant's conviction was affirmed by the First Department in 2007 wherein the Appellate Division found the jury's verdict was not against the weight of the evidence and no trial errors were committed (see, People v. Brito, supra.).
Two years later, Petitioner filed a pro se habeas corpus writ, pursuant to section 2254 of Title 28, United States Code, with the United States District Court for the Southern District of New York (see, Brito v. Brown, supra.). In the writ petition, Defendant asserted six claims which included (1) his conviction was against the weight of the evidence, (2) a fair trial was denied because the judge refused specific jury charges regarding witness omissions, (3) prosecutorial misconduct, (4) entitlement to a lesser charge of “depraved indifference” murder, (5) denial of effective assistance of counsel, and (6) eyewitness identification was inconsistent with trial testimony. The District Court denied all branches of the habeas corpus petition and declined to issue a certificate of appealibility (28 USC § 2253[c][2] ) because Defendant failed to make a substantial showing of denial of a constitutional right. Defendant's Position
In presenting his pro se case, Defendant stresses that his constitutional rights were denied because of prosecutorial misconduct. The misconduct included the Assistant District Attorney injecting his integrity into the trial, thereby depriving Defendant of due process rights to a fair trial. Defendant criticizes the prosecutor's comments about witness Gonzales for, among other things, the prosecutor's attempt to justify why he failed to uncover that Gonzales committed perjury when testifying that he was at the crime scene. In this regard, Defendant points out that criminal trials must be conducted unimpaired by intemperate conduct, impertinent counsel, and irrelevant asides, all of which obfuscate the development of factual issues (see generally, People v. Alicea, 37 N.Y.2d 601 [1975] ). Further, Defendant argues the prosecutor alluded during the trial to facts not in evidence, introduced hearsay evidence, violated Brady and the Jencks Act, and bolstered his case by suggesting federal law enforcement endorsed Guillen's testimony.
Prosecutor's Position
In his answering papers, the District Attorney opposes holding an evidentiary hearing. In this regard, the prosecutor says that Defendant's claims are meritless and without evidentiary support. The motion should be dismissed, with no hearing, because the moving papers lack sufficient evidence to support ineffective assistance. Further, the issues raised in the instant motion needed to be raised either upon direct appeal or in Defendant's previous CPL § 440 .10 motion.
Because a judgment of conviction is presumed valid, Defendant must meet the burden of coming forward with allegations that support vacating the judgment (see generally, People v. Session, 34 N.Y.2d 254 [1974] ). Here, the prosecutor says the Court must deny Defendant's motion because Defendant could have raised the underlying issues previously but did not do so (see, CPL § 440.10[3][c] ). Further, the Appellate Division found Defendant's claims of prosecutorial misconduct were unpreserved and declined to review (see, People v. Brito, supra.).
The District Attorney rejects Movant's claims concerning prosecutorial comments about Gonzalez's perjured testimony (see, People v. Ashwal, 39 N.Y.2d 105 [1976] ). In fact, the prosecutor's says his office's conduct was proper under the circumstances (see generally, People v. Savvides, 1 N.Y.2d 554 [1956] ). Likewise, any issue concerning the Prosecutor's comments about his integrity are meritless. According to the prosecutor, the Assistant District Attorney's comments merely responded to allegations made by Defense counsel (see generally, People v. Melendez, 31 A.D.3d 186, 815 N.Y.S.2d 551 [1st Dept.2006] ).
Likewise, the prosecutor rejects the Defendant claims concerning the Jencks Act. That statute provides no legal basis for vacation here because that legislation applies only to federal prosecutions. Similarly, ineffective assistance of counsel must be denied because the evidence does not show that the proceedings were unfair when taken as a whole (see generally, People v. Benevento, 91 N.Y.2d 708 [1998] ). According to the prosecutor, his comments about Guillen's returning to America are justified as fair comments (see generally, People v. Melendez, supra.). Overall, there is no pattern of inappropriate comments that warrants vacating the instant judgment (see generally, People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572[1st Dept.1997).
Defendant's Reply
In reply, Defendant disputes any obligation existed to raise the instant issues in his original appeal and/or CPL § 440.10 motion. Defendant excuses any omission because he is a layman who was denied court appointed legal help and could not afford legal services. Further, he renews his arguments that the prosecutor violated Brady v. Maryland when he was not informed immediately that Gonzalez committed perjury. Further, he notes that there has been no perjury prosecution. Finally, Defendant charges the prosecutor rehabilitated Guillen by unethically invoking federal law enforcement and unethically abusing the summation process.
Legal Discussion
Taking the above discussion into account, the Court agrees with the prosecutor that Defendant's application is meritless. It lacks evidentiary support and is based solely upon Defendant's bald allegations. Likewise, the branch of the motion seeking an evidentiary hearing is dismissed because Defendant failed to show any grounds for said hearing other than his unsupported allegations. Further, Defendant failed to adequately explain why he failed to submit supporting evidence.
Even if the Court reviews Defendant's prosecutorial misconduct claims, the result would not change. Defendant says the prosecutor alluded to facts not in evidence and to hearsay evidence during the trial, but fails to make clear what evidence is involved. Likewise, Defendant fails to cogently state a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which case requires that any exculpatory evidence must be provided the defense concerning a testifying witness. About the Jencks Act,
the Court notes that while the statute is titled “[d]emands for production of statements and reports of witnesses,” it applies in federal prosecutions, but does not apply to state prosecutions (see, People v. Arthur, 175 Misc.2d 742, 673 N.Y.S.2d 486 [Sup.Ct. New York 1997] ). In this regard, Defendant fails to show injury or what exculpatory evidence was not received during his trial.
Concerning allegations the prosecutor bolstered Guillen's testimony by referencing federal law enforcement, Defendant cites no legal authority for his position or shows any prejudice. Nor does Defendant enumerate any injury when the prosecutor allegedly injected his personal integrity into the summation or attempted to shift the burden of proof to Defendant.
Justice requires that a prosecutor be given wide latitude to comment upon evidence and to respond to defense arguments (see generally, People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dpt.1997] ). Here, this includes fair comments about Gonzalez's alleged perjury and discussion about Guillen's return to America at the behest of federal law enforcement (see generally, People v. Melendez, 31 A.D.3d 186, 815 N.Y.S.2d 551 [1st Dept.2006] ). Likewise, there is no proof that the prosecutor was successful in shifting the burden of proof on any issue (see generally, People v. Ramos, 205 A.D.2d 404, 613 N.Y.S.2d 879 [1st Dept.1994] ).
Further undermining Defendant's application, the Court agrees with the prosecution that Defendant needed to raise the current issues, by virtue of his direct appeal and the record based nature of his claims, in his previous CPL § 440.10 motion (see, CPL 440.10[3][c] ). Defendant does not offer an explanation for his failure other than that he is a layman unfamiliar with legal procedure. Concerning prosecutorial misconduct, the Appellate Division found that if the issue had been preserved, the Court would have found no basis for reversing the conviction upon prosecutorial misconduct grounds (see, People v. Brito, supra.).
Because a judgment of conviction is presumed valid, Defendant fails his burden of coming forward with allegations sufficient to support vacating the judgment. Additionally, the Court agrees with the prosecution that his comments about Gonzalez's perjured testimony were proper (see, People v. Ashwal, 39 N.Y.2d 105 [1976];People v. Savvides, 1 N.Y.2d 554 [1956] ). Likewise, Defendant failed to show that the District Attorney's comments about Guillen and federal law enforcement were in any way improper.
Finally, the Court concludes Defendant was not deprived of a fair trial because no pattern of inappropriate comments exists (see generally, People v. Brown, 6 A.D.3d 358, 775 N.Y.S.2d 845 [1st Dept.2004] ).
WHEREFORE, based upon the foregoing,
The Court read the following papers in deciding this motion: (1) Notice of Motion to Pursuant to CPL § 440.10(1)(h) and Defendant's Affidavit in Support; (2) Affirmation in Opposition of Orrie A. Levy, Esq.; Memorandum of Law with exhibits, and (3) Defendant's “Affirmation” Rebuttal to Affirmation in Opposition.
ORDERED that the branch of Defendant Victor Brito's motion, seeking to vacate the judgment of conviction upon grounds that Defendant was denied his constitutional rights to a fair trail based upon prosecutorial misconduct is DENIED, and it is
ORDERED that the branch of Defendant Victor Brito's motion seeking an evidentiary hearing is DENIED.
The foregoing constitutes the Decision and Order of this Court.