Opinion
0644-1984.
Decided June 22, 2011.
Justin J. Braun, Esq., Assistant District Attorney, Office of Robert T. Johnson, District Attorney, Bronx County, Bronx, New York.
Mr. Washington Davis, defendant pro se.
On May 10, 2011, Defendant filed his fifth pro se motion in this case, pursuant to CPL 440, seeking to vacate his conviction or sentence with respect to his 1984 conviction of Robbery in the Second Degree, PL 160.10(2). In three of the previous four such motions, Defendant raised the same ground upon which he makes his current motion — that his conviction is unlawful because the foreperson of the grand jury failed to sign the indictment. In each of these cases, the motion was denied in all respects. Defendant also has made this same argument in at least two of four different petitions for writs of habeas corpus that he has filed in connection with this case. Each time, the petition for the writ was denied.
Ordinarily, a motion to vacate will be made to the court which presided over the trial or which took a plea. See CPL 440.10(1). However, in this case, the judge who presided over the trial in the underlying case (Hon. George D. Covington, Supreme Court Justice, see discussion, infra) is no longer a sitting judge in Bronx County, and therefore it is appropriate for this Court to hear this motion to vacate. People v. Skinner, 154 AD2d 216, 217 (1st Dept. 1990), app. denied, 76 NY2d 796 (1990); People v. Alexander, 6 Misc 3d 1026A, 2005 NY Slip Op 50194U, *4 (Sup. Ct., Bronx Co.), app. denied, 2005 NY App. Div. LEXIS 9332 (1st Dept. 2005).
The People filed an opposition to Defendant's motion on May 25, 2011, requesting that the motion be denied and that Defendant be enjoined from filing any further motions pertaining to this conviction without first obtaining leave of the Court.
For the reasons set forth below, Defendant's motion to vacate his plea is denied, without a hearing. In addition, Defendant is enjoined from making any further motions relating to this conviction and sentence without leave of this Court.
I. PROCEDURAL HISTORY
On February 17, 1984, Defendant was arrested, and charged with Robbery in the Second Degree, PL § 160.10(2), and Assault in the Second Degree, PL § 120.05(6), both felonies, under Indictment No. 0644-84. On October 15, 1984, Defendant was convicted in Supreme Court after trial of Robbery in the Second Degree, PL § 160.10. On November 7, 1984, Supreme Court Justice Covington sentenced Defendant to an indeterminate term of incarceration of 15 years to life.
A number "40694/84" on the indictment is crossed out on the original document, which is contained in the court file, and replaced with the number "644-84." Every other document contained in the court file, including the jacket folder for the case, from February 23, 1984, the date the indictment was handed down by the grand jury, through today, bears indictment number "0644-84" or "644-84." That first number "40694/84" appears simply to be a typographical error. Each year, each case is assigned a number followed by a slash and the last two digits of the year, starting with number 1 for the first case, in sequential order, as each case is presented to the grand jury. As of February 1984, when the indictment was presented to the grand jury, 40,000+ prior cases had not been presented to the grand jury that year.
Defendant served over 26 years in prison on that sentence and, on or about November 19, 2010, was released to parole supervision.
A. Defendant's Appeal
On or about July 8, 1987, Defendant perfected an appeal of his conviction. On October 8, 1987, the Appellate Division, First Department, denied the appeal and unanimously affirmed Defendant's conviction. People v. Davis, 133 AD2d 1018, 519 N.Y.S2d 910 (1st Dept.), app. denied, 70 NY2d 931 (1987).
B. Defendant's Habeas Petitions
On November 10, 1985, Defendant filed, pro se, for a writ of habeas corpus in the United States District Court for the Southern District of New York (the "Southern District") (Docket No. 86 Civ. 0323). Southern District Chief Judge Constance Baker Motley dismissed Defendant's petition as premature, in that he had failed to exhaust his state court remedies, without prejudice to resubmit. Davis v. City of New York, et al., US Dist. Ct., S.D.NY, Nov., 86 Civ. 0323, Motley, J.
In 1991, Defendant sought reconsideration of that petition by the Southern District and, upon reconsideration, on April 3, 1991, Judge Motley denied the petition. See 1994 U.S. Dist. Lexis 9769, *2-3 (S.D.NY 1994) (referring to resubmission and ultimate denial of petition).
Almost immediately after the federal judge denied Defendant's petition, on or about April 12, 1991, Defendant filed a petition, pro se, for a state writ of habeas corpus, in the Appellate Division, First Department. That petition was dismissed. Davis v. Kuhlman, 1991 NY App. Div. Lexis. 9243, *1 (1st Dept. 1991).
Thereafter, Defendant filed for a writ of habeas corpus in Supreme Court, Washington County. In that petition, Respondent contended that his conviction in this case was unlawful because the grand jury foreman had failed to sign the indictment. Washington County Court Judge Gordon M. Hemmett, Jr., denied Defendant's application, without hearing. See People ex rel. Davis v. Leonardo, 186 AD2d 844 (3rd Dept. 1992) (appeal which refers to that denial).
Defendant then appealed the denial, pro se, to the Appellate Division, Third Department, and, on October 1, 1992, the Third Department affirmed the denial of Defendant's habeas corpus petition, holding that Defendant could have raised his claims by direct appeal or a motion pursuant to CPL § 440, and any failure to do so required denial. People ex rel. Davis v. Leonardo, 186 AD2d 844. The Third Department also noted that, even if they were to consider Defendant's petition on the merits, it would be denied as a certified copy of the indictment, signed by the grand jury foreman, was in the court file. Id.
Defendant then applied for leave to appeal, to the Court of Appeals; leave was denied on December 22, 1992. People ex rel. Davis v. Leonardo, 81 NY2d 702 (1992).
In 1993, Defendant filed a second federal petition for a writ of habeas corpus, alleging, inter alia, that the indictment was never signed and that Judge Hecht had forged the signature of the jury foreman. Davis v. Leonardo, 1994 U.S. Dist. Lexis 9769, *3-4 (S.D.NY 1994). On July 15, 1994, Southern District Judge Miriam Goldman Cedarbaum dismissed the petition finding that Defendant's claim was procedurally barred because the federal court cannot collaterally review issues that Defendant had raised in state court, and which the state court had held to be procedurally barred. Id. at *4-5.
In 1997, Defendant filed a third pro se petition for a writ of habeas corpus in the Southern District. That petition was transferred to the Court of Appeals for the Second Circuit, which denied Defendant's motion for permission to file a successive petition for a writ of habeas corpus. See Davis v. Leonardo, 2004 U.S. Dist. Lexis 19784, *2-3(S.D.NY 2004) (Defendant "filed another habeas corpus petition in this court in 1997 [which] . . . was transferred to the Second Circuit, which denied Davis leave to file a successive petition").
22 U.S.C. 2244(b)(3)(A) provides that before a second or successive habeas application may be filed in the district court, the applicant must seek permission from the appropriate federal appellate court for an order authorizing the district court to consider the application.
C. Defendant's Four Prior CPL 440 Motions
Defendant has filed four previous motions to vacate, pursuant to Section 440 of the CPL.
In May 1996, Defendant filed his first motion seeking to vacate his conviction pursuant to CPL § 440.10. Among other claims, Defendant also contended that the court lacked jurisdiction because the grand jury foreman had not signed the indictment. In a written decision, Judge Covington, on July 15, 1996, denied defendant's motion in all respects on the grounds that "[a]ll of Defendant's claims are without merit and have been the subject of review in several other courts in previous applications made by this Defendant." See Decision, dated July 15, 1996, at 1.
Defendant then sought leave to appeal that denial; leave was denied by the Appellate Division, First Department, on November 12, 1996.
In 1998, Defendant filed a second motion, pursuant to CPL § 440.10, seeking to vacate his conviction. Among other claims, Defendant contended that the robbery charge against him under Indictment Number 40694/84 had been dismissed on February 23, 1984, but that he nevertheless had been arraigned upon a fictitious indictment, for which he contended there were no grand jury minutes. See Affidavit of Washington Davis in Support of Motion to Vacate Judgment, attached as Exhibit 17 to the People's Aff. In Supp., at p. 4-5.
See Footnote 2, supra. In fact, contrary to Defendant's 1998 contentions, on February 23, 1984, the indictment was signed by the grand jury foreman, not dismissed; the grand jury voted a true bill as to Assault in the Second Degree and Robbery in the Second Degree. On that date, February 23, 1984, which was the CPL 180.80 date, Defendant was not released because an indictment had been voted. See CPL § 180.80(2)(a). Thereafter, on March 19, 1984, Defendant was arraigned on the indictment.
On June 17, 1998, Supreme Court Justice John N. Byrnedenied Defendant's motion in its entirety. See Decision, dated June 17, 1998, at 1.
On August 25, 2000, Defendant moved, yet again, to vacate his judgment of conviction pursuant to CPL 440.10, on the ground, inter alia, that the court had lacked jurisdiction because the indictment had not been signed by the foreman of the grand jury. Affidavit of Washington Davis in Support of Motion to Vacate Judgment, attached as Exhibit 20 to the Aff. In Supp., at p. ¶¶ 1, 27-30. This motion also was denied by Justice Byrne, who held that Defendant's motion raised no new claims warranting consideration of further relief. See Decision, dated December 21, 2000.
Then, on July 24, 2004, Defendant filed his fourth motion pursuant to CPL § 440. This time, Defendant sought to have the court set side his sentence, basing his claim on an alleged lack of constitutionality of New York's persistent felony offender statute. Defendant also reiterated his contentions about the indictment. Defendant was assigned counsel on the motion, but counsel did not adopt Defendant's indictment claim. The motion was denied, in a written decision, by Supreme Court Justice David Stadtmauer. See Decision, dated July 10, 2006.
This fifth motion to vacate Defendant's judgment of conviction pursuant to CPL § 440.10 reiterates the same ground that Defendant has argued in four prior such motions. Defendant again contends that the foreman of the grand jury failed to sign the indictment. Defendant also contends that the robbery charge was dismissed due to that failure, but that, despite this dismissal, Defendant was not released from incarceration.
The Court notes that, in this motion, Defendant erroneously intertwines facts and dates pertaining to a different arrest with those underlying this conviction. He is wrong. On January 1, 1984, Defendant was arrested and charged with Misapplication of Property, PL § 165.00(1), a misdemeanor, in a criminal court case, Docket No. 006725. That charge was dismissed on July 17, 1984, by Criminal Court Judge Maurice Grey. Defendant erroneously contends that this case was "consolidated [with that other matter] under docket number 4X006725 and dismissed on July 1, 1984 . . . and the defendant was ordered to be released." Defendant's Aff. In Supp., ¶ 9. That simply is not true. This case had not been and was never consolidated with the misdemeanor matter. On July 17, 1984, although the misdemeanor was dismissed, Defendant was not released from incarceration as Defendant did not post the requisite $10,000.00 bail on this case.
II. CONCLUSIONS OF LAW
Defendant's challenge to his conviction is baseless. His contention that the grand jury foreman failed to sign the indictment is not only factually wrong, it has been addressed by several other courts in prior motions and petitions filed by Defendant. For the reasons set forth below, the Court finds that Defendant's claim is procedurally barred and that, even if the Court were to reach the merits of the claim, the claim would be denied as there is no real dispute that the indictment was signed by the Grand Jury foreman.
In addition, for the reasons set forth below, the Court also enjoins Defendant from filing any further motions pertaining to this robbery conviction without prior written permission to make such motion from this Court before any such filing.
A. Defendant's Claim that Indictment was not Valid is Procedurally Barred
Defendant's challenge to the validity of the indictment in this case based upon an alleged lack of signature by the grand jury foreman on the indictment is procedurally barred.
As an initial matter, CPL § 440.10(2) mandates that this claim be denied. Defendant already appealed his conviction on this issue. See People v. Davis, 133 AD2d 1018 (1st Dept.) (unanimously affirming conviction, without opinion), app. denied, 70 NY2d 931 (1987). Irrespective of whether or not Defendant raised this specific issue in his appeal, his motion to vacate the judgment must be denied, as Defendant is barred from raising an issue that was or could have been raised on appeal via CPL § 440 motion. See CPL § 440.10(2)(a) (if issue already determined on its merits in appeal, defendant is barred); People v. Chapman , 10 Misc 3d 211 , 213 (Sup. Ct., Kings Co. 2005) (issues previously raised on appeal barred from CPL § 440 consideration); see also CPL § 440.10(2)(c) (if sufficient facts appeared on the record to have permitted appellate review of the issue, defendant is barred); People v. Cuadrado , 9 NY3d 362 , 364-65 (2007) (bar applies, if sufficient facts appeared on the record to have permitted appellate review, even when defendant is alleging he omitted a fundamental jurisdictional issue from his prior appeal); People v. Hernandez, 2010 NY Slip Op 52108(U), *3; 29 Misc 3d 1231A (Sup. Ct., Bronx Co. 2010); People v. Brown, 59 AD3d 1058, 1058-59 (4th Dept. 2009), app. denied, 12 NY3d 851 (2009).
The Court does not possess a copy of Defendant's appeal or appellate brief. Thus, the Court cannot ascertain whether Defendant raised this specific issue on his appeal. However, this is not germane to the Court's determination because Defendant's claim is barred if such claim could have been raised on appeal. In this case, there can be no dispute that the issue could have been raised on appeal as Defendant raised this very same issue on the day of arraignment, March 19, 1984. See Section II(C), infra, p. 11.
For these reasons, Defendant's motion on this ground is procedurally barred and the motion must be denied.
Even if Defendant's motion was not procedurally barred by his prior appeal, Defendant's claim still would be dismissed by this Court because the issues raised by the Defendant — the claimed lack of signature of the grand jury foreperson and alleged dismissal of the robbery charges against Defendant — already have been determined on their merits in a prior proceeding and there has been no retroactive change in the law affecting the issue. CPL § 440.10(3)(b); People v. Ossorio, 12 Misc 3d 1186(A), 2006 NY Slip Op 51465(U) (Sup. Ct., Bronx Co.) (440 motion denied where defendant raised same issue in previous CPL § 330.30 motion), app. denied, 2006 NY App. Div. Lexis 12587 (2006); People v. Perez, 11 Misc 3d 1093(A), 2006 NY Slip Op 50839(U) (Sup. Ct., Kings Co. 2006) (motion denied where same issue was raised in habeas corpus action). In four separate motions made pursuant to CPL 440, and in at least two of his habeas corpus petitions, Defendant has raised these same claims, and each time his claim was denied.
For the reasons set forth above, Defendant's motion to vacate his conviction is denied.
B. Defendant's Motion is Meritless
Even if Defendant's motion was not dismissed on procedural grounds, the motion would be denied on its merits, without the necessity for a hearing, as Defendant's contention that his indictment is facially insufficient is wholly without merit. The original indictment that is in the court file is signed by the grand jury foreperson. See Indictment.
Defendant's unsigned copy, which he refers to as the "certified unendorsed indictment of February 23rd," bears no certification. Defendant's Aff. In Supp., ¶ 5. See Section II(C), infra (Defendant was shown actual signed original on the date of arraignment).
As Defendant's claim is conclusively refuted by documentary proof, Defendant's motion is denied. People v. Medina, 273 AD2d 119, 119 (1st Dept. 2000), app. denied, 96 NY2d 736 (2001) (copy of signed indictment refuted defendant's claim it was unsigned; court properly denied motion without a hearing or assignment of counsel); People v. Soto, 16 Misc 3d 1135(A), 2007 NY Slip Op 51700(U), *4 (Sup. Ct., Bronx Co. 2007).
C. Defendant is Enjoined from Further Motion Practice Related to this Conviction Without Prior Approval from this Court
Defendant has filed numerous meritless motions in this case, spanning the period of 27 years since his conviction, even though such prior motions which raised the same or similar issues were denied. The Court finds that Defendant's five motions pursuant to CPL § 440 and multiple habeas petitions in state and federal court, alleging substantially the same grounds, have wasted court and prosecutorial resources.
The frivolous nature of the motions filed by Defendant is made even more egregious because the record is unequivocal with respect to Defendant's knowledge that no issue about the foreman's signature exists. At his arraignment on March 19, 1984, Defendant raised the issue and was alerted to his error twenty seven years ago at the outset of the case:
DEFENDANT: I was looking at the indictment and I was looking at 200.50, the Criminal Procedure Law, requiring that a foreman's signature be here.
THE COURT: It's on the original, not the copy. Show Mr. Davis the original signed indictment which is signed, . . . by Williard A. Williams, the foreman of the Grand Jury.
(Handed to defendant.)
DEFENDANT: Okay, thank you.
See Transcript of March 1984 Proceeding, attached as Exhibit 2 to the People's Aff. in Supp., at p. 5. The Defendant's own knowledge of the meritless nature of his claim as well as the numerous court denials of the motions on those very grounds have failed to deter Defendant from subsequent filings on the same grounds. Therefore, the Court orders that Defendant is enjoined from filing any further motions without first obtaining written permission from this Court.
Although Defendant's right to defend himself pro se is constitutionally protected and statutorily granted in New York, this right "is not absolute but subject to certain restrictions." See People v. Moore , 17 Misc 3d 228 , 232 (Sup. Ct., Kings Co. 2007), quoting People v. McIntyre, 36 NY2d 10, 17 (1974). The Defendant has abused this right by ignoring prior court rulings on the same issue and continuing to file on these same grounds. Moreover, Defendant's own knowledge of the lack of merit to this claim makes such claim more egregious. Courts have the authority to enjoin petitioners to avoid the waste of resources which results from these frivolous motions. People v. Duvall, 23 Misc 3d 1121(A), 2009 NY Slip Op. 50875(U), *4 (Sup. Ct., Bronx Co. 2009); People v. Rivera, 159 Misc 2d 556, 561 (Sup. Ct., Bronx Co. 1993).
In the current economic climate, when this country faces the worst recessionary period since the Great Depression, and the court system, along with all other government service agencies, faces budgetary cuts and increased caseloads, Defendant's continued filings of frivolous motions, raising issues which he is well aware are meritless and which already have been determined by other courts, wastes scarce public resources — both judicial and prosecutorial.
Wise, Proposed Budget Includes Bump For Borough District Attorneys, N.Y.L.J., Feb. 4, 2009(Legal Aid's attorney-in-chief quoted as saying that 2011 cuts in city and state funds, coming on top of cuts in the 2010 fiscal year, "will further impair our ability to provide a constitutional defense" for indigent defendants in the city and that, even without the planned 2010 cuts, Legal Aid's 435 criminal defense lawyers handle on average 592 cases a year — 48 percent higher than the 400-case standard set by the Appellate Division, First Department).
Stashenko, Hundreds of "Terrific" Workers Laid Off as Personnel Cuts Hit NY Courts, N.Y.L.J., June 2, 2011 ($170 million budget cut to judiciary causes layoff of more than 300 employees).
Glaberson, The Recession Begins Flooding into the Courts, New York Times, Dec. 27, 2009, (describing how New York courts ended 2009 with 4.7 million cases, highest number ever, with increases seen in family, criminal and commercial courts, and across the judicial system).
In this case, Defendant's five motions pursuant to CPL § 440 and his four petitions for habeas relief have all been denied, as have his numerous appeals of these denials, without deterring Defendant from continuing to pursue such meritless claims. Under such circumstances, it is appropriate to enjoin Defendant from filing any further motions in this action without first obtaining written permission from this Court. Moore, 17 Misc 3d at 232 (defendant who moved five times under CPL § 440.10, raising same issues, which were all found without merit, enjoined from filing without court permission); Duvall, 2009 NY Slip Op. 50875(U) at *4 (defendant's repeated 440 motions raising similar issues were denied by court, and denied on appellate review, warranting injunction against filing motions without permission).
III. CONCLUSION
For the reasons stated above, Defendant's motion is dismissed without a hearing. People v. Ferreras, 70 NY2d 630, 630 (1987); People v. Session, 34 NY2d 254, 256 (1974).
Defendant also is enjoined from filing any further motions pertaining to this 1984 robbery conviction without first obtaining written permission from this Court.
The Court considered the following in deciding the motion: Notice of Motion, dated May 10, 2011, and Affidavit of Defendant in Support of Motion; Affirmation of Justin J. Braun, Esq., Assistant District Attorney, in Opposition to Motion, filed June 6, 2011, and Defendant's Certification in Support of Reply, dated June 13, 2011.
This constitutes the Decision and Order of this Court.