Opinion
IND. NO. 3239/05
10-01-2014
THE PEOPLE OF THE STATE OF NEW YORK v. LEWIS GEORGE, Defendant.
DECISION AND ORDER
Defendant moves, pro se, to vacate his judgment of conviction pursuant to C.P.L. § 440.10(1), claiming ineffective assistance of counsel. The People oppose defendant's motion.
On March 21, 2006, following a jury trial, defendant was convicted of one count of Robbery in the First Degree, two counts of Robbery in the Second Degree, two counts of Robbery in the Third Degree and two counts of Grand Larceny in the Fourth Degree. On April 6, 2006, defendant was sentenced to a determinate sentence of twenty years on the first-degree robbery count, to run consecutively with determinate sentences of ten years for each of the second-degree robbery count, and to run concurrently with indeterminate sentences of one to three years for each of the third-degree robbery and grand larceny counts.
The defendant is currently serving time at Five Points Correctional facility.
On May 2, 2006, defendant appealed his conviction. On March 4, 2008, the Appellate Division affirmed the judgment of conviction as modified with respect to the third-degree robbery count. People v. George, 49 A.D.3d 554 (2d Dep't 2008), app'l denied by 10 N.Y.3d 958 (2008).
On July 19, 2009, defendant moved, pro se, to vacate the judgment pursuant to C.P.L. § 440.10(l)(f) and § 440.10(l)(h), claiming that (1) the People made improper and prejudicial remarks in their opening statement and closing argument; and that (2) defense counsel's failure to object to the People's prejudicial remarks and lack of objections during trial constituted ineffective assistance of counsel.
On October 13, 2009, this court denied the defendant's motion to vacate his judgment of conviction.
On February 9, 2010, the defendant moved, pro se, for a writ of error coram nobis in the Appellate Division. On August 10, 2010, the Appellate Division denied the defendant's application for a writ of error coram nobis. People v. George, 76 A.D.3d 583 (2d Dep't 2010), app'l denied by 16 N.Y.3d797 (2011).
On February 23, 2011, the defendant moved, pro se, for a writ of federal habeas corpus. On July 15, 2011, the United Stated District Court for the Eastern District of New York, summarily denied the defendant's petition for a writ of habeas corpus. George v. Lempke, 11 Civ. 0955 (BMC), 2011 U.S. Dist. LEXIS 77339 (E.D.N.Y. July 15, 2011). On January 26, 2012, the defendant's motion in the United States of Appeals for the Second Circuit for a certificate of appealability was denied.
The defendant now moves yet again to vacate his judgment of conviction. Specifically, the defendant argues that his counsel was ineffective, because the counsel: (1) failed to inform him that he could receive consecutive sentences if convicted of the several robbery counts, and that if he had been so advised, he would have accepted the court's fifteen-year offer; (2) failed to explore the prospect of calling a psychological expert specializing in eyewitness identification; (3) failed to call Sharon Green as a witness, the woman who owned the Jeep involved in the robberies, and who defendant states would have testified that other men borrowed her vehicle on the day of the robberies; and (4) failed to secure the defendant's right to testify before the grand jury despite his request to testify before the grand jury.
The People state that they spoke to the defendant's trial counsel, Ken F. Jones, Esq., who stated that while he did not have a specific recollection of his decisions with respect to the issues raised by the defendant in his current motion, based on his general practices, a decision to forgo calling a particular witness would have been strategic and based on the facts and circumstances of the particular case. Moreover, Mr. Jones informed the People that it was his standard practice to advise defendants of their maximum prison exposure, and that they could receive consecutive sentences if convicted of multiple offenses.
The defendant's motion is summarily denied for the following reasons.
Under C.P.L. § 440.10(3)(c), this court has the discretionary power to deny a motion if "[u]pon 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." Here, the defendant raises ineffective assistance of counsel claims based on issues that could have been argued at his previous 440 motion filed in 2009. Since the defendant could have raised these issues in his previous 440 motion, but failed to do so, this court denies the defendant's motion on procedural basis under C.P.L. § 440.10(3)(c).
However, even if the defendant's motion was not procedurally barred, this court finds defendant's claims without merit.
To establish ineffective assistance, the defendant bears the burden of proving the absence of strategic or other legitimate reasons for counsel's alleged errors. People v. Colville, 79 A.D.3d at 197. A defendant in a criminal proceeding is constitutionally entitled to effective assistance of counsel. Strickland v. Washington, 466 US 668 (1984); People v. Linares, 2 N.Y.3d 507, 510 (2004); see U.S. Const, 6th Amend.; N.Y. Const., art. 1 § 6. Under the two-prong test of the federal standard, a court must decide (1) whether the counsel's performance fell below an objective standard of reasonableness and (2) whether the defendant suffered actual prejudice as a result. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Strickland v. Washington, 466 U.S. at 687 (1984). In New York, "[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met." People v. Baldi, 54 N.Y.2d 137, 147 (1981). "A contention of ineffective assistance of trial counsel requires proof of less than meaningful representation, rather than simple disagreement with strategies and tactics." People v. Rivera, 71 N.Y.2d 705, 708-09 (1988); See People v. Benn, 68 N.Y.2d 941 (1986).
In contrast to the federal standard, which looks to the outcome of the case, in New York, a court must consider "prejudice... [,] a component which focuses on the fairness of the process as a whole rather than any particular impact on the outcome of the case." People v. Yagudayev, 91 A.D.3d 888, 890 (2d Dep't 2012) quoting People v. Colville, 79 A.D.3d 189, 197 (2d Dep't 2010). Defendant bears the burden of overcoming the strong presumption that defense counsel rendered effective assistance by demonstrating the absence of strategic or other legitimate explanations for counsel's alleged errors. People v. Colville, 79 A.D.3d at 197.
Upon careful review of the record and the papers filed by the defendant and the People, this court finds that defendant was not deprived of effective assistance of counsel. First, the record is clear that this court advised the defendant prior to beginning jury selection that the defendant faces up to a maximum of 55 years in jail if convicted of all three robberies. This court specifically stated that the "People would be seeking consecutive sentences if the defendant is convicted of multiple incidents." (Transcript, March 8, 2006, at 2 and 3). As such, the court record clearly shows that the defendant was informed of the offer being made to him, as well as the minimum and maximum sentences if he were to be found guilty of the top count. This squarely contradicts the defendant's argument that had he been advised by his attorney that his sentences could run consecutively, he would have accepted the plea offer. Therefore, even if the defendant's claim that his attorney did not inform him that the sentences could run consecutively was true, there was no prejudice to the defendant because this court clearly advised the defendant the potential sentences he was facing before he rejected the plea offer.
Second, this court finds that failure to call a psychological expert specializing in eyewitness identification did not constitute ineffective assistance of counsel. The defendant failed to demonstrate "that the expert's testimony would have assisted the trier of fact or that defendant was prejudiced by the absence of such testimony." People v. Lewis, 93 A.D.3d 1264, 1267 (4th Dep't 2012), citing People v. Powell, 81 A.D.3d 1307, 1307. Here, three different complainants from three separate incidents who had a chance to view the defendant during the robberies all identified the defendant in a line-up. Therefore, this court is not convinced that the defendant was prejudiced because an expert on eyewitness identification was not called.
Third, this court finds that the failure to call Sharon Green, the owner of the Jeep involved in the robberies, as a witness did not amount to ineffective assistance of counsel. "It is well settled that the failure to call a particular witness does not necessarily amount to ineffective assistance of counsel." People v. Ariosa, 100 A.D.3d 1264, 1266 (3rd Dep't 2012) chine People v. Muller, 57 A.D.3d 1113, 1114. The defense counsel in this case made opening and closing statements and cross-examined the People's witnesses. When viewed in light of the trial as a whole, the actions of defense counsel of which defendant now complains, i.e., whether to call certain witnesses, could be attributed to tactical trial decisions. People v. Ryan, 90 N.Y. 2d 822, 823 (1997). Therefore, defendant failed to establish that he was denied his constitutional right to effective assistance of counsel.
Lastly, the defendant's claim that counsel was ineffective for failing to secure the defendant's right to testify before the Grand Jury, although he had timely requested to do so is without merit. This issue was already decided by the Honorable Sheryl L. Parker by an order dated July 19, 2005, where the court denied the defendant's motion to dismiss pursuant to 190.50 of the Criminal Procedure Law. At the time, based on the defendant's contention that he had a conflict with his prior counsel from the Legal Aid Society, the court assigned Mr. Jones as his new counsel. Therefore, the defendant's claim of ineffective assistance of counsel is rendered moot by the substitution of counsel. People v. Dickens, 259 A.D.2d 450, 451 (1st Dep't 1999).
Wherefore, defendant's motion to vacate his judgment is denied. The foregoing constitutes the decision and order of the court. Dated: Brooklyn, New York
October 1, 2014
/s/_________
DANNY K. CHUN, J. A.C.