Opinion
0055/99.
Decided September 28, 2007.
On January 10, 2000, defendant was convicted, upon his plea of guilty, of rape in the first degree (Penal Law § 130.35) and sentenced by this Court to a definite term of six years imprisonment. Thereafter, a five-year period of post-release supervision (PRS) was administratively added to his sentence by the Department of Corrections (DOCS).
By pro se motion returnable February 14, 2000, defendant moved to vacate his judgment of conviction pursuant to CPL 440.10(e), (f), and (h), claiming that he had been incapable of understanding the proceedings because of a mental disease or defect and that he was denied effective assistance of counsel. The People opposed defendant's application. On September 27, 2000, this Court denied defendant's CPL 440.10 motion in its entirety.
On May 7, 2002, the Appellate Division, First Department, affirmed defendant's judgment of conviction ( People v Gonzalez, 294 AD2d 966 [1st Dept. 2002]). On July 23, 2002, the Court of Appeals denied defendant's application for leave to appeal ( People v Gonzalez, 98 NY2d 697).
By pro se motion dated December 14, 2004, six days before his release from Mohawk Correctional Facility, defendant moved to vacate the PRS component of his sentence on the ground that he was never advised that his sentence included PRS. The People cross-moved to dismiss defendant's motion, arguing that any ruling in his favor could not be given effect because he failed to register with parole authorities upon his release from the correctional facility on December 20, 2004.
When parole officers visited the 47 Victor Street, Yonkers, New York, address defendant provided to the Department of Corrections, they found the residence under construction and uninhabited. The officers also found that the phone number defendant provided had been disconnected. The Department of Parole then issued a warrant for defendant's arrest.
By Decision and Order dated June 2, 2005, this Court denied defendant's motion and granted the People's cross-motion to dismiss his application. The Court ruled, however, that defendant would be permitted to renew his application should he come within the Court's mandate by being arrested on the parole warrant lodged against him or voluntarily reporting to the authorities.
By letter dated May 18, 2006, defendant renewed his application for an order vacating the five-year period of PRS imposed by the DOCS. The letter was sent from Westchester County Jail. Defendant reiterated this request in letters dated June 12, 2006 and June 30, 2006. The Court calendared the letters as a pro se motion for September 7, 2006 and assigned 18-B attorney Peter J. Schaffer to look into whether formal motion papers were warranted.
No formal papers were filed. On September 7, 2006, defendant appeared before the Court with his assigned counsel The Court vacated the five-year period of PRS imposed by DOCS and re-sentenced defendant, nunc pro tunc, to a term of six years imprisonment and two and one-half years of PRS.
On or about October 12, 2006, a final parole revocation hearing was held. Defendant was represented by assigned counsel, Osvaldo Caban, Esq., at the hearing.
By pro se motion dated February 7, 2007, mailed from Riker's Island, defendant moved for an order relieving "his attorney of record" and reassigning another counsel on the ground of ineffective assistance. In what appears to be a form motion for the assignment of new trial counsel, defendant alleges that Mr. Caban failed to visit him at his place of confinement, inform him of pertinent motions made, conduct an investigation in the matter or make any bail requests on defendant's behalf. The supporting affidavit states that defendant is "being charged with the offense of rape," and contains the Indictment Number for the instant case to which defendant previously pleaded guilty and sentenced (Defendant's Affidavit in Support at 1).
The People opposed defendant's application, arguing that he is not entitled to assigned counsel since he has no actions pending in any court. They also note that an arrest warrant was issued for his arrest on March 22, 2007 after he absconded from parole supervision and that he has not been arrested on the warrant.
An E-Justice inquiry conducted on September 27, 2007 indicates that defendant has still not been arrested on the warrant.
Conclusions of Law
Upon reviewing the parties' papers, the Court concludes that defendant's motion should be denied.
First, denial of the motion is warranted under the judicial doctrine of "fugitive disentitlement" ( see People v Mongen, 76 NY2d 1015, citing People v Genet, 59 NY2d 80; see also Degan v United States, 517 US 820). Under this doctrine, a fugitive from justice is not entitled to call upon the state court for relief since any ruling in his favor could not be given effect ( see People v Rodriguez, 8 Misc 3d 1011 (A) [Sup. Ct. Bronx Cty. 2005] [Price, J.]; People v People v Uboh , 4 Misc 3d 1007(A) [Sup. Ct. Queens Cty. 2004] [Rotker, J.]). In the case at bar, defendant has absconded from parole supervision and his whereabouts are unknown.
Second, even if defendant were available, he is not statutorily entitled to assignment of counsel ( see People v Lopez, 14 Misc 3d 1223 (A) [Sup. Ct. Bronx Cty. 2006] [Massaro, J.]). Pursuant to CPLR 1101, a court in which an action is "triable," or which an appeal has been or will be taken, may grant permission to proceed as a poor person. Here, defendant has no "triable" action. The indictment was fully disposed of by the judgment entered on January 10, 2000 following defendant's plea to rape in the first degree. In criminal actions, Judiciary Law §§ 35(1)(a) and (b) authorize the appointment of counsel for the filing of appeals and writs of habeas corpus. Defendant's appeal has already been decided and he has no pending writs of habeas corpus. While County Law § 722(4) provides that counsel may be appointed on a CPL 440 motion where a hearing has been ordered, that is not the basis of defendant's application for counsel. As noted above, defendant's form motion seeks appointment of new trial counsel for his "rape" charge, a charge that was fully disposed of by the January 10, 2000 judgment. Accordingly, defendant's motion for assignment of counsel is denied.
This shall constitute the Decision and Order of this Court.