Opinion
5998/2004.
November 24, 2008.
DECISION ORDER
Defendant moves, pro se, for an order vacating his judgment of conviction pursuant to CPL § 440.10 on the grounds of ineffective assistance of counsel. The motion is denied.
On September 16, 1985, defendant engaged in a fistfight with Armando Concepcion and stabbed him four times. Concepcion died as a result of his wounds. On the day of the stabbing, several witnesses, including defendant's girlfriend, identified defendant as the perpetrator. Over the next two years, the attempts of the police to locate defendant were unsuccessful. Despite earnest efforts to track down defendant, it appeared that defendant had evaded arrest by fleeing to Florida and to the Dominican Republic.
In January of 1986, the Criminal Court, Kings County, issued a complaint and arrest warrant at the request of the People. Over the next eight years, defendant was arrested several times-twice in Florida in 1991 and several times in New York beginning in 1991-but these arrests did not trigger the warrant pertaining to the instant case. The complaint and warrant regarding defendant had mistakenly been entered into the court computer system as an arrest, not a warrant, and thus had not been entered into the National Crime Information Center database. The police discovered this error in February 2004 when the investigation into defendant's whereabouts resumed. It was determined shortly thereafter that defendant was incarcerated in a New Jersey federal prison.
Following additional investigation, defendant was indicted for the stabbing death in papers filed on October 1, 2004. Defendant was arrested at the federal facility on October 26, 2004. Defense counsel never moved to dismiss the indictment on the grounds that preindictment delay had deprived defendant of his due process rights. Defendant's trial began on March 29, 2005, and defendant was found guilty by a jury of first-degree manslaughter. Defendant was sentenced to a term of imprisonment of eight and one-third to twenty-five years on May 12, 2005.
Since his sentencing defendant has appealed from his judgment of conviction to the Appellate Division, Second Department. That appeal is presently pending.
In the instant motion, defendant argues that his judgment of conviction should be vacated pursuant to CPL § 440.10 on the grounds of ineffective assistance of counsel. Specifically, defendant claims that trial counsel should have moved to dismiss the indictment on the grounds that the People's preindictment delay denied him his right to due process of law. For the following reasons, the motion is denied.
Defendant's claim is barred on procedural grounds. CPL § 440.10(2)(b) provides that a court must deny a motion to vacate a judgment when "the judgment is, at the time of the motion, appealable or pending appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal". The issue of defense counsel's performance is an "on the record" claim. Thus, as this claim is properly reviewable on direct appeal, it is not the proper subject of a motion to vacate judgment of conviction ( see People v Hall, 28 AD3d 678 [2d Dept 2006]).
In any event, defendant's claim is also meritless. A defendant in a criminal proceeding is constitutionally entitled to effective assistance of counsel ( Strickland v Washington, 466 U.S. 668; People v Linares, 2 NY3d 507, 510; see U.S. Const., 6th Amend.; N.Y. Const., art. 1, § 6). To prevail on an ineffective assistance of counsel claim under the federal standard, the defendant must be able to show that counsel's conduct was outside the "wide range of professionally competent assistance" ( Strickland v Washington at 690). The defendant also must be able to show that, but for counsel's errors, the outcome of the trial would have been different ( id. at 694).
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 NY2d 137, 147). "This protection does not guarantee a perfect trial, but assures the defendant a fair trial" ( People v Flores, 84 NY2d 184, 187). Accordingly, the reviewing court must separate ineffectiveness from "mere losing tactics" and the defendant must "demonstrate the absence of strategic or other legitimate explanation" for counsel's conduct ( People v Baldi at 146; People v Rivera, 71 NY2d 705, 709). Defense counsel's choice of strategy, even if unsuccessful, does not rise to the level of ineffective assistance as long as it is reasonable under the circumstances ( People v Benevento, 91 NY2d 708, 713). The defendant must also show that his right to a fair trial was prejudiced by the unfairness of the proceedings as a whole ( People v Stulz, 2 NY3d 277, 284).
A "showing that counsel failed to make a particular pretrial motion generally does not, by itself, establish ineffective assistance of counsel" ( People v Rivera, 71 NY2d 705, 709). "To prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's failure to request a particular hearing. Absent such a showing, it will be presumed that counsel acted in a competent manner and exercised professional judgment in not pursuing a hearing" ( id.).
The Court of Appeals has enumerated five factors which should be examined in balancing the merits of a claim that a defendant has been denied his right to a speedy trial: "(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay ( People v Taranovich, 37 NY2d 442, 445). Where there has been a "protracted delay, certainly over a period of years, the burden is on the People to establish good cause" ( People v Singer, 44 NY2d 241, 254). When the People's delay in prosecuting the defendant is justifiable, the defendant must demonstrate actual prejudice ( Id. at 405).
In the instant case, the nineteen-year preindictment delay does not by itself warrant dismissal of the indictment ( People v Vernace, 274 AD2d 595 [2d Dept. 2000] [seventeen-year preindictment delay did not deprive defendant of due process]). The Taranovich factors also weigh against defendant. Although the delay was indeed lengthy, the People have shown good cause for letting such a long time elapse before defendant's indictment. Much of the delay was due to defendant's own efforts to avoid apprehension ( see, e.g., People v Tulloch 179 AD2d 794, 795 [2d Dept 1992]). Despite police attempts to locate him, defendant had fled New York to evade arrest and defendant's repeated incarceration did not trigger the warrant due to a computer error. Nevertheless, defendant was arrested as soon as the error was remedied and he was finally located in a federal prison facility. There is no reason to conclude that the investigation was not undertaken in good faith.
In addition, the grave nature of the underlying charge, defendant's brief incarceration before trial and the lack of prejudice all militate against defendant's claim. Defendant was charged with murder, the most serious criminal offense, and ultimately convicted of first-degree manslaughter. Before he was brought to trial defendant was incarcerated for only five months. Moreover, defendant was not prejudiced by the delay. His moving papers do not allege or establish that the delay impaired his ability to present a defense or prejudiced him in any other way. If anything, the lengthy delay served only to undermine the People's ability to prosecute the case ( People v Vernace, 274 AD2d 595 [2d Dept. 2000]).
Based on the factors required to grant a motion to dismiss for excessive preindictment delay, defense counsel had no legal basis to bring a such motion before defendant was brought to trial. Defendant has also failed to demonstrate actual prejudice because the result of the trial would not have been different but for counsel's decision not to move for dismissal. In his moving papers, defendant does not establish that a motion to dismiss would have been successful had one been made. Defendant has also neglected to demonstrate the absence of strategic or other legitimate explanations for counsel's conduct ( Rivera at 709). Accordingly, counsel may not be faulted for deciding against making a motion that he legitimately believed had no merit. In light of counsel's otherwise competent performance, it is thus presumed that counsel acted with acceptable professional judgment.
Accordingly, the motion is denied both procedurally and on the merits.
This decision constitutes the order of the court.
The defendant is hereby advised pursuant to 22 NYCRR § 671.5 of his right to apply to the Appellate Division, Second Department, 45 Monroe Place, Brooklyn, New York 11201 for a certificate granting leave to appeal from this determination. This application must be made within 30 days of service of this decision. Upon proof of his financial inability to retain counsel and to pay the costs and expenses of the appeal, the defendant may apply to the Appellate
Division for the assignment of counsel and for leave to prosecute the appeal as a poor person and to dispense with printing. Application for poor person relief will be entertained only if and when permission to appeal or a certification granting leave to appeal is granted.