Opinion
No. 2920–1992.
10-06-2014
The PEOPLE of the State of New York v. Wilson RODRIGUEZ, Defendant.
Robert T. Johnson, Esq., District Attorney, Bronx County, By Justin J. Braun, Esq., Assistant District Attorney, for People of the State of New York. Wilson Rodriguez, Stormville, Pro Se.
Robert T. Johnson, Esq., District Attorney, Bronx County, By Justin J. Braun, Esq., Assistant District Attorney, for People of the State of New York.
Wilson Rodriguez, Stormville, Pro Se.
Opinion
DOMINIC R. MASSARO, J.
Defendant moves, pro se, in his fifth motion pursuant to CPL § 440.10, to vacate his conviction on the grounds of ineffectiveness of counsel. The People oppose Defendant's motion and request that the Court enjoin Defendant from filing future CPL § 440.10 motions without first obtaining permission of the Court.
Chronology
On April 20, 1992, the Grand Jury of Bronx County charged Defendant with two counts of Murder in the Second Degree (PL § 125.25[1],[2] ), Manslaughter in the First Degree (PL § 125.20[1] ), Criminal Use of a Firearm in the First Degree (PL § 265.09[1] ), Criminal Possession of a Weapon in the Second Degree (PL § 265.03), Reckless Endangerment in the First Degree (PL § 120.25), Criminal Possession of a Weapon in the Third Degree (PL 265.02[4] ), and Criminal Possession of a Weapon in the Fourth Degree (PL 265.01[1] ).
On April 29, 1992, Defendant appeared in Supreme Court, Bronx County, and pleaded not guilty. At subsequent calendar calls, Defendant's court appointed counsel, Patrick L. Bruno, Esq. requested that he be relieved as Defendant's counsel. On January 14, 1993 , the Court granted Mr. Bruno's request. Court appointed counsel, David Bernheim, Esq. was assigned to represent Defendant. Later in a pro se motion dated November 17, 1993, Defendant moved the Court for new counsel on the grounds that Mr. Bernheim was ineffective. Defendant's motion was denied.
Mr. Bruno made a record that Defendant was persistently calling his office and leaving messages calling Bruno unfit or incompetent and that the messages also were peppered with filthy vulgarities.
On December 9, 1993, the case was respectfully referred to another court part, before Justice Edward M. Davidowitz, to ascertain whether Defendant was interested in a plea disposition. The following colloquy took place:
The Court: Okay. Mr. Rodriguez, this is the first time this case has been before me. It's come into this part because I am responsible for trying to dispose of very old cases. Yours is one of the older ones. It was referred to me by Judge Massaro.
I've been advised by Bernheim that you—and I don't expect you to answer me, by the way. If you have anything to say, do it through Bernheim, please. In any event, you've rejected any plea offers that have been made during plea discussions—and that's your right to go to trial and the jury will determine whether you committed the crime of murder or you didn't commit the crime of murder or some lesser crime, in any event, one of my responsibilities is to see whether or not these old cases can be disposed of by some kind of a disposition, in other words, by some sort of plea, but I cannot ask the People to consider anything less than murder unless you disclose through Bernheim some interest in it. If you are and you would be interested in seeing whether or not there's a basis for a disposition on a plea of guilty to something less than murder, or in other words, manslaughter, then I'll ask the People to reconsider. If you're not, then we'll try and fix a trial date after the first of the year as quickly as we possibly can. I don't know when it will be, but we will try. Do you understand everything I've said.
The Defendant: Yes.
The Court: Then talk to Bernheim, please. This is me asking you this, not Bernheim.
(Whereupon the defendant and defense counsel conferred off the record.)
Mr. Bernheim: Your Honor, the defendant is ready for trial.
In a pro se motion dated December 15, 1993, Defendant claimed that he had been denied the right to a speedy trial, alleging that “[i]t is well established that the defendant and his counsel has [sic]been ready to proceed to trial since the offset [sic] of the case.” By written order dated April 28, 1994, Defendant's speedy trial motion was denied.
On May 26, 1994, following a jury trial before this Court, Defendant was convicted of Murder in the Second Degree (PL § 125.25[2] ) and Criminal Possession of a Weapon in the Second Degree (PL § 265.03). On July 11, 1994, Defendant was sentenced to concurrent indeterminate prison terms of from twenty-five years to life and three and one-half to seven years, respectively.
On October 28, 1996, Defendant, through appellate counsel, perfected an appeal to the Appellate Division, First Department, claiming that: (1) the two show-up identifications made at the precinct should have been suppressed as fruits of a warrantless arrest; (2) the People did not sufficiently prove that the show-ups were confirmatory; and, (3) the in-court identifications were inadmissible absent an independent source. On February 27, 1997, the Appellate Division affirmed the conviction, concluding that the confirmatory identifications were sufficiently attenuated so as to not be tainted by Defendant's warrantless arrest and that any such error would have been harmless (see People v. Rodriguez, 236 A.D.2d 332 [1st Dept ] ), lv. denied, 89 N.Y.2d 1099 [1997] ).
By pro se motion dated July 30, 1998, Defendant moved this Court to vacate his judgement of conviction, pursuant to CPL § 440.10. Defendant argued that: (1) the prosecutor gave false testimony to the jury; (2) a photograph of his hands should not have been introduced because it was the fruit of a warrantless arrest; and (3) trial counsel was ineffective for: (a) not attempting to locate a possible witness; (b) not objecting to his late receipt of Rosario material; (c) not questioning witnesses regarding prior inconsistent statements; (d) using dual strategies during summation; (e) preventing defendant from testifying on his own behalf.
On February 18, 2000, Defendant's motion was denied. On June 22, 2000, the Appellate Division, First Department, denied Defendant's application for leave to appeal. On September 14, 2000, reargument was denied.
On October 10, 2000, Defendant filed a pro se petition for a writ of habeas corpus application in the United States District Court for the Southern District of New York. On December 9, 2003, the federal proceeding was stayed for purposes of allowing Defendant to return to state court to exhaust his claim concerning the photo array.
In a pro se motion dated February 13, 2004, Defendant moved, pursuant to CPL § 440.10, to vacate his judgment of conviction on the ground of prosecutorial misconduct. On June 11, 2004, this Court denied Defendant's motion (see People v. Rodriguez, 4 Misc.3d 1003[A] ). On October 5, 2004, the Appellate Division, First Department, denied Defendant's application for leave to appeal.
In papers, dated July 16, 2004, Defendant moved in the Appellate Division, First Department, by way of application for a writ of error coram nobis, to vacate the decision and order affirming his conviction on the grounds that his appellate counsel was ineffective for failure to argue that: (1) there was insufficient evidence to convict Defendant of depraved indifference murder; (2) the Court erred in refusing to give an accomplice charge as to one Rebecca Cruz; and, (3) the Court improperly failed to give an adverse inference charge not requested by the defense. On December 2, 2004 Defendant's motion was denied (People v. Rodriguez 13 AD3d 1234 [1st Dept 2004], lv denied 4 NY3d 890 [2005] ).
Defendant then returned to Federal Court. In papers dated June 1, 2005, Defendant, through counsel, asserted that (1) trial counsel was ineffective for failing to cross-examine witnesses utilizing the second page of a police report; and (2) appellate counsel was ineffective for failing to raise the following issues on appeal: (a) trial counsel's ineffectiveness for not utilizing the police report; and, (b) the trial courts's refusal to give an accomplice charge. On July 28, 2006, the petition for a writ of habeas corpus was denied. On October 24, 2006, the Court also denied a motion for reargument and renewal.
In papers dated August 25, 2006, Defendant, through counsel, moved to vacate his conviction pursuant to CPL § 440.10, for the third time. Defendant claimed that in light of People v. Suarez, 6 NY3d 202 (2005), and People v. Feingold, 7 NY3d 288 (2006), his conviction should be vacated pursuant to CPL § 440.10(2)(a). On March 6, 2007, this Court denied Defendant's motion. On August 5, 2008, Defendant's application for leave to appeal the denial of his motion to the Appellate Division was denied.
In papers dated December 30, 2010, Defendant, through counsel, moved in the Appellate Division for a writ of error coram nobis, once more alleging that appellate counsel was ineffective for failing to raise jury charge issues and a related claim of ineffective assistance of trial counsel. On March 22, 2011, Defendant's motion was denied. On June 14, 2011, the New York Court of Appeals denied leave to appeal from the Appellate Division's denial.
In papers dated July 18, 2012, Defendant, through counsel, moved to vacate his conviction pursuant to CPL § 440.10, for the fourth time. Defendant asserted claims of ineffective assistance of counsel. Defendant urged that his conviction should be vacated because: (1) his initial trial attorney, Patrick L. Bruno, Esq. was ineffective for failing to relay to Defendant two plea deals allegedly offered by the People; (2) that Patrick Bruno failed to inform Defendant's subsequent counsel, David Bernheim of the plea offers. On February 27, 2013, Defendant filed a pro se reply to the People's opposition papers.
In a decision dated May 28, 2013, Justice James M. Kindler found that Defendant had not made an adequate showing of ineffectiveness of counsel either under the state standard or the federal standard (People v. Rodriguez, Sup Ct, Bronx County, indictment No. 2920–1992). In reference to the minutes of December 9, 1993, the Court denied the motion pursuant to CPL § 440.30(4)(d) since an allegation of fact essential to support the motion was unsupported, made solely by the Defendant, contradicted by a court record and under the circumstances of the case, there was no reasonable possibility that such allegation is true.
In Defendant's present pro se motion, his fifth CPL § 440.10 motion, Defendant claims that Mr. Bernheim provided ineffective assistance of counsel by (1) failing to analyze the case in a meaningful way with the Defendant; (2) providing “suicidal advice” that he would win at trial; (3) insisting that Defendant's case would go to trial and such decision was not Defendant's to make; (4) failing to prepare and inquire of the Court concerning a disposition to the lesser included offense; (5) lying to the Court when he told the judge that Defendant was uninterested in a plea disposition and elected to take his case to trial. Defendant also complains that Judge Davidowitz failed to inquire into Defendant's rejection of the plea offer.
Legal Discussion
A judgement of conviction is “presumed valid and a defendant moving to vacate his conviction must come forward with sufficient allegations to create an issue of fact. While the production of contrary evidence will satisfy the burden of going forward and eliminate the presumption of regularity from the case, bare allegations are insufficient to carry the evidentiary burden” (see People v. Session, 34 N.Y.2d 254, 255–256 [1974] ; People v. Braun, 167 A.D.2d 164, 165 [1st Dept 1990] ). Here, besides his own self serving affidavit, Defendant has provided minutes of a December 9, 1993 calendar call and a letter from Mr. Bernheim.
Twenty years after the judgment of conviction, this is Defendant's fifth CPL § 440.10 motion. In his last CPL § 440.10 motion, dated July 18, 2012, Defendant raised similar and related allegations of ineffective assistance of counsel concerning his initial trial attorney, Patrick Bruno. In that motion, Defendant, through counsel, claimed that Mr. Bruno did not inform him of two plea deals and failed to inform his subsequent counsel, David Bernheim, of the plea offers. Defendant's present ineffective assistance of counsel allegations against Mr. Bernheim certainly should have been included in Defendant's last CPL § 440.10 motion and for that reason may be procedurally barred (see CPL § 440.10[3][c] [“[n]otwithstanding the provisions of subdivision one, the court may deny a motion to vacate a judgment when: [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”] ).
In his 1998 pro se CPL 440.10 motion, Defendant also claimed that Mr. Bernheim was ineffective but did not include the present allegations.
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In any case, Defendant's present motion fails on substantive grounds. The December 9, 1993 minutes (quoted on p. 2) and a letter, dated September 30, 2013, from his trial attorney, David Bernheim, fail to support his allegations. The minutes indicate that the case was sent out to a another court part, before Justice Edward Davidowitz, to further ascertain whether Defendant was interested in a plea disposition. Justice Davidowitz noted that Defendant previously had “rejected any plea offers that have been made during plea discussions.” He informed Defendant that the case was sent to him to see whether it “can be disposed of by some kind of disposition, ... but I cannot ask the People to consider anything less than murder unless you disclose through Bernheim some interest in it ....[i]f you are ... interested in seeing whether or not there's a basis for a disposition on a plea of guilty to something less than murder, or in other words, manslaughter, than I'll ask the People to reconsider.” The judge asked Defendant if he understood everything he had just said and Defendant responded in the affirmative. After giving Defendant time to confer with counsel off the record, Mr. Bernheim informed the Court that Defendant was ready for trial. In a December 1, 1993 pro se speedy trial motion, Defendant stated that he had been ready to proceed to trial since the beginning of the case.
Nor, does the letter Defendant submitted from his attorney, David Bernheim, support his position. In the letter to Defendant, Mr. Bernheim notes that it has been over twenty years since he represented Defendant and that he does not remember him or any aspect of his case. Mr. Bernheim states, however, that if a plea offer was made, he certainly would have conveyed it to Defendant.
Both the December 9, 1993 minutes and the his attorney's letter belie Defendant's allegations that he was not informed of the pleas offers. Moreover, it is incongruous that the same Defendant who had been so aggressive with his first attorney and has made numerous pro se motions in both state and federal court would not have been assertive and followed through, if interested, in a plea negotiation discussed in his presence.
Thus, Defendant's allegations against his trial attorney and Justice Davidowitz are baseless. A court may deny the motion without a hearing when an allegation essential to support the motion is contradicted by a court record (in this case, the minutes of September 9,1993) and it is made solely by the Defendant and is unsupported by any other affidavit or evidence and under the circumstances of the case there is no reasonable possibility that such allegation is true (CPL § 440.30[4][d] ; People v. Fernandez, 13 AD3d 271 [1st Dept 2004] ). Accordingly, Defendant's motion to vacate his judgement of conviction is denied without a hearing.
Additionally, the Court agrees with the People's position that Defendant who has challenged his conviction through a direct appeal, a federal petition for a writ of habeas corpus, two coram nobis attacks on his appellate counsel and five CPL § 440.10 motions, all of which have been denied, is attacking his conviction with unsupported arguments. Needless to stay such frivolous motions are a drain on judicial resources. Thus, the Court enjoins Defendant from filing any further such motions without first obtaining leave of the Court (see People v. Davis, 32 Misc.3d 1201[A] [Sup Ct, Bronx County (2011) ] [defendant enjoined from filing of frivolous motions, raising issues he is aware are meritless and have already been determined by other courts] ); People v. Duvall, 23 Misc.3d 1121[A] [Sup Ct, Bronx County (2009) ] [defendant enjoined from filing future CPL § 440.10 motions without leave based on his filing three pro se CPL § 440 motions repeatedly raising same issues] ).
This constitutes the decision and order of the Court.