Opinion
2015-08-12
The PEOPLE, etc., respondent, v. Sheldon THOMAS, appellant.
Donald J. Yannella, New York, N.Y. (D. Michael Risinger of counsel; Lesley C. Risinger on the brief), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J. Twersky of counsel), for respondent.
Donald J. Yannella, New York, N.Y. (D. Michael Risinger of counsel; Lesley C. Risinger on the brief), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J. Twersky of counsel), for respondent.
Karen A. Newirth, New York, N.Y., for amicus curiae The Innocence Project, Inc.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, THOMAS A. DICKERSON, and JOSEPH J. MALTESE, JJ.
Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Del Giudice, J.), dated June 5, 2012, which, without a hearing, denied his motion pursuant to CPL 440.10 to vacate a judgment of the same court rendered January 30, 2007, convicting him of murder in the second degree, attempted murder in the second degree (five counts), attempted assault in the first degree (five counts), assault in the second degree, and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the order is affirmed.
The Supreme Court properly denied the defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction. The court correctly concluded that the defendant's challenge to the eyewitness evidence presented at trial was procedurally barred because that ground for relief had already been determined on the merits on the defendant's direct appeal to this Court ( see People v. Thomas, 65 A.D.3d 1170, 1171, 885 N.Y.S.2d 344) and that, to the extent that it was not, the record was adequate to permit review of that ground ( seeCPL 440.10[2][a], [c]; People v. Cooks, 67 N.Y.2d 100, 104, 500 N.Y.S.2d 503, 491 N.E.2d 676; People v. Hamilton, 115 A.D.3d 12, 20, 979 N.Y.S.2d 97; People v. Williams, 5 A.D.3d 407, 771 N.Y.S.2d 911; People v. Hernandez, 191 A.D.2d 511, 512, 594 N.Y.S.2d 791). Notwithstanding the defendant's attempt to characterize the alleged errors as “ fundamental,” and as a violation of his due process rights under both the federal and New York constitutions, both the Supreme Court and this Court are bound by the limitations embodied in CPL 440.10(2) (People v. Cuadrado, 9 N.Y.3d 362, 365, 850 N.Y.S.2d 375, 880 N.E.2d 861) and “cannot broaden the scope of the remedy afforded by CPL 440.10 beyond what the Legislature unambiguously specified” (People v. Machado, 90 N.Y.2d 187, 192, 659 N.Y.S.2d 242, 681 N.E.2d 409).
Similarly, the Supreme Court correctly determined that the new evidence proffered by the defendant in support of his motion, which included several studies suggesting that blind identification procedures are more reliable than non-blind procedures, does not qualify as “newly discovered” within the meaning of CPL 440.10(1)(g) (People v. Hamilton, 115 A.D.3d at 20, 979 N.Y.S.2d 97; see People v. Salemi, 309 N.Y. 208, 216, 128 N.E.2d 377; People v. Tankleff, 49 A.D.3d 160, 180, 848 N.Y.S.2d 286).
Further, the defendant's contention that he was deprived of the effective assistance of counsel is without merit, as he failed to demonstrate the absence of strategic or other legitimate explanations for counsel's allegedly deficient conduct ( see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213; People v. Taylor, 1 N.Y.3d 174, 177, 770 N.Y.S.2d 711, 802 N.E.2d 1109; People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698). Contrary to the defendant's contention, counsel was not ineffective for failing to argue that the investigating officers' use of a non-blind lineup procedure constituted reversible error, since that argument lacked merit ( see generally People v. Brown, 13 N.Y.3d 332, 341, 890 N.Y.S.2d 415, 918 N.E.2d 927). The Court of Appeals has not mandated the use of any specific lineup procedure, so any procedure may be used as long as it is not “unduly suggestive” (People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608; see People v. Johnson, 10 N.Y.3d 875, 878, 860 N.Y.S.2d 762, 890 N.E.2d 877; see also People v. Washington, 40 A.D.3d 1136, 837 N.Y.S.2d 272; People v. Torres, 12 A.D.3d 539, 786 N.Y.S.2d 61; People v. McLaughlin, 8 A.D.3d 146, 147, 780 N.Y.S.2d 119; People v. Robinson, 8 A.D.3d 95, 96, 778 N.Y.S.2d 151; Matter of Thomas, 189 Misc.2d 487, 491, 733 N.Y.S.2d 591 [Sup.Ct., Kings County] ). In addition, the Legislature has not established guidelines for identification procedures. In sum, the evidence, the law, and the circumstances of the case, viewed in totality as of the time of the representation, reveal that trial counsel provided meaningful representation ( see People v. Caban, 5 N.Y.3d at 152, 800 N.Y.S.2d 70, 833 N.E.2d 213; People v. Berroa, 99 N.Y.2d 134, 138–139, 753 N.Y.S.2d 12, 782 N.E.2d 1148; People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400; People v. McDonald, 79 A.D.3d 771, 772, 911 N.Y.S.2d 908).