Opinion
7706/92.
Decided October 26, 2007.
On May 19, 1993, following a trial over which this court presided, the defendant was found guilty by jury verdict of criminal sale of a controlled substance in the third degree (PL § 220.39), and not guilty of criminal possession of a controlled substance in the third degree (PL § 220.16) and seventh degree (PL § 220.03). On June 9, 1993, this court adjudicated the defendant a "second felony offender," and sentenced him to an indeterminate prison term of 12-1/2 to 25 years. The defendant was subsequently convicted of crimes committed in prison while serving this sentence, and currently remains incarcerated.
The defendant's conviction in the captioned case was upheld on his direct appeal from judgment ( People v Velez, 254 AD2d 379 [2nd Dept. 1998], lv. den. 92 NY2d 1055), and his petition for a federal writ of habeas corpus was denied by the United States District Court for the Eastern District of New York ( Velez v McGinnis, 99-CV-6978 [FB] [E.D.NY May 16, 2001] [Block, J.]).
In papers sworn on February 2, 2006, the defendant now moves pro se, under CPL § 440.10[b] and [1][h], to vacate the judgment of conviction in the captioned case. The defendant's motion rests in large part on his allegation that the undercover officer who conducted the "drug buy" in which the defendant was found guilty of participating, was not the same undercover who testified against the defendant at trial eleven months later. In addition, the defendant claims that trial counsel rendered ineffective assistance, and that this court violated CPL § 310.40, by "intercepting" the jury's verdict. The defendant has submitted a number of documents as exhibits to his motion papers, including copies of the Appellate Division decision and the federal District Court Memorandum and Order, referenced supra, and several NYPD and District Attorney's Office records.
On June 30, 2006, the People filed an affirmation and memorandum of law opposing the defendant's vacatur motion on both procedural grounds and on the merits. The defendant responded with an affidavit and memorandum of law dated July 13, 2006.
This court has reviewed the papers filed by both parties, including the exhibits appended thereto, and the transcribed minutes of the defendant's pre-trial suppression hearing, trial and sentence proceeding, and for the reasons set forth below, summarily denies the defendant's motion to vacate the judgment of conviction entered against him in the captioned case.
The Motion to Vacate Judgment under CPL § 440.10
At any time after a judgment of conviction is rendered, the defendant may move to vacate such judgment on a variety of grounds, including the claim that it was obtained by fraud on the part of the prosecutor or a person acting on behalf of the prosecutor (CPL § 440.10[b]), and/or that it was obtained in violation of the defendant's rights under the New York State and/or United States Constitution (CPL § 440.10[h]); one such right under both constitutions is a criminal defendant's right to effective assistance of trial counsel ( see Strickland v Washington, 466 US 668; People v Linares , 2 NY3d 507 ).
However, the legislature did not intend the vacatur motion to be used as a substitute for appeal, and therefore specified that grounds claimed under CPL § 440.10 must be based on facts not included on the record ( see People v Cooks, 67 NY2d 100). Accordingly, CPL § 440.10 provides that a motion to vacate judgment must be denied when, although sufficient facts appear on the record underlying the judgment to have permitted adequate appellate review of the issue(s) raised, no such appellate review occurred due to the defendant's unjustifiable failure to raise such issue(s) upon his direct appeal (CPL § 440.10[c]). In addition, a motion to vacate judgment may be summarily denied when inter alia, it fails to allege a ground constituting a legal basis for the motion (CPL § 440.30[a]); when the motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts (CPL § 440.30[b]); and/or when an allegation of fact essential to support the motion is contradicted by a court record or is made solely by the defendant and is unsupported by any other affidavit or evidence, and under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true (CPL § 440.30[d]).
The Defendant's Claims
Prosecutorial Fraud. As noted, the defendant asserts that the undercover police officer who testified against him at trial was not the same undercover officer who conducted the drug buy which led to his arrest on June 29, 1992; the defendant bases a number of claims on this allegation, including the claim that the People knew the undercover witness at trial was lying when he testified that he had conducted the subject drug buy. In asserting the underlying factual allegation, the defendant relies entirely on the fact that the undercover officer who testified at trial identified himself as undercover #2307, whereas two police witnesses at trial, Detective Esposito (T at 172), and Sergeant Antomez (T at 319), and several NYPD and DA records, refer to the undercover involved in the subject drug buy as #21919.
References to the trial transcript are signified by the letter "T" followed by the page number.
The People argue that all claims premised on the factual allegation that the "wrong" undercover testified at trial should be barred on procedural grounds under CPL § 440.10[c], because the allegation is based on facts appearing on the record, including trial testimony and documents turned over to the defendant's counsel by the People pursuant to pre-trial discovery, and therefore could have been addressed on the defendant's direct appeal.
The People further contend that the factual allegation is false. The People aver that undercover #21919 and undercover #2307 are the same person, and that the variance in shield numbers merely denotes a change in departmental rank.
The trial transcript reveals that the undercover testified on cross-examination that he had been promoted to the rank of detective in November 1992, i.e., several months after the subject drug buy operation and several months before the trial, but that he was not asked on either direct or cross-examination whether his "number" had also been changed. Assistant District Attorney Marie-Claude P. Wrenn now avers, in the People's instant affirmation, that she spoke with NYPD Detective Shield Number 02307 on May 4, 2006, and that the detective told her that (1) he had participated in the June 29, 1992 undercover operation which resulted in the defendant's arrest while serving as an undercover police officer assigned to the Brooklyn North Narcotics Division under shield number 21919; (2) in November-December 1992, he was promoted to the rank of detective third grade and assigned detective shield number 02307; and (3) when he testified at the defendant's trial, he was an undercover officer assigned to the Brooklyn North Narcotics Division under the detective shield number.
In reply to the People's affirmation, the defendant dismisses ADA Wrenn's sworn representation as to what Detective Shield Number 02307 told her on May 4, 2006, as "hearsay," but does not acknowledge that his own claim is unsubstantiated by sworn factual allegations. The defendant's assertion that an undercover who is identified by one shield number in June 1992, must be a different person than an undercover identified by another number in May 1993, is a conclusory allegation based solely on the defendant's conjecture, unsupported by sworn allegations substantiating or tending to substantiate the essential facts (CPL § 440.30[b]).
It should also be noted that the defense strategy rested in large measure on discrediting the undercover's testimony, but not on the basis that he was not the same undercover who had conducted the drug buy resulting in the defendant's arrest. To the contrary, after eliciting the undercover's testimony that he had been promoted within months of the subject drug buy, counsel questioned the undercover in an effort to establish that his promotion was based "to a certain extent" on the number of buys he had made and on the number of buys which had led to "successful" arrests (T 302-303), and to suggest that the undercover had therefore tailored his account of the subject drug buy to provide grounds for the defendant's arrest (T 304-305). Counsel further challenged the undercover's credibility by pointing out inconsistencies between his grand jury testimony, presented a few days after the drug buy, and his trial testimony eleven months later (T 292-295), to assert that the undercover had "changed" his story. Counsel highlighted these inconsistencies in summation (T 355-358).
In the absence of any evidence to support the defendant's claim, and given all the other circumstances attending the case, this court finds there is no reasonable possibility that the allegation that an "imposter" undercover testified at trial is true (CPL § 440.30[d]).
Ineffective Assistance of Counsel. In addition to complaining that counsel failed to discredit the testimony of the undercover witness at trial by "making it known" that he was not the same officer who had conducted the drug buy (the underlying premise of which this court has rejected, supra), the defendant further contends that counsel rendered ineffective assistance when he (1) failed to use information contained in police reports to determine the time at which the defendant allegedly sold drugs to the undercover, and to "make the witnesses explain" on cross-examination how the defendant "walked approx 11 blocks [ sic] from where the sale was made to where the undercover allegedly saw the defendant 4 minutes [ sic] later; " (2) failed to locate Corey Thompson, the person with whom the defendant was allegedly working when the drug buy was made, and to produce him or any other defense witness at trial; and (3) moved for a "trial order of dismissal" at the end of the People's case by merely asserting in general terms that the People had failed to make out the charges prima facie, rather than specifying the elements of the charges allegedly unsupported by the evidence.
There is a strong presumption in the law that counsel's conduct fell within "the wide range of professionally competent assistance" ( Strickland v Washington, supra at 687, 690). The standard for establishing that counsel rendered unconstitutionally ineffective assistance requires a defendant to demonstrate that under the totality of the circumstances at the time, counsel failed to provide the defendant with meaningful representation such that the defendant was deprived of a fair trial. The words "meaningful" and "fair" do not mean "perfect" ( see e.g., Yarborough v Gentry, 540 US 1; People v Flores, 84 NY2d 184).
A defendant claiming that counsel failed to make a particular motion or application must demonstrate that such motion would have been successful ( People v Mance, 269 AD2d 188 [1st Dept. 2000]; People v Seymour, 255 AD2d 866, 867 [4th Dept. 1998]; People v Wright, 12 Misc 3d 1164 [A], 2006 WL 1525983 [N.Y Sup.]). Counsel should not be criticized for failing to pursue a potentially futile endeavor ( People v Vecchio, 228 AD2d 820, 831 [3rd Dept. 1996]). Mere disagreement over strategy will not suffice, "as long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful" ( People v Benevento, 91 NY2d 708, 712-713).
In order to show that a defendant's federal constitutional right to effective assistance of counsel was violated, the defendant must establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" ( Strickland v Washington, supra); "reasonable probability" means a probability that undermines the fact-finder's confidence in the outcome of the trial ( Id.). In contrast, the New York standard focuses on "the fairness of the process as a whole rather than its particular impact on the outcome of the case" ( People v Benevento, supra at 714). Thus, a defendant need not establish that the outcome of the trial would likely have been different, but must show that his right to a fair trial was prejudiced by his attorney's performance ( Id. at 713). The attorney's acts or omissions must be demonstrated to be sufficiently egregious to have prejudiced the defense or the defendant's right to a fair trial ( People v Hobot, 84 NY2d 1021, 1024; People v Flores, supra at 187). The defendant in the instant case has failed to make the requisite showing under either standard.
Contrary to the defendant's first claim, counsel did try to pin-point the time at which the defendant allegedly sold the drugs to the undercover (at 4:58PM, as opposed to 4:55PM), and to question how, if this were true, the defendant could have been found standing on a street corner seven blocks away (where he was arrested) by 5PM. Regardless of whether or how counsel "used the police reports" in preparing his cross-examination on this issue, the trial transcript confirms that he vigorously questioned both Detective Esposito and the undercover about the distance and the time-line (see e.g., T 201-211, 296-297, 305-307), and devoted a portion of his summation (T 359-61) to raising doubt that the defendant could have walked the seven blocks in two minutes, or even in five minutes. Thus, the defendant's claim on this point is both unsubstantiated and refuted by the record (CPL § 440.30[b] and [d]).
The defendant's second claim, that counsel did not produce Corey Thompson as a trial witness is true, but the allegation that counsel "took no steps to find" Thompson is unsubstantiated by sworn factual allegations (CPL § 440.30[b]). To the contrary, as the defendant himself concedes, this court provided the defense with an investigator to assist in counsel's search for Thompson, and the record reveals that this court granted counsel's requests for at least two continuances to pursue such search (T at 25, 347). Thus, this claim is also refuted by the record (CPL § 440.30[d]).
Moreover, the defendant has failed to establish that even if Thompson had been found, his testimony would have benefitted the defendant. As noted supra, the defendant was charged with selling narcotics in concert with Corey Thompson; both were arrested, but the charges against Thompson, who was only 15 years old at the time [the defendant was 28], were removed to Family Court. The defendant asserts in his instant papers that Thompson would have testified that the defendant had not been working with him, but offers no evidence to support this claim (CPL § 440.30[b]).
The defendant's related complaint that counsel presented "no witness" fails to identify any potential witness [other than Corey Thompson], let alone establish that any such witness could have offered testimony exculpating the defendant. "Counsel may be expected to call witnesses to testify to on behalf of a defendant only when such witnesses exist" ( People v Aiken, 45 NY2d 394, 400).
The defendant's third claim, that counsel made only a general motion to dismiss before the trial court, is true, as is his contention that counsel thereby failed to preserve a specific issue (whether the evidence was legally sufficient to establish that the defendant sold drugs to the undercover) for appellate review ( see People v Velez, supra). However, while the Appellate Division found the specific issue unpreserved, it nevertheless opined that the evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt, and that the verdict of guilt was not against the weight of the evidence ( Id). Thus, the defendant has failed to establish that had counsel's motion to dismiss been more specific, it would have prevailed ( see People v Mance, supra; People v Seymour, supra).
This court finds that trial counsel rendered the defendant competent representation, resulting in not guilty verdicts on two of the three crimes charged; the fact that the jury found the defendant guilty of the top count was not due to counsel's incompetence, but rather to the evidence of the defendant's guilt.
Violation of CPL § 310.40.The defendant's assertion that this court violated CPL §
310.40 by "intercepting the verdict," reveals the defendant's misunderstanding of the law and court procedure. First, this claim is based entirely on facts appearing on the record (T at 430-439), and even formed the basis for a motion for mistrial (T at 437); as such, the claim should have been raised, if at all, on the defendant's direct appeal and is not suitable for review on a vacatur motion (CPL § 440.10[c]). Second, the claim is without legal or factual merit.CPL § 310.40 merely requires that the verdict be rendered and announced by the jury foreperson in the presence of the court, the defendant, the People and the defendant's counsel, and provides that if the foreperson is unable or unwilling to render and announce the verdict, the court may designate another jury member to do so. As the People suggest, the defendant appears to have ignored CPL § 310.50, which requires the form of the verdict to be in accordance with the court's instructions, and provides that if a jury renders a verdict which is not in accordance with such instructions or is otherwise legally defective, the court must explain the error and direct the jury to resume deliberations.
The trial transcript reveals that when the jury was initially about to enter the courtroom to announce its verdict, this court reviewed the verdict sheet and became concerned that the jury's finding of guilty on the first count might be inherently inconsistent with (or "repugnant" to) its finding of not guilty on the second and third counts. Accordingly, this court told the parties that it was inclined not to accept the verdict and to send the jury back for further deliberations, but first offered the parties the opportunity to be heard. The defendant's counsel responded by moving for a mistrial on the ground that "the court's interference with the foreperson's reading of the verdict was an improper use of the court's power," which this court denied (T at 437), and by also asking that this court declare a mistrial on the ground that the verdict was repugnant, rather than direct the jury to resume deliberations. The People cited People v Basora, 151 AD2d 588 [2nd Dept. 1989], People v Cogle, 94 AD2d 158 [3rd Dept. 1983], and People v Glover, 57 NY2d 61, to argue [correctly] that the verdict was not repugnant because the second and third counts (the possession counts) were not "lesser included offenses" of the first count (the sale count). After reviewing pertinent case law, this court agreed with the People, and summoned the jury to the courtroom to announce its verdict.
In their instant papers, the People quote the Court of Appeals to note that "[i]t has long been the law in this state***that the trial court has a responsibility to supervise the rendition of a jury verdict in order to prevent doubtful, insufficient or palpably' erroneous findings from being entered on its records" ( People v Salemmo, 38 NY2d 357, 360). A verdict reported by a jury does not become final until it is "properly recorded and accepted by the court" ( Id., at 361).
Accordingly, this court properly reviewed the verdict sheet before the verdict was announced by the jury and recorded, in keeping with its responsibilities under CPL § 310.50. The defendant's claim fails to state a basis upon which a motion to vacate could be granted (CPL § 440.30[a]).
In summary, the defendant's motion to vacate judgment in the captioned case is denied in its entirety on both procedural grounds and on the merits.
The foregoing constitutes the opinion, decision and order of the court.
The defendant is hereby advised of his right to apply to the Appellate Division, Second Department, 45 Monroe Place, Brooklyn, NY 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 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 certificate granting leave to appeal is granted ( 22 NYCRR 671.5).