On direct appeal, the Appellate Division held that any claim arguing that the First Motion to Vacate should have been granted is “not cognizable on this appeal.” Medina, 198 A.D.3d 442 (citing People v. Wilkov, 77 A.D.3d 512, 911 N.Y.S.2d 1 (2010) (holding “Defendant's CPL 440.10 motion to vacate judgment is not before this Court because leave to appeal was denied”)). As such, this claim is procedurally barred.
The Court notes that there is considerable weakness to Petitioner's claim that the prosecution failed to honor its Brady obligations when it allegedly failed to disclose the fact that one of the investigating police officers was convicted of a felony. First, Petitioner, in his direct appeal, failed to raise this issue to the New York Court of Appeals, a potentially fatal decision because New York law only entitles him to one direct appeal. See People v. Wilkov, 911 N.Y.S.2d 1,2 (App. Div. 2010) (explaining that an application for leave to appeal under New York Criminal Procedure Law § 460.15 can be made only once); see also Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001) ("To satisfy § 2254's exhaustion requirement, a petitioner must present the substance of the same federal constitutional claim[s] that he now urges upon the federal courts, to the highest court in the pertinent state." (alteration in original) (citations and internal quotation marks omitted)); Leiva v. Heath, No. 10-CV-3069, 2011 WL 2565487, at *6 (S.D.N.Y. June 22, 2011) ("In order to meet the exhaustion requirement, a petitioner must fairly present his claim in constitutional terms to the state's highest court.").
January 25, 2011. Appeal from the 1st Dept: 77 AD3d 512 (NY). Jones, J.
The court providently exercised its discretion in summarily denying defendant's CPL 440.10 motion to vacate the judgment because it raised grounds that defendant either had raised, or was in an adequate position to have raised, in his prior such motion (see CPL 440.10[3][b], [c] ). To the extent defendant is arguing that the prior motion should have been granted, or that a justice of this Court should have granted leave to appeal from the denial of that motion, those claims are not cognizable on this appeal (seePeople v. Wilkov, 77 A.D.3d 512, 513, 911 N.Y.S.2d 1 [1st Dept. 2010], lv denied 16 N.Y.3d 746, 917 N.Y.S.2d 628, 942 N.E.2d 1053 [2011] ). Although defendant describes his claims in constitutional terms, they are nevertheless procedurally defective as noted, and are unreviewable.
The court providently exercised its discretion in summarily denying defendant's CPL 440.10 motion to vacate the judgment because it raised grounds that defendant either had raised, or was in an adequate position to have raised, in his prior such motion (see CPL 440.10[3][b], [c]). To the extent defendant is arguing that the prior motion should have been granted, or that a justice of this Court should have granted leave to appeal from the denial of that motion, those claims are not cognizable on this appeal (see People v Wilkov, 77 A.D.3d 512, 513 [1st Dept 2010], lv denied 16 N.Y.3d 746 [2011]). Although defendant describes his claims in constitutional terms, they are nevertheless procedurally defective as noted, and are unreviewable.
Here, defendant, at the allocution, agreed that he had had sufficient time to discuss all matters related to the pleas with his attorneys and that he was entering the pleas freely and voluntarily. Defendant's "unequivocal acknowledgment under oath during the plea proceeding that no one had threatened, coerced, or influenced him against his will into pleading guilty and that he was satisfied with the services provided by his attorneys belied his ... claims" that he did not understand the terms and conditions of the pleas ( People v. Marryshow , 135 AD3d at 965 ; seePeople v. Wilkov , 77 AD3d 512 [2010] ). Defendant's claims were based on his self-serving and conclusory allegations of confusion, innocence and ineffective assistance of counsel, and are without merit (seePeople v. Jerome , 98 AD3d 1188, 1188 [2012] ; People v. De Gaspard , 170 AD2d 835, 837 [1991] ; People v. Brown , 168 AD2d 702 [1990] ; People v. Bell , 141 AD2d 749, 750 [1988] ).
Accordingly, while defendant's claims are cognizable on direct appeal, our review is limited to the trial record (see People v. Evans, 16 N.Y.3d 571, 575, 925 N.Y.S.2d 366, 949 N.E.2d 457 [2011] ). To the extent defendant “request[s] that the bench for this appeal entertain a leave application [that application] is procedurally improper because CPL 460.15 specifically provides that such an application can only be made to an individual justice, and can only be made once” (People v. Wilkov, 77 A.D.3d 512, 513, 911 N.Y.S.2d 1 [1st Dept.2010], lv. denied 16 N.Y.3d 746, 917 N.Y.S.2d 628, 942 N.E.2d 1053 [2011] ). Based on the limited review permitted by the existing record, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).
15; People v. Dukes, 284 A.D.2d 236, 726 N.Y.S.2d 554 [2001],lv. denied97 N.Y.2d 681, 738 N.Y.S.2d 296, 764 N.E.2d 400 [2001] ). “Defendant's request that the bench for this appeal entertain a leave application is procedurally improper because CPL 460.15 specifically provides that such an application can only be made to an individual justice, and can only be made once” ( People v. Wilkov, 77 A.D.3d 512, 513, 911 N.Y.S.2d 1 [1st Dept. 2010], lv. denied16 N.Y.3d 746, 917 N.Y.S.2d 628, 942 N.E.2d 1053 [2011] ). Since defendant's objection to expert testimony was made on completely different grounds from those raised on his appeal, he did not preserve his appellate claim that the expert's testimony was improper because it was tailored to the facts of the case ( see e.g. People v. Garcia, 83 N.Y.2d 817, 819, 611 N.Y.S.2d 490, 633 N.E.2d 1094 [1994] ).
The court providently exercised its discretion in summarily denying defendant's CPL 440.10 motion to vacate the judgment because it raised grounds that defendant either had raised, or was in an adequate position to have raised, in his prior such motion (see CPL 440.10[3][b], [c]). To the extent defendant is arguing that the prior motion should have been granted, or that a justice of this Court should have granted leave to appeal from the denial of that motion, those claims are not cognizable on this appeal (see People v Wilkov, 77 A.D.3d 512, 513 [1st Dept 2010], lv denied 16 N.Y.3d 746 [2011]). Although defendant describes his claims in constitutional terms, they are nevertheless procedurally defective as noted, and are unreviewable.