Opinion
1881/96.
Decided October 19, 2005.
A.D.A. Merri Turk Lasky, Defendant Pro Se.
The following constitutes the opinion, decision and order of the Court.
By motion dated September 12, 2005, defendant seeks an order of the court to compel "Veronica Alford, Legal Compliance Officer for Verizon, Inc." to produce certain phone records so that he can prepare a motion pursuant to Criminal Procedure Law Section 440.10 to vacate his judgment of conviction.
Specifically, defendant seeks the name, date, time and destination of all out going and incoming telephone calls to 718-443-4723 or 718-443-5726 from the public telephone located on Cooper Street and Broadway Avenue in Brooklyn on April 19-20, 1996. Defendant alleges that this information would provide him with an alibi defense, because he allegedly telephoned his fiancé at the time of the crime. Defendant seeks the records so that he can support his motion to vacate the judgment by arguing that his trial counsel was ineffective for failing to pursue an alibi defense on his behalf.
In response, the People have filed an affirmation in opposition dated October 17, 2005, whereby they assert that defendant's motion should be denied in its entirety because "defendant's current motion is not the proper vehicle for the relief he now seeks. See Public Officers Law § 84 et. sec."[sic].
For the reasons stated herein, defendant's motion is denied.
FACTS
On May 23, 1996, a nine-count indictment was filed with the court charging defendant, acting in concert with others, with Burglary in the First Degree; two counts of Robbery in the First degree; Grand Larceny in the Fourth degree; Criminal Possession of Stolen Property in the Fourth degree; Grand Larceny in the Third Degree; two counts of Robbery in the Second Degree and Criminal Possession of Stolen Property in the Third Degree.
On February 24, 1997, after a jury trial, defendant was convicted of Burglary in the First Degree; two Counts of Robbery in the First Degree; two counts of Robbery in the Second Degree and Criminal Possession of Stolen Property in the Third Degree.
Defendant was sentenced to concurrent definite terms of imprisonment of twenty-five years on the two counts of Robbery in the First Degree and Burglary in the First Degree; fifteen years on the two counts of Robbery in the Second Degree, and an indeterminate term of imprisonment of two to four years on the count of Criminal Possession of Stolen Property in the Third Degree. Defendant was sentenced as a second violent felony offender and all sentences were to run concurrent.
Defendant's prior pro se motion of November 13, 1997, which sought to vacate his judgment of conviction pursuant to CPL § 440.10 was denied by this Court in a decision dated January 8, 1998. On January 8, 2001, defendant moved to set aside his sentence pursuant to CPL § 440.20, which was also denied by this Court.
Defendant also filed an appeal with the Appellate Decision, Second Department upon various grounds and his conviction was affirmed. Thereafter, defendant's application for leave to appeal to the Court of Appeals was denied. See People v. Wilson, 261 AD2d 645 (2nd Dept. 1999).
Defendant sought leave to appeal this decision which was denied by the Appellate Division, Second Department.
Subsequently, defendant filed a writ of error coram nobis whereby he argued ineffective assistance of appellate counsel for failing to raise a claim of ineffective assistance of trial counsel, based upon trial counsel's failure to raise the following issues on appeal: (1) late disclosure of Rosario material; (2) failure by the prosecution to disclose Brady material; (3) insufficient jury instructions by the court for the robbery and burglary charges; and (4) that his right to be present at all material stages of the trial was violated. The Second Department denied this writ of error coram nobis.
Thereafter, defendant filed a second writ still arguing ineffective assistance of appellate counsel for failure to raise the following on appeal: (1) the People did not disclose exculpatory evidence timely; (2) the summation comments of the Assistant District Attorney denied him a fair trial; and (3) evidence obtained after his arrest should have been suppressed. Again, the Appellate Division denied defendant's writ of error coram nobis.
In another CPL § 440 motion before this Court filed by defendant and dated March 8, 2004, defendant sought to vacate his judgment of conviction upon the grounds that there existed: "(I) Newly discovered evidence . . .; [and] (ii) the judgment was obtained in violation of a right of the defendant under the sixth and fourthteen (sic) amendments to the United States Constitution, and Article 1, Section 6, of the Constitution of the State of New York." Additionally, defendant sought an order to set aside his sentence upon the ground that: "(b) the sentence was illegally imposed [and] (c) the sentence is invalid otherwise as a matter of law." This application was denied in its entirety by a decision rendered June 8, 2004. See Decision dated June 8, 2004, annexed as part of the Court file
Defendant's specific claims were that: there was newly discovered evidence that one of the detectives, either did not make an investigatory report or turn over a report containing exculpatory material and committed perjury. Defendant also claimed that he was denied effective assistance of counsel. Defendant further argued that he was denied his right to be present at all material/critical stages of his trial, and that his sentence of from two to four years imprisonment on the criminal possession of stolen property in the third degree count was improper.
Defendant now moves to compel production of phone records of two public pay phones from Verizon in order to prepare yet another CPL § 440.10 motion to vacate his judgment of conviction. Defendant claims that these records are needed to file a CPL § 440.10 motion which would raise the issue that he allegedly made a phone call to his fiancé at the time of the crime and thus, his counsel was ineffective for failing to pursue his alibi defense. See Defendant's Affirmation.
DECISION
Defendant's Claim of Ineffective Assistance of Trial Counsel is Procedurally Barred and Therefore, His Application for Phone Records is Moot.
Initially, this Court finds that defendant's claims are procedurally barred. See CPL § 440.10(3) (c). In order to vacate a judgment, CPL § 440.10(3) provides that the court may deny such motion when: "Upon 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." Here, defendant has already availed himself of CPL § 440.10 to vacate the judgment and, although he could have raised the arguments he now seeks to raise claiming ineffective assistance of trial counsel in his prior motion in this Court's view, defendant failed to do so and is now precluded.
Specifically, defendant now claims that he was denied effective assistance of counsel because an alibi defense was not raised. This allegation arises under the premise of ineffective assistance of counsel, an argument defendant already raised in prior CPL § 440 motion. Clearly, this claim could have and should have been raised in defendant's prior application. Thus, defendant's application for phone records is moot since the issue he seeks to raise is barred. In any event, as per the documentation attached to defendant's motion, the phone records defendant seeks, no longer exist.
Furthermore, as to the issues raised by defendant concerning the conduct of counsel which may not appear on the record, defendant has failed to conform to the statute. The allegations are unsupported by factual recitation or affidavit or other evidence. Criminal Procedure Law Section 440.30 (4)(b) and (4)(d)(I) states that the motion may be denied without conducting a hearing even when the court reaches the merits. Under CPL § 440.30(4)(b) no hearing need be conducted 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 . . .; or (d) An allegation of fact essential to support the motion (I) is contradicted by a court record or other official document, or is made solely by the defendant and is unsupported by any other affidavit or evidence, and (ii) under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true.
Here, defendant has not conformed to the statute and bases his assertions only upon his own allegations without anything further. Therefore, in addition to defendant's failure to raise this issue in his prior CPL § 440 motion, the Court also denies defendant's motion upon the merits and no hearing is necessary. In this Court's view, there is no reasonable possibility that the allegations are true.
A court is permitted to deny a motion to vacate a judgment and no hearing is necessary if the allegations of fact are conclusively rebutted by "unquestionable documentary proof". See CPL § 440.30(4) (c); see also People v. Webb, 2004 NY Misc. LEXIS 609 (NY Sup. Ct. 2004), citing, People v. Lindsey, 179 AD2d 915, 579 N.Y.S.2d 194 (3rd Dept. 1992). If the essential facts are uncontradicted by a "court record or official document" and there is "no reasonable possibility" that the allegations are true, no hearing is necessary. See Webb, supra at 10, citing, People v. White, 309 NY 636, (1956).
Moreover, pursuant to CPL § 440.30(3)(a), a court is permitted to deny a motion to vacate a judgment without a hearing where all the essential facts could have been placed on the record by a defendant acting with due diligence before sentencing. Here, defendant was certainly aware, based upon his own knowledge as alleged in his motion papers, that his attorney did not properly raise an alibi defense according to defendant, or obtain the records he now seeks, records which no longer exist. For this reason also, the Court denies defendant's application.
CPL § 440.10(3)(a) provides: (a) Although facts in support of the ground or issue raised upon the motion could with due diligence by the defendant have readily been made to appear on the record in a manner providing adequate basis for review of such ground or issue upon an appeal from the judgment, the defendant unjustifiably failed to adduce such matter prior to sentence and the ground or issue in question was not subsequently determined upon appeal although having filed an appeal, did not have appellate review or determination upon the issues because of defendant's unjustifiable failure to raise these grounds.
In addition, defendant's motion is not the proper vehicle to obtain the relief he now seeks. See Public Officer's Law § 84 et seq.
This statute, commonly known as "FOIL" (The Freedom of Information Law) is not applicable to private companies.
Accordingly, defendant's motion is denied in its entirety.