People v Brown
Annotate this CaseDecided on January 11, 2005
Supreme Court, Kings County
THE PEOPLE OF THE STATE OF NEW YORK,
against
Edward Brown, Defendant.
896/99
Cheryl E. Chambers, J.
Defendant pro se moves to vacate his judgment of conviction on numerous grounds, pursuant to CPL 440.10. Defendant's motion is denied.
Findings of Fact
Defendant was convicted, after a jury trial, of robbery in the first degree, for the January 29, 1999 robbery of Keith Fearon at the Cypress Hill station on the J line. Defendant took Fearon's jacket by threatening him with a simulated handgun. On February 17, 2000, he was sentenced, as a second violent felony offender, to 12 years in prison.
On defendant's direct appeal, he claimed that his counsel was ineffective because he did not have a trial strategy, did not ask the court to submit a lesser included offense to the jury, and did not object to bolstering testimony or to the court's use of a hypothetical example during its charge. The Appellate Division rejected his claim, and found that, under the totality of the circumstances, defense counsel provided meaningful representation (People v Brown, 286 AD2d 687 [2d Dept 2001]). Leave to appeal to the Court of Appeals was denied (People v Brown, 97 NY2d 702 [2002]).
Defendant now contends that numerous errors occurred during the trial which warrant vacatur of the judgment of conviction. Most of the errors defendant cites appear on the record, during voir dire, opening and closing statements, and examination of witnesses. He also contends that his trial counsel was ineffective, repeating some of the claims he made on direct appeal, and adding new ones: counsel did not conduct an adequate investigation prior to trial, did not interview one of the People's witnesses, and did not review relevant police reports. He claims the prosecutor elicited perjured testimony and did not disclose Brady and Rosario material in the form of grand jury minutes, prior statements of witnesses and the complaining witness's criminal history. Finally, he asks the court to modify his sentence.
Conclusions of Law
A motion to vacate judgment must be denied when the ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment (CPL 440.10 [2] [a]; People v Shih Wei Su, 267 AD2d 260 [2d Dept 1999], lv denied 94 NY2d 925 [2000]; People v Baxter, 262 AD2d 1068 [4th Dept 1999] lv denied 93 NY2d 1014 [1999]). Here, the Appellate Division rejected defendant's claim that trial counsel was ineffective. Therefore, defendant's motion [*2]on this ground must be denied to the extent it is based on matters appearing on the record reviewed by the Appellate Division.
CPL 440.10 [3] [a] authorizes summary denial of a motion to vacate judgment when "[a]lthough 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." However, CPL 440.10 (3) authorizes the court to grant the motion nonetheless, in the interest of justice and for good cause shown, if the motion is otherwise meritorious.
The additional instances of ineffective assistance alleged by defendant in support of his motion, i.e., that counsel failed to conduct an adequate investigation prior to trial, or interview one of the People's witnesses, or review relevant police reports, did not appear on the record reviewed by the Appellate Division. However, defendant could easily have brought these issues to the court's attention during the trial; he does not claim that he only learned of these deficiencies on counsel's part after sentence was imposed (see People v Berezansky, 229 AD2d 768, 771 [3rd Dept 1996], lv denied 89 NY2d 919 [1996]). He offers no explanation or justification for his failure. Therefore, defendant's motion on these grounds is denied.
The court is authorized to deny a motion to vacate judgment without a hearing if "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 [4] [b]).
Defendant's allegations that the prosecutor elicited perjured testimony are insufficient to warrant a hearing because they do not substantiate the "essential facts"upon which the motion is based, i.e., that the witnesses perjured themselves, and that the prosecutor knowingly adduced perjured testimony (CPL 440.30 [4] [b]). Defendant's allegations of wrongdoing are conclusory, speculative, and unsupported by any evidence, and therefore warrant summary denial (People v Brown, 56 NY2d 242 [1982]; People v Stern, 226 AD2d 238 [1st Dept 1996] lv denied 88 NY2d 1072 [1996]; People v Gates, 168 AD2d 995 [4th Dept 1990], lv denied 77 NY2d 906 [1991]).
CPL 440.30 (4) (d) also authorizes summary denial if an allegation of fact essential to support the motion "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 (4) (d) " is designed to weed out manufactured claims premised on nothing more than a defendant's self-serving affidavit" (People v Mackenzie, 224 AD2d 173 [1st Dept 1996]).
Defendant's contention that the prosecutor failed to disclose Rosario material is not substantiated by any evidence other than his own affidavit. Yet defendant was represented by counsel at trial, who would have received the discovery material from the prosecutor. Defendant has not submitted an affidavit from trial counsel, or any explanation for counsel's failure to submit an affirmation on a subject peculiarly within his knowledge (see People v Morales, 58 NY2d 1008 [1983]; People v Johnson, 292 AD2d 381 [1st Dept 2002], lv denied 98 NY2d 698 [2002]).
The veracity of defendant's self-serving and conclusory allegations of discovery violations is also doubtful in light of this court's unvarying practice of ascertaining from the parties, prior to jury selection, that discovery has been completed. [*3]
Finally, a lawful sentence of continuous incarceration may not be modified once its service has begun (CPL 430.10; Pirro v Angiolillo, 89 NY2d 351, 356 [1996]).Therefore, defendant's request for modification of his sentence must be denied. For all the foregoing reasons, defendant's motion is denied.
This constitutes the 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 thirty 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).
Dated: January 11, 2005
ENTER
___________________________
J.S.C.
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