People v Avino
Annotate this CaseDecided on March 1, 2005
Supreme Court, Monroe County
The People of the State of New York, Respondent,
against
Louis Avino, Defendant.
2002-111
Nisha M. DeSai, Esq.
Assistant Attorney General
for the People.
Louis Avino, pro se
Defendant.
Stephen R. Sirkin, J.
The defendant, Louis Avino has moved pro se for an order pursuant to Criminal Procedure Law §440.10, vacating his conviction after a jury trial on two counts of Grand Larceny in the Second Degree. The motion is based on the defendant's claim of ineffective assistance of counsel, due to his attorney's failure to call certain witnesses at trial who would have allegedly offered exculpatory testimony, resulting in a different verdict. The Attorney General has opposed the motion, maintaining that the application should be denied in all respects without a hearing.
The defendant, who is a contractor by trade, was convicted of participating in a long-range scheme with others to defraud Rose Siebert, a 94 year old widow. Initially, the defendant was introduced to Rose by another contractor, Fred Glynn. The defendant proceeded to form a corporation called LKCF with Glynn and used the corporation to obtain funds from Rose, allegedly for construction work on her home. Subsequently, the defendant and Glynn devised a scheme to obtain almost $180,000.00 in stocks from Rose, under the pretense that the stocks would be used to set up a trust fund for her grandson. Instead, with the assistance of then-attorney Michael Rudin and his colleague Dennis Pizzo (also a former attorney), the stocks and the accompanying letters of instruction were placed in the name of LKCF, and distributions were made thereafter to LKCF's account by a brokerage company holding the altered stocks. Monies [*2]were also paid to LKCF's account as a result of the invasion of Rose's trust fund, once again to pay for construction work on her house that was never performed.
The substance of the Defendant's motion is his claim that his trial counsel, Joseph Damelio, should have called witnesses who would have seriously contradicted the testimony of Glynn, the state's chief witness, and established the defendant's lack of involvement in the scheme. In support of his motion, the defendant submits the affidavits of Dennis Pizzo and David Silverberg, Esq., the defendant's former attorney, in addition to his own affidavit. Pizzo's affidavit essentially states that the defendant met the other individuals involved in the scheme only a few times, and that those meetings were subsequent to the alleged transactions. Silverberg's affidavit, while specifically declining to offer an opinion as to the effectiveness of the representation by the defendant's trial counsel, states that he never heard from Mr. Damelio in regard to the defendant's case. Silverberg also indicates that his file contained damaging information against Glynn, obtained as a result of his defense of the defendant in an assault case in which Glynn was the complainant , and that he would have called Pizzo as a defense witness, in order to discredit Glynn's credibility.
New York courts have consistently held that, on a motion to vacate a conviction based on ineffective assistance of counsel, it is the defendant's burden to establish that he was denied meaningful representation, and to overcome the strong presumption that he was represented competently. In People v. Baldi, 54 NY2d 137 (1981), the Court of Appeals held that a defendant's constitutional right to effective assistance of counsel has been met "(s)o long as the evidence, the law and the circumstances of a particular case, viewed in totality and as of the time of the representation reveal that the attorney provided meaningful representation." (54NY2d at 147). " 'Meaningful representation' does not mean 'perfect representation' ". (People v. Ford, 86 NY2d 397, 404 [1995]).
The Court has carefully reviewed the allegations made by the defendant regarding the quality of his attorney's representation. These allegations are supported by only two affidavits in addition to his own affidavit. The first affidavit, by Pizzo, consists of a recantation of the prospective witness's prior sworn statements. Recanted testimony has historically been found to constitute some of the weakest evidence which can be presented at trial. "As has been aptly held, '(t)here is no form of proof so unreliable as recanting testimony' ". ( People v. Cintron, 306 AD2d 151 [1st Dept., 2003], citing People v. Shilitano, 218 NY 161 [1916]). Moreover, Pizzo is a self-confessed convicted perjurer, whose name has been stricken from the rolls of practicing attorneys ( See In re Pizzo, 78 AD2d 776 [4th Dept., 1980]). The testimony of such an individual may well have done the defendant more harm than good and does not point to ineffectiveness on the part of the defendant's counsel. (See Baldi, 54 NY2d at 146-147). Moreover, the recantation affidavit was not corroborated by any other affidavit submitted by the defendant. (See Cintron at 152).
The only other third-party affidavit offered by the defendant is provided by the defendant's former counsel, who states that the defendant's assigned counsel never contacted him in order to obtain information from the file. Mr. Silverberg also speculates that he would have called Pizzo as a witness at the trial and presented other evidence to discredit the prosecution's case. However, Mr. Silverberg candidly admits that he cannot establish the level of familiarity with the defendant's file possessed by Mr. Damelio, nor could he predict with any certainty the [*3]effect that his own input might have had on the outcome of the case. Mr. Damelio's decision "not to call a witness, whose testimony he assessed as weak, was a strategic legal decision which does not amount to ineffective assistance." (See People v. Smith, 82 NY2d 731, 733 [1993]).
As to the defendant's other claims, they are based solely on the defendant's self-serving affidavit, which is replete with speculation and conclusory statements. No affidavit is provided by Michael Rudin (who was subsequently disbarred) to establish the defendant's lack of involvement in the scheme. No affidavits are provided by other "potential" witnesses, such as Donald Swider, Robert Guck or Peter Lapone. The defendant's remaining arguments deal with his assigned counsel's alleged failure to object to the prosecutor's closing, to cross-examine the prosecution's witnesses in regard to alleged misstatements, and to investigate non-related incidents which would have allegedly damaged Glynn's credibility as a witness. A detailed affirmation has been provided by the former prosecutor which specifically denies all allegations regarding prosecutorial misconduct made by the defendant. Finally, the fact that the defendant did not take the stand at trial merely indicates that he followed his attorney's legal advice, and that he is now second-guessing his lawyer's trial strategy because he is unhappy with the result.
The Court finds that the defendant has failed to meet his burden of establishing ineffective assistance of counsel, and that a hearing is not required to reach this determination. The defendant's motion to vacate his conviction is denied.
This decision shall constitute the Order of the Court.
DATED: March 1, 2005.
Lyons, New York.
____________________________________
Stephen R. Sirkin
Acting Supreme Court Justice
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