People v McCowen

[*1] People v McCowen 2005 NY Slip Op 51362(U) [9 Misc 3d 1101(A)] Decided on June 21, 2005 Supreme Court, Kings County Starkey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 21, 2005
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Lawrence McCowen, Defendant.



4234/00



For the People:

Charles J. Hynes, Kings County District Attorney

Renaissance Plaza

350 Jay Street

Brooklyn, NY 11201-2908

By: Diane R. Eisner, Esq.

Leonard Joblove, Esq.

(718) 250-2000

For the Defendant:

Lawrence McCowen, pro se

James G. Starkey, J.

Defendant, pro se, moves pursuant to C.P.L. §440.10 for an order vacating a judgement

of conviction for the crimes of Sexual Abuse in the First Degree, Sodomy in the First Degree,

Assault in the Second Degree, Menacing in the Third Degree and Petit Larceny. Defendant was

convicted after a jury trial before the Hon. Albert Tomei, and was sentenced on April 10, 2001 to [*2]

a term of imprisonment, as a persistent violent felony offender, to three consecutive prison terms

of twenty-five years to life.



The convictions were affirmed by the Appellate Division on January 20, 2004, People v.

McCowen, 3 AD3d 540, (2d Dept 2004), lv. denied, People v. McCowen, 2 NY3d 743,

(2004) ( R. Smith, J)).

On his direct appeal, in a brief prepared by appellate counsel, defendant claimed that

the prosecutor repeatedly injected racial bias in the case in his opening and closing statements

and that the court denied defendant a fair trial by permitting testimony from a rape trauma

expert. Defendant also claimed that the sentence was excessive.

In a supplemental brief filed by defendant pro se he argued that the lineup where he was identified by witness Marco Zarczynski was suggestive, that the court prejudiced him by eliciting an in-court identification by the complainant L. H. [FN1], that the cross-examination of L.H., was unfairly curtailed, and the defense counsel for various reasons provided ineffective assistance of counsel. Defendant's judgment of conviction was affirmed as the Appellate Division concluded that his sentence was not excessive and that his remaining contentions were meritless or unpreserved for appellate review.

DEFENDANT'S CONTENTIONS

Defendant's motion is grounded upon the following claims: 1) the prosecution

misled the Grand Jury regarding complainant L. H.'s identification of the defendant,

specifically allowing the Grand Jurors to assume that she identified defendant at a lineup

conducted on May 4, 2000, when in fact she failed to identify him in a lineup that day and that

he was in fact identified by witness Marco Zarczynski in another lineup that

day; 2) the prosecutor further misled the Grand Jury into believing the victim identified

defendant at the aforementioned lineup when it questioned witness Detective Charles Hawkins; [*3]

3) the prosecution by recalling witness Marco Zarczynski to the stand in the Grand Jury and

allowing him to be questioned regarding "unrelated, uncharged" crimes prejudiced the Grand

Jury and violated defendant's right to due process; and 4) the appointed trial defense

counsel's representation constituted a denial of his Federal and State Constitutional right to

effective assistance of counsel.

THE FACTS

On the night of April 29, 2000, L. H., an eighteen year old woman, attended

a party in a residential unit of an apartment building located at 416 Ocean Avenue,

Brooklyn. The party-goers were teen-aged young adults. At one point during the party

several of the teens left the apartment in an attempt to purchase beer. When the clerk at a nearby

grocery store would not sell them the alcohol because of their age, two men came to

their assistance and purchased the beer for them.

One of these men was defendant, Lawrence McCowen, who identified himself to

the group as "G." Although at age forty-three, he was considerably older than the young

men in the store, he and the other man, accompanied the group back to the party. It was at the

party that defendant first entered into a conversation with L. H., at one point

commenting on her beauty. L. H. later testified at trial that defendant's comments to

her made her feel uncomfortable. [*4]

After 2:00 a.m., L. H. left the apartment to go home. It was her intention to take

a car service vehicle which had been called for her, but as she attempted to exit the building, she

encountered defendant in the lobby. He called her over and asked to speak to her

and when she refused his request, he grabbed her wrist and throat. He forced

her back into the elevator and took her to an upper floor landing where he began a series of

physical and sexual assaults against her which continued over the next several hours.



Soon after he had seized her, defendant removed her driver's license from

her wallet, told her that he knew where she lived and that if she informed on him she would be

killed. After assaulting her in the building, defendant forced her to nearby Prospect Park where

he continued his crimes against her. Shortly before dawn she received a call on her pager from

her father, at which point defendant returned her license, removed twenty dollars from her

wallet and released her.

She returned home, told her father what had occurred and together they went to

the police station to report the incident. A police investigation was initiated and a videotape

from a security camera in the lobby was obtained from the building's superintendent. The

videotape showed defendant returning with the young men from the store and it also showed

defendant grabbing L. H. and forcing her against the lobby wall. On May 4, 2000, defendant

was arrested.

At the Grand Jury three witnesses testified, including Marco Zarczynski, one of the

young men who went to purchase beer. He testified regarding the beer purchase and that

defendant accompanied him back to the party. With the Grand Jury present he viewed the

videotape of himself and defendant as they walked into the building. He also testified that when [*5]

he left the building after 2:00 a.m., L. H. was still upstairs and defendant was in the lobby by

himself. Finally, he testified regarding his identification of defendant in a lineup conducted on

May 4, 2000.

L. H. also testified before the Grand Jury. She testified that she attended the

party, that defendant spoke to her while in the apartment, and that when she attempted to

leave the building he called out to her and grabbed her. She described portions of the assault on

her in detail and viewed the videotape of defendant seizing her in the lobby. She did not testify

concerning her initial failure to identify defendant in a lineup on May 4, 2000.

The final witness to testify before the Grand Jury was Detective Charles Hawkins. His

testimony related to the police investigation and to the lineup he conducted on May 4, 2000.

At trial, L. H. testified and described her ordeal in detail. She identified

defendant as her assailant. She also testified that she had earlier failed to identify defendant

in the lineup because she felt frightened. Detective Charles Hawkins also testified regarding the

two lineups he conducted on May 4, 2000.

At trial, defendant was identified by witness Marco Zarczynski as the person who

assisted in the purchase of the beer and who accompanied him back to the party. He also

testified that when he left the building he saw defendant sitting alone in the lobby.

CONCLUSIONS OF LAW

Defendant's complaints regarding misconduct by the prosecution during the Grand

Jury proceeding and ineffective assistance of counsel are claims which are based upon the record [*6]

of the trial and other proceedings in court and sufficient facts appear in the record to have

permitted defendant to have raised his contentions on appeal.

The court must deny a motion to vacate a judgement pursuant to C.P.L. § 440.10

subdivision (2) ( c ) when: . . . . ( c ) although sufficient facts appear on the record of the proceedings underlying the judgement to have permitted, upon appeal from the such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him.

In any event, once a defendant has been convicted after a trial, defendant is precluded from raising on appeal a claim that the evidence before the Grand Jury was not legally sufficient. C.P.L. §§210.30(6) and 210.20(b). In such a case, "the sufficiency of the evidence to convict following trial is manifest from the record." People v. Pelchat, 62 NY2d 97, 108 (1984). The principle has been applied even when it has been alleged that a witness — who had recanted — had perjured himself before the Grand Jury. See People v. Bryant, 234 AD2d 605 (2d Dep't 1996). See also People v. Young, 296 AD2d 588, 589 (3d Dep't 2002) (DNA evidence later excluded defendant as source of blood found at scene, contrary to prosecution's theory before Grand Jury); People v. Bey, 179 AD2d 905, 907 (3d Dep't 1992) (claim grand jury witness perjured himself).

Defendant's contention that he was denied effective assistance of counsel at trial by the failure of counsel to "call to order all of prosecution's erroneous attempts to mislead the grand jury" is similarly without merit. As noted by Judge Barros after inspection of the Grand Jury minutes, the evidence was "legally sufficient" and the prosecutor "maintained the integrity of the grand jury proceedings." Independent inspection of the Grand Jury minutes confirms that conclusion. Copies of Justice Barros's order and the Grand Jury minutes [FN2] are annexed hereto as exhibits one and two. Thus, the alleged improprieties which counsel failed to exploit are non- existent and the claim of ineffective assistance of counsel necessarily fails.

In light of the above, defendant's motion is denied in all respects. This constitutes

the decision and order of the court. The clerk is directed to send copies of this decision

and order to the defendant and to the District Attorney.

[*7]

James G. Starkey

J. S. C.

Footnotes

Footnote 1: The trial transcript is stamped "Confidential - Not for Public Inspection ( § 50-b Civil Rights Law )." In the interests of preserving the privacy of the victim, only her initials will be used herein.

Footnote 2:To preserve the privacy of the victim, any reference to her name has been omitted.