People v Nelson

[*1] People v Nelson 2005 NY Slip Op 51717(U) [9 Misc 3d 1121(A)] Decided on September 9, 2005 Supreme Court, Bronx County Massaro, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 9, 2005
Supreme Court, Bronx County

The People of the State of New York,

against

Tyrone Nelson, Defendant.



1808/2002



For the People of the State of New York

The Honorable Robert T. Johnson

District Attorney, Bronx County, New York

By:Tracy L. Siligmueller, Esq.

Assistant District Attorney

For Tyrone Nelson

Pro se

Dominic R. Massaro, J.

Defendant, Tyrone Nelson, was convicted by a jury on November 21, 2002, of Criminal Sale of a Controlled Substance In or Near School Grounds (Penal Law § 220.44 [2]), and Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39 [1]). He was sentenced on March 21, 2003, as a Second Felony Offender, to concurrent indeterminate terms of imprisonment of from six to twelve years. Defendant now moves, pursuant to Criminal Procedure Law Article 440.10, to vacate his judgment of conviction. The motion is denied as it is procedurally barred.[FN1]

Chronology

On March 21, 2002, at approximately 6:20 p.m., an undercover police officer entered 1250 Morrison Avenue, a location within one thousand feet of P.S. 77. He asked Defendant, who was inside, for "nine," while handing him a sum of United States currency pre-recorded buy money. Defendant then handed said currency to another individual, who, in exchange, handed Defendant nine ziplock bags containing crack-cocaine. Defendant gave eight of the bags to the undercover officer and kept the other. Defendant explained to the undercover officer, in sum and substance, "You should bless me with one because I gave you a lot of nicks." The undercover officer then left the location. Defendant was arrested approximately five minutes later nearby. The other individual was likewise arrested minutes later and found to be in possession of the pre-[*2]recorded buy money.

On March 22, 2002, Defendant was arraigned in the Criminal Court of the City of New York, Bronx County, on a felony complaint charging him with the crimes of Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39 [1]), Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16 [1]), and Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03). At the time, Defendant was represented by Michael Murphy, Esq. of The Legal Aid Society.

According to the Record of Court Action, Defendant next appeared in Part N of the Supreme Court of the State of New York, Bronx County, on March 27, 2002, at which time he was represented by Bruce Klein, Esq. of the 18-B panel. The case was adjourned to April 1, 2002, at which time Defendant not only requested a new attorney, but also indicated, via his attorney, that he wanted to testify before the Grand Jury. On April 4, 2002, Defendant received new counsel, namely Stuart Rosensweet, Esq. of the 18-B panel. The case was then adjourned for Defendant to both consider the People's pre-indictment officer or testify before the Grand Jury, which again, his attorney indicated he wished to do.

On April 5, 2002, Defendant rejected the People's pre-indictment offer and indicated that he would not testify before the Grand Jury. Immediately afterwards, the Bronx County Grand Jury voted to indict Defendant for the crimes of Criminal Sale of a Controlled Substance In or Near School Grounds (Penal Law § 220.44 [2]), and Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39 [1]). On April 18, 2002, Defendant was arraigned on the Supreme Court Indictment charging him with the abovementioned crimes.

On May 28, 2002, in Part M70 of the Supreme Court, Defendant received new counsel, that being David Krauss, Esq. According to the minutes from the pre-trial hearing, Mr. Krauss was retained by Defendant. After motion practice, in which Mr. Krauss filed an Omnibus motion on behalf of Defendant, a Dunaway/Mapp/Gethers, (see Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 [1979]; Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 [1961]); People v. Gethers, 86 NY2d 159 [1995]), hearing was held on October 10, 2002. Following the hearing, all of Defendant's motions were denied. Later, a CPL § 30.30 motion was also filed, and it too was subsequently denied.

A Sandoval, (see People v. Sandoval, 34 NY2d 371 [1974]), hearing was held in this Court on November 4, 2002. The trial itself commenced on November 7, 2002, and concluded, with Defendant being found guilty of the aforementioned charges, on November 21, 2003.

Later, Mr. Krauss filed a CPL § 330.30 motion to set aside the verdict on behalf of Defendant on the grounds that: (1) the Court's supplemental charge was coercive and, as such, the Court improperly denied Defendant's motion for a mistrial; (2) the Court's sequestration of the jury was improperly coercive as established, in part, by the affidavit of one of the jurors; (3) the Court improperly rejected one of Defendant's challenges for cause of an individual juror; and (4) the Court improperly denied Defendant's request for a missing witness charge. Defendant's motion was denied and he was sentenced on March 21, 2003.[FN2] [*3]

Defendant has since filed a Notice of Appeal and Laura R. Johnson, Esq. of the Legal Aid Society has been appointed as his attorney on appeal based upon his application to proceed as a poor person. Defendant's appeal has since been perfected.

Defendant's Motion

Defendant now moves to vacate his judgment of conviction pursuant to CPL § 440.10 based on numerous grounds. Although difficult to decipher, to the best of the Court's ability, eleven claims are able to be discerned. Ground One - The Assistant District Attorney committed prosecutorial misconduct in his summation, alteration of documents, production of false testimony, insertion of false information in the complaint, failure to inform the Grand Jury that the testimony it received was hearsay, and lack of candor in colloquies with the Court.Ground Two - The People improperly introduced evidence that seven dollars were recovered from Defendant and his accomplice, when, in fact, only five dollars were recovered. Ground Three - There was legally insufficient evidence to indict and find Defendant guilty because the only witnesses were police officers who did not possess sufficient first-hand knowledge of the incident.Ground Four - Defendant was afforded ineffective assistance of counsel. Specifically, he contends that his attorney(s): spent an insufficient amount of time investigating and preparing his case; had a conflict of interest during the arraignment; improperly modified the felony complaint; concealed documents from Defendant; inadequately participated in the trial; did not adequately consult and communicate with Defendant; did not provide Defendant with a business card; did not allow Defendant to view the felony complaint; did not afford Defendant a sufficient opportunity to participate in the trial; waived Defendant's right to appear before the grand jury against his wishes; submitted false vouchers; represented multiple clients on the same date; knew and helped to preserve false evidence that was used against Defendant; failed to deliver all papers and property in the case to Defendant; improperly withdrew representation during the CPL § 180.80 proceeding; and did not provide Defendant with sufficient notice when each withdrew from the case. [*4]Ground Five - The People improperly elevated the charges from Penal Law § § 220.16 (1) and 220.03 to the charges for which he was later convicted.Ground Six - The supporting depositions, initial complaint, police paperwork, and Mugshot Pedigree, all of which stated that Defendant was charged with Penal Law § § 220.16 and 220.03, are business records, and, as such, establish that he could only be found guilty of those crimes and not guilty of the crimes for which he was convicted.Ground Seven - There was no fingerprint or palmprint evidence. Ground Eight - The initial complaint was improperly superceded.Ground Nine - Defendant was an innocent bystander who was arrested solely for the police officers involved to increase their amount of overtime.Ground Ten - Defendant was denied his right to due process because the indictment was not sufficiently clear and certain.Ground Eleven - The People failed to disclose Brady, (see Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 [1963]), and Rosario, (see People v Rosario, 9 NY2d 286 [1961], cert. denied, sub nom., Rosario v. New York, 368 U.S. 866, 82 S. Ct. 117, 7 L. Ed. 2d 64 [1961]), material, namely a handwritten Daily Activity Report.

The People filed an affirmation in opposition, alleging that Defendant's entire motion should be denied pursuant to CPL § 440.30 (4) (b) because it is "wholly unsupported by sworn allegations of fact." The People also claim that Defendant's claims that are record based must be denied pursuant to CPL § 440.10 (2) (b).[FN3]

Discussion

Initially, Grounds Two, Three, Five, Six, Seven, Eight and Ten, as well as portions of Grounds One and Four, are matters that do not dehors the record. Therefore, they can be brought on Defendant's direct appeal in the First Department. As such, these portions of this motion must be denied without a hearing pursuant to CPL § 440.10 (2) (b), which states that, "[n]otwithstanding the provisions of subdivision one, the court must deny a motion to vacate a [*5]judgment when [t]he judgement is, at the time of the motion, appealable or pending an appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal." See also People v. Degondea, 3 AD3d 148 (1st Dept. 2003), lv. denied, 2 NY3d 798 (2004); People v. Williams, 286 AD2d 620 (1st Dept. 2001) ("[A CPL §] 440 motion is designed for the purpose of developing facts dehors the trial record. This does not apply to facts that should have been placed on the record during trial."), lv. denied, 97 NY2d 659 (2001).

This procedural bar also includes Defendant's claims that were based upon the Grand Jury testimony because while Grand Jury minutes are secret, the appellate court can consider them as part of the record on direct appeal. See CPL § 190.25 (4) (a); People v. Sinski, 88 NY2d 487 (1996); People v. Owens, 281 AD2d 191 (1st Dept. 2001); People v. Ponnapula, 266 AD2d 32 (1st Dept. 1999), lv. denied, 94 NY2d 951 (2000); People v. Price, 232 AD2d 156 (1st Dept. 1996), lv. denied, 90 NY2d 942 (1997) (all considering the Grand Jury minutes as part of the record when a defendant claimed that the integrity of the Grand Jury proceeding was impaired). In any event, although not binding, the Third Department has repeatedly noted that "even if evidence presented to the grand jury was later found to be inadmissible, the indictment would not be rendered invalid or the proceeding found to be defective" (People v. Long, 9 AD3d 495, 498 [3rd Dept. 2004], citing, People v. Martinez, 271 AD2d 810, 811 [3rd Dept. 2000]), and the Second Department has held that "where there has been a judgment of conviction based on legally sufficient trial evidence, the propriety of the trial court's denial of the defendant's motion to dismiss the indictment on the ground of insufficiency of the Grand Jury evidence is not reviewable (see CPL § 210.30 [6])." People v. Wadsworth, 253 AD2d 899 (2nd Dept. 1998), lv. denied, 92 NY2d 1040 (1998).

The remainder of Defendant's claims in Ground One, as well as his claim is Ground Nine are denied pursuant to CPL §440.30 (4) (b) and (d), as he has failed to come forward with sworn allegations substantiating or tending to substantiate any of the essential facts. Rather, as the People correctly note, all of Defendant's claims are completely self-serving, unspecific, unsupported and baseless. Specifically, Defendant has failed to indicate: what documents were altered; what testimony produced was false; what information placed in the felony complaint was false; what was presented to the Court that was anything less than candid; and what facts exist to corroborate his claim that he was arrested solely for the police involved to increase their amount of overtime.

As for those portions of Defendant's ineffective assistance of counsel claim under Ground Four that dehors the record, the Court finds that Defendant's counsels were completely effective. Therefore, these claims are procedurally barred pursuant to CPL § 440.30 (4) (d) as they are made solely by Defendant, are unsupported by any other affidavit or evidence, and under all of the circumstances attending the case, there is no reasonable possibility that they are true. In People v. Benevento, 91 NY2d 708, 712-15 (1998), our Court of Appeals opined the state standard for ineffective assistance of counsel: The core of the inquiry is whether defendant received meaningful representation . . . the test being reasonable competence, not perfect representation. . . . It is incumbent on defendant to demonstrate the absence of strategic or other legitimate [*6]explanations for counsel's alleged shortcomings. . . . Counsel's performance should be objectively evaluated . . . [t]o determine whether it was consistent with strategic decisions of a reasonably competent attorney. . . . As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance. . . . We have . . . noted that a claim of ineffective assistance of counsel will be sustained only when it is shown that counsel partook an inexplicably prejudicial course.

Here, based on the totality of the representation from Messrs. Murphy, Klein, Rosensweet and Krauss, it is clear that they were not deficient so as to deny Defendant meaningful representation. See People v. Henry, 95 NY2d 563, 565 (2000) ("[i]solated errors in counsel's representation generally will not rise to the level of ineffective [assistance], unless the error is so serious that defendant did not receive a fair trial."); People v. Flores, 84 NY2d 184, 188 (1994) (rejecting "framework that an 'unexplained error' by counsel is sufficient, by itself to deprive defendant of effective assistance."), cert. denied, sub nom., Keane v. Flores, 531 U.S. 1029, 121 S. Ct. 606, 148 L. Ed. 2d 517 (2000). Indeed, the record indicates that Mr. Murphy's representation during Defendant's Criminal Court arraignment was completely proper and there is nothing in the record to support Defendant's contention that he somehow precluded Defendant from viewing the felony complaint. Moreover, to the extent that it is true, this Court is aware of no case in support of Defendant's contentions that the failure to provide Defendant with a business card and an attorney handling more than one case on a given day are somehow tantamount to per se ineffectiveness.

As per the representation of Messrs. Klein and Rosensweet, the Court finds that they too acted completely proper during their representation of Defendant during the pre-indictment stage of this case. Indeed, they were even able to negotiate a possible disposition to a charge and sentence less severe than that for which Defendant was found guilty and cannot be at fault for his refusal to take that offer.

The Court further finds that Mr. Krauss argued effectively for Defendant. Indeed, Mr. Krauss filed a pre-trial Omnibus motion in which he was successful in obtaining a Dunaway/Gethers/Mapp, (supra), hearing, and, at that hearing, as well during the trial, Mr. Krauss not only conducted lengthy cross-examinations of the People's witnesses, but also made numerous objections, many of which were sustained, and argued persuasively on summation. Furthermore, Mr. Krauss submitted a compelling CPL § 330.30 motion to set aside the verdict and, prior to that, argued enthusiastically and persuasively on his client's behalf at the Sandoval, (supra), hearing and at sentencing. Indeed, Mr. Krauss was effective in convincing this Court to sentence Defendant to concurrent indeterminate terms of imprisonment of from six to twelve years, despite the fact that, as Defendant was eligible to be sentenced as a persistent felony offender, he could have received a sentence of an indeterminate term of imprisonment of from twenty-five years to life. See Penal Law § 70.10. Finally, a timely Notice of Appeal was filed on Defendant's behalf, without which, he could not have brought his direct appeal, which is currently pending before the First Department. Thus, under the totality of the circumstances, it can hardly be said that defense counsel did not provide meaningful representation. [*7]

Moreover, as the People correctly note, Defendant does not specify: what his attorneys should have investigated; what a further investigation would have revealed; how he would have benefitted from a further investigation; how often his attorneys conferred with him; how he would have benefitted from further communications with his attorneys; what more his attorneys should have done in their participation in the proceedings; what conflict of interest existed during his arraignment; how the felony complaint was improperly modified and how his attorneys assisted in this improper modification; what documents were concealed by his attorneys; how his attorneys failed to afford him a sufficient opportunity to participate in the trial; how he would have benefitted by participating more in the trial; what vouchers were submitted that were false; what false evidence was used against him and how his attorneys assisted in preserving this false evidence; how the withdrawing attorneys failed to provide sufficient notice; and how he was prejudiced by the alleged lack of notice of his first two attorneys withdrawing from the case, including their withdrawal while Grand Jury action was pending.[FN4]

As per Defendant's claim that his attorney improperly waived his right to appear before the Grand Jury, this claim is waived as it was never asserted by Defendant in a motion to dismiss. See People v. Taylor, 165 AD2d 800, 801 (1st Dept. 1990) ("By failing to move to dismiss the indictment within the five-day period set forth in CPL § 190.50 [5] [c], defendant waived any objection to the purported denial of his right to testify before the Grand Jury."). In addition, this argument ignores the longstanding holding of the First Department and Court of Appeals that a "defendant's claim that his original attorney failed to effectuate defendant's alleged desire to testify before the Grand Jury would not be sufficient to establish ineffective assistance." People v. Wiggins, 89 NY2d 872, 872-73 (1996). See also People v. Helm, 51 NY2d 853 (1980), People v. Madison, 259 AD2d 270 (1st Dept. 1999), lv. denied, 93 NY2d 1004 (1999); People v. Hook, 246 AD2d 470 (1st Dept. 1998), lv. denied, 92 NY2d 848 (1998), lv. denied, 92 NY2d 853 (1998); People v. Bundy, 186 AD2d 357 (1st Dept. 1992), lv. denied, 81 NY2d 837 (1993); Taylor, (supra). Indeed, as noted by the First Department in People v. Mobley, 309 AD2d 605 (1st Dept. 2003), lv. denied, 1 NY3d 599 (2004), "Defendant has made no showing that had he been afforded the opportunity to testify, his testimony would have affected the outcome of the proceedings. 'All that his appearance before the grand jury would do would be to give the prosecutor a preview of the defense' (Jenkins v. New York State, F.Supp.2d , 2003 WL 21804846, *2 [S.D.NY August 6, 2003])."

Furthermore, defendant's claim is contrary to the record which clearly shows that his attorney did, in fact, give the People notice that defendant intended to testify before the Grand Jury. Therefore, his failure to perfect this right cannot be blamed on his claim that his attorney failed to secure the right in the first place. Rather, defendant was given written notice of the date and time that he was supposed to testify, as well as "more than (a) reasonable opportunity to testify, and his failure to do so was of his own creation." People v. Clark, 267 AD2d 4 (1st Dept. 1999), lv. denied, 94 NY2d 946 (2000). See also People v. Evans, 79 NY2d 407 (1992); People v. Ward 193 AD2d 433 (1st Dept. 1993). Thus, there is no basis for this claim.

Also procedurally barred pursuant to CPL § 440.30 (4) (c) and (d) is Defendant's claim in [*8]Ground Eleven that the People failed to turn over Brady, (supra), and Rosario, (supra), material, including a handwritten Daily Activity Report. Initially, Defendant has failed to establish that such a document even exists. In any event, in alleging a Brady, (supra), violation, a defendant must establish a reasonable possibility that the failure to disclose a certain document contributed to the verdict (see People v. Vilardi, 76 NY2d 67 [1990]; People v. Carter, 258 AD2d 409 [1st Dept. 1999], lv. denied, 94 NY2d 798 [1999]), and, in alleging a Rosario, (supra), violation, a defendant must establish that, if such a violation occurred, he was prejudiced by it. See People v. Machado, 90 NY2d 187, 192 (1997) ("Rosario claims raised by way of CPL 440.10 motions made before direct appeal is exhausted should be rejected unless the violation prejudiced defendant."); People v. Campbell, 7 AD3d 409 (1st Dept. 2004), lv. denied, 3 NY3d 672 (2004); People v. Cooper, 292 AD2d 163 (1st Dept. 2002), lv. denied, 98 NY2d 674 (2002). As neither showing has been made, this claim too must be rejected.

ORDERED, that Defendant's motion to vacate his judgment of conviction is denied.

The foregoing constitutes the opinion and decision of the Court.

Dated: Bronx, New York

September 9, 2005

DOMINIC R. MASSARO,

Justice of the Supreme Court Footnotes

Footnote 1:Because Defendant's motion is procedurally barred, the Court declines to rule on its merits.

Footnote 2:In papers dated December 18, 2002, Defendant filed a motion that, on January 21, 2003, was considered a petition for a CPLR Article 70 Writ of Habeas Corpus. The matter was to be heard on January 29, 2003 in Part A of the Supreme Court, at the Rikers Island Donald J. Cranston Judicial Center. No decision has yet been rendered on that petition.

Footnote 3:Although the People address only seven claims raised by Defendant, it is understandable in light of the fact that Defendant's motion is practically incomprehensible. Indeed, both the People's response and the Court's decision on this matter have been delayed due to the difficulty in trying to comprehend Defendant's claims.

Footnote 4:As there is no CPL § 180.80 proceeding, the Court can only conclude that Defendant is referring to the time period referred to in that statute as well as his waiver of that time period.