People v Wright
Annotate this CaseDecided on March 30, 2006
Supreme Court, Kings County
The People of the State of New York
against
Gerald Wright
7334/01
Anne G. Feldman, J.
Defendant was convicted by jury verdict of three counts of burglary in the second degree and sentenced on December 3, 2002 to three concurrent terms of twenty-five years to life as a persistent violent felony offender. Defendant's conviction was affirmed by the Appellate Division Second Department (People v Wright, 12 AD3d 468 [2d Dept 2004]) and leave to appeal to the Court of Appeals was denied (People v Wright, 4 NY3d 804 [2005]).
In his present motion defendant moves pursuant to CPL §440.10 to vacate the judgment of conviction on numerous grounds. With the exception of defendant's allegation of ineffective assistance of counsel all of his claims are summarily denied.
Under CPL §440.10[2][a] defendant's claim that the prosecutor committed misconduct in his summation is barred because the issue was previously determined on the merits on appeal.
Defendant's claims regarding his statutory right to a speedy trial under CPL §30.30, the trial court's refusal to recuse itself, the legality of his arrest and identification, the propriety of the prosecutor's opening statement and defendant's exclusion from sidebar conferences are also barred. In each instance facts appear on the record to have permitted defendant to have raised these issues on appeal but he unjustifiably failed to do so (CPL §440.10[2][c]).
Defendant's claim that the court was biased against him is rejected because the accusation is unsupported by any evidence. Under CPL §440.30[4][b] a court may deny a motion to vacate a judgment of conviction without a hearing if the moving papers do not contain sworn allegations of fact substantiating all essential facts (People v Wells, 265 AD2d 589 [2d Dept 1999]; People v Lane, 213 AD2d 494,495-96 [2d Dept 1995]). Conclusory allegations are insufficient and merely speculative without supporting evidentiary facts.
Defendant's remaining contentions are also denied. No Rosario violation has been substantiated by any evidence other than defendant's own affidavit (see CPL §§440.10[3][a]; 440.30[4][d]). Finally, defendant's claim that the prosecution elicited perjured testimony and submitted a "doctored" photograph to the jury is also barred and equally unsubstantiated (see CPL §440.30[4][b]).
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant registers a litany of complaints against his attorney contending that he was not represented effectively. His allegations fall far short of the high threshold for ineffective [*2]assistance of counsel.
"The right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial (People v Claudio, 83 NY2d 76, 80 [1993]. So 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 the constitutional requirement will have been met." (People v Baldi, 54 NY2d 137, 147 [1981]).
Counsel's performance must not be second-guessed with the benefit and clarity of hindsight (People v Satterfield, 66 NY2d 796, 799 [1985]) and the "reviewing court must avoid confusing true ineffectiveness with mere losing tactics" (People v Baldi at 146). Rather "it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanation" for counsel's conduct (People v Rivera, 71 NY2d 705, 709 [1988]). "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." (People v Benevento, 91 NY2d 708, 712-713 [1998]).
Moreover, to prevail on a claim of ineffective assistance of counsel, a defendant must also show that his right to a fair trial was prejudiced by his attorney's performance (People v Benevento at 713). The acts or omissions of the attorney must be demonstrated to be sufficiently egregious to have prejudiced the defense or the defendant's right to a fair trial (People v Hobot, 84 NY2d 1021, 1024 [1994]; People v Flores, 84 Ny2d 184, 187 [1994]).
It is apparent from the record that counsel met the basic criteria of meaningful, effective representation. He made appropriate motions and interposed objections as well as diligently cross-examining witnesses at the hearing and trial. He delivered both opening and closing statements the latter which far exceeded the level necessary to be effective.
Defendant, however, remained unsatisfied. Among his specific accusations are: that counsel failed to object to the composition of the jury panel on the grounds that defendant, as a Muslim, had been denied the constitutional right to rest his fate in the hands of a jury of Muslim peers; that counsel failed to object to the court's preliminary charge; that counsel repeatedly failed to object to the admission of hearsay testimony; that counsel failed to reopen the suppression hearing; and that counsel failed to challenge the perjurious nature of certain testimony.
Absent any independent, non-conclusory support there is no legal basis for these claims (CPL §440.30[4][d]). "[C]ounsel's obligation to pursue a particular contention or avenue of defense contemplates that the claim be colorable' and that the advocate's failure to pursue a particular course of conduct may be legitimately based on a justifiable belief that there is no colorable' basis to do so" (People v DeFreitas, 213 AD2d 96, 101 [2d Dept 1995]). Accordingly, defense counsel "should not be criticized for failing to pursue a potentially futile endeavor." (People v Vecchio, 228 AD2d 820, 831 [3d Dept 1996]). Morever, upon a claim that counsel failed to make a particular motion or application, a defendant must demonstrate that such a motion or application would have been successful (People v Mance, 269 AD2d 188 [1st Dept 2000]; People v Seymour, 255 AD2d 866, 867 [4th Dept 1998]). Under the circumstances, such a demonstration would be impossible.
Defendant's accusation that counsel was ineffective for not objecting to his absence from [*3]sidebar discussions during trial and for failing to inform him of the substance of those discussions is also barred because the allegations are made solely by defendant and are unsupported by any affidavit other than defendant's (CPL §440.30[4][d]). Moreover, defendant did not have the right to be present at such sidebar discussions because "[t]he legal discussion[s] did not implicate his peculiar factual knowledge or otherwise present the potential for his meaningful participation." (People v Fabricio, 3 NY3d 402, 406 [2004]).
Equally unavailing is defendant's claim that counsel was remiss for not demanding the production of certain hospital and EMS records that pertained to defendant (CPL §440.30[4][d]). Even if such records existed, which from the record is not clear, they would have been irrelevant.
The claim that counsel's undue pressure on defendant to plead guilty is a reflection of counsel's ineffectiveness is also barred as a conclusory and speculative allegation that is unsubstantiated (CPL §440.30[4][d]). It is apparent from the record that defendant assertively exercised his right to a trial by jury in the face of counsel's advice to accept a plea offer. It is also clear from the weight of the overwhelming evidence of guilt that defendant would have been better served by accepting his attorney's well-founded professional advice.
Finally, defendant's assertion that counsel's failure to visit him in jail undermined the quality of his representation is belied by counsel's use of a video conferencing alternative and by counsel's performance at trial.
With regard to defendant's contention that his predicate felony status was not established, the court finds no legal basis upon which to set aside defendant's sentence.
Accordingly, defendant's motion is denied in its entirety.
This decision shall constitute the order of the court.
E N T E R:
_____________________
ANNE G. FELDMAN
J.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
