People v Ossorio

[*1] People v Ossorio 2006 NY Slip Op 51465(U) [12 Misc 3d 1186(A)] Decided on July 26, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 26, 2006
Supreme Court, Bronx County

The People of the State of New York, Plaintiff,

against

Jose Ossorio, Defendant.



6037/1998



For the People of the State of New York

The Honorable Robert T. Johnson

District Attorney, Bronx County, New York

By:Leilani Rodriguez, Esq.

Assistant District Attorney

For Jose Ossorio

Pro se

Dominic R. Massaro, J.

Defendant, Jose Ossorio, was convicted by a jury on January 5, 2004, of Attempted Burglary in the Second Degree (Penal Law § 110/140.25 [2]), and sentenced, as a persistent violent felony offender, to an indeterminate term of imprisonment of from fifteen years to life. Defendant now moves, pursuant to Criminal Procedure Law § 440.10, to vacate his judgment of conviction. More specifically, Defendant contends that his conviction should be vacated on the grounds that: (1) his right to a speedy trial was violated because the People not only exceeded the statutorily mandated time period within which to try him, but they also served a Notice of Readiness on an attorney who was not the attorney of record; (2) he was denied access to the law library while incarcerated; (3) the Department of Correction misplaced his property during his prison transfer; (4) the People's response to his CPL § 330.30 motion was never served on him, and, thus, amounted to an improper ex parte communication with the Court, deprived him of an opportunity to respond, and, as a remedy, his CPL § 330.30 motion to set aside the verdict should be reconsidered; (5) the Court's identification instruction in its jury charge improperly shifted the burden of proof on to Defendant; (6) the Court's instruction on the elements of Attempted Burglary was improper; (7) his conviction violates CPL § 70.20, in that there is no evidence of Defendant's mens rea, and, in any event, the People failed to prove all of the elements of Defendant's guilt beyond a reasonable doubt; (8) Penal Law § 140.25 is unconstitutional because it shifts the burden of proof on to a defendant to prove his innocence; (9) the People knowingly introduced unpreserved evidence at trial; (10) the indictment was defective and insufficient; (11) the Court's response to a jury note was improper; (12) the People never informed Defendant or his counsel of the Appellate Division decision reinstating the [*2]indictment, and, therefore, denied him of his right to timely appeal that decision to the Court of Appeals; and (13) Defense counsel was ineffective because she failed to properly raise and preserve his speedy trial violation claims, object to the Court's improper identification instruction to the jury, object to the Court's improper instruction to the jury on the elements of Attempted Burglary, object to the Court's improper response to the jury note or provide a suggestion as to the proper response, and object to the introduction of unpreserved evidence by the People. The motion is denied.[FN1]

Chronology

Defendant was arraigned on the instant case on August 3, 1998, and indicted on August 27, 1998. On March 29, 2001, Defendant's initial CPL § 30.30 motion was granted (Price, J.). However, that decision was reversed by the Appellate Division on August 15, 2002. In its Decision, the First Department held that: Defendant was arraigned on the felony complaint on August 3, 1998 and, pursuant to CPL § 30.30 (1) (a), the People had six months or 184 days to be ready for trial. . . . [T]he People conceded that the three day period from August 3 to August 7, 1998 was properly charged to them. Therefore, the motion court was mistaken in stating that the People conceded four days. . . . Thus, three, not four, days should have been properly included as chargeable delay. . . . Defendant also conceded in his moving papers that the 12-day period of delay between August 7 and August 19, 1998 should not have been charged to the People. However, the motion court found that such concession was apparently based upon counsel's mistaken belief that the waiver of release under CPL § 180.80 also constituted a waiver of the speedy trial readiness time. However, there is no support in the record for such conclusion since counsel never stated a reason for her concession. As such, the People were entitled to rely upon counsel's concession and should not have been charged with the burden of obtaining the minutes for an unchallenged adjournment. . . . Thus, that 12-day period of time is excluded. . . . On October 14, 1998, the People requested a two-day delay and the matter wad adjourned to October 29, 1998. The People filed a statement of readiness on October 16, 1998. Defendant now concedes that the motion court erred in charging the People with this additional 13 days. . . . Thus, the People are charged with only two days of delay with 13 days excludable. The remaining dates in question: September 9 to September 19, 1999 (1 day); October 25 to October 28, 1999 (3 days); and October 28 to December 9, 1999 (only 12 days of which were charged to the People) were improperly charged to the People [*3]inasmuch as a motion to consolidate was pending. Pursuant to CPL § 30.30 (4) (a), time attributable to motion practice is excludable from the time within which the People must announce their readiness for trial. The time consumed by a motion to consolidate is excludable and should have not been charged to the People. . . . This entire 16-day period is excludable. Thus, the People were improperly charged with 42 days of delay. When those 42 days are deducted from the 219 days charged, the total time chargeable to the People is 177 days, which is within the 184 day statutory limit.

People v. Osorio, 297 AD2d 231, 232-33 (1st Dept. 2002).

The Clerk of the Supreme Court of the State of New York, Bronx County, was notified as to the Appellate Division's decision on August 21, 2002, and following the People's filing of a Notice of Readiness on September 4, 2002, the Clerk designated November 7, 2002, as the control date. Despite the People noting their readiness on that date, Defendant failed to appear, and, as a result, a bench warrant was issued. Defendant was re-arrested on an unrelated incident on January 3, 2003, and was involuntarily returned on the abovementioned bench warrant on January 6, 2003. After adjourning the case to January 7, 2003, the People requested an additional week to prepare for trial, and, as a result, the case was adjourned to January 13, 2003.

Defendant filed a subsequent CPL § 30.30 motion on March 3, 2003, which was held in abeyance pending the outcome of the trial. Defendant was ultimately found guilty on March 11, 2003, and his second CPL § 30.30 motion was denied on April 28, 2003 (Price, J.). Then, Defendant's pro se CPL § 330.30 motion to set aside the verdict, in which he raised the same ineffective assistance of counsel and CPL § 30.30 claims as in his instant motion on November 20, 2003, was denied on November 20, 2003. In that motion, Defendant claimed that one hundred and forty-two additional days should have been charged to the People and that his attorney was ineffective for her "failure to raise ceratin additional theories by which this claimed additional time should have been excluded under the previous motion made pursuant to CPL § 30.30." Regarding the time that should have been charged to the People: These 142 days break down into four separately argued segments: a) August 21, 2002 (first notice to Clerk of the Court of appellate reversal) to November 7, 2002 (first day indictment re-appeared on the calendar) 78 days; b) November 7, 2002 (bench warrant issued) to January 3, 2003 (re-arrest on shoplifting charges) 57 days; c) January 6, 2003 (first appearance following re-arrest) adjourned to January 7, 2003 1 day; and d) January 7, 2003 (appearance post re-arrest) to January 13, 2003 (time People requested to prepare) 6 days.

People v. Osorio, 2 Misc 3d 499, 502 (Sup. Ct. Bronx Cty. 2003).

In denying that motion, this Court held that: [I]t appears that Mr. Osorio has placed before the Court issues virtually identical to those already decided. . . . Accordingly, the Court finds that the prior orders of the Appellate Division (April 15, 2002) and that of Justice Price (April 28, 2003) constitute the "law of the case" as pertains to the speedy trial issue. . . . As such, these determinations are no longer subject to re-litigation. Defendant's motion is [*4]thus without merit. . . . Even were this not so, . . . [i]t is well settled that there is no statute or rule which imposes upon the prosecution the obligation to restore a criminal action after an appellate reversal. Indeed, any such law or rule would be contrary to the constitutional provision empowering the administrative arm of the courts to control all operational aspects of the Unified Court System. . . . [I]t is solely the obligation of the trial court, after the entry of an appellate order or judgment , or the issuance of the appellate mandate and the official remission of a case, to restore the case to the trial calendar. . . . The Office of the District Attorney's is not and should not be a part of this process as there is no legal or factual basis for ti otherwise to be responsible. In other words, a delay for a "reasonable period" for restoring a case to the trial calendar after an appellate decision is not within the control of the People and, generally, should not be so chargeable for CPL § 30.30 purposes. . . . Such is the case here respecting August 21 to November 7, 2002 (78 days). Additionally, evidence is unrefuted that the November 7, 2002 return date for the first appearance of the reinstated indictment was selected and fixed by the court at a time when all parties were notified and expected to be present. The merit of Mr. Osorio's argument is further undercut by virtue of the fact that he absconded and failed to appear on said date. He only returned to court when the bench warrant issued for his appearance dropped after being re-arrested on January 3, 2003, on new and unrelated charges (57 days). . . . [T]he Court finds no merit to the contention that the intervening period of time between the August 21, 2002, notification to the Clerk of the Court that the indictment was to be reinstated, a later calendar "control date" of November 7, 2002, and the forcible return of Mr. Osorio under bench warrant on January 6, 2003, or any portion of these 135 days, should be chargeable. . . . [A]fter the rendering of a decision, the People are afforded a reasonable period of time in order to prepare for trial in consequence thereof which is not chargeable to them. . . . The Court therefore finds that the total of seven (7) days between January 6, 2003, the first date on which the Defendant appeared on the reinstated indictment, and the January 13, 2003, date requested by the People, should not be chargeable to them. . . . Lastly, the sole contention supporting the claim of alleged ineffectiveness of counsel appearing to be centered on a claimed failure to include additional arguments of speedy trial violations in the second speedy trial motion, and the Court having found that these arguments are without merit, it is clear that Defendant has failed to sustain his contention that his rights were violated based on any failure of the part of assigned counsel.

Osorio, 2 Misc 3d at 502-05.

Defendant was ultimately sentenced on January 5, 2004, and filed a Notice of Appeal on January 21, 2004. Now, in motion papers dated October 25, 2004, December 15, 2005, March 30, 2006, and April 15, 2006, Defendant seeks to vacate his judgment of conviction based on the abovementioned thirteen grounds.

Discussion

Initially, all of Defendant's claims, with the possible exception of grounds two, three, [*5]four, twelve and thirteen are matters that do not dehors the record. Therefore, they can be brought on Defendant's direct appeal. As such, so much 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 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] 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, 495 (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 addition, Defendant's second claim, namely that a Notice of Readiness was not served on the attorney of record, is not only denied pursuant to CPL § 440.10 (2) (b), as Notices of Readiness are part of the record, and, therefore, could be reviewed on direct appeal, but is also denied pursuant to CPL § 440.10 (3) (b), as this exact issue was raised in Defendant's CPL § 330.30 motion and rejected by the Court in its decision denying said motion. Moreover, as both of the defense attorneys at issue in this matter worked in the same office, the fact that the Notice of Readiness was served to the proper address but not the proper attorney makes is readily distinguishable from People v. Chittumuri, 189 Misc 2d 743 (Crim. Ct. Queens Cty. 2001). See generally People v. Cenat, 176 Misc 2d 39 (Crim. Ct. Kings Cty. 1997).

Furthermore, Defendant's third and fourth claims regarding the misplacement of his personal property during his prison transfer and not having his CPL § 330.30 motion reconsidered because of an alleged improper ex parte communication between the Court and the People[FN2] are not proper grounds for a CPL § 440.10 motion, which provides for the vacatur of judgments and not the reconsideration or relitigation of prior motions nor the court system's version of a lost and found. Similarly denied is Defendant's claim that he was denied his right to appeal the prior decision of the Appellate Division to the Court of Appeals, as such a right is still available should the First Department deny his direct appeal.

As per the portions of Defendant's ineffective assistance of counsel claim that are not record based, which are denied pursuant to CPL § 440.10 (2) (b), not only is this claim too procedurally barred pursuant to CPL § 440.10 (3) (b), as this exact issue was raised in Defendant's CPL § 330.30 motion and rejected by the Court in its decision denying said motion, but it is also procedurally barred pursuant to CPL § 440.30 (4) (c) and (d), as they are [*6]conclusively refuted by unquestionable documentary proof, contradicted by court records and 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 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 of defense counsel, her performance clearly was not deficient so as to deny Defendant meaningful representation. Indeed, the record indicates that counsel effectively argued for Defendants. This includes filing pre-trial Omnibus motions, which were successful in obtaining pre-trial hearings, and, at those hearings, as well as during trial, counsels not only conducted lengthy cross-examinations of the People's witnesses, in which they made effective use of the witnesses Grand Jury testimony (see People v. Espinal, 220 AD2d 276 [1st Dept. 1995], lv. denied, 87 NY2d 900 [1995]), but also made numerous objections, many of which were sustained. Likewise, counsels also delivered cogent opening statements and summations. Furthermore, counsels argued enthusiastically and persuasively on their clients' behalf at all of the hearings as well as at the trial itself. Thus, under the totality of the circumstances, it can hardly be said that defense counsel did not provide meaningful representation. See 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 First Department has recognized that counsel will not be deemed ineffective solely "because of an error . . . in drafting a speedy trial motion . . . [where] [c]ounsel incorrectly calculated a period of time which he claimed to be chargeable to the People and which, if correctly calculated by counsel and, in turn, charged to the People by the court, would have placed the People over the speedy trial time limitation." People v. Martinez, 224 AD2d 254, 255 (1st Dept. 1996), lv. denied, 88 NY2d 989 (1996). See also People v. Goode, 87 NY2d 1045 (1996) (affirming denial of speedy trial claim where defendant failed to respond to People's theory excluding certain time periods); People v. Daniels, 217 AD2d 448 (1st Dept. 1995) ("A delay is the presentation of a case to a Grand Jury occasioned by a defendant's desire to testify is excludable as an adjournment granted at his request."), app. dismissed, 88 NY2d 917 (1996). Therefore, as "[t]here can be no denial of effective assistance of counsel arising from counsel's failure to make a motion or argument that his little or no chance of success,'" People v. Caban, 5 NY3d 143, 152 (2005), quoting, People v. Stultz, 2 NY3d 277, 287 (2004), see also People v. Mangum, 12 AD3d 207 (1st Dept. 2004), lv. denied, 4 NY3d 765 (2005), lv. denied, 4 NY3d 767 (2005) (counsel's decision not to raise a meritless motion cannot constitute ineffectiveness), [*7]under the totality of the circumstances, it can hardly be said that defense counsel did not provide meaningful representation.

Moreover, to the extent that Defendants raise a Federal ineffective assistance of counsel claim pursuant to Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), as explained in People v. Caban, 5 NY3d 143, 156 (2005), "[b]ecause our state standard . . . offers greater protection than the federal test, we necessarily reject defendant's federal constitutional challenge by determining that [they were] not denied meaningful representation under the State Constitution." Compare, Henry v. Poole, 409 F.3d 48 (2nd Cir. 2005).

ORDERED, that the 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

July 26, 2006

DOMINIC R. MASSARO,

Justice of the Supreme Court Footnotes

Footnote 1:The Court declines to rule on the merits of the motion because it is procedurally barred pursuant to CPL § § 440.10 (2) (b), (3) (b), and 440.30 (4) (c) and (d). See Edwards v. Carpenter, 529 U.S. 446, 120 S. Ct. 1587, 146 L. Ed. 2d 519 (2000); Stewart v. LeGrand, 526 U.S. 115, 119 S. Ct. 1018, 143 L. Ed. 2d 196 (1999); Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1992); Harris v. Reed, 489 U.S. 255, 109 S. Ct. 1038, 103 L. Ed. 2d 308 (1989); Bennett v. Artuz, 199 F.3d 116 (2nd Cir. 1999), aff'd, 531 U.S. 4, 121 S. Ct. 361, 148 L. Ed. 2d 213 (2000).

Footnote 2:Although not a basis for this Decision, the Court notes that no such improper ex parte communication ever occurred.