People v Cephus

[*1] People v Cephus 2006 NY Slip Op 51779(U) [13 Misc 3d 1211(A)] Decided on June 28, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2006
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Kim Cephus, Defendant.



7337/01



For the People:

Charles J. Hynes, Kings County District Attorney

Renaissance Plaza

350 Jay Street

Brooklyn, NY 11201-2908

By: Thomas M. Ross, Esq.

(718) 250-2000

For the Defendant:

Kim Cephus, Din No. 02-G-0639

Bedford Hills Correctional Facility

247 Harris Road/ P. O. Box 1000

Bedford Hills, New York 10507

James G. Starkey, J.

Defendant, pro se, moves pursuant to C.P.L. § 440.10 and § 440.20 for an order

setting aside the sentence and vacating the judgment for the crimes of Burglary in the

First Degree and Endangering the Welfare of a Child. Defendant also moves for an order

permitting her to proceed as a poor person and that she be furnished a transcript of the trial and an attorney to represent her.



DEFENDANT'S CONTENTIONS

Defendant's motion is grounded upon the following claims: 1) the in-court [*2]

identification of defendant by the complainant should have been suppressed because complainant did not testify at the Wade hearing; 2) the police procedures regarding the photo array and line-up identifications were unduly suggestive; 3) defendant's Miranda rights were violated since she was unaware that she was entitled to an attorney prior to being placed in a line-up; and 4) defendant was not informed at the time of sentence that she would be subject to a five year period of post-release supervision.

THE FACTS

On the morning of July 30, 2001, defendant and her co-defendant Tony Rogers,

exited a livery cab on Ashford Street, Brooklyn, directed the driver to wait, and walked

past complainant Cynthia Morgan, who was sitting in the front of her apartment building with two of her neighbors. Defendants remained on the block until complainant entered her apartment to answer her phone, whereupon they entered the building, donned masks, and entered the apartment occupied by complainant and her three children. They displayed guns and demanded money, after which a gun was fired in close proximity to the complainant's head. Defendants obtained a small amount of cash, fled the apartment and, unmasked, got into the cab. A neighbor, who had heard the gunshot and earlier had observed defendants exit the cab, called 911 from a pay phone on Ashford Street. During the call the witness observed defendants leave the building and enter the cab, at which point the the witness gave the license plate number to the 911 operator.

On the same day complainant, as well as her neighbor who had called 911 and the cab driver, were interviewed by the police. The cab was also found, leading to the recovery from the cab of a mask and hat. On August 15, 2001 defendant Cephus was arrested and placed in a line-up. On September 9, 2001 co-defendant Rogers was also arrested.

On May 14, 2002 and May 15, 2002, a combined Dunaway, Wade, Huntley, Payton hearing was held. At the hearing Detective Brian Latimore, of the 75th Precinct, — the sole witness on the identification issues — testified that after he had received a description of defendant Cephus, he prepared a photo array of six photos, including defendant. Upon scrutiny, complainant, her son, the neighbor who placed the 911 call and the cab driver identified defendant from the photo array as one of the culprits. Detective Latimore testified that upon arrest defendant was placed in a line-up and that each of the aforementioned witnesses positively identified her, except for the neighbor who stated that defendant "looked familiar to her." At the conclusion of the hearing the court held that the line-up and photographic array did not involve any impermissibly suggestive conduct by the police.

Subsequent to the pre-trial hearings, co-defendant Rogers pleaded guilty to the entire indictment. He received various sentences to run concurrently, the longest a determinate term of nine years of imprisonment.

At trial the following witnesses testified and identified defendant: complainant Morgan, her twelve year old son, her two neighbors and the cab driver.

Defendant was convicted after a jury trial of Burglary in the First Degree and

Endangering the Welfare of a Child and was sentenced to two concurrent terms of imprisonment, a determinate sentence of ten and one half years, and a definite sentence of one year.

On her direct appeal, defendant claimed that the prosecutor made prejudicial

comments and that the sentence was excessive. The convictions were affirmed by the Appellate [*3]Division in People v. Cephus, 11 AD3d 553 (2d Dept. 2004), lv. denied, People v. Cephus, 4 NY3d 742 (2004) (Rosenblatt, J).

CONCLUSIONS OF LAW

Defendant's claims that the in-court identification of defendant by complainant

should have been precluded because complainant did not testify at the Wade hearing and

that improper police procedures were utilized regarding her identification and line-up are

claims which are based upon the record of the trial and other proceedings. Sufficient facts appear in the record to have permitted defendant to have raised her contentions on appeal.

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

subdivision 2 ( c ) when:

..... ( c ) although sufficient facts appear on the record of the proceeding underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to 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.

Since these claims were not raised on defendant's prior appeal, the court is

statutorily required to deny this branch of her motion pursuant to CPL § 440.10 (2) ( c ).

In any event, defendant's claim that the court should not have allowed the

complaining witness' testimony and in-court identification of her for the reason that

Detective Latimore was the only witness to testify at the Wade hearing is incorrect.

Defendant has no unqualified right to compel the People to produce the complaining

witness at the Wade hearing, or indeed to call complainant as a defense witness. See

People v. Chipp, 75 NY2d 327 (1990).

Defendant's contention that her Miranda rights were violated since she was

entitled to an attorney prior to being placed in a line-up is similarly devoid of merit. A

defendant has no right to an attorney at an investigative line-up which occurs prior to

the commencement of adversarial criminal proceedings and an arrest does not constitute

the commencement of adversarial proceedings. See Kirby v. Illinois, 406 US 682, 688 [*4]

(1972); People v. Hawkins, 55 NY2d 474, 482-88 (1982); People v. Blake, 35 NY2d 331

(1974); People v. Scott, 124 AD2d 684 (2d Dep't 1986).

As to defendant's request that a copy of the stenographic transcript be provided to

her as a poor person, that part of the motion is also denied. As noted above, defendant

appealed the judgement of conviction in this case previously and a copy of the trial

transcript was ordered and provided to appellate counsel for that appeal. Defendant's

papers failed to indicate any reason why an additional copy of the transcript should be

provided especially when all of defendant's contentions are procedurally barred and have

no merit. See CPLR § 1101(a).

Regarding defendant's request for appointment of counsel, there is no

requirement that counsel be assigned for a collateral, post-conviction proceeding.

Pennsylvania v. Finley, 481 US 551(1987), People v. Richardson, 159 Misc 2d 167

(Sup. Ct. Kings Co. 1993). Although the court does have the inherent power to assign

counsel for a post-conviction motion, there is no basis for doing so here since defendant's

papers fail to establish a proper or possible basis for relief, People v. Calhoun,784 N.Y.S.

2d 922 (Oswego Co. 2003); People v. Darling, 54 Misc 2d 442 (Broome Co. 1967), affd

290 N.Y.S., 2d 1023.

Defendant's claim as to her sentence is that she was sentenced to a "definite"

term of ten and one-half years, and a definite term of imprisonment sentence does not

include a period of post-release supervision, and therefore the five year period of post-

release supervision that she was informed of by the Department of Correctional Services

should not apply to her.

In the instant case, defendant was convicted of Burglary in the First Degree, a

Class B violent felony offense. A person convicted of a violent felony offense must

receive a determinate sentence of at least five years and not to exceed twenty-five years,

(see PL 70.02). Each determinate sentence, includes as a part thereof, an additional

period of post-release supervision. The length of post-release supervision is five years, u

unless a shorter period is specified by the court, (see PL § 70.45). Conversely, a definite

sentence of imprisonment is for a fixed term not to exceed one year, (see P.L. § 70.15).

A review of the sentencing hearing transcript does indicate that the court

misspoke in identifying the sentence given to defendant for the felony conviction as a

"definite" sentence when what was clearly meant to was that defendant's sentence was to

be determinate. The transcript also reveals that the court did not indicate that the

sentence would also include a period of post-release supervision, (see attached

sentencing transcript annexed hereto as Exhibit A). In that regard, the recent decision of

the United States Court of Appeals for the Second Circuit in Earley v. Murray, 2006 U.S.

App. LEXIS 14337, ( 2d Cir., June 9, 2006), has held that the post-release

supervision portion of his sentence cannot be administratively added by the Department

of Correctional Services.

Therefore defendant's motion must be granted to the extent that it is ordered

that defendant be returned to this court for further proceedings consistent with this

decision as relating to amendment of the sentence previously imposed or

resentencing. This constitutes the decision and order of the court. The clerk is directed

to send copies of this decision and order to defendant and to the District Attorney.

James G. Starkey

J. S. C.