People v Congelosi

[*1] People v Congelosi 2006 NY Slip Op 52344(U) [13 Misc 3d 1245(A)] Decided on November 28, 2006 Supreme Court, Monroe County Valentino, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 28, 2006
Supreme Court, Monroe County

The People of the State of New York

against

Brian Congelosi, Defendant.



1996/0267



APPEARANCES

For the People:

Michael C. Green

Monroe County District Attorney

Patrick H. Fierro, A.D.A.

47 South Fitzhugh Street, Suite 832

Rochester, NY 14614

For Defendant:

Brian Congelosi, 97-B-0099

Orleans Correctional Facility

3531 Gaines Basin Road

Albion, NY 14411-9199

Joseph D. Valentino, J.

This is a decision on defendant's motions dated October 20, 2006, to vacate his conviction pursuant to CPL 440.10 (a) and (h) and dated July 14, 2006, for leave to reargue this Court's denial of his prior CPL 440.10 motion in a decision dated June 14, 2006. Defendant withdrew his motion for renewal.

Following a jury trial, defendant was convicted of two counts of depraved indifference murder (Penal Law § 125.25 [2]) and other crimes arising from a head-on motor vehicle accident. Defendant was sentenced to an indeterminate term of 16 years to life on the murder counts. On appeal, defendant's judgment of conviction was affirmed (People v Congelosi, 266 AD2d 930 [Nov. 12, 1999], lvs denied 94 NY2d 902 [Feb. 25, 2000], 95 NY2d 794 [May 26, 2000]).

In sum, defendant contends that People v Suarez, 6 NY3d 202, and People v Feingold, 7 [*2]NY3d 288, established an additional mens rea element for conviction of depraved indifference murder, and these cases apply retroactively to render his conviction constitutionally infirm. Defendant contends that his intoxication at the time of the crime negates the mens rea element of depraved indifference. He asserts that a review of the Grand Jury minutes will assist in vacating his conviction.

The People oppose defendant's motions.

DISCUSSION

After review of all papers submitted, including the defendant's motions, the People's answering affirmations, and all exhibits, and after due consideration of the arguments raised by the parties therein and the relevant law, the Court determines that defendant's motion is determinable without a hearing (see, CPL 440.30; People v Satterfield, 66 NY2d 796, 799; People v Crippen, 196 AD2d 548, 549, lv denied 82 NY2d 848).

Following defendant's motions, the Court of Appeals clarified in Policano v Herbert, 2006 WL 3313126, that Suarez and Feingold, are not retroactive to a case where the conviction has become final.

While defendant correctly asserts in his motion to reargue that Feingold clarified the mens rea element of depraved indifference murder, Feingold does not apply retroactively to defendant's conviction (see, Policano v Herbert, 2006 WL 3313126). In Policano v Herbert, supra, the Court of Appeals held that at the time the defendant's conviction became final, People v Register, 60 NY2d 270 (1983), applied and the People were required to prove that the defendant (1) recklessly engaged in conduct, (2) which created a grave risk of death to another person, (3) thereby causing the death of another person, (4) under circumstances evincing a depraved indifference to human life. At the time of the defendant's conviction, "[t]he mens rea of depraved indifference murder was recklessness and, as was held in Register, 'under circumstances evincing a depraved indifference to human life' defined the factual setting, viewed objectively, in which the risk-creating conduct occurred." (id.).

The concurring opinion in Suarez hinted that the decision was not retroactive. "Defendants who committed vicious crimes but who may have been charged and convicted under the wrong section of the statute are not attractive candidates for collateral relief after their convictions have become final" (Suarez, supra, 217-218 [concurring opinion]). However, Policano answers the retroactive question in the negative and clarifies that the governing law is the law at the time the defendant's conviction became final.

Here, as in Policano, the governing law was Register. As such, Feingold does not apply retroactively and defendant's conviction is not constitutionally infirm.

Defendant's motion to reargue is granted, and upon reargument the Court adheres to the decision denying defendant's CPL 440.10 motion (see, Policano v Herbert, supra). Additionally, defendant's CPL 440.10 motion dated October 20, 2006 is denied. Defendant's motion for release of the Grand Jury minutes is denied (see, People v Robinson, 98 NY2d 755; see also, People v Scoon, 303 AD2d 525, lvs denied 100 NY2d 624, 1 NY3d 541).

Defendant's remaining contentions, if any, to the extent not addressed herein, are without merit.

CONCLUSION

Accordingly, it is hereby

ORDERED that defendant's motion to vacate his conviction is denied in all respects and [*3]defendant's motion for leave to reargue is granted and, upon reargument, the Court adheres to its decision denying defendant's CPL 440.10 motion for the reasons set forth herein.

This Decision shall constitute the Order of the Court.

DATED:Rochester, New York

November 28, 2006

_____________________________________

HON. JOSEPH D. VALENTINO

JUSTICE SUPREME COURT