People v Collins

[*1] People v Collins 2007 NY Slip Op 51687(U) [16 Misc 3d 1133(A)] Decided on September 5, 2007 Supreme Court, Kings County Holdman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through September 11, 2007; it will not be published in the printed Official Reports.

Decided on September 5, 2007
Supreme Court, Kings County

The People of the State of New York, Respondent,

against

Jabbar Collins, Defendant.



2884/94



Charles J. Hynes, Esq.

District Attorney of Kings County

By:Monique Ferrell, Esq.

Assistant District Attorney

Of Counsel

Joel B. Rudin, Esq.

For Defendant

Robert K. Holdman, J.

Defendant was found guilty on March 13, 1995 after a jury trial of, inter alia, Murder in the Second Degree for the murder-robbery of Rabbi Abraham Pollack. [*2]

Through his retained counsel, defendant filed the instant motion [FN1] pursuant to CPL 440.10 to vacate his judgment of conviction, and related motions, accusing the People of, inter alia, prosecutorial misconduct by allegedly withholding Brady material, as well as other issues [FN2] addressed herein.

Of the filings made under this overall CPL 440.10 motion, were two motions - one to this Court and one to the Deputy Chief Administrative Judge - for recusal of all justices of the Supreme Court, Kings County and the appointment of a Special District Attorney. These motions were previously, and separately denied.

PROCEDURAL HISTORY

The evidence at trial showed that at approximately twelve o'clock noon on Sunday, February 6, 1994, Rabbi Abraham Pollack was collecting rents from his tenants of 126 Graham Avenue, Kings County. Paul Avery was present inside the building. Avery was a previously homeless man whom Rabbi Pollack permitted to reside in the basement of 126 Graham Avenue in exchange for assisting the building superintendent, Israel Rosado. Rosado was also present inside 126 Graham Avenue at the time of the crime, and observed defendant immediately before the robbery in the vestibule of the building.

Defendant waited for Rabbi Pollack and then accosted him at gunpoint. He shot the Rabbi six times at close range in the abdomen, back and thigh, killing him. Avery, attempting to aid the Rabbi, threw himself at defendant, resulting in Avery being shot in the hip and chest, causing serious physical injury. Defendant then fled with cash and money orders pilfered from Rabbi Pollack.

Rosado, who was in his apartment, yelled out to the street to Angel Santos (Santos is the "common law" husband of Rosado's daughter) to call the police as there was a shooting in the lobby. Rosado saw the robber try to put the gun in his waistband.

Santos went to a furniture store to call 911 and observed defendant running down the street. (All witnesses described defendant as wearing similar clothing.)

Adrian Diaz was in a store, heard five gunshots, observed defendant exit 126 Graham Avenue and place a pistol into the back of his waistband.

A crowd began yelling, "He shot someone."

Louis and Esther Velez both saw the robber running - in the same direction and wearing the same clothing as described by the other witnesses - trying to tuck something into [*3]his waistband. Further, Louis Velez found one hundred dollars in cash, as well as a money order in the parking lot through which he observed the robber running. Mr. Velez gave the cash and money order to the police. The money order, which was drawn in payment for the rent, was given to Rabbi Pollack from a tenant of 126 Graham Avenue immediately prior to the robbery.

Eight nine-millimeter shell casings - all later identified as having been discharged from the same handgun - were found at the scene.

An intensive investigation was undertaken by the New York City Police Department, which included anonymous tips and other leads. The police investigation included members of the Ashby family who defendant now alleges may have been involved in the crime.

Ten days after the murder-robbery, Diaz saw defendant in the street and immediately called police. Although Diaz initially thought that a cash reward existed in this case, he nevertheless fully cooperated with the police and District Attorney. Diaz's statements to the police, District Attorney, and his testimony before the Grand Jury and at trial remained wholly consistent.

Both Santos and Diaz identified defendant in separate photo arrays and lineups. Diaz and Santos both made in-court identifications of defendant at trial, as did Edwin Oliva, whose role as a witness is discussed in detail below. (Oliva witnessed defendant planning the robbery. It was also established at the pretrial hearing that Oliva knew defendant for eight years, and identified defendant in a photo array as a confirmatory identification.)

The District Attorney authorized defendant's arrest on March 9, 1994.

At trial, defendant was represented by assigned counsel Michael Harrison, Esq. who is a highly experienced trial attorney, and has tried numerous homicide cases and other complex criminal matters. Trial counsel [FN3] employed the investigative services of Gerald Crippen, who is now deceased. As court records indicate, Crippen visited the crime scene on numerous occasions, discussed the investigation with defendant, his family and other individuals.

Assistant District Attorney Michael Vecchione was lead counsel for the People, and he was assisted by Assistant District Attorneys Stacey Frascogna and Charles Posner. (ADA Posner was later appointed to the Criminal Court bench, and has since died in office.)

Oliva's Trial Testimony

Edwin Oliva [FN4] testified as follows: Oliva heard defendant - in the presence of Oliva and Oliva's brother-in-law, Charles Glover - discuss plans to rob Rabbi Pollack. Glover told [*4]defendant that he knew that Rabbi Pollack collected approximately four or five thousand dollars in rent money every Sunday. Defendant stated that he planned to lay in wait for the Rabbi and rob him at gunpoint. Although the topic of conversation was initially broached for the purpose of both defendant and Glover to jointly commit the robbery, defendant ultimately declared that he would do the robbery himself. According to Oliva, Glover noted his reluctance since Glover was the only black tenant in the building and that he feared he may be readily identified by the Rabbi or other tenants. Finally, Oliva added that defendant always carried a nine-millimeter pistol.

Trial counsel took full advantage of Oliva's criminal record, and cross-examined on it extensively. The record reveals that on direct examination, Oliva gave the erroneous perception that he was incarcerated for the previous year, rather than out on work-release; trial counsel highlighted this during cross-examination and summation. Neither did the People correct this misperception. In fact, trial counsel argued to the jury that Oliva testified for the People because he wanted to return to work-release, the lack of evidence of such a "promise" notwithstanding. Finally, trial counsel cross-examined Oliva as to his heroin use, specifically, as to the time he overheard defendant describe his plan to rob Rabbi Pollack.

Diaz's Trial Testimony

Adrian Diaz testified as noted above. Although he did not know defendant by name, Diaz testified that he had seen defendant on many occasions in the Borinquen Plaza projects where defendant resides, and that the two men would routinely greet each other with, "What's up?" when they saw one another.

The record similarly reveals that the People made full disclosure of Adrian Diaz's criminal history, that the People located him in Puerto Rico and that Diaz was serving a three-year probationary sentence for a misdemeanor. Trial counsel utilized the foregoing information in both his cross-examination of Diaz and during summation.

Alibi Notice/ Defense Case

Although the defense filed alibi notice - citing defendant's mother and apparently the mother of defendant's child as potential witnesses - defendant elected to not call any witness on his behalf; however, the record reveals that those witnesses cited in defendant's alibi notice, and other family members were present in the courtroom throughout trial.

The defense initially rested without calling any witnesses; however, the trial court permitted defendant to reopen his case and defendant elected to testify. Defendant testified that he resides near the crime scene, and that he was home at the time of the crime cutting hair with family and friends. Further, defendant admitted to knowing Glover, as well as the eyewitnesses, but that they were all mistaken.

Summations

As previously noted, in his summation, trial counsel vigorously challenged the credibility of Oliva and Diaz. [*5]

On his summation, ADA Vecchione argued that his letter to the Parole Board, which cites Oliva's cooperation in the case, was insufficient motivation for Oliva to testify falsely. ADA Vecchione added that it was Oliva who had made his initial statement to police about this case without the promise of any consideration. As to Diaz, ADA Vecchione argued that nothing was given to Diaz that could have motivated him to perjure himself at trial.

Verdict

On March 13, 1995, the jury found defendant guilty of two counts of Murder in the Second Degree (intentional and felony murder) and one count, each, of Attempted Murder in the Second Degree, Robbery in the First Degree, Assault in the First Degree, Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of a Weapon in the Third Degree.

CPL 330.30 Motion (Pro Se)

On April 3, 1995, during the scheduled sentencing proceeding, trial counsel requested that the court consider a fourteen-page, pro se motion to set aside the verdict on the ground that counsel was ineffective. The motion specifically alleged that trial counsel: (1) should have prevailed in suppressing the identification testimony of Santos and Diaz, because defendant was not represented by counsel during those identification procedures; (2) failed to effectively cross-examine Paul Avery (attempted murder victim) as to alleged inconsistencies between his pretrial statement and his testimony, regarding whether Avery had cut the robber with a knife during the struggle; (3) failed to cross-examine the detective who investigated the murder concerning a DD-5 report of a statement by a non-testifying witness who had believed that she saw the perpetrator shortly after the crime holding his back and with blood on his hand and jacket; (4) failed to cross-examine the detective concerning DD-5 reports documenting that the police had conducted a "city-wide hospital canvass for a male black with stab wounds"; (5) introduced into evidence the photo array when defendant's photograph conveyed that defendant had a criminal history; and (6) failed to prepare and present an alibi defense based upon defendant's testimony that he was with "up to six witnesses" at the time of the crime. Defendant orally supplemented his motion to allege that the evidence at trial was legally insufficient to sustain his conviction.

The trial court noted that when the defense originally rested, it elicited from defendant his understanding that he was giving up his right not only to testify, but also to call witnesses on his behalf. Defendant acknowledged that he had not informed the court of the existence of any witnesses he wanted to call.

In argument against defendant's pro se motion, the record reflects ADA Vecchione's observations that defendant's mother, his girlfriend and brothers and sisters were in the courtroom throughout the trial, including the time when the defense originally rested. Further, the record reveals ADA Vecchione's observations that trial counsel constantly and consistently consulted with defendant in "each and every thing that occurred during the trial," including whether to take a recess. [*6]

The record reflects that the trial court acknowledged its observations that defendant's purported alibi witnesses were present in the courtroom throughout the trial, including at the time the defense originally rested. Further, the trial court not only fully confirmed ADA Vecchione's observations based on what the court itself witnessed throughout the trial, but the court also remarked:

As a matter of fact, talking about [defense counsel's] carefulness, I think that that started even with jury selection . . . [defense counsel] did not even pick a juror without first consulting with defendant.

The trial court denied defendant's motion to set aside the verdict.

Sentence

The court sentenced defendant to concurrent prison terms of twenty-five years to life for each murder count (PL 125.25 [1, 3]); to a consecutive term of eight and one-third to twenty-five years for the second degree attempted murder count (PL 110.00/ 125.25 [1]), and to concurrent terms of twelve and one-half to twenty-five years for the first-degree robbery count (PL 160.15 [2]), five to fifteen years for each of the first degree assault and second-degree weapon possession counts (PL 120.10 [1], PL 265.03), and two and one-third to seven years for the third-degree weapon possession conviction (PL 265.02 [4]).

Violation of Probation: Previous/ Unrelated Attempted Robbery Conviction

As to defendant's violation of probation for his previous conviction of Attempted Robbery in the Third Degree (Kings County Indictment Number 8907/90), he was also sentenced to a prison term of one and one-third to four years, to run consecutively to the sentence on Indictment Number 2884/94.

Direct Appeal and Previous CPL 440.10 Motion

Prior to the perfection of his direct appeal by appellate counsel, defendant filed a pro se motion to vacate judgment, in which he claimed: (1) he was denied his right to counsel at a preaccusatory investigative lineup; (2) his trial counsel was ineffective for failing to advance at the Wade hearing the claim that defendant was denied the right to counsel at the lineup; (3) his trial counsel was ineffective because he introduced into evidence a photo array depicting defendant wearing a police identification tag; and (4) the alleged failure by the People to disclose a Homicide Investigative Report, which contained two statements constituting non-duplicative Rosario material.

By decision, dated June 16, 1997, another justice of this Court denied defendant's motion (Lipp, J.). Specifically, the Court held: (1) the record on appeal established that defendant's attorney waived his appearance at defendant's lineup; (2) trial counsel was not ineffective for failing to pursue a claim that defendant was denied the right to counsel at the lineup when defendant's former counsel had waived that appearance at the lineup; (3) trial counsel was not ineffective for utilizing defendant's appearance in the photo array to advance [*7]the theory that the subsequent lineup identifications were tainted; and (4) the contents of the Homicide Investigative Report were the duplicative equivalent of the taped statements of witnesses provided to the defense.

Defendant's application for leave to appeal the denial of his motion to vacate judgment to the Appellate Division was granted.

On his direct appeal to the Appellate Division [FN5], defendant's assigned appellate counsel, William L. Ostar, Esq., raised the following claims of error: (1) defendant was denied the right to counsel at the investigatory lineup and the court improperly limited cross-examination fo the People's witnesses concerning this issue; (2) the prosecutor belittled defendant's decision to testify after the defense had rested; (3) the evidence of defendant's identity as the gunman was legally insufficient because the descriptions by eyewitnesses varied and the pretrial identifications of defendant were tainted; (4) the hearing court should have suppressed the lineup identifications based upon the suggestiveness of defendant's clothing; and (5) the sentence was excessive; specifically, that the court failed to consider as mitigating factors defendant's prior drug use, his obtaining a GED while incarcerated as a juvenile offender, and that Charles Glover allegedly planned the robbery.

The Appellate Division affirmed the judgment of conviction and order denying the motion to vacate judgment, finding that defendant's claims were without merit, and, further, that defendant's sentences were not excessive. People v. Collins, 259 AD2d 758 (2d Dept 1999). Leave to reargue was subsequently denied by the Appellate Division.

Leave to appeal to the Court of Appeals was denied. People v. Collins, 95 NY2d 1016 (1999).

Freedom of Information Law Requests (FOIL)

In the dozen years since his conviction, defendant has made numerous FOIL requests to a variety of agencies. Several of defendant's FOIL requests resulted in petitions filed pursuant to CPLR article 78.

One such petition, which was referred to this Court by the Clerk of Court, was denied by decision and order, dated July 3, 2007. Defendant's pro se petition was denied as it was filed in conjunction with the instant CPL 440.10 motion for discovery of the very same material sought in his CPLR article 78 petition.

Another petition, through which defendant sought the parole records of Edwin Oliva, was denied by the Third Department. Matter of Collins v. Division of Parole, 251 AD2d 738 (3d Dept 1998).

Finally, defendant is in the midst of federal litigation with the New York City Department of Probation (hereinafter "Probation") as to matters that appear to be related to previous FOIL requests.

Motions to Disqualify All Justices of the Supreme Court, Kings County and to Appoint a Special District Attorney

Defendant, through his counsel, filed a written motion, dated March 15, 2006, by which he sought an order disqualifying all justices of the Supreme Court, Kings County, as well as the appointment of a Special District Attorney (County Law § 701).

By written Order, dated March 17, 2006, The Honorable Joan B. Carey, Deputy Chief Administrative Judge, New York City Courts, denied defendant's motion.By written motion dated April 26, 2006, defendant sought an order to (1) disqualify the District Attorney of Kings County (hereinafter "KCDA") from representing the People of the State of New York in defendant's motion to vacate judgment, (2) appoint a Special District Attorney, (3) recuse/ disqualify this Court/ Judge, (4) disqualify all justices sitting in Kings County, and (5) change the venue/ assign defendant's motion to vacate to a justice sitting in New York County.

On August 14, 2006, this Court issued a written decision and order denying these motions.

Defendant's Motion For An Order Permitting Defendant to Renew His Prior CPL 440.10 Motion

Defendant, through his counsel, filed a motion to "renew" defendant's pro se motion to vacate judgment, dated February 5, 1997, which the Court has considered as part of defendant's present CPL 440.10 motion.

Counsel asserts that "renewal" of the previously denied CPL 440.10 motion is authorized pursuant to CPLR 2221, while the People maintain the opposite position.

It is defendant's claim that he has good cause to renew his previous motion, based on alleged new evidence, which, inter alia, consists of a supposedly undisclosed 911 recording and FOIL requests involving evidence of third-party culpability, i.e., members of the Ashby family. Neither is it disputed, however, that a copy of the 911 recording was provided to defendant in response to a FOIL request in 1997, and, according to defendant's own motion [FN6], trial counsel was provided with "unredacted DD-5 Complaint Reports and witness statements" related to third-party culpability. Defendant's motion continues, however, that defendant was allegedly "unaware" of trial counsel's possession of these items.

In any event, for those reasons set forth below under this Court's findings of facts and conclusions of law, the Court shall consider this motion to renew as encompassing the 911 [*8]recording issue and defendant's allegations regarding third-party culpability (i.e., the Ashby's). These issues necessarily include defendant's ineffective assistance of trial counsel arguments related to the Ashby's.

Defendant's Present Motion to Vacate Judgment (CPL 440.10)

The majority of defendant's claims in this new motion to vacate judgment assert prosecutorial misconduct relating to the testimony of three prosecution witnesses: Adrian Diaz, Edwin Oliva and Angel Santos. Defendant's secondary claim is that of ineffective assistance of trial counsel.

Some of defendant's sub-issues are interwoven into one or more other primary claims. For instance, defendant claims that trial counsel and his investigator neglected to investigate leads that allegedly point to members of the Ashby family having been involved in the murder-robbery; this claim falls under both defendant's ineffective assistance issue and prosecutorial misconduct claims, the latter alleging that the People failed to disclose documents or information pertaining to the Ashby's.

Edwin Oliva:

In his affidavit [FN7] that was contemporaneously filed with defendant's instant motion, Oliva recants his trial testimony and asserts that: 1.he was on a "long drug binge" when he was arrested in an [unrelated] robbery on March 1, 1994;2.detectives questioned him regarding Rabbi Pollack's murder and that they coerced him into signing a statement without reading it;3.after his plea of guilty to the unrelated robbery and while he was incarcerated, he told prosecutors that he was "tricked" into signing the statement and that he refused to testify;4.prosecutors threatened him with a conspiracy to murder charge if he did not cooperate and he was suspended from a work-release program;5.ADA Posner appeared at Oliva's prison and told him that "he had warned [him]";6.a "sham hearing" was held by the Temporary Release Committee, and the Committee suspended his work-release due to his refusal to testify;[*9]7.subsequent to the "sham hearing," KCDA detective investigators arrived at Ulster Correctional Facility and took Oliva to their office where he agreed to testify falsely, that ADAs rehearsed his testimony with him and that he falsely accused defendant of planning the robbery;8.in return for his false testimony, he was returned to work-release and declined a "cash reward" that was allegedly offered by ADA Posner;9."to [Oliva's] knowledge, ADA Vecchione never wrote to Parole for [his] release" as stated at trial because the "deal was I would be restored to work release and [Oliva] was"; and10.the affidavit was prepared by defendant's attorney, while in the presence of Oliva's attorney, Roland Acevedo.

The People cite documentary evidence - records of New York State Department of Correctional Services - which reflect that defendant Collins mailed $300.00 to Oliva's attorney, Roland Acevedo. (Acevedo submitted an affidavit on this issue, which is discussed below under findings of fact and conclusions of law.)

Defendant obtained from the Legal Aid Society (hereinafter "LAS"), a copy of Oliva's file held by his attorney in that case (Superior Court Information no. 2556/94). In his papers, defendant strongly implies a conspiracy between the People, Oliva's LAS attorney, the Court and others to keep secret this alleged "deal" for Oliva to falsely implicate defendant at trial. Defendant also accuses another justice of this Court of having acted "illegally" in accepting Oliva's guilty plea (see, no. 45 of defense counsel's affirmation annexed to defendant's motion).

Defendant alleges that there exists a video of Oliva's statement to police. In his affidavit, dated January 20, 2006, Oliva only refers to a signed, written statement that he made to detectives [FN8]. The People counter that no electronic memorialization of Oliva's statement was made because a "riding ADA" was unavailable, thus necessitating a sworn written statement by Oliva.

Adrian Diaz:

On November 1, 1993, Diaz pleaded guilty under Superior Court Information no. 12753/93 to the misdemeanor offense of Criminal Possession of a Controlled Substance in the Seventh Degree (PL 220.03). As part of the negotiated plea, Diaz's misdemeanor conviction was vacated and replaced by Diaz's adjudication as a Youthful Offender (CPL 720.35 [2]). [*10]

While the People allege that they notified the Court and trial counsel that Diaz had received a paid roundtrip ticket to New York from Puerto Rico, as well as hotel accommodations in New York, and that Diaz was on probation for a misdemeanor crack possession case, defendant asserts that: (1) Diaz was in Puerto Rico without the permission of Probation; (2) members of KCDA located Diaz in Puerto Rico and told Diaz that if he returned to New York and testified that KCDA would resolve any issues with Probation; (3) Diaz did not voluntarily accompany KCDA detectives back to New York; (4) KCDA resolved Diaz's alleged problems with Probation; and (5) Diaz had his period of probation extended by an additional two years.

In response, the People acknowledge that, at the time of defendant's trial, they did notify Probation of Diaz's involvement in this case, that Diaz and other witnesses have been repeatedly threatened by defendant's family and friends, and that Diaz would return to Puerto Rico due to his fear for his safety.

Defendant Collins admits to having impersonated an official of KCDA while engaged in a recorded - but unauthenticated - telephone conversation that he initiated with Adrian Diaz. (The statute of limitations had expired for these crimes before defendant filed the instant motion.)

An affidavit purportedly signed by Diaz and sworn on November 30, 2006, was belatedly filed - not with his original motion, but only months later and after the People cited the lack of any sworn allegations in their response affirmation - by defendant alleging that members of KCDA located Diaz in Puerto Rico, that Diaz was in Puerto Rico without permission of Probation and that Diaz was told that KCDA would resolve any problems he faced with Probation.

Nowhere in his affidavit does Diaz recant any of his testimony or prior statements to law enforcement in connection with this case.

The Court file as to Diaz's case reveals a pro se motion purportedly written by Diaz, which is dated August 2, 2002. The motion seeks an order granting Diaz a copy of his pre-sentence report for use in an alleged application for a pardon (Executive Law article 2-A) from the Governor in connection with SCI no. 12753/93. The details regarding this motion, and its applicability to the instant CPL 440.10 motion, are discussed below under this Court's findings of fact and conclusions of law.

Finally, defendant claims that the People withheld from the defense that Diaz allegedly tested positive for marihuana.

Angel Santos:

It is defendant's present position that the caller on the 911 recording is someone other than Angel Santos, which, defendant claims would contradict Santos's trial testimony.

Originally, defendant did not submit a sworn affidavit with the instant motion swearing to the purported fact that the 911 recording was not disclosed prior to or during the trial. Similar to the lack of sworn allegations in support of those claims involving Adrian Diaz, defendant submitted an affidavit only in reply to the People's response citing the lack [*11]of this sworn allegation as to this 911 recording. Neither did defendant's trial counsel submit an affidavit in support of defendant's claim, despite counsel having been interviewed by both parties.

There is no dispute that numerous documents were provided to defendant during pretrial discovery, including SPRINT and DD-5 reports that cite the 911 recording in question. In fact, the SPRINT report was disclosed approximately one-year prior to trial.

In a separate claim, defendant sets forth nonspecific allegations that Santos received consideration to testify at trial in exchange for a favorable disposition on a Criminal Court simplified information (CPL 100.25, 100.40 [2]; [hereinafter "summons"]), which charged Santos with the violation - not a crime - of Disorderly Conduct (PL 240.20). (This specific issue, to the extent of disclosure of agency documents related to Santos, appears to be part of defendant's lawsuit before the United States District Court.)

Finally, the allegation of the People resolving a summons matter in Santos's favor was not part of defendant's original moving papers, and was only raised subsequently by counsel in defendant's reply papers, dated December 1, 2006 (more than eight [8] months after defendant filed his motion to vacate judgment). Defendant did not seek permission from the Court to include this newfound accusation.

The Ashby's:

Defendant alleges that he was unaware of the existence of previous investigative leads into the murder-robbery that involve third-party culpability, specifically, members of the Ashby family. The People counter that multiple DD-5s regarding the Ashby's and other leads were disclosed to trial counsel, and that a member of the Ashby family visited defendant in jail two months prior to trial.

Effective Assistance of Trial Counsel:

Defendant alleges that trial counsel was not effective as counsel did not pursue at trial a defense strategy of third-party culpability involving members of the Ashby family.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Defendant's Motion for Post-Conviction Discovery

No general constitutional right to discovery exists in a criminal case, nor did Brady v. Maryland, 373 US 83 (1963) create one. Weatherford v. Bursey, 429 US 545, 559 (1977).There is no independent state constitutional right to discovery. People v. Colavito, 87 NY2d 423, 426 (1996); Matter of Miller v. Schwartz, 72 NY2d 869, 870 (1988). Since there is no constitutional right to discovery in criminal cases, courts cannot grant discovery where no statutory basis exists. Matter of Briggs v. Halloran, 12 AD3d 1016, 1017 (3d Dept 2004); Matter of Sacket v. Bartlett, 241 AD2d 97, 101 (3d Dept 1998), lv. denied, 92 NY2d 806 (1998); Pirro v. LaCava, 230 AD2d 909, 910 (2d Dept 1996), lv. denied, 89 NY2d 813 (1997) (discovery which is unavailable by statute may not be ordered based on principles of [*12]due process).

Neither Article 240 of the Criminal Procedure Law, nor any other statutory provision permit post-conviction discovery. Here, there is no statutory basis to grant post-conviction discovery, and this Court will not act in the stead of the Legislature.

Unless this Court orders an evidentiary hearing where defendant would be entitled to call witnesses (CPL 610.20 [3]), his motion for post-conviction discovery or for the issuance of subpoenas duces tecum must be denied. See, People v. Diaz, 195 Misc 2d 337, 339-341 (Sup Ct, Bronx County 2003).

In any event, as to defendant's motion to access Probation records, those records are subject to a statutorily imposed confidentiality (CPL 390.50 [1]) and may not be disclosed in order that defendant may engage in "an unrestrained foray into confidential records in the hope that the unearthing of some unspecified information [which] would enable him to impeach [a] witness" or other related purpose at trial. People v. Kim, 144 AD2d 572, 574 (2d Dept 1988). Similarly, Parole records are held to be confidential. Matter of Collins v. Division of Parole, 251 AD2d 738 (3d Dept 1998).

Here, defendant has failed to demonstrate that the disclosure of Probation or Parole records is required even if an evidentiary hearing were to be ordered.

Defendant's Motion For An Order Permitting Defendant to Renew His Prior CPL 440.10 Motion

As previously noted, the Court has considered this motion to renew as encompassing the 911 recording issue and defendant's allegations regarding third-party culpability (i.e., the Ashby's), as well as defendant's ineffective assistance of trial counsel arguments related to the Ashby's. As to any procedural bars to defendant's remaining issues, including those encompassed by CPL 440.10 (3) (c), the Court shall address those separately below.

Defendant's motion for an order permitting him to renew his prior CPL 440.10 motion is denied.

First, defendant argues that CPLR 2221 (motion to renew) is a controlling provision due to the "absence of any contrary provision." Section 440.10 (3) (c) of the Criminal Procedure Law is quite plain in its applicability to this specific claim, thereby negating any assertion that the CPLR governs in this instance. See also, Prieser, Practice Commentaries, McKinneys Cons. Law of NY, Book 11A, CPL 440.10.

Second, defendant has not demonstrated that he "was not in a position to adequately raise a ground or issue" in his previous (1997) motion to vacate that he now presents for the Court's consideration. Defendant's motion, as to these claims, is therefore procedurally barred from this Court's review. CPL 440.10 (3) (c). [*13]

Third, defendant offers nothing more than his own allegations [FN9], which are unsupported by any other affidavit or evidence, and, under the circumstances, there is no reasonable possibility that the allegations are true.

Because defendant failed to submit an affidavit from his trial counsel or offer an explanation of his failure to do so, defendant's motion is denied without a hearing. People v. Morales, 58 NY2d 1008, 1009 (1983).

Here, trial counsel was quite clear with both parties, as reflected in their affidavits based on each party's conversation with trial counsel, that he would provide an affidavit, "[U]pon being freed from the constraints of attorney-client privilege [FN10]." After multiple reply affirmations and affidavits from defendant, with the assistance of his retained counsel in prosecuting this motion, defendant had a long-standing opportunity to obtain an affidavit from his trial counsel by waiving the privilege (CPLR 4503). Defendant effectively refused to execute such a waiver and obtain this affidavit. Neither does defendant, based on the People's response affirmation of November 3, 2006, deny [FN11] trial counsel's statement that defendant refused to permit counsel to provide an affidavit to either party relative to this motion.

As defendant bears the burden to support those claims set forth in his own motion to vacate judgment before this Court can even consider granting an evidentiary hearing (see, People v. Bacchi, 186 AD2d 663 at 664-665 [2d Dept 1992], citing, People v. Ramsey, 104 AD2d 388 [2d Dept 1984]), his obvious tactical decision to not waive attorney-client privilege and obtain an affidavit from trial counsel constitutes a fatal defect under the facts of this case.

Even if trial counsel submitted an affidavit, it would not necessarily be sufficient to require a hearing. See, People v. Bacchi, 186 AD2d 663, citing, People v. Brown, 56 NY2d 242 (1982) (defense counsel's conclusory allegation that he "verily believed" that the People failed to turn over a police report was insufficient to raise a triable issue of fact).

Defendant's motion, as to these claims, is therefore procedurally barred from this Court's review. CPL 440.30 (4) (b), (d).

The disclosure of the existence of the 911 recording is clearly reflected in the discovery and Rosario materials provided to trial counsel upwards of one-year prior to trial. Further, Angel Santos testified to the fact that he was in the process of dialing 911 as he observed defendant flee the crime scene. Had defendant not been supplied with a copy of the 911 recording, he certainly could have raised that issue in his previous CPL 440.10 [*14]motion.

As to defendant's argument based upon newly discovered evidence of prosecutorial misconduct in failing to disclose what defendant characterizes as exculpatory material, this Court finds that the discovery material made available to defendant before trial and the evidence at trial, contained that material or other sufficient information to allow its discovery with due diligence. People v. Rossney, 186 AD2d 926 (3d Dept 1992), lv. denied, 81 NY2d 794 (1993).

Similarly, defendant was aware of the police investigation of the Ashby's by virtue of the discovery materials. The visit to defendant in jail by a member of the Ashby family [FN12] only serves to further corroborate this fact. Defendant could have raised in his previous CPL 440.10 motion the ineffective assistance claims surrounding trial counsel's tactical decision to not utilize a third-party culpability defense.

That defendant was not provided with the 911 recording and documentary evidence, including DD-5s related to the Ashby's, is belied in whole by the record. Moreover, defendant's own admissions that trial counsel was provided with the documents serve to further negate his present allegations.

The record is clear that defendant was intimately involved in every aspect of not only his trial, but even part of the preceding investigation.

First, as previously cited herein, the trial court noted on-the-record, a litany of examples of defendant's input at trial, including the Court's on-record observation that trial counsel, " did not even pick a juror without first consulting with defendant." The People even commented on-the-record that trial counsel did not seek a recess without first consulting defendant, which was corroborated by the trial court's on-record observations.

Second, defendant controlled the trial to such an extent that he made a tactical choice to first not testify or present evidence, only to subsequently move to reopen his case and testify in his own defense.

Third, defendant filed a fourteen-page, pro se, motion to set aside the verdict on the day of his sentencing, which demonstrates defendant's thorough involvement in the most minute aspects of his trial.

Fourth, when defendant was summoned to the precinct for his lineup and waived the presence of counsel, defendant nonetheless brought a friend with him and requested that

his friend be utilized as a filler for that lineup. The police granted defendant's request [FN13].

In any event, the Court has considered the aforesaid issues and find them to be without merit. Even if the 911 recording was not provided to trial counsel, defendant has not demonstrated that a "reasonable possibility [exists] that failure to disclose the Rosario material contributed to the verdict." People v. Jackson, 78 NY2d 638, 649 (1991). See also, People v. Machado, 90 NY2d 187 (1997); People v. Sorbello, 285 AD2d 88 (2d Dept 2001). [*15]

Neither was trial counsel ineffective by not presenting a third-party culpability defense.

First, the investigator employed by trial counsel performed significant investigative work as manifested by the voucher (County Law 722-c) for said services that was approved by the trial court in the amount of $2,500.00 [FN14].

Second, that trial counsel elected to present a misidentification defense, instead of a third-party culpability defense, did not constitute ineffective assistance.

A third-party culpability defense is often a high-risk strategy. Had trial counsel employed this strategy, but failed to produce credible evidence to support it, the jury could have viewed such as a consciousness of guilt on the part of defendant. Certainly, any competent defense practitioner would be wary of such a tactic that could also amount to a self-imposed, de facto burden in the eyes of the jury.

To prevail on a claim of ineffective assistance of counsel, defendant must overcome a strong presumption that trial counsel rendered effective assistance. People v. Walker, 35 AD3d 512 (2d Dept 2006), lv. denied, 8 NY3d 928 (2007). The fact that trial counsel's strategy ultimately proved unsuccessful does not mean that defendant was not provided with "meaningful representation." People v. Davalloo, 39 AD3d 559, 560 (2d Dept 2007). See, People v. Berroa, 99 NY2d 134, 138 (2002); People v. Benevento, 91 NY2d 708, 712 (1998).

"In any event, defendant failed to make out a prima facie case that there were no strategic or other legitimate explanations for counsel's alleged shortcomings, or that he was deprived of meaningful representation.'" People v. Broxton, 34 AD3d 491, 492 (2d Dept 2006) (internal citations omitted).

Here, defendant received the effective assistance of trial counsel.

Defendant's Remaining Allegations

Upon due consideration of all remaining allegations set forth by defendant, the Court finds them to be wholly without merit, conclusory, incredible, unsubstantiated, and, in significant part, to be predicated upon a foundation of fraud through defendant's own admissions and upon overwhelming documentary evidence. (The relevance of defendant's fraudulent acts to his present claims is discussed below.)

Evidence of Defendant's Fraud [FN15] Upon Alleged Witnesses and The Court:

I.DEFENDANT POSES AS A DETECTIVE INVESTIGATOR OF THE DISTRICT ATTORNEY'S OFFICE: [*16]

By his own admission [FN16], defendant impersonated a detective investigator of KCDA when he contacted Adrian Diaz by telephone and made a "secret" recording of that conversation, whether in whole or in part. A recording was proffered; however, its authenticity and veracity are at issue. Defendant awaited the expiration of the statute of limitations (CPL 30.10) for those crimes associated with impersonating a police officer before filing the instant motion.

II.DEFENDANT PERPETRATES A FRAUD UPON THIS COURT BY HAVING FILED A FRAUDULENT MOTION BY POSING AS ADRIAN DIAZ AND SEEKING AN ORDER FOR THE PRE-SENTENCE REPORT OF ADRIAN DIAZ:

As previously outlined, Superior Court Information no. 12753/93 - the matter where Adrian Diaz pleaded guilty to the misdemeanor of Criminal Possession of a Controlled Substance in the Seventh Degree and was adjudicated as a Youthful Offender with a three-year sentence of probation - contains a motion that was decided by another justice of this Court, purportedly filed by Diaz, for a copy of Diaz's pre-sentence report for use in a pardon application to the Governor. The motion was granted by the Court and a copy of the pre-sentence report was sent to 111 Humboldt Street, Apt. 6J, Brooklyn, New York 11206 (the return address of the motion [FN17]).

The stated purpose for obtaining the pre-sentence report is ludicrous on its face. First, the motion was filed in 2002, which was several years after the expiration of Diaz's supervision by Probation. Second, since Diaz was not convicted of a crime by virtue of his Youthful Offender adjudication (CPL 720.35 [2]), it defies all logic that he would request that the Governor pardon him for a crime for which he was not actually convicted, nor subject to any possible further punishment.

Nevertheless, the evidence is overwhelming that defendant perpetrated this fraud upon the Court.

Upon review of its official file, the Court observes that the motion in question was affirmed in Stormville, New York. Stormville is located in upstate Dutchess County, New York where defendant Collins has been incarcerated at the Green Haven Correctional Facility, including at the time of the filing of the Diaz motion. The return address of the Diaz motion, however, was not any known address of Diaz, but rather, it was defendant Collins's [*17]own address and exact apartment number as reflected in this Court's file of defendant Collins, including in his moving papers for this CPL 440.10 motion.

Finally, defendant's own papers and previous motions, FOIL requests and actions pursuant to CPLR article 78 reflect defendant's earlier intentions to secure a copy of Diaz's pre-sentence report, which defendant Collins was not entitled to obtain or view due to the statutorily imposed confidentiality of such reports. CPL 390.50 (1); People v. Kim, 144 AD2d 572 (2d Dept 1988).

Accordingly, this Court concludes beyond a reasonable doubt that the motion for a pre-sentence report of Adrian Diaz under SCI no. 12753/93, dated August 2, 2002, is a forgery created by defendant Collins and that it was filed with the Court at the direction of defendant Collins in order that he may obtain - and did obtain - a copy of said report to which he was not entitled under law.

III.DEFENDANT SENDS MONEY TO EDWIN OLIVA'S ATTORNEY AND OLIVA'S ATTORNEY MEETS WITH DEFENDANT IN PRISON:

The People cite documentary evidence from the New York State Department of Correctional Services that on November 22, 2005, less than two months before Edwin Oliva allegedly swore to the contents of his affidavit, defendant Collins mailed three hundred dollars ($300.00) to Roland Acevedo, attorney for Oliva. The funds were posted to Acevedo's law office in New York, New York. Oliva, as any witness who recants his sworn testimony, faces potential criminal and civil liabilities. Thus, Oliva ostensibly retained Acevedo to represent his interests and advise him in the instant matter.

In his affidavit that is annexed to defendant's initial reply papers, Acevedo expressly acknowledged the existence of this allegation, but he explicitly refused to comment any further on that allegation, citing it as a "private business matter." Here, Acevedo has failed to deny these allegations relative to receiving funds directly from defendant Collins.

Acevedo denied stating to the Assistant District Attorney assigned to this motion that he "volunteered dozens of hours" in assisting defendant to locate Oliva's Legal Aid Society file; however, Acevedo does swear in his affidavit that he "persisted" in obtaining that file.

Further, Acevedo admitted to meeting with defendant Collins in prison. Acevedo qualified his disclosure by stating that he was visiting another named inmate/ client of his, and that his client serendipitously asked Acevedo that defendant Collins, whom the client identified as "the inmate law clerk" who was assisting him, be "summoned to the visiting room."

Neither Acevedo's affidavit, nor other evidence, indicate that defendant's retained counsel was present. Had defendant discussed any aspect of this case with Acevedo, even if defendant's retained counsel was present, such conversation would most likely fall outside the ambit of attorney-client privilege (CPLR 4503) since Acevedo is supposed to represent only Oliva, and not defendant.

While the Court does not reach a finding on the particular matter of Acevedo's [*18]conduct, nevertheless, it considers such as quite disturbing, especially when juxtaposed with the foregoing instances of defendant's admitted, and otherwise patent fraud related to this motion.

* * *

"This is not a matter for polite presumptions; we must look facts in the face." Frank v. Mangum, 237 US 309, 349 (1915) (Oliver Wendell Holmes, J., dissenting).

The Court cannot ignore evidence pertaining to any of the above three issues (see, nos. I, II, and III, supra) of fraud and/ or questionable conduct when considering the reliability of the purported affidavits of both Edwin Oliva and Adrian Diaz.

It is defendant's burden to support his claims in a CPL 440.10 motion, and this Court must consider the reliability of an alleged recantation in deciding whether to grant an evidentiary hearing on that motion or to summarily deny it. People v. Fields, 287 AD2d 577, 578 (2d Dept 2001). "Mere conclusory allegations of prosecutorial misconduct are alone insufficient to require a trial court to conduct an evidentiary hearing for the purpose of resolving those accusations." People v. Brown, 56 NY2d 242, 246-247 (1982). See also, People v. Bacchi, 186 AD2d 663.

In his papers, defendant impliedly (and at certain points directly) asserts not only misconduct by the People, but by at least another justice of this Court, as well as a fantastical conspiracy - to hide alleged information from him - between that judge, the People, Probation, Division of Parole, and New York State Department of Correctional Services.

"There is no form of proof so unreliable as recanting testimony." People v. Lawrence, 247 AD2d 635 (2d Dept 1998), lv. denied, 91 NY2d 1009 (1998), quoting, People v. Shilitano, 218 NY 161, 170 (1916). See also, People v. Cintron, 306 AD2d 151 (1st Dept 2003), lv. denied, 100 NY2d 641 (2003).

The First Department in People v. Cintron, id., in affirming the trial court's decision to deny, without an evidentiary hearing, defendant's motion to vacate judgment based on alleged prosecutorial misconduct and an affidavit by the People's main trial witness, recanting his inculpatory testimony, cited the following near-identical aspects to defendant's instant motion: (1) recanting witness's affidavit was made "almost 10 years after defendant's conviction and after the witness had become an inmate of the same prison system in which defendant is incarcerated" (as noted herein, Oliva was returned to prison, on at least one or more occasions after testifying in defendant's trial the same prison system in which this defendant is incarcerated); (2) "the affidavit's account of the incident is incredible both on its face and in light of trial testimony"; (3) "the credibility of the affidavit is further undermined by the fact that it features accusations of gross misconduct committed by the trial prosecutors, which accusations were highly improbable and were specifically denied by the former prosecutor in a detailed affirmation" (ADAs Vecchione and Frascogna both provided detailed affidavits [FN18], while the late Honorable Charles Posner was deceased before the filing [*19]of this motion); and (4) "another affidavit, alleging that the authorities pressured the affiant to give false testimony against defendant . . . was entirely incredible."

The purported affidavits of Oliva and Diaz, their "recantations" and other alleged "new evidence" cited therein, are conclusory, incredible and otherwise unreliable, and defendant's motion is denied without a hearing. People v. Edmonson, 300 AD2d 317, 318 (2d Dept 2002), lv. denied, 99 NY2d 614 (2003). See also, People v. LaPella,185 AD2d 861 (2d Dept 1992), lv. denied, 81 NY2d 842 (1993).

Edwin Oliva:

A review of the photocopy of the Legal Aid Society file of Oliva's robbery case and the minutes of the plea and sentence reveal nothing inconsistent with the fact that Oliva merely received the promised letter to Parole from ADA Vecchione. Oliva's purported affidavit does not tend to substantiate defendant's allegations that Oliva received a more lenient sentence in return for his testimony against this defendant.

The trial record clearly demonstrates that both trial counsel and the People were thorough in eliciting Oliva's criminal history before the jury. In fact, Oliva was made to appear even less trustworthy by the People's failure to correct Oliva's testimony where he testified to having been convicted of robbery, instead of attempted robbery in 1994, and that Oliva's testimony made it appear that he was incarcerated for the preceding year instead of being out on work-release. (The People did question Oliva regarding his participation in work-release, but the time period was not specified.)

Further, Oliva's allegations that ADA Charles Posner visited him in prison, and that he also attempted to bribe Oliva to testify, are belied by the lack of documentary and other evidence, and are otherwise incredible. People v. Cintron, 306 AD2d 151. Therefore, these specific allegations are contradicted by the documentation and record as a whole, and are otherwise conclusory, speculative and unsubstantiated. CPL 440.30 (4) (b), (c), (d).

Neither did the justice of this Court who accepted Oliva's plea to the superior court information act illegally by permitting such plea, which occurred prior to the filing of Oliva's indictment in that same case. CPL 195.10 (2) (b). See, People v. Thomasula, 78 NY2d 1051 (1991).

Aside from the aforesaid affidavit, there exist no other sworn allegations or documentary evidence to support defendant's claim that Oliva received anything other than the letter to Parole.

As the People affirm, the fact that "video" was stamped on the court file pertaining to Oliva is merely indicative of the fact that the arresting officer was interviewed via a video link rather than in-person at KCDA to process the complaint. Neither does Oliva's affidavit support any of defendant's allegations in regard to a videotaped statement. The Court also takes judicial notice of the fact that in Kings County, the usual practice is to have homicide witnesses make sworn statements on audiotape, not videotape, the latter being reserved for targets of homicide investigations.

Finally, as to those issues already noted regarding the utter lack of reliability as to [*20]Oliva's purported affidavit: (1) at trial, it was the People who specifically inquired of Oliva as to work-release, but defendant's trial counsel elected not to pursue the issue. More than a decade later, however, Oliva allegedly recants not only his testimony as to defendant's planning of the robbery of Rabbi Pollack, but effectively asserts that he also perjured himself regarding his testimony regarding work-release; and (2) the documentary evidence provided to the Court via its subpoenas duces tecum manifests that Oliva has been the subject of a host illegal conduct that occurred after defendant's trial, including continued substance abuse and absconding from work-release.

The written submissions of the People and defendant, including Oliva's purported affidavit, coupled with the trial record and other documentary evidence reviewed by the Court, provide a sufficient basis from which this Court could decide the motion without a hearing. People v. Cassels, 260 AD2d 392, 393 (2d Dept 1999), lv. denied, 93 NY2d 1043 (1999).

For these reasons, and those previously cited, the Court finds the purported affidavit and recantation of Oliva to be completely unreliable, conclusory, incredible and unsubstantiated. People v. Fields, 287 AD2d 577.

Adrian Diaz:

For the foregoing reasons, the Court similarly finds the purported affidavit of Diaz to be completely incredible and unreliable (People v. Fields, 287 AD2d 577), conclusory, unsubstantiated and belied by the record and documentary evidence submitted. CPL 440.30 (4) (b), (c), (d). Similarly unsubstantiated is defendant's conclusory allegation that Diaz tested positive for marihuana.

Defendant's allegation that Diaz had his probation supervision extended by two years - or by any amount of time - is entirely contradicted by the documentary evidence and a review of the Court's file as previously noted.

Further, defendant alleges that Diaz received a benefit in exchange for his testimony, in that the People colluded with Probation to ameliorate a supposed violation of probation based on Diaz's presence in Puerto Rico.

First, the allegation that Diaz faced a violation of probation for being in Puerto Rico is conclusory, unsubstantiated and contradicted by the Court file and other documentary evidence. Second, and of greater significance, is the fact that if defendant's aforesaid allegations are accepted as true, they are patently self-contradictory. It would be of no benefit to Diaz to have had his probation supervision extended by two years. Thus, the allegations that the People conspired with Probation to not violate Diaz because of his trial testimony strains all credulity.

Moreover, Diaz's purported affidavit - which was filed on or about December 13, 2006 (approximately nine [9] months after defendant filed his underlying CPL 440.10 motion in March 2006) - serves to further contradict defendant's conclusory allegation that Diaz involuntarily accompanied members of KCDA from Puerto Rico to New York. Further, as previously discussed, there exist numerous credibility issues as to the Diaz affidavit itself. [*21]

In his purported affidavit, Diaz does not recant his own trial testimony, which was wholly consistent with Diaz's initial report and statements to the police, his statements to prosecutors and testimony before the Grand Jury. It was Diaz who saw defendant in the street several days after the murder-robbery and, on his own volition, without prompting from anyone, called the police to make his report.

Assuming even if the second individual who was part of the recorded telephone conversation made by defendant is actually Diaz, its recording was made under criminal and otherwise fraudulent circumstances, as defendant admits, thereby rendering it as unreliable. People v. Fields, 287 AD2d 577.

Angel Santos:

Defendant's remaining allegations as to Angel Santos - that he was afforded consideration by the People for a summons he received for the violation, not a crime, of Disorderly Conduct - are procedurally barred from this Court's review, and, in any event, are without merit.

First, defendant included this belated allegation regarding Santos in his first reply affirmation, which occurred more than eight [8] months after he filed his underlying CPL 440.10 motion. Defendant did not seek leave from the Court to include this new claim, nor did he cite any adequate reason for making this belated claim. In fact, defendant did not cite any reason whatsoever as to why this claim was not included within his original moving papers. Thus, the Court denies leave for defendant to assert this new claim or otherwise amend his motion to vacate judgment.

Second, the documentary evidence presented in support of this claim not only fails to substantiate any of defendant's claim, it actually contradicts it. The summons bears a "date of occurrence" of February 1, 2005, which was merely one-month prior to defendant Collins's trial, as well as the sole count of Disorderly Conduct for "acting in a loud, boisterous manner in public . . . and refused to stop." There was no allegation of resisting arrest, physical threats or otherwise.

The summons [FN19] is just that a summons. It is the usual practice that when police issue summonses in Kings County (as alleged here), or in any of this State's sixty-two counties, there is no District Attorney involvement in the drafting of those summonses or the selection of charges. Neither does evidence exist to the contrary, i.e., that the People were involved in drafting the summons or in any charging or plea decisions.

The court transcript indicates only the presence of a defendant named Angel Santos, the Court, court reporter, but no representative of the District Attorney. Neither are summonses, under these circumstances, provided by the police nor court to the People. There is no evidence nor indication that the People had any knowledge, imputed or otherwise, of the summons or its adjudication. Angel Santos pleaded guilty to the summons [*22]and paid a fine and surcharge.

Further, Angel Santos is far from an uncommon name and the offense charged is not a printable offense. It is therefore entirely conclusory and unsubstantiated that the summons relates to the same Angel Santos who testified at defendant's trial.

Finally, the remaining documentation, including the possibility of a separate summons, is completely unsubstantiated as not even a copy of this alleged summons has been provided. The June 19, 1995 court appearance, which is supposedly related to this second summons, was also conducted without a representative of the People present.

As to an alleged bench warrant from the summons part, which is totally unsubstantiated that the warrant pertains to this Angel Santos, the Court takes judicial notice that if a warrant was recommended by the judicial hearing officer (JHO) in the summons part on that particular case (a JHO cannot order a warrant), the file would have been merely transmitted to a sitting judge of the Criminal Court to decide whether a warrant should issue without input or knowledge from any party. Again, this means that even if the allegations were true, the People would still have been unaware of the issuance of the warrant.

In any event, as the offense for which Santos may have been charged was not printable, there was no official mechanism for the People to know that Santos received this summons as it would not be reflected on Santos's rap sheet.

Hypothetically, if defendant could substantiate that the summons involves the same Angel Santos, defendant's claim is still unavailing.

First, defendant's affidavit at paragraph nine, merely states, "I do not recall [the Santos summons] being reflected on the rap sheet provided by [the ADA]." "I do not recall" is not sufficient to substantiate an allegation that the information was not provided to defendant at trial.

Second, the revelation that Santos [FN20] received a benefit by pleading guilty to the sole count of a summons (or even two summonses), which is a violation, not a crime, and was to pay a fine and surcharge for being noisy in public would not have affected the verdict in any manner whatsoever, especially based on the overwhelming evidence of defendant's guilt. Even if an Adjournment in Contemplation of Dismissal (CPL 170.55) was hypothetically granted, neither would defendant's argument be persuasive as a significant amount of Summons Part cases in Kings County receive similar treatment.

Therefore, defendant's claim relative to Santos and the summons is not only entirely conclusory, unsubstantiated and contradicted by the record, it is largely fanciful, wholly without merit and denied. CPL 440.30 (4) (b), (c), (d).

Brady Issues:

The Brady claims set forth by defendant, even if substantiated, are without merit.

Three prongs must be established by defendant in order to establish a Brady violation: [*23](1) "the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching." United States v. Gil, 297 F.3d 93, 101 (2d Cir. 2002), quoting, Stricker v. Greene, 527 US 263, 281-282 (1999); (2) "that evidence must have been suppressed by the State, either willfully or inadvertently"; and (3) "prejudice must have ensued." United States v. Gil, supra; United States v. Madori, 419 F.3d 159, 22-23 (2d Cir. 2005). Further, a defendant is prejudiced where the undisclosed evidence is material. "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 US 667, 675-676 (1985).

In New York, if a defendant makes a specific request for a particular Brady item, state courts judge the materiality of the evidence by whether there is a reasonable possibility that the failure to disclose the item contributed to the verdict. People v. Vilardi, 76 NY2d 67, 77 (1990). If there was no request for a specific item or only a general request for exculpatory evidence was made, the failure to disclose such material is a due process violation under New York law only if there was a "reasonable probability" that the evidence would have affected the outcome of the trial. People v. Bryce, 88 NY2d 124, 128-129 (1996); People v. Stein, 10 AD3d 406 (2d Dept 2004).

Defendant failed to establish that the People were ever in possession of any such Brady material at the time of trial or that it was exculpatory in nature. People v. Broxton, 34 AD3d 491, 491.

Assuming, arguendo, that certain undisclosed Brady material existed, due to the overwhelming evidence of defendant's guilt, there is no reasonable possibility that the failure to disclose this evidence would have contributed to the verdict.

In Camera Inspection of Documents:

The Court has reviewed the documents obtained by the People from various agencies for the Court's inspection pursuant to judicial subpoenas duces tecum. Based upon its review, the Court finds nothing in support of defendant's allegations.

* * *

In sum, defendant's allegations are procedurally barred from this Court's review to the extent specified above, and, nevertheless, are entirely without merit.

Accordingly, defendant's motion to vacate judgment and his related motions are denied without an evidentiary hearing.

SO ORDERED.

___________________________________

Hon. Robert K. Holdman, J.S.C.

Judge of the Court of Claims Footnotes

Footnote 1: Defendant's CPL 440.10 motion filed by counsel is undated, but was filed with the Clerk of Court on March 15, 2006.

Footnote 2: During a case conference both counsel acknowledged that the issues presented are so numerous (in total, approximately one thousand pages of affirmations, legal argument and exhibits were filed) that they declined the opportunity for oral argument.

Footnote 3: Unless otherwise noted, "trial counsel" refers to defendant's trial counsel, Michael Harrison, Esq.

Footnote 4: The trial commenced on March 6, 1995. Later that evening, Oliva met with prosecutors and agreed to testify, despite his initial reluctance due to his fear of defendant. Oliva's testimony was consistent with his sworn, written statement made to police within a DD-5.

Footnote 5: Defendant moved, unsuccessfully, to strike assigned appellate counsel's brief, for the assignment of new counsel, and/or to file a pro se supplemental brief.

Footnote 6: See, defendant's original, undated motion - affirmation of counsel - at pp. 50-51, " . . . Collins has informed me that he was personally unaware of the police documents at the time of his trial, as his attorney did not provide them to or discuss them with him."

Footnote 7: Dated, January 20, 2006.

Footnote 8: See, Oliva's affidavit, dated January 20, 2006, at ¶ 6.

Footnote 9: Defendant filed an affidavit only after receipt of the People's response, which noted the absence of any sworn allegation in support of this claim.

Footnote 10: See, e.g., People's affirmation, dated November 3, 2006, ¶ 17.

Footnote 11: Defendant filed multiple reply affirmations subsequent to the People's response of November 3, 2006.

Footnote 12: This item was not denied by defendant in any of his reply papers.

Footnote 13: See, DD-5, "Subject Present at 90 Sqd.," dated March 10, 1994.

Footnote 14: This amount has not been adjusted to reflect 2007 dollars.

Footnote 15: The Court wishes to note that these matters of fraud by defendant are not, in any manner, attributable to defendant's retained counsel on this motion.

Footnote 16: See, defendant's affidavit, dated November 27, 2006, ¶¶ 11-13.

Footnote 17: An envelope that contained the moving papers with the above return address, and post-marked August 28, 2002, is attached to the motion, which is inside the Court's file. Under separate Order, this Court orders sealed the file under SCI no. 12753/93, which should have been sealed due to Diaz's Youthful Offender adjudication (CPL 720.35 [2]). In addition, the Court orders sealed, the file under SCI no. 12753/93 to ensure the integrity of the contents of said file under the circumstances presented herein.

Footnote 18: A KCDA detective investigator also provided an affidavit.

Footnote 19: As previously noted, this is the colloquial term for a simplified information.

Footnote 20: Again, this assumes that this was the same Angel Santos.