People v Smith

[*1] People v Smith 2011 NY Slip Op 50994(U) Decided on March 31, 2011 County Court, Westchester County Zambelli, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2011
County Court, Westchester County

The People of the State of New York,

against

Andre Smith, Defendant.



04-1060

 

Hon. Janet DiFiore

District Attorney, Westchester County

111 Dr. Martin Luther King Jr. Blvd.

White Plains, New York 10601

Attn: Adam D. Citron, Esq.

Assistant District Attorney

Barbara G. Zambelli, J.

On March 23, 2005, the defendant was convicted after a jury trial (Zambelli, J.) of murder in the second degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. On May 24, 2005, defendant was sentenced in this Court (Zambelli, J.) to an indeterminate term of imprisonment of twenty years to life on his murder conviction, to a determinate term of fifteen years plus five years post-release supervision on his criminal possession of a weapon in the second degree conviction and to a determinate term of seven years plus five years of post-release supervision on his criminal possession of a weapon in the third degree conviction, with all sentences to run concurrently with each other. On April 17, 2007, defendant's conviction was affirmed by the Appellate Division, Second Department (People v. Smith, 39 AD3d 773 (2009)). On June 23, 2008, the Court of Appeals denied defendant leave to appeal (People v. Smith, 10 NY3d 939 (2008)), and on October 3, 2008, denied defendant's motion for reconsideration (People v. Smith, 11 NY3d 835 (2008)). On May 20, 2009, the Appellate Division, Second Department denied defendant's motion to reargue his appeal, and on June 30, 2009, denied defendant's application for a writ of error coram nobis on the grounds of ineffective assistance of appellate counsel (People v. Smith, 63 AD3d 1181 (2d Dept. 2009)). On October 28, 2009, the Court of Appeals denied defendant leave to appeal from that determination (People v. Smith, 13 NY3d 829 (2009)).

Defendant brings this CPL §440.10 motion seeking to vacate his judgment of conviction on the ground of ineffective assistance of counsel. Defendant alleges that his trial counsel was allegedly ineffective because he "failed to argue a fundamental Fourth Amendment violation which occurred when defendant was arrested in Maryland by officers of the Mount Vernon Police Department without probable cause, without a warrant, and prior to the initiation of any criminal proceedings in the State of New York." (Defendant's Supporting Affidavit, ¶1). Defendant asserts that counsel failed to make such a motion even though he "knew or should have known that an extraterritorial arrest had been effected, that it was without any legal authority, and that a motion to suppress would have had merit." (Id., ¶11). Defendant further alleges that had counsel moved to challenge his arrest as being in violation of the Fourth Amendment, it would have led to the suppression of defendant's statements, which were made just after his arrest and that therefore there is a reasonable probability that the verdict would have been different without this evidence.

The People oppose the motion and argue that it is procedurally barred because defendant's claims are a matter of record which should have been raised on his appeal. In any event, they argue that the motion is meritless. The People submit that defendant has failed to establish that his attorney failed to make a proper inquiry. They argue that the record demonstrates that counsel was in possession of all of the pertinent facts regarding the defendant's arrest and that he moved in an omnibus motion for those grounds of relief for which defendant had a reasonable basis of success. They submit that any alleged "failure" by counsel to challenge defendant's arrest on Fourth Amendment [*2]grounds was because that claim lacked a reasonable basis for success given the ample proof in the record which demonstrated probable cause for the defendant's arrest. They further argue that in any event, defendant was properly arrested in Maryland by Mount Vernon police officers who were acting in conjunction with the U.S. Marshal's Service Fugitive Task Force, who had jurisdiction within that state.

Defendant's motion is without merit and is summarily denied. As an initial matter, the facts regarding defendant's out of state arrest are a matter of record (People's Exhibit E, Consent Discovery, No. 20 - date, time and place of arrest) and are therefore improperly raised herein, as it is well established that a CPL §440.10 motion with respect to the claimed ineffectiveness of counsel that is based upon matters in the record cannot be made as a substitute for a direct appeal from the judgment (CPL §440.10 (2)(c); People v. Gonzalez, 158 AD2d 615 (1990), lv. denied, 76 NY2d 735 (1990); see also People v. Brinkhuis, 44 AD3d 677 (2d Dept. 2007); People v. Williams, 5 AD3d 407 (2d Dept. 2004), lv. denied, 3 NY3d 650 (2004)).

In any event, defendant has failed to establish that his trial counsel was ineffective. Ineffective assistance of counsel claims are governed by the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984) (see People v. McDonald, 1 NY3d 109 (2003); People v. McKenzie, 4 AD3d 437 (2d Dept. 2004)). The first prong of Strickland requires a showing that counsel's representation fell below an objective standard of reasonableness (Strickland v. Washington, supra at 687; People v. McDonald, supra at 113-114). The second prong requires that the defendant must show that counsel's omission resulted in an adverse effect, ie. that there is a reasonable probability that the result of the trial would have been different but for the omission and that the outcome of the trial cannot be viewed as a just result (see Strickland v. Washington, supra at 662; see also People v. Barbaran, 118 AD2d 578, 579 (2d Dept. 1986); lv. denied, 67 NY2d 1050 (1986)). In New York, the focus is on the fairness of the proceedings as a whole (People v. Stultz, 2 NY3d 277, 284 (2004)) and whether the defendant was afforded meaningful representation (People v. Henriquez, 3 NY3d 210, 230 (2004); People v. Benevento, 91 NY2d 708, 712 (1998), People v. Baldi, 54 NY2d 137, 147 (1981)). The test is one of reasonable competence, not perfect representation (People v. Modica, 64 NY2d 828, 829 (1985)). Thus, a reviewing court must avoid confusing "true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis" (People v. Baldi, supra at 146; People v. Satterfield, 66 NY2d 796, 798-99 (1985)). Due to the distorting effects of hindsight, "a court must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance" (Strickland v. Washington, supra at 689). Under either the federal or New York standard, defendant has failed to establish that his trial counsel was ineffective.

Counsel cannot be deemed ineffective for failing to make a motion upon which he was unlikely to prevail. On a motion to vacate a judgment of conviction, it is the defendant's burden to come forward with allegations that raise a triable issue of fact sufficient to challenge the presumed validity of a judgment of conviction (People v. Waymon, 65 AD3d 708, 709 (2d Dept. 2009), lv. denied, 13 NY3d 863 (2009)). Defendant concedes as much in his motion papers, where he argues that "[w]here defense counsel's failure to litigate a Fourth Amendment claim is the principle allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice." (Defendant's Memorandum of Law, pp. 2-3). Here, defendant fails to demonstrate that his Fourth Amendment claim was [*3]meritorious. To the contrary, the record amply demonstrates that probable cause existed for the defendant's arrest, as set forth most strikingly in the search warrant affidavit for defendant's residence in Mount Vernon (People's Exhibit A), which was provided to the defense as discovery (People's Exhibit E).

Nor was defendant's arrest improperly conducted out of state. Police officers in New York may make out of state arrests where they are actively assisted by officers from the jurisdiction where the arrest is made (People v. Johnson, 303 AD2d 903, 905-06 (3d Dept. 2003), lv. denied, 100 NY2d 539 (2003)). Here, the Mount Vernon police were assisted by U.S. Marshalls who were possessed with the same arrest powers as the local sheriff (28 U.S.C. §564), thus, they were properly assisted by officers vested with local authority in arresting defendant. It is also noted that defendant's arrest did not violate any Maryland law; to the contrary, Maryland CPL §2-202(c) expressly provides for warrantless arrests where the police have probable cause to believe that a felony has been committed, regardless of whether the felony was committed within the view of the police. Accordingly, as defendant's has not demonstrated that his Fourth Amendment claim is meritorious, his attorney cannot be found to be ineffective for failing to bring a motion pursuing such a claim (see People v. Rivera, 71 NY2d 705, 709 (1988))[FN1].Defendant's motion to vacate the judgment of conviction pursuant to CPL §440.10 is denied.

Dated:White Plains, New York

March 30, 2011

/s/

BARBARA G. ZAMBELLI

COUNTY COURT JUDGE Footnotes

Footnote 1:In his reply, defendant asserts for the first time that the People committed prosecutorial misconduct for allegedly failing to inform defense counsel that the New York felony complaint and arrest warrant were issued after defendant's arrest in Maryland. However, given that this argument was improperly raised for the first time in a reply brief, it is not properly before this Court, which declines to consider it, especially given that defendant was clearly in possession of this information prior to filing the current motion (see People v. Minota, 137 AD2d 837 (2d Dept. 1988), lv. denied, 71 NY2d 130 (1988); People v. Williams, 292 AD2d 843 (4th Dept. 2002); People v. Abreu, 248 AD2d 124, 125 (1st Dept. 1998)).