People v Hope
2012 NY Slip Op 31085(U)
April 10, 2012
Sup Ct, Kings County
Docket Number: 6946/99
Judge: Joel M. Goldberg
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS: CRIMINAL TERM, PART 22
THE PEOPLE OF THE STATE OF NEW YORK
- vs -
HON. JOEL M. GOLDBERG
IND. NO. 6946/99
DATE: APRIL 10,2012
AKA ANTWAN HOPKINS,
The defendantâspro se motion pursuant to CPL 440.10, dated December 15,2011,
to vacate the judgment of February 7,2000 convicting him upon his plea of guilty to
Conspiracy in the Fourth Degree and sentencing him as a second felony offender to a
term of imprisonment of one and one-half to three years to run concurrently with two
New York County sentences, upon consideration of the Peopleâs answer, dated March 12,
2012, is denied.
By an undated motion with an attached âverification of unavailable notary public
servicesâ dated March 19,2012, the defendant moved for an order granting him the right
to either withdraw this motion or allow him 90 days to amend it, because he believed his
legal claims had not been adequately presented and because he wished to raise additional
claims concerning ineffective assistance of counsel, the details of which were not
specified. For the reasons discussed below, the defendantâs motion to withdraw or amend
this motion is denied.
The defendant was originally indicted with 17 co-defendants under Kings County
Indictment Number 5 120/99, filed August 23, 1999, for Conspiracy in the Fourth Degree
involving gang-related activities. The indictment also charged some of the co-defendants
with Robbery in the First Degree. Prior to all of the defendants being arraigned on this
indictment, a superceding indictment, the indictment herein, was filed on September 10,
1999. That indictment included four additional co-defendants. The indictment included
similar charges of Conspiracy in the Fourth Degree, i.e., agreeing to commit crimes
constituting a Class B felony. Additional substantive crimes were also charged. The
defendant in this indictment was charged with personally committing one count each of
Assault in the Second Degree and Criminal Possession of a Weapon in the Fourth Degree,
neither of which is a Class B or C felony which is a required object crime to support a
charge of Conspiracy in the Fourth Degree.
The defendant was arraigned on the superceding indictment on September 13,
1999. By operation of law, upon this arraignment, pursuant to CPL 200.80, the charges in
the original indictment on which neither the defendant nor any of his co-defendants had
been arraigned were dismissed, because those same charges were all contained in the
superceding indictment along with additional charges and additional defendants.
On January 27,2000, the defendant pleaded guilty to one count of Conspiracy in
the Fourth Degree in satisfaction of this indictment and was subsequently sentenced as
noted above. Due to the age of the case, there has been difficulty in obtaining the plea
The Defendantâs Motion
The defendantâs first point is entitled âInsufficiency of Evidence.â In this point
the defendant states that the record of the proceedings does not reflect that he was ever
positively identified in a lineup. Furthermore, the defendant argues that neither of the two
substantive crimes he was charged with was a Class B or Class C felony and, therefore,
the indictment did not support the charges of Conspiracy in the Fourth Degree which
requires an agreement to engage in conduct constituting a Class B or Class C felony (PL
The defendantâs second point is entitled âNature and Elements.â In this point the
defendant seems to argue that he was not convicted of either of the two substantive
crimes for which he was indicted. Therefore, no overt act was shown to have been
performed by him or his co-conspirators in hrtherance of the conspiracy.
The defendantâs third point is entitled âMalicious Prosecution.â In this point the
defendant asserts that he was improperly prosecuted on the superceding indictment after
the original indictment was dismissed. The defendant asserts (1) that the first indictment
was dismissed after the prosecutor determined there was insufficient evidence to
prosecute the defendant, (2) that the prosecutor did not believe in the defendantâs guilt,
and, (3) that the superceding indictment reflected a malicious, baseless prosecution.
The defendantâs fourth point is entitled âDouble Jeopardy.â This point also relates
to the dismissal of the first indictment and contends that the dismissal barred the
defendantâs prosecution under the superceding indictment based on double jeopardy
The defendantâs fifth point is entitled âDue Process.â Under this point, the
defendant contends he was unconstitutionally prosecuted after the original indictment was
dismissed due to âlack of evidence.â Further, the defendant contends that the charges
were wrongfully resubmitted to a second Grand Jury and he was wrongfblly not given
notice of this resubmission and an opportunity to testifj before the second Grand Jury.
Discussion of the Motion to Vacate the Judgment
With one exception to be discussed below, all of the defendantâs claims
relate to matters on the record which could have been raised on a direct appeal from the
conviction. Because the defendant did not appeal from the judgment, CPL 440.10 (2) (c)
requires that the motion based on these claims be denied. People v Cooh, 67 NY2d 100,
103 (1986). The defendantâs contentions (1) that the indictment did not support a charge
of Conspiracy in the Fourth Degree, (2) that his guilty plea to Conspiracy in the Fourth
Degree was simultaneous with âdismissalsâ of the assault and weapons counts in the
indictment and, therefore, there was no overt act established, (3) that he was maliciously
prosecuted on a superceding indictment after the charges in the first indictment were all
dismissed, and (4) that his double jeopardy and ( 5 ) due process rights were violated by his
prosecution following a dismissed indictment that had been superceded, all involve facts
that sufficiently appear on the record to have permitted adequate review of these claims
on appeal. The defendantâs unjustifiable failure to take an appeal from this judgment now
requires that this motion be denied.
The additional claim in the motion that the evidence against the defendant was
insufficient because the âdefendant was never positively identified in a lineupâ does not
establish a legal basis to grant the motion to vacate the judgment, because any claims
regarding insufficiency of the evidence supporting the indictment were waived by the
defendantâs guilty plea. People v Hansen, 95 NY2d 227,233 (2000); People v Dunbar,
53 NY2d 868, 871 (1981); People v Melendez, 48 AD3d 960 (1â Dept. 2008); People v
EuZ Sin Jang, 17 AD3d 693,694 (2nd
Dept. 2005) . Therefore, that part of the motion
based on this claim may be denied without a hearing. CPL 440.30 (4) (a).
Furthermore, the defendantâs claims, in addition to being procedurally barred, also
have no substantive merit. The charges in the original indictment, contrary to the
defendantâs assertions, were not dismissed on evidentiary grounds. Rather, the original
indictment was dismissed, because the identical charges in that indictment were contained
in the superceding indictment which also contained additional charges. The law
recognizes that it would not be proper for the identical charges to be contained in two
separate indictments. That is why CPL 200.80 requires that charges contained in the first
indictment that are also contained in a superceding indictment be dismissed upon a
defendantâs arraignment on the superceding indictment.
In addition, the defendant claims that the two substantive charges against him of
assault and possession of a weapon in the superceding indictment were dismissed on the
merits which then somehow undermined the validity of the conspiracy charge. However,
what actually happened was that the defendantâs guilty plea to the charge of Conspiracy
in the Fourth Degree in satisfaction of all the charges in the superceding indictment,
which was entered with the permission of the Court and the consent of the People
pursuant to CPL 220.10 (4) (a), required that the remaining charges against him in that
indictment be deemed to have been dismissed. CPL 220.30 (2) states that, âThe entry and
acceptance of a plea of guilty to part of the indictment constitutes a disposition of the
entire indictment.â Therefore, the two substantive charges against the defendant were
dismissed only because the defendant pleaded guilty to another count in the indictment.
Further, establishing the defendantâs guilt on the substantive charges was not necessary to
establish the defendantâs guilt on the conspiracy charge to which he pleaded guilty.
Therefore, the defendantâs assertion that the conspiracy charge was undermined by the
dismissal of the two substantive charges is without merit.
Further, the charge of Conspiracy in the Fourth Degree did not, as the defendant
asserts, require that the defendant also be separately charged with personally having
committed a Class B or Class C felony, but only that the defendant did agree with one or
more persons to commit such a felony and that an overt act, whether by the defendant or
by some other member of the conspiracy, was committed in furtherance of the
commission of that conspiracy. PL 105.10 (1) and PL 105.20.
Finally, the dismissal of the original indictment and the prosecution of the
defendant on the superceding indictment did not constitute a violation of the defendantâs
double jeopardy protections, because the defendant had not gone to trial on or pleaded
guilty to the original indictment. CPL 40.20 (l), which embodies the constitutional
protections against double jeopardy, states that âA person may not be twice prosecuted for
the same offense.â CPL 40.30 states a person âis prosecutedâ when an accusatory
instrument is filed against a person and (a) terminates in a conviction upon a plea of
guilty or (b) proceeds to the trial stage by either the swearing of a jury or, in the case of a
trial without a jury, when a witness is sworn. Because the original indictment against the
defendant did not result in a guilty plea or the commencement of a trial, the defendantâs
double jeopardy rights were not violated by the dismissal of the original indictment and
his subsequent prosecution on a superceding indictment.
For the same reasons, the defendant has failed to set forth facts establishing a
violation of his due process rights or establish that he was maliciously prosecuted merely
because a superceding indictment was filed which resulted, by operation of law, in a
dismissal of the charges in the original indictment. Further, the defendantâs right to
testify before the Grand Jury was not violated, because he never made a request to do so.
CPL 190.50 (5) (a). Further, no motion to dismiss the superceding indictment for failure
to provide the defendant with an opportunity to testifL was made within five days of the
defendantâs arraignment as required by CPL 190.50 ( 5 ) (c), thereby waiving the challenge
to the indictment on that ground.
Discussion of the Motion to Withdraw or Amend the Motion
After the defendantâs motion was filed, the People spent time and effort
researching the underlying facts of this case and answering the defendantâs motion.
Further, prior to the defendant making his March 2012 request to withdraw or amend this
December 201 1 motion three months after it was filed, the Court also spent time
researching the issues and drafting its decision on the motion. Considering that the
defendant has long ago completed serving his sentence in this case, the Court, under all of
the circumstances, including considerations of judicial economy, believes the defendantâs
request to withdraw or amend this motion should be denied.
The Court is aware that CPL 440.10 (3) [c] provides that a subsequent motion to
vacate a judgment may be denied where the subsequent motion for the first time raises a
ground or issue that the defendant âwas in a position adequately to raiseâ on a prior
motion. However, the Court is also aware that the same statute provides the Court with
the discretion to nevertheless consider the newly raised ground or issue if it is otherwise
meritorious and vacate the judgment if good cause is shown for not previously raising the
ground or issue.
Accordingly, the defendantâs motions are denied without a hearing.