People v Gilmore
2012 NY Slip Op 31100(U)
April 13, 2012
Supreme Court, Kings County
Docket Number: 6594-2006
Judge: Michael A. Gary
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DECISION & ORDER
Pro Se CPL 9 440 Motion
Indictment No. 6594-2006
MICHAEL A. GARY, J.
Defendant moves pro se for an order vacating his judgment of conviction pursuant to
CPL 3 440.10, claiming that the judgment was obtained in violation of his rights under the
federal and state constitutions. The People have filed papers opposing his motion, and the
defendant has filed a reply to those papers as well.
The defendantâs conviction arose from the following incident. The police, who were
in the area, heard a gunshot and as a result of their investigation they radioed a description
and a sector car stopped the defendant. After Mr. Gilmore was arrested, and following
Mirundu warnings, he made a statement indicating where the police could recover the gun.
Accompanied by the sergeant, the defendant led them to a location where he allegedly had
tossed the gun. When they could not locate it, the defendant called an unknown person, âa
friendâ, who was instructed by the defendant to place the gun in the duffle bag at a specific
street location. The police and the defendant went to that location and recovered a black
duffle bag with a loaded 9 mm. semiautomatic gun,along with various clothing.
The defendant was charged with one count each of Criminal possession of a weapon
in the second, third, and fourth degrees (Penal Law $0 265.03,265.02,265.01, respectively).
After submitting to a pre-pleading investigation, on March 13,2007, defendant
waived his right to a trial by jury and a bench trial was held. Defendant was acquitted of
Criminal possession of a weapon in the second degree, but convicted of Criminal possession
of a weapon in the third degree. On April 10,2007 Mr. Gilmore was sentenced to 5 years of
probation and 300 hours of community service. Defendant subsequently violated the terms
of his probation and on August 12,2009 he was re-sentenced to a prison term of 7 years and
3 years of post release supervision (PRS), to be served concurrently with a prison term of 8
years followed by 10 years of PRS,imposed on Ind. No. 6 12-2008. Mr. Gilmore plead
guilty to a charge of Attempted Rape in the first degree (Penal Law $0 110/130.35) on that
indictment before another judge.
Defendant did not appeal from his judgment of conviction on this case.
Defendant now moves to vacate his judgment of conviction pursuant to CPL 0
440.10, based on several claims, including that he was denied effective assistance of
counsel. Those claims are listed in the defense motions on pages 10-12 of his motion. As to
the defendantâs claims of ineffective assistance of counsel, he claims among other failures,
that the defense attorney failed to tell him of his right to testify in the grand jury; 2) she
failed to submit an omnibus motion; 3) failed to object to the commencement of the bench
trial; 4) failed to inform the defendant of the stipulations; 5) counsel failed to get a witness
list or to get Rosario material from the People; and 6) failed to subpoena records. At the
trial, defense counsel: entered into unauthorized stipulations, failed to cross examine Sgt.
Miller, and failed to object on the record to the Peopleâs request that the court consider the
âintent to useâ presumption in its deliberations, and most important, counsel did not file an
appeal on the defendantâs behalf.
The People oppose the defendantâs motion and assert that it must be denied on
procedural grounds. They assert that the court cannot consider most of the defendantâs
claims as they are record-based, and thus, must have been raised in an appeal of the case. See
CPL 5 440.10 (2) ( c). Similarly, the defendantâs claim that his attorney was ineffective for
not filing a timely appeal of the case must, as the People assert, have been brought in a
motion before the Appellate Division in a writ of error coram nobis (CPL 5 460).
The court agrees with the Peopleâs position. For claims of error, including
evidentiary matters, the alleged improper admission of testimony and exhibits, court rulings
on objections, the propriety of the waiver of the right to a jury trial, etc. are all considered
record-based claims and as such, must properly have been considered by the Appellate
Division with the record of the trial before it. A motion brought pursuant to CPL 0 440 is not
a substitute for appellate review; its purpose is to enable a review of allegations and
concerns that are a i n the record (e.g., evidence discovered since the time of the trial).
Therefore, the court cannot consider the issues in this motion.
Similarly, the People are correct that the defendant would have had to have filed a
writ of error coram nobis in the Appellate Division, regarding an issue with the failure to
take an appeal, See, People v. Syville, 15 NY3d 391 ). The court notes however, that
the defendant waited approximately 3 years to even raise this issue. As part of this motion
he has attached a letter he received in 2010 in response to an inquiry about filing an appeal
on this case, for the first time. He claims in a letter he himself generated, dated January 8,
2012, that he requested of his attorney at the time of sentencing in a conversation in the
hallway at the courthouse, that she file a notice of appeal on his behalf.
However, allegations of ineffective assistance of counsel are both record and non-3 -
record based, and are therefore appropriately considered on a motion to vacate a judgment of
conviction. A defendant in a criminal proceeding is constitutionallyentitled to effective
assistance of counsel (Strickland v Washington, 466 U.S. 668; People v Linares, 2 NY3d
507,510 ; see US.Const., 6thAmend.; N.Y. Const., art. 1, $6). An attorney is
âstrongly presumedâ to have rendered effective assistance to his client (Strickland at 690).
To rebut this presumption, the defendant must be able to show that counselâs conduct was
outside the âwide range of professionally competent assistanceâ (Id.). Defendant also must
be able to show that, but for counselâs errors, the outcome of the trial would have been
different (Id. at 694).
Specifically, the defendant complains of counselâs failure to notifj him of his right
to testify in the grand jury, her failure to sufficiently investigate, and her failure to properly
conduct the trial.
In New York, â[slo long as the evidence, the law, and the circumstances of a
particular case, viewed in totality and as of the time of the representation, reveal that the
attorney provided meaningful representation the constitutional requirement will have been
metâ (People v Baldi, 54 NY2d 137, 147 [ 19813). âThis protection does not guarantee a
perfect trial, but assures the defendant a fair trialâ (People v Flores, 84 NY2d 184,187
[19941). Accordingly, the reviewing court must separate ineffectivenessfrom âmere losing
tacticsâ and the defendant must âdemonstrate the absence of strategic or other legitimate
explanationâ for counselâs conduct (People v Baldi at 146; People v Rivera, 71 NY2d 705,
709 [19881). Defense counselâs choice of strategy, even if unsuccessful, does not rise to the
level of ineffective assistance as long as it is reasonable under the circumstances (People v
Benevento, 9 1 NY2d 708,7 13 [19981). Defendant must also show that his right to a fair trial
was prejudiced by the unfairness of the proceedings as a whole (People v Stulz, 2 NY3d 277,
A review of the court file and of the transcribed minutes of the trial demonstrates the
defendant knowingly opted for a non-jury trial .The record is clear that the court questioned
the defendant about his discussions with his attorney both on the previous court appearance
and the date on which the bench trial commenced; that he had enough time to speak with
her, and that he understood the choice of having the judge act as the fact-finder. As to the
assertion in his motion of defense counselâs failure to get Rosario material is rather curious,
since the material that had been turned over to defense counsel was also turned over to the
court, and is in the court file. Similarly, defendant fails to elucidate what evidence a pre-trial
investigation would have yielded, when defendantâs own statements led to the recovery of
the gun he was accused of possessing.
With regards to the testimony before the grand jury, the decision whether or not to
testiq belongs to the attorney, not the defendant (See People v. Ferguson, 67 NY2d 383,
). Further, defendant fails to allege what he would have stated that could possibly
have led to a different result.
In this instance, all of the defendantâs claims fall far short of the high threshold
required to substantiate an allegation of ineffective assistance of counsel. Because he has
failed to establish that counsel lacked a legitimate strategy or that he was prejudiced by the
execution of his defense it remains âclear that the attorney provided meaningful
representationâ (see People v Maldonado, 278 AD2d 5 13 [2d Dept., 20001). In fact, as is
obvious, the defense attorney managed to avoid a conviction for the top count of Criminal
possession of a weapon in the second degree, which would have mandated a sentence of a
minimum of 3 years incarceration. Rather, because he was convicted of Criminal possession
of a weapon in the third degree, the defendant was eligible for and did indeed receive the
non-incarceratory sentence of Probation, which the defendant promptly violated.
Finding no basis to vacate the judgment of conviction, this court hereby denies
defendantâs motion in its entirety.
This decision constitutes the order of the court.
The defendant is hereby advised pursuant to 22 NYCRR 6 671.5 of his right to apply
to the Appellate Division, Second Department, 45 Monroe Place, Brooklyn, New York
11201 for a certificate granting leave to appeal fiom this determination. This application
must be made within 30 days of service of this decision. Upon proof of his financial
inability to retain counsel and to pay the costs and expenses of the appeal, the defendant may
apply to the Appellate Division for the assignment of counsel and for leave to prosecute the
appeal as a poor person and to dispense with printing. Application for poor person relief
will be entertained only if and when permission to appeal or a certification granting leave to
appeal is granted.
Dated: Brooklyn, New York
A. GARY, J.S.C.
APR 1 3 2012