People v Agosto

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[*1] People v Agosto 2012 NY Slip Op 51864(U) Decided on September 27, 2012 Supreme Court, Bronx County Massaro, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2012
Supreme Court, Bronx County

The People of the State of New York, Plaintiff,

against

Rafael Agosto, Defendant.



4275-1993



For People of the State of New York:

Robert T. Johnson, Esq.

District Attorney, Bronx County:

by: Jason S. Whitehead, Esq.

Assistant District Attorney

For Defendant

Rafael Agosto, Pro Se

No. 95A3133

Elmira Correctional Facility

PO Box 500 Elmira, New York 14902-0500

Dominic R. Massaro, J.



Defendant Rafael Agosto moves for a "reconstruction hearing" to determine "what happened" in the instant case so that he can use this information in a civil appeal in Agosto v. County Court Chemung County, Index No. 2011-2137 (Sup. Ct. Chemung) and in a criminal appeal in People v. Agosto, Indictment No. 2011-102 (Chemung County Ct.). Defendant represents that the cases are pending appeal in the Appellate Division Third Department.

Background

On March 24, 1995, Defendant was convicted, in Bronx Supreme Court, of Murder in the Second Degree (Penal Law §125.25) (two counts), Assault in the First Degree (Penal Law §120.10) and Criminal Possession of a Weapon in the Second Degree (Penal Law §265.03), and sentenced to consecutive terms of 25 years to life and 20 years to life on the murder and assault convictions, respectively, and a concurrent term of 5 to 15 years on the weapon possession conviction. The conviction and sentence in the case, originating in this Court, were unanimously affirmed (see, People v. Agosto, 248 AD2d 301 [1st Dept. 1998]; appeal den'd, 92 NY2d 892 [1998]). According to Defendant, the instant Bronx County conviction is relevant for sentencing purposes for him in Chemung County as a repeat offender.

Other Litigation

While incarcerated, Defendant applied for certain habeas corpus writs which were denied. Defendant's application for a writ in Matter of Agosto v. Goord, 38 AD3d 1346 (4th Dept. 2007) involving Tier III prison discipline was denied. Likewise, a habeas corpus writ was denied in Agosto v. [*2]Senkowski, 2004 US Dist. Lexis 16028 (SD NY 2004), where Defendant sought to void his conviction in the instant underlying Bronx County criminal case upon grounds that a juror had an undisclosed relationship with one of Defendant's victims. The District Court affirmed the Magistrate's decision in Agosto v. Senkowski, 2003 U.S. Dist. Lexis 23026 [SD NY 2003]) (see also, Agosto v. Senkowski, 2000 US Dist. Lexis 3735 [SD NY 2000]).

Recent Litigation

The Clerk of the Chemung County combined courts advises that Defendant was involved in two cases that were recently pending in his court. These are People v. Agosto, Ind. # 2011-102 (Chemung County Ct.) charging Defendant with Promoting Prison Contraband in the First Degree (Penal Law §205.25[1]) and Matter of Agosto v. County Ct., Chemung County, Index No. 2011-2137 (Sup. Ct. Chemung), which sought a writ of prohibition based upon the Chemung County Court lacking geographic jurisdiction over Defendant because he was a resident of Bronx County. According to Defendant, the Court also lacked jurisdiction over him because he was falsely imprisoned, as well as several claimed procedural errors committed during the contraband trial.

In the writ of prohibition case, Defendant says that the Chemung County Attorney could not obtain evidence supporting proper incarceration because such evidence no longer exists; further, the fact that Defendant could not obtain "foiled" copies of his Bronx County case from the Bronx County District Attorney's or the Department of Corrections and Community Supervision (DOCCS)'s Freedom of Information officers shows that such evidence no longer exists. Therefore, Defendant maintains, the County Attorney cannot reach his burden of proving that Defendant is not falsely imprisoned. Concerning the civil case, the Chemung County Supreme Court denied the writ of prohibition because the errors alleged by Defendant were correctable on criminal appeal and were not of a nature permitted in an extraordinary writ proceeding (see, Decision and Order, dated April 24, 2012 [Reynolds-Fitzgerald, J.]).

Concerning the Chemung County Court criminal case, Defendant was convicted and sentenced in absentia following his refusal to appear in Court for sentencing. Defendant inartfully maintains in the criminal matter that the Chemung prosecutor is unable beyond a reasonable doubt to establish Defendant's prior conviction for sentencing purposes because of lack of records for the Bronx case and, therefore, his Chemung County sentence is invalid (see, CPL §20.40).

Defendant advises he filed appeals to the Appellate Division Third Department in the two Chemung County cases. The appeals form the basis for the requested reconstruction hearing in the Bronx County murder trial which Defendant feels impacts Chemung County's jurisdiction over him, the writ of prohibition case, and his contraband sentence. The Appellate Division Third Department Clerk advises that notices of appeal were filed in both matters originating in Chemung County, but in neither case has appeal been perfected. In the civil matter, the Appellate Division denied Defendant's application to proceed as a "poor person" under CPLR §1101.

The prosecutor disputes Defendant's claims, arguing instead that Defendant's motion for a reconstruction hearing should be denied because the judgment of conviction has already been affirmed on appeal and no legal basis exists for such a hearing. In response to the District Attorney's arguments, Defendant inartfully disputes the validity of certain court documents he possesses including the Certificate of Disposition which Defendant says maybe a forgery and that a false certificate may have issued in violation of Penal Law §170.00 and 1 § 75.40. However, no specific allegations are presented as to the persons who may have altered the documents or the nature of those alterations.

Legal Discussion [*3]

Defendant's demand for a reconstruction hearing in this case, for use in unrelated cases awaiting appeal in the Third Department, is denied. Defendant fails to show any grounds that warrant such extraordinary relief.

There is a presumption of validity and regularity which attaches to all judgments of conviction (see, People v. Williams, 29 NY2d 882 [1972]). That presumption may only be rebutted by substantial evidence to the contrary, which Defendant has not done (see, People v. Suren, 131 AD2d 896 [2nd Dept. 1987]). The burden is upon Defendant to demonstrate that alternate methods of providing an adequate record cannot be utilized (see, People v. Glass, 43 NY2d 283 [1977]. Defendant fails his burden in this regard. Occasions may exist where the minutes of a defendant's trial have been lost and a defendant is diligent in maximizing the possibility that a reconstruction hearing can accomplish its purposes for an appeal. In such cases, a court may order a hearing be held to determine the availability of other than a transcript for factual presentation on appeal; such a situation is not presented here.

Our Court of Appeal has held that loss of a reporter's minutes is rarely sufficient reason in and of itself for reversing a conviction, aside from justifying a reconstruction hearing. Notwithstanding, where a significant portion of the minutes are lost, a reconstruction hearing maybe available for a defendant who is actually appealing his/her conviction after trial and he/she has acted with reasonable diligence to mitigate the harm done by any mishap that resulted in the record's destruction (see, People v. Parris, 4 NY3d 41 (2004).[FN1] Defendant is not now appealing his conviction in this case and has made no showing justifying a reconstruction hearing nearly fifteen years after conviction. Defendant exhausted his appeals years ago and, in fact, is not asking for reversal of his murder conviction(s) now. Instead, Defendant seeks the reconstruction hearing not for appeal purposes but for use in an unrelated matter occurring nearly two decades after the original conviction. In this regard, Defendant, who was convicted inter alia for murder, showed no reasonable efforts taken to mitigate any harm resulting from loss of the transcribed minutes even though the record was available to his appellate counsel who possessed the record during the appeal. Likewise, Defendant identifies no issue to which the missing transcripts and documents are relevant in the instant case and he asks for reconstruction only to find out what happened for purposes of unrelated proceedings after nearly twenty years. There is no need to burden the Court with a reconstruction hearing where Defendant already prosecuted his appeal (see, People v. Agosto, 248 AD2d 301 [1st Dept. 1998]). Further, as stated, the record shows Defendant's appellate counsel had the complete record at the time of the appeal, negating the need for record reconstruction now. Likewise, Defendant does not assert any record-based legal claim for which he had a reason for not raising in his direct appeal (CPL §440.10[2][c]).

The Court agrees with the Chemung County Supreme Court that even though Defendant was unable to obtain his documents through his limited Freedom of Information Law requests in Bronx County from the District Attorney and from DOCCS does not mean Chemung prosecutors were unable to obtain and provide the Court with appropriate proof for trial and sentencing purposes in their case against Defendant. Accordingly, Defendant's prayer for a reconstruction hearing is rejected.

Poor Person Status

Defendant's Motion to Proceed as a Poor Person Pursuant to CPLR §1101 is denied. Defendant sought to have trial counsel appointed and costs waived for the reconstruction hearing, but failed to produce documentary proof supporting his qualification for such relief. In light of the disposition of the [*4]requested relief, the interests of justice do not warrant granting Defendant "poor person" status.[FN2]

Wherefore, upon this record,[FN3] and based upon the foregoing, it is

ORDERED that the branch of Defendant Rafael Agosto's motion for a reconstruction hearing to ascertain what happened in the instant matter and for use in the preparation of certain civil and criminal appeals originating in Chemung County and appealable to the Appellate Division Third Department is DENIED; and it is further

ORDERED that the branch of Defendant Rafael Agosto's motion, seeking "poor person" relief, pursuant to CPLR Rule §1101, is DENIED.

The foregoing constitutes the Decision and Order of this Court.

Dated: Bronx, New York

September 27, 2012

DOMINIC R. MASSARO, JSC Footnotes

Footnote 1: The Court of Appeals also stated that another ground justifying a reconstruction hearing is available to a defendant who has pleaded guilty only where he can identify a ground for appeal that is based on something that occurred during an untranscribed proceeding (id.).

Footnote 2: For instance, Defendant did not submit an attorney's certificate of merit (CPLR §1101[b]) and/or trust fund records (CPLR §1101[f][3]).

Footnote 3: In deciding the instant motion, the Court read (1) Defendant's Notice of Motion for a Reconstruction Hearing; Defendant's Affidavit in Support of a Reconstruction Hearing, with exhibits; (2) Response in Opposition to Defendant's Motion for a Reconstruction Hearing; Memorandum of Law with exhibits; (3) Defendant's Reply with exhibits; and (4) Records of the Clerk of the Chemung County Combined Courts and the Clerk of the Third Department.



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