People v Alamo
Annotate this CaseDecided on September 25, 2012
Supreme Court, Bronx County
The People of the State of New York
against
Carlos Alamo, Defendant.
4047-2001
Defendant pro se
Jason Whitehead
Assistant District Attorney
Office of the Bronx District Attorney
Richard L. Price, J.
By motion submitted May 31, 2012, defendant moves pro se to have his judgment of conviction vacated pursuant to CPL 440.10 on the basis that the Federal Bureau of Prisons (BOP), United States Marshals (USM) and the New York City Department of Correction (DOC) failed to timely transfer him to a federal facility resulting in his commission of the crime of promoting prison contraband. Such a farcical claim makes denial axiomatic.
Background and Procedural History
On February 19, 1999, the defendant, Carlos Alamo, was arrested by state authorities and charged with various heroin related offenses. Pursuant to a writ of habeas corpus ad prosequendum, defendant was taken into federal custody and charged with conspiracy to distribute, and possession with intent to distribute, heroin.
On or about November 30, 2000, judgment was entered against the defendant by the United States District Court for the Southern District of New York, sentencing him to a term of imprisonment of 151 months.
On November 11, 2001, after being returned to state custody, judgment was entered against the defendant in Supreme Court, Bronx County (Cohen, J.), upon his plea of guilty to promoting prison contraband in the first degree (PL 205.25). He was sentenced to a term of four years imprisonment with a mandatory minimum period of two years. [*2]
On September 10, 2004, after completing his state sentence, defendant was discharged from state incarceration and taken into federal custody to began serving his federal sentence.
By pro se motion submitted June 12, 2009, defendant moved this court for an order compelling the BOP to recalculate his federal sentence to include the state sentence. Alternatively, defendant sought resentencing on his federal conviction on the basis that the Supreme Court had directed his state sentence be served concurrently with his federal sentence, a directive defendant claims the BOP failed to honor. By decision dated July 8, 2009, this court summarily denied defendant's motion concluding it lacked authority to grant such relief.
Defendant now moves to vacate his conviction in its entirety on the basis that he would not have committed the crime of promoting prison contraband had the BOP, USM, and DOC not delayed transferring him to a federal correctional facility subsequent to his 1999 arrest. From defendant's papers, and the absurdity of his claim, it is apparent that defendant is merely dissatisfied with this court having denied his prior CPL 440 motion.
Discussion
To the extent that defendant's claim is in essence the same claim asserted in his previous CPL 440 motion, this court construes his current motion as seeking leave to reargue or renew. To do so, however, this court notes that the CPL does not provide for leave to either reargue or renew. Courts have, therefore, determined, as this court does, that where there are no applicable provisions in the CPL concerning the issue at hand, those provisions of the CPLR which do address the issue may, and should, be applied in a criminal action (see e.g. People v Davis, 169 Misc 2d 977 [Co Ct, Westchester County 1996, Leavitt, J.]; People v Radtke, 153 Misc 2d 554 [Sup Ct, Queens County 1992, Goldstein, J.]; People v Cortez, 149 Misc 2d 886 [Crim Ct, Kings County 1990, Stallman, J.]).
Regarding motions to reargue or renew, CPLR 2221 provides that a motion to reargue must "be based upon matters of fact or law allegedly overlooked or misapprehended." Thus, the purpose of a motion to reargue is to offer the unsuccessful party an opportunity to persuade the court to change its decision, not provide a second chance to more strenuously advance its argument or present an argument that it initially did not.
Conversely, a motion to renew must "be based upon new facts not offered on the prior motion . . . or shall demonstrate that there has been a change in the law that would change the prior determination" (Siegel, NY Prac § 254, at 383 [4th ed]). In other words, the purpose of a motion to renew is to offer the unsuccessful party an opportunity to either present facts that were unavailable at the time of the original motion or bring to the court's attention a material change in the law.
Regardless of whether a party moves for reargument or renewal, however, the motion must "be identified specifically as such" (CPLR 2221 [d] [1]; [e] [1]). Defendant did neither. Moreover, defendant further fails to demonstrate that this court misinterpreted or misapprehended the law. As this court found, federal courts are not bound by a state court's determination that a state sentence should run concurrently to a federal sentence (Abdul-Malik v Hawk-Sawyer, 403 F3d 72, 75 [2d Cir 2005]). Defendant alleges that the state court explicitly determined that the state sentence run concurrently with the federal sentence, yet this does not create an obligation on the part of federal authorities to comply (McCarthy v Doe, 146 F3d 118, [*3]120-21 [2d Cir 1998] [state court's designation of its sentence to run concurrently with the federal sentence is not binding on federal authorities]). This court also lacks the authority to award defendant credit for his state sentence, or order that it be applied to his federal sentence. Rather, the BOP "determines when a defendant's sentence starts and whether the defendant should receive credit for any time spent in custody" (United States v Montez-Gaviria, 163 F3d 697, 700-701 [2d Cir 1998]; see also United States v Gonzalez, 192 F3d 350, 353 [2d Cir 1999]).
Accordingly, if what defendant seeks is reargument or renewal, it is devoid of any merit as a matter of law. Defendant fails to establish that this court overlooked or misapprehended the law, or present new facts not present during this court's prior determination of this issue. Nor has he demonstrated a relevant change in law.
Assuming defendant's claim is properly based in CPL 440.10, however, which it is not, it obviously lacks merit. In fact, it lacks any basis for serious consideration, under CPL 440, or any other statutory or judicial authority. As the defendant sees it, federal authorities were the proximate cause of his promoting prison contraband conviction because if they had transferred him from Rikers Island to a federal correctional facility when he believes they should have, he would not have committed it.
To understand defendant's claim, one must play a game of intellectual twister sans even a modest strand of logic or common sense. Mental gymnastics aside, defendant's motion constitutes nothing more than a nonsensical masquerade of his prior CPL 440 motion. Defendant's motion is therefore denied in its entirety.
This constitutes the decision and order of the court.
The clerk of the court is directed to forward a copy of this decision to the defendant at his place of incarceration.
Dated: September 25, 2012
E N T E R
________________________________
Richard Lee Price, J.S.C.
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