People v White

[*1] People v White 2006 NY Slip Op 51986(U) [13 Misc 3d 1225(A)] Decided on August 2, 2006 Supreme Court, Kings County Sullivan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 2, 2006
Supreme Court, Kings County

The People of the State of New York

against

Larry White, Defendant.



490/98

James P. Sullivan, J.

The defendant has moved, pro se, for an order pursuant to CPL § 440.10, vacating the May 4, 1999 judgment of the Supreme Court, Kings County, convicting him, after a jury trial, of robbery in the first degree (Penal Law § 160.15 (4)). In a motion dated February 22, 2006, defendant alleges that the trial court gave an erroneous missing witness charge, and also that his trial counsel provided ineffective assistance of counsel. For the reasons stated below, the motion is denied.

Procedural History

The charges under Indictment 490/98 arose out of a robbery that occurred on January 7, 1998, during which Kenneth Alleyne was robbed at gunpoint by two men in the store that he worked in. Defendant was indicted for robbery in the first, second, and third degrees, as well as grand larceny in the fourth degree.[FN1]After a jury trial, defendant was convicted of robbery in the first degree, and sentenced, as a second felony offender, to a determinate term of imprisonment of 12½ years.

On the same date that he was sentenced, defendant filed a motion pursuant to CPL § 440.10 to vacate the judgment of conviction, alleging, among other things, that his lawyer was ineffective for waiving defendant's right to testify before the Grand Jury without consulting defendant. On June 28, 1999, defendant's motion was denied (Barbaro, J.). The court noted that most of the issues raised were reviewable on direct appeal, and summarily denied the motion as to those issues. See CPL 440.10 (2) (b). As to the ineffective assistance claim, the court noted that even if the allegation were true, it could not alone amount to ineffective assistance of counsel. Permission to appeal that decision was denied by a justice of the Appellate Division on April 26, 2000. [*2]

The Appellate Division affirmed defendant's conviction on April 22, 2002. People v. White, 300 AD2d 326 (2d Dep't 2002). Leave to appeal to the Court of Appeals was denied on June 28, 2002. People v. White, 98 NY2d 682 (2002). By motion dated August 23, 2002, defendant moved in the Appellate Division for a writ of error coram nobis, claiming that his appellate counsel was ineffective. On December 2, 2002, the Appellate Division denied defendant's motion. People v. White, 300 AD2d 326 (2d Dep't 2002). Permission to appeal from this decision was denied on February 26, 2003, People v. White, 99 NY2d 621 (2003), and a motion for reconsideration was denied on May 16, 2003. People v. White, 100 NY2d 543 (2003). On June 4, 2003, defendant filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York. On December 30, 2004, the petition was denied (Gershon, U.S.D.J.).

The Current Motion to Vacate the Judgment of Conviction

Defendant argues that the court erroneously gave the jury a missing witness charge regarding his failure to call family members to support his alibi after he testified that he was home with them during the time of the crime. He also argues that his lawyer was ineffective for failing to object to this charge. CPL § 440.10 (2) (c) provides that a court must deny a motion to vacate judgment when sufficient facts appear on the record to permit appellate review of the issue raised, but the defendant unjustifiably failed to raise the issue on direct appeal. See People v. Cochrane, 27 AD3d 659, 660 (2d Dep't 2006); People v. Jossiah, 2 AD3d 877 (2d Dep't 2003), lv denied, 2 NY3d 742 (2004). The allegedly erroneous charge and counsel's failure to object to the charge was fully set out on the record. Therefore, this claim is procedurally barred because it could have been raised on direct appeal, and was not.

Defendant also claims that his lawyer provided ineffective assistance of counsel by (1) failing to inform him of a plea offer of 3 to 6 years and/or merely advising him of the existence of the plea offer and failing to advise whether to accept the plea; and (2) failed to conduct an investigation and obtain witnesses to support defendant's alibi defense. This court may deny the motion because this issue could have been raised in defendant's previous 440 motion. CPL § 440.10 (3) (c). Additionally, defendant fails to provide sufficient sworn allegations to support his claims. See CPL § § 440.30 (4) (b), (d). As to the first claim, defendant does not state when this alleged offer was conveyed, how he was informed of it, or, if he was not informed of it, how he is now aware of it. Therefore, the claim is procedurally deficient, as defendant makes only bare, conclusory allegations. See People v. Session, 34 NY2d 254, 256 (1974); People v. Montalvo, 258 AD2d 353 (1st Dep't 1999). Moreover, the claim is contradicted by documentary evidence and court records. CPL §§ 440.30 (4) (c), (d). Defendant, a second felony offender, was involved in two gunpoint robberies, one of which ended with his accomplice killed. At the arraignment on the indictment, on April 9, 1998, the assistant district attorney stated on the record that there was no offer, and indicated that another indictment might be imminent. On June 29, 1998, the People indicated that there was to be an additional indictment. On July 23, 1998, on the record and in the defendant's presence, an offer was made of a plea to first-degree robbery and a sentence of 10 years' imprisonment. On October 13, 1998, defendant was arraigned on the new indictment (7514/98), and the People indicated that there was no offer. On November 10, 1998, there was an off-the-record discussion [*3]and apparently an offer of 7 years was conveyed and declined.[FN2] On February 22, 1999, Justice Barbaro told the defendant and counsel that they should discuss the offer made by the People, which the People were apparently offering to run concurrently with the second indictment. After a recess for counsel to speak with the defendant, the matter was adjourned until the following day so that the defendant could "think it out," with Justice Barbaro noting that there was "no point in putting pressure on him to make a decision now." The court told the defendant to discuss it with his attorney, that it was his "call," and that he should decide whether he wished to take a plea. On the next day, the case was adjourned until March 3, and the endorsements indicate that the defendant decided not to take the plea. On March 3, 1999, defendant's speedy trial motion was denied, and there was extensive discussion on the record as to whether defendant wanted to plead guilty to attempted robbery in the first degree on each indictment, for a concurrent 7-year sentence. The court explained to the defendant that he was facing two indictments with the possibility of consecutive time. After defense counsel conferred with the defendant, he reported that the defendant had declined the offer, and maintained his innocence on both indictments. The court made sure that the defendant understood that the offer was now "off the table," and that he was facing a maximum of 25 years on each indictment, possibly run consecutively. The defendant stated on the record that he was aware of that. The case then went to trial on March 16, 1999.

In light of this record, the court finds no support for the defendant's conclusory allegation that defense counsel failed to convey or discuss a plea offer of 3 to 6 years with him. It appears, instead, that a plea offer was extensively discussed, and that the defendant turned it down. Defendant has not shown sufficient facts to entitle him to a hearing. CPL §§ 440.30 (4) (b), (d). Based on defendant's failure to submit sufficient sworn allegations to support his claim, as well as the contradiction from record evidence, the court denies the motion to vacate the judgment on this claim.

Defendant's second claim based on ineffective assistance of counsel must also be denied without a hearing. Defendant's claim that his trial counsel failed to investigate his alibi defense or call alibi witnesses in support of defendant's alibi is unsupported by any affidavits from potential witnesses revelatory of any testimony that they would have given at trial. At trial, defendant testified that he was home with his girlfriend and two children at the time of the crime. He also testified on cross-examination that he had spoken with his girlfriend and daughter on the telephone the evening before and asked them to come to court to testify on his behalf. His claim that defense counsel should have called them as witnesses is unsupported by any affidavits from potential witnesses that their testimony would have supported defendant's alibi. See CPL § 440.30 (4) (b); People v. Ford, 46 NY2d 1021, 1023 (1979); Session, 34 NY2d at 256; cf. People v. Coleman, 10 AD3d 487 (1st Dep't 2004). Accordingly, this claim must be denied.

[*4]

Accordingly, defendant's motion to vacate the judgment of conviction is denied. This constitutes the decision and order of the Court.

Dated:August 2, 2006

___________________

James P. Sullivan, J.S.C. Footnotes

Footnote 1:On January 10, 1998, defendant and the other man, Darnell Mack, robbed a store at 167 Rogers Avenue in Brooklyn. That robbery ended with two store employees seriously injured, and Mack dead. Defendant was indicted under Indictment 7514/98 for that robbery. After his conviction in the instant indictment, he pled guilty to that indictment, and was sentenced to lesser, concurrent terms.

Footnote 2:The court file endorsements indicate that the People offered "7 years," and that it was "declined."