People v Fratello

[*1] People v Fratello 2006 NY Slip Op 52079(U) [13 Misc 3d 1231(A)] Decided on October 2, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 2, 2006
Supreme Court, Bronx County

The People of the State of New York,

against

Frank Fratello, Defendant.



8751/1993



For the People of the State of New York

The Honorable Robert T. Johnson,

District Attorney, Bronx County, New York

By: Dimitri Maisonet, Esq.,

Assistant District Attorney.

For Frank Fratello

Pro Se

Dominic R. Massaro, J.

Defendant Frank Fratello was convicted on March 22, 1996 of the crimes of attempted murder in the second degree (Penal Law Section 110/125.25(1) ), assault in the first degree (Penal Law Section 120.10 (1) ), criminal use of a firearm in the first degree (Penal Law Section 265.03(2) ), and criminal possession of a weapon in the second (Penal Law Section 265.03(2) ) and third degree (Penal Law Section 265.02(4) ). He was subsequently sentenced by this Court to a term of incarceration of ten (10) to twenty (20) years as a second felony offender. Defendant now moves pursuant to Criminal Procedure Law Sections 440.10 and 440.30(3) to vacate his judgment of conviction. This motion is denied.

Chronology

Defendant Fratello was convicted of charges arising out of the shooting of Guy Peduto that took place shortly after 2:00 a.m., December 7, 1993, during a car chase in the Throggs Neck section of Bronx County. It is not contested that Peduto received serious head and body wounds as a result of the incident. The rear window of the Pontiac sedan he was driving was shot out and there were multiple bullet holes in the automobile. When he was hit, Peduto lost control [*2]of the vehicle and crashed into two cars parked in a driveway. The evidence established that his assailants fled in their vehicle, leaving behind two Acura hubcaps and five 9 millimeter bullet casings. Two out-of-court statements by shooting-victim Peduto, naming the within Defendant as one of his attackers, were admitted into evidence during the trial under the "excited utterance" exception to the hearsay rule (see, People v. Nieves, 67 NY2d 125, [1986] ). The first of Peduto's accusatory declarations was made to Dominic Cleary, a layperson, who was walking to his nearby home when he heard gunshots and the subsequent car crash. Cleary testified that he came to Peduto's assistance, finding him bleeding and in extreme distress. He testified that Peduto told him that Defendant was his assailant. The second statement admitted as evidence implicating Defendant was made by Peduto about ten minutes later to Officer Dennis Gardner, the first police presence at the scene.

Peduto was not called to the stand at trial by the prosecution, having recanted his previous identifications of Defendant in an affidavit before trial. Instead, Peduto was called by Defendant. It was acknowledged that, as of the time of the trial, Peduto was in a United States detention facility awaiting trial on federal criminal charges. In his direct testimony, Peduto denied that Defendant was one of the persons who shot him. On cross-examination by the prosecution, he denied having told anyone that Defendant had shot him. Peduto acknowledged a 15-year close friendship with Defendant. He also admitted an extensive criminal record arising out of his activities as a carjacker. Peduto invoked his privilege against self-incrimination in response to other questions about specific car thefts and criminal associates, including Glicerio Castaldo. Castaldo, acknowledged to be an admitted criminal under a plea arrangement with the federal government to turn F.B.I. informant, later testified as a rebuttal witness for the prosecution. The People also introduced rebuttal evidence indicating, inter alia, that Peduto had told another police officer, John Fitzgerald, both at the scene of the incident and after his removal to a hospital, that Defendant was one of the shooters. Another officer, Detective George Wood, testified to a later conversation with Peduto at the hospital, after Peduto had been told by hospital personnel that he would survive the shooting. Detective Wood testified that Peduto told him that he knew the identity of the shooter but refused to name him, explaining "I will take care of it myself."

The trial court, sitting without a jury at the request of the Defendant, rendered its guilty verdict after considering the credibility and weight of the evidence adduced. The Appellate Division, First Department, affirmed this judgment of conviction. People v. Fratello, 243 AD2d 340 (1st Dept.,1997). The Court of Appeals, to which Defendant was granted leave to appeal, affirmed. People v. Fratello, 92 NY2d 565 (1998). Defendant's writ of certiorari to the United States Supreme Court was denied without opinion. Fratello v. New York, 526 U.S. 1068, 119 S. Ct. 1462 , 143 L.Ed2d 548 (1999).

On or about April 17, 2000, Defendant, moving pro se, sought a writ of habeas corpus from the United States District Court, Southern District of New York. A lengthy report and recommendation on this application was issued wherein it was recommended that Defendant's writ be denied as being without merit. Fratello v. McGinnis, 2005 WL 1221837 (S.D.NY, 2005); Ellis, Magistrate J.. Defendant filed timely objections to the report. In a written memorandum and order, the report was adopted in its entirety and dismissed the writ with the finding that petitioner had "...not made a substantial showing of the denial of a constitutional right..." and certified pursuant to 28 U.S.C. Section 1959(a)(3) that "...any appeal from [the] order would not [*3]be taken in good faith. Coppedge v. U.S., 369 U.S. 438 (1962)." Fratello v. McGinnis, 2005 WL 2453005 (S.D.NY; 2005), Daniels, J.. Defendant states in his instant pro se motion that on or about November 1, 2005, a Notice of Appeal of the ruling was filed with the United States Court of Appeals, Second Circuit. An order denying Defendant's request for a certificate of appealability has since been issued further dismissing Defendant's appeal with the finding that he "...had not made a substantial showing of the denial of a constitutional right' (28 U.S.C. Section 2253(3) )."Fratello v. McGinnis", F3rd , (C.A.2; July 19, 2006), Parker and Hall, JJ..

Defendant's CPL 440.10 Motion

Defendant now moves to vacate his judgment of conviction pursuant to CPL Sections 440.10[FN1] and 440.30(3)[FN2] based upon alleged newly discovered evidence of improper and [*4]prejudicial conduct, not appearing in the record, that occurred during his trial. Specifically, Defendant alleges that the People failed to disclose "voluminous Brady and Giglio information much of which related to a joint investigation conducted by both state and federal authorities involving an auto larceny ring with ties to organized crime and that the complainant was an FBI informant at the time of defendant's trial" (see Defendant's moving papers, item 9; and also, Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 [1963] and Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 [1972] .)

In an annexed document entitled "Memorandum of Law in Support of the Motion to Vacate Pursuant to CPL 440.10", Defendant alleges, inter alia, that during a later federal racketeering trial of other individuals which included charges related to this shooting, Peduto testified again that Defendant was not his shooter and alleged that he had perjured himself during this trial. Defendant contends that Peduto further testified at this subsequent trial that Defendant was the driver of the vehicle from which the shots came that struck him, indicating that someone else was the actual shooter. Defendant also contends that there is newly discovered evidence that, because of his own nefarious activities, Peduto had been the subject of a "contract" on his life ordered by a third-party associate due to certain financial disagreements. Defendant goes so far as to accuse Peduto, admittedly his friend for more than fifteen years, of being implicated in a November 7, 1993 attempt on Defendant's life while Peduto was part of a group which "shot up" a café where Defendant was working. It is not contested that Defendant was shot during that prior incident (see, Fratello Memorandum at p. 7, para, 1).

Defendant also relies for support on an affidavit from David Bonifacio, who did not testify at the trial, in which Bonifacio denies that he was at the scene of the shooting before Peduto was removed to the hospital. Defendant argues that this statement casts doubt on the rebuttal testimony given by Glicerio Castaldo to the extent that Castaldo had testified at the trial that Peduto told him at a later time that, at the time of the shooting, "...he saw a friend of mine, David, standing around, you know, a lot of people came to where it crashed, and he was yelling, Frankie Junior did it,' and also he thought he was dying. He—he was saying it and the police wrote it down and he told me..." (see, Fratello Memorandum at p. 9, last para.; and also, Castalso testimony at Tr. Trans. p.1076). Defendant contends that, as David Bonifacio now attests that he [*5]was not at the scene of Peduto's shooting, this affidavit casts serious new doubt on the entire trial testimony of both Castaldo[FN3] and Peduto.

The People filed lengthy paper work in opposition to Defendant's motion, arguing, inter alia, that the Court should deny it because Defendant's arguments, which are based on the purported Brady and Giglio issues, the Bonifacio affidavit and subsequent perjury claims made by Defendant against Peduto, are procedurally barred. This because the issues herein relied upon were addressed and rejected in the course of Defendant's prior state and federal filings. The People further contend that all of the arguments raised by Defendant in the pending motion are conclusory in nature, lack substance and, therefore, are meritless.

Defendant, in a reply affidavit, restates his case for CPL 440.10 relief emphasizing reliance on the decision in People v. Tejada, 143 Ad2d 51 (1st Dept., 1988)[FN4] to support his position. Defendant further invokes in his reply papers, for the first time, Criminal Procedure Law Section 440.30(5)[FN5] under which he demands, alternatively, that the Court direct a hearing to be held on the merits.

Discussion

Initially, the Court notes that Defendant's arguments to the First Department, Appellate Division, and his subsequent papers to the Court of Appeals, raised challenges based upon the alleged Brady and Giglio, supra, issues at great length. It is clear by the resulting opinions of these appellate courts that no merit was found to said claims. Likewise, Defendant previously argued the lack of credibility of shooting-victim Peduto seeking to overturn his conviction; also, to no avail.

Affirming the unanimous decision of the First Department, Appellate Division, which upheld this Court's judgment, the Court of Appeals, in People v. Fratello specifically noted at 92 NY2d 565, 569, that it was Defendant who called Peduto, his "close" friend of 15 years, to [*6]testify relying, in part, on the recantation Peduto had given him. The Court also points out that Peduto's status as a federal prisoner was well known to Defendant and that, during his testimony for the defense, Peduto invoked his privilege against self-incrimination in response to questions about specific car thefts and various of his criminal associates, including Castaldo. Reviewing the rebuttal to Peduto's trial testimony presented by the prosecution, the Court of Appeals set forth in some detail the various statements made by Peduto to civilians and police officers alike, shortly after he was shot, clearly naming Defendant, his old friend, as his assailant. The high Court's ruling firmly upheld the trial court's determination to admit Peduto's various "excited utterances", citing its own prior rulings in People v. Cotto, 92 NY2d 68 (1998), People v. Edwards, 47 NY2d 493 (1979), and People v. Caviness, 38 NY2d 227 (1975). The Court also carefully rejected Defendant's reliance upon the decision in People v. Jackson, 65 NY2d 265 (1985).

Based on the legally admitted evidence adduced at Defendant's trial, the Court of Appeals determined and held that :

...Here, the trial court as trier of fact had a sufficient, nonspeculative basis to resolve the contradictions between Peduto's out-of-court statements implicating defendant in the crimes, and his exonerating testimony at the trial. First, as excited utterances, made without opportunity for reflection while he was crying hysterically and repeatedly asking whether he was going to die, could rationally and objectively have been credited by the trial court as inherently more reliable than Peduto's later versions, formulated once "there ha[d] been time to contrive and misrepresent" ( People v. Brown, 80 NY2d 729, 736)... [quoting from People v. Fratello, 92 NY2d 565, 574]

Additionally, in affirming Defendant's judgment of conviction, the Court of Appeals found that Defendant's remaining arguments, including his contention that the prosecution had violated his rights under Brady v. Maryland, supra, and People v. Rosario, 9 NY2d 286 (1961), by failing to provide him required discovery materials, were "...either unpreserved or without merit..." [quoting from People v. Fratello, 92 NY2d 565, 575].

It is clear that many of the same issues and arguments raised here were also materially raised by defendant, pro se, in his writ of habeas corpus brought before the federal court. Again, the opinion dismissing said writ indicates that, upon careful examination and review, they are meritless. Fratello v. McGinnis, 2005 WL 2453005 (S.D.NY; 2005), supra. Further, the order filed denying Defendant's subsequent request for a certificate of appealability of said order found that Defendant had not made "a substantial showing of the denial of a constitutional right" (28 U.S.C. Section 2253[3] ). Fratello v. McGinnis, F3rd ,(C.A.2), supra.It is well settled that a motion pursuant to Criminal Procedure Law Section 440 is designed for the purpose of developing facts dehors the trial record and does not apply to facts that should have been placed on the record during trial. See, People v. Williams, 286 AD2d 620 (1st Dept., 2001), lv. denied 97 NY2d 659 (2001). Additionally, in light of the record establishing that Defendant previously raised the issues based on virtually identical theories to those raised in the pending motion, it appears that they are not now the proper subject of the instant motion. Criminal Procedure Law Section 440.10(2)(b) states that "...[n]otwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when [t]he judgement is, at the time of the motion, appealable or pending an appeal, and sufficient facts appear on the record with respect to the [*7]ground or issue raised upon the motion to permit adequate review thereof upon such an appeal. (see, People v. Degondea , 3 AD3d 148 [1st Dept.,2003], lv denied 2 NY3d 798 [2004]). Additionally, Defendant's own papers disclose an unsuccessful Notice of Appeal of his federal writ of habeas corpus denied by the United States Court of Appeals, Second Circuit. Hence, in light of Defendant's odyssey, his CPL 440 motion is procedurally barred.

Even were this not the case, the Court finds no merit to the various arguments raised by Defendant. Nor does the Court find sufficient basis for the vacating of Defendant's conviction, or even to support the conducting of a hearing on the merits of his motion. See CPL 440.30 (3)[FN6] and (4)[FN7]. More specifically, CPL 440.30(4)(b) permits a court to deny a motion to vacate a judgment without a hearing if the moving papers do not contain sworn allegations as to all essential and material facts (see, e.g., People v. Satterfield, 66 NY2d 796 [1985]; People v. Wells, 265 AD2d 589 [2nd Dept.,1999]; People v. Lake, 213 AD2d 494 [2nd Dept.,1995]). To support the conduct of a hearing, the affidavits in support must be from qualified persons having actual or personal knowledge of the facts at issue. (see, People v. Pan, 245 AD2d 149 [1st Dept.,1997] and People v. Taylor, 211 AD2d 603 [1st Dept.,1995]). It is well settled that conclusory statements and conjecture do not constitute sworn allegations of fact as they are mere claims and surmise. (see, e.g., People v. Beverly, 5 AD3d 862 [3rd Dept.,2004]; People v. Baptiste, 306 AD2d 562 [3rd Dept.,2003] and People v. Folkes, 246 AD2d 433 [1st Dept.,1998]). The Court finds that Defendant has not presented admissible evidence to sustain his burden for the relief sought.

In the present case, Defendant's self-serving statements in support are insufficient to support the relief requested. Nor is Defendant's reliance on Bonifacio's affidavit well placed.

While Defendant s papers continue to attack the character and veracity of the shooting-victim Peduto, nowhere does he present any evidence to counter the truthfulness or honest character of "good samaritan" witness Dominic Cleary, who came to the injured Peduto's aide. It was Cleary who testified that Peduto told him, while Peduto was reasonably in fear of his own imminent death, that it was Defendant who shot him. Nor has Defendant attacked the veracity of [*8]witnesses Police Officer Gardner or Detective Wood who both stated that Peduto also told them, at separate times, that it was Defendant who shot him. Indeed, the affidavit of Bonifacio denying that he was at the scene of the crime in no way contradicts the fact that the first police officer at the scene of the crime, now apparently identified as Officer Gardner, wrote down the information given him by the injured Peduto that it was Defendant who shot him.

It is conceded by Defendant that he and Peduto were closely and personally acquainted for more than fifteen years prior to the December 7, 1993 shooting incident, and that they were familiar with each others' business associates, at least indirectly. As the parties in this matter were well known to each other, the usual "mistaken identification" issues are not in play; thus the Tejada, supra, decision, relied upon by the Defendant, is clearly distinguishable and unpersuasive[FN8].

There is also no issue that Defendant voluntarily chose, with the assistance and advice of privately retained counsel, to waive a trial jury and thereby give to the presiding judge the authority to decide issues both of law and of fact. The Court finds that Defendant has failed in his motion to present sufficient information and evidence to overcome the determination at trial to have credited the testimony of Cleary, Gardner and Woods to the excited utterances of shooting-victim Peduto as inherently more reliable and credible than Peduto's subsequent versions and contrivances on the stand. Nor has Defendant adequately offered a legal basis to rebut the finding, affirmed by the Court of Appeals, that the trial court, as trier of the fact, had a sufficient, non-speculative basis to resolve the contradictions in the evidence adduced, including Peduto's trial testimony, to conclude that Peduto had perjured himself at trial and to find that the Defendant was guilty as charged. People v. Fratello, 92 NY2d 565 (1998).

It is also significant that Defendant, not the prosecution, decided to call Peduto to testify at trial. Indeed, it is clear that early in the prosecution of this matter, shooting-victim Peduto became uncooperative to the People and that he attempted to recant the various statements he had made concerning Defendant at the crime scene while still in fear of a bloody death. The record reflects the fact that Peduto had given Defendant an affidavit attempting to exculpate Defendant prior to trial. Accordingly, it is clear that Defendant had access to communication with shooting-victim Peduto prior to deciding to called Peduto to the stand as a defense witness.

It is uncontested that it was fully disclosed to Defendant that Peduto was in federal custody on various criminal charges at and before the commencement of trial. Nor does Defendant refute that he had information concerning those charges, which had been made [*9]available by the prosecution.

With this in mind, the Court finds Defendant's claims of violations of his rights, including those rights given him pursuant to Brady and Giglio, to be meritless. The Court also finds Defendant's claims procedurally barred pursuant to CPL Section 440.10(2)(a)[FN9] as the issues raised herein have already been addressed. The Court of Appeals held that these claims were either unpreserved for appellate review or without merit. People v. Fratello, id.; and also, People v Tam, 256 AD2d 600 (1968).).

Defendant's additional arguments and contentions, primary of which appears to be a claim of newly discovered evidence of a "hit" against Peduto existing at the time of this shooting incident ordered by and "contracted" to some "third-party" other than Defendant, lacks credible substantiation necessary to afford them merit. This so-call "new evidence" relied upon by Defendant appears to be knit from speculation, surmise and portion of newly crafted testimony from Mr. Peduto in a recent trial; it does not support Defendant's demand for relief. Nor, as previously discussed, is the affidavit of non-witness Bonifacio of any persuasive weight. These claims and conjectures are wholly without credibility. They are summarily denied.

Ordered, that the motion to vacate judgment is denied.

This constitutes the decision and order of the Court.

Dated :Bronx, New York

October 2, 2006

___________________________,

Dominic R. Massaro,

Justice of the Supreme Court Footnotes

Footnote 1:CPL § 440.10(1) and (2) - Motion to vacate judgment:

1. At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that: (a) The court did not have jurisdiction of the action or of the person of the defendant; or (b) The judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or in behalf of a court or a prosecutor; or (c) Material evidence adduced at a trial resulting in the judgment was false and was, prior to the entry of the judgment, known by the prosecutor or by the court to be false; or (d) Material evidence adduced by the people at a trial resulting in the judgment was procured in violation of the defendant's rights under the constitution of this state or of the United States; or (e) During the proceedings resulting in the judgment, the defendant, by reason of mental disease or defect, was incapable of understanding or participating in such proceedings; or (f) Improper and prejudicial conduct not appearing in the record occurred during a trial resulting in the judgment which conduct, if it had appeared in the record, would have required a reversal of the judgment upon an appeal therefrom; or (g) New evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence; or (h) The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States.

2. Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when: (a) The ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment, unless since the time of such appellate determination there has been a retroactively effective change in the law controlling such issue; or (b) The judgment is, at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal; ...

Footnote 2:§ 440.30(3) Motion to vacate judgment and to set aside sentence; procedure:

3. Upon considering the merits of the motion, the court must grant it without conducting a hearing and vacate the judgment or set aside the sentence, as the case may be, if: (a) The moving papers allege a ground constituting legal basis for the motion; and (b) Such ground, if based upon the existence or occurrence of facts, is supported by sworn allegations thereof; and (c) The sworn allegations of fact essential to support the motion are either conceded by the people to be true or are conclusively substantiated by unquestionable documentary proof.

Footnote 3: It appears from Castaldo's testimony that Peduto never gave David's last name in the conversation referred to at trial; hence, the fact that his "friend David" at the crime-scene was, in fact, "David Bonifacio" appears to be based upon surmise on Defendant's part. Nor was the matter clarified by Peduto's trial testimony as he repeatedly invoked his right against self-incrimination when questioned about Bonifacio at the trial. (See Trial Trans. pp.1076-1077 (Castaldo) and pp. 536 (Peduto).).

Footnote 4:It is noted that the Tejada decision was subsequently vacated, after motion to reargue was granted, at 144 AD2d 267 (1988) and was subsequently reinstated at 147 AD2d 367 (1989).

Footnote 5:CPL 440.30(5):5. If the court does not determine the motion pursuant to subdivisions two, three or four, it must conduct a hearing and make findings of fact essential to the determination thereof. The defendant has a right to be present at such hearing but may waive such right in writing. If he does not so waive it and if he is confined in a prison or other institution of this state, the court must cause him to be produced at such hearing.

Footnote 6:See fn. 2, CPL 440.30(3).

Footnote 7: CPL 440.30(4) : Motion to vacate judgment and to set aside sentence; procedure:4. Upon considering the merits of the motion, the court may deny it without conducting a hearing if: (a) The moving papers do not allege any ground constituting legal basis for the motion; or (b) The motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts, as required by subdivision one; or... (d) An allegation of fact essential to support the motion (i) is contradicted by a court record or other official document, or is made solely by the defendant and is unsupported by any other affidavit or evidence, and (ii) under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true.

Footnote 8: The Court notes that the Appellate Court in Tejada, supra, specifically stated that it was a mis-identification case. The decision indicates that the facts in Tejada involved the accuracy and propriety of an identification by an under-cover police officer of a defendant, whom he had briefly seen during an alleged sale of narcotics. It was found by the Appellate Court that the People had withheld from defendant Tejada that the police had used an informant as part of their pre-sale preparation. When this informant was produced by the defense, he stated that the person he had targeted to the police for the sale was not Tejada, but another man living in the apartment building. It was also found that the police had also withheld from the defense requested police reports concerning a later murder in the defendant's building - the victim was later identified as the same man pointed out by the informant for the proposed drug sale.

Footnote 9: See fn.1, CPL § 440.10(1) and (2).