People v Figueroa

[*1] People v Figueroa 2006 NY Slip Op 52442(U) [14 Misc 3d 1207(A)] Decided on September 15, 2006 Supreme Court, Kings County Heffernan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2006
Supreme Court, Kings County

The People of the State of New York,

against

William Figueroa, Defendant.



12706/89

Charles J. Heffernan, J.

This case presents the question whether defendant's motion for an order vacating the judgment of his conviction pursuant to CPL § 440.10 should be granted.

For the reasons which follow, the motion should be denied.

introduction

Defendant stands convicted of the crime of depraved indifference murder (P.L. §125.25[2]) and has pursued a myriad of post-conviction remedies over the past fifteen years, all of them unsuccessful .[FN1] His most recent quest for relief is the instant motion, dated July 11, 2006, and filed pro se, seeking vacatur of the judgment of his conviction on the grounds detailed below. The People filed papers in opposition to the motion, in the form of an affirmation from Assistant District Attorney Camille O'Hara Gillespie, and a memorandum of law, each dated August 18, 2006, and a reply affidavit of August 25, 2006 was filed by defendant.



the facts underlying defendant's conviction

[*2]In 1989, Maria Hernandez and her husband, Carlos Hernandez, were living in the Bushwick area of Brooklyn and were active in efforts to rid their neighborhood of drug dealers. On two occasions, Carlos Hernandez personally confronted defendant, telling him to move and not to sell drugs in the area. On August 8, 1989 at about 4:30 a.m., defendant and co-defendant Harry Santiago drove to the Hernandez home at 105 Starr Street . Both men fired gunshots from Santiago's red Camaro into the apartment of Carlos and Maria Hernandez, where Carlos Hernandez and his three-year-old son were in bed and Maria Hernandez was getting ready for work. One of the shots struck Maria Hernandez in the head as she stood in the bedroom, drying her hair. Defendant and Santiago fled in Santiago's car. Maria Hernandez was taken to Wyckoff Hospital, where she died from the gunshot wound to her head.

The positions of the parties

Defendant's position:

Defendant argues that he is not procedurally barred from moving to vacate his

judgment of conviction pursuant to CPL § 440.10. Defendant further argues on the merits that pursuant to People v Feingold, 7 NY3d 288 (2006) his motion must be granted since the jury did not consider whether he, at the time of his acts, had the mens rea necessary to support depraved indifference murder.

The People's position:

The People argue that defendant's present claim is procedurally barred from this court's review under CPL § 440.10(2)(c), because defendant could have raised these issues on appeal and did not do so. The People further argue that the motion should be denied under CPL § 440.10(3)(b), since these issues have been previously decided in some of the prior motions and other requests for relief brought by defendant in this case.

The People further argue that even were the court to conclude that defendant had not raised this claim in a prior motion that was determined on the merits, the motion should be denied pursuant to CPL § 440.10(3)(c), since a court is authorized to deny a motion to vacate judgment when "upon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion, but did not do so".

The People further argue that the decision in People v Feingold, supra, was not retroactively effective and that therefore any change in the law effected by Feingold is irrelevant with regard to the instant motion.

On the merits, the People argue that the evidence in defendant's case was plainly sufficient to support defendant's conviction of depraved indifference murder and that People v Feingold, supra, does not require defendant's motion to be granted. [*3]

The legal analysis

CPL § 440.10(2)(c) provides as follows:

2. Notwithstanding the provision of subdivision one, the court must deny a motion

to vacate a judgment when:

Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him; [Emphasis supplied]

That statute, which addresses the situation where an issue could have been raised

on an appeal from the judgment but was not, has no exception for post-appeal changes in the law. Contrastingly, CPL § 440.10(3)(b), explicitly authorizes reconsideration of a ground previously determined on the merits where there has been a "retroactively effective change in the law controlling such issue."

The operative question, then, becomes the one which the People have joined in their submission in opposition to the instant motion: is the holding of People v Feingold one which has retroactive effect? For were such change in the law of depraved indifference to human life to be retroactive, defendant would now qualify for CPL § 440.10 relief consideration since he could not be fairly held chargeable with failing to raise in a prior motion or proceeding a ground rooted in a principle of law that had not evolved when such previous litigation was filed.

The Court of Appeals has not held that Feingold should be retroactively applied.

Nor has defendant's submission or this court's research identified any reliable authority which would warrant such a finding at this time. In the absence of a valid basis upon which to attribute retroactive application to People v Feingold, defendant is without legal foundation for the relief which he presently seeks.

Thus, the court concludes that defendant has not raised a ground legally available to him which was not previously determined on the merits on appeal and in his other litigation herein. As a result, there is no occasion for further consideration of the instant motion.

Conclusion

For the foregoing reasons, defendant's motion for an order vacating the judgment of his conviction pursuant to CPL § 440.10 is denied.

This opinion shall constitute the decision and order of this court.

Dated: Brooklyn, New York_______________________________

September 15, 2006CHARLES J. HEFFERNAN, Jr.

Acting Justice of the Supreme Court [*4]

Footnotes

Footnote 1: By papers dated August 23, 1991 filed in Supreme Court, Kings County, defendant moved to vacate his judgment of conviction pursuant to CPL § 440.10(1)(b), claiming newly discovered evidence, and that certain trial testimony was the product of undisclosed coercion, promises and other misconduct by the police and the prosecution. This motion was denied by order of Justice Egitto dated January 27, 1992.

Defendant's application to appeal to the Appellate Division, Second Department was granted, and by orders of the Appellate Division dated March 17, 1992 and March 23, 1992 defendant's appeal from the order denying his motion to vacate the judgment was consolidated with his direct appeal from the judgment.

On March 27, 1995, the Appellate Division, by written decision, unanimously affirmed defendant's judgment of conviction and the order denying defendant's motion to vacate his judgment. (People v Figueroa, 213 AD2d 669 [2d Dept. 1995]). Defendant's application for permission to appeal to the Court of Appeals from the Appellate Division's affirmance was denied by a judge of the Court of Appeals on May 19, 1995. (People v Figueroa, 85 NY2d 972 [Simons, J.]).

By papers dated August 8, 1995, defendant, acting pro se, filed a second motion in Supreme Court, Kings County, to vacate the judgment pursuant to CPL § 440.10. By memorandum decision and order dated January 17, 1996, Justice Egitto denied that motion without a hearing.

By order dated March 27, 1996, defendant's application for permission to appeal to the Appellate Division from the January 17, 1996 order denying defendant's motion to vacate the judgment was denied by a justice of the Appellate Division. (People v. Figueroa, No. 96-01450 [2d Dept.,1996] [Friedmann, J.]).

By papers dated July 9, 1996, defendant moved in Supreme Court, Kings County, to "preserve issues for Appellate Division review," claiming again that he received ineffective assistance from his retained trial counsel. By memorandum decision and order dated December 6, 1996, Justice Egitto summarily denied that motion.

On March 7, 1997, defendant's application for leave to appeal to the Appellate Division from the December 6, 1996 order denying his motion was denied by a Justice of the Appellate Division. ( People v. Figueroa, No. 97-00801 [2d Dept.1997] [Friedmann, J.]).

By petition dated April 25, 1997 defendant sought a writ of habeas corpus in the United States District Court for the Eastern District of New York. The District Court entered an order dismissing defendant's petition without prejudice. ( Figueroa v. Kelly, No. CV 97-3394 (RR) [E.D.NY,1999] [Raggi, J.]).

By papers dated August 20, 1999 defendant filed a motion in Supreme Court, Kings County, seeking to compel certain discovery. That motion was denied by Justice Juviler by order dated September 9, 1999.

By decision and order dated November 1, 1999 Justice Juviler denied defendant's July 12, 1999 motion to vacate the judgment.

By papers dated November 29, 1999 defendant applied for leave to appeal to the Appellate Division from the order of the Supreme Court, Kings County, denying his motion to vacate the judgment. By order dated April 5, 2000, a Justice of the Appellate Division denied defendant's application. (People v. Figueroa, No. 99-11150 [2d Dept. 1999] [Friedmann, J.]

By papers dated January 12, 2000 defendant moved in the Appellate Division for a writ of error coram nobis. By decision and order dated May 10, 2000, the Appellate Division denied defendant's motion. (People v. Figueroa, 272 AD2d 341 [2d Dept. 2000]).

By petition dated February 22, 2000, defendant again applied in the United States District Court for the Eastern District of New York for a federal writ of habeas corpus. By papers dated June 5, 2000, the Kings County District Attorney's Office, representing the respondent, submitted an answer opposing defendant's petition. By order dated February 1, 2001, the United States District Court for the Eastern District of New York denied defendant's motion for habeas relief. (Figueroa v. Walsh, No. 00-CV-1160 [NGG] [E.D.NY, 2001] [Garaufis, J.]).

By motion dated November 16, 2000, filed in Supreme Court, Kings County, defendant claimed that his sentence should be set aside and reduced because the trial court erroneously imposed consecutive sentences for defendant's convictions of murder, reckless endangerment, and second-degree criminal possession of a weapon under Kings County Indictment Number 12706/89, in addition to a consecutive sentence for his violation of probation under Kings County Indictment Number 9108/86. By order dated January 31, 2001, Justice Gary denied defendant's motion.

On May 3, 2001, defendant's motion to the United States Court of Appeals for the Second Circuit for a certificate of appealability was denied. Defendant's subsequent motion in the United States Court of Appeals for the Second Circuit for a rehearing en banc on his motion for a certificate of appealability was also denied. Defendant's petition to the United States Supreme Court for a writ of certiorari was denied on October 1, 2001. (Figueroa v. Walsh, 534 U.S. 929 [2001]).

By papers dated April 18, 2001, defendant moved in Supreme Court, Kings County to vacate his judgment of conviction pursuant to CPL § 440.10. By decision and order dated October 15, 2001, Justice Knipel denied the motion, noting that defendant's claims were procedurally barred, had already been determined adversely to defendant, and were "unsubstantiated and/or without merit."

By order dated February 7, 2002, defendant's application for leave to appeal from the order denying his motion was denied. (People v. Figueroa, No. 2001-09662 [2d Dept. 2002] [Friedmann, J.]).

By papers dated June 10 and June 17, 2002, defendant sought leave to appeal to the Court of Appeals from the May 10, 2000 order of the Appellate Division, denying his motion for a writ of error coram nobis. By order dated July 26, 2002, a Judge of the Court of Appeals dismissed defendant's application because the Appellate Division's order was not appealable (Wesley, J.).

By motion dated September 13, 2002 filed in the Supreme Court, Kings County, defendant sought an order unsealing minutes of the pretrial conference on June 5, 1990. By order entered December 16, 2002, Justice Mangano denied the motion.

By motion dated October 13, 2003, and "amendment" papers dated November 18, 2003, defendant sought for the second time a writ of error coram nobis in the Appellate Division. On March 8, 2004, the Appellate Division denied defendant's motion. (People v Figueroa, 5 AD3d 502 [2d Dept. 2004]).

By papers dated January 2, 2004, defendant moved again in Supreme Court, Kings County, to vacate his judgment of conviction pursuant to CPL § 440.10 (1)(h), claiming that his conviction of depraved indifference murder under Penal Law section 125.26(2) was unconstitutional and that there was legally insufficient evidence to sustain his conviction of that crime. By answer dated March 15, 2004, the People opposed defendant's motion. By decision and order dated March 29, 2004, Justice Silverman denied the motion.

By order dated September 7, 2004, the United States Court of Appeals for the Second Circuit denied defendant's application for permission to file a second or successive petition for a federal writ of habeas corpus. (Figueroa v. Walsh, No. 04-4360-op [2d Cir. 2004]).

By papers dated June 25, 2004, defendant moved in Supreme Court, Kings County, to vacate his judgment of conviction pursuant to CPL § 440.10(1)(h). By decision and order dated October 25, 2004, Justice Silverman denied the motion.

On February 5, 2005, defendant's application for leave to appeal to the Appellate Division from the October 25, 2004 order denying his motion to vacate the judgment was denied. (People v. Figueroa, No. 2004-10873 [2d Dept. 2005] [S. Miller, J.]).

By papers dated November 1, 2004, defendant applied in Supreme Court, Sullivan County, for a writ of habeas corpus. By decision and order dated July 28, 2005, the Appellate Division, Third Department, affirmed the order denying defendant's petition for a writ of habeas corpus. (People ex rel. Figueroa v. Walsh, 20 AD3d 846 [3d Dept. 2005]).

By papers dated January 30, 2006, and filed pro se in the Supreme Court, Kings County, defendant again sought an order vacating the judgment of his conviction. By decision dated May 25, 2006 said motion was denied by this court.