People v Lopez

[*1] People v Lopez 2006 NY Slip Op 52547(U) [14 Misc 3d 1223(A)] Decided on December 21, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 21, 2006
Supreme Court, Bronx County

The People of the State of New York, Respondent,

against

John Lopez,, Defendant.



3702/99



APPEARANCES:For the People of the State of New York

HONORABLE ROBERT T. JOHNSON

District Attorney of Bronx County, New York

By: MARY JO L. BLANCHARD

Assistant District Attorney

For John Lopez

Pro Se

Dominic R. Massaro, J.

The indictment herein (Indictment Number 3702/99) accused Defendant of acting on May 31, 1999, in concert with Mark Lopez and Jesus Pimental,[FN1] to commit Murder in the Second Degree (two counts, one with intent to kill and one with depraved indifference to human life), Attempted Murder in the Second Degree (two counts applicable to two victims), Assault in the First Degree (two counts, intentional and depraved indifference), Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of a Weapon in the Third Degree.

On April 11, 2001, in Supreme Court, Bronx County (Donnino, J.), Defendant was convicted, following a jury trial, of Murder in the Second Degree [Penal Law § 125.25(1): intentional murder], Attempted Murder in the Second Degree [Penal Law § 110/125.25(1)], and Assault in the First Degree [Penal Law § 120.10(1): intentional assault], and sentenced to an indeterminate term of from twenty-five years to life imprisonment for the murder conviction, a definite term of fifteen years for [*2]the attempted murder conviction, and a definite term of twenty-five years for the assault conviction.

Defendant is presently incarcerated pursuant to this judgment. Following his conviction, Defendant appealed to the Appellate Division, First Department. In a 66-page brief filed by appellate counsel, Robert S. Dean, Esq., of the Center for Appellate Litigation (Jonathan M. Kirshbaum, Esq., of counsel), Defendant raised the following issues: that his right to counsel under the state and federal constitutions was violated where he made an unequivocal statement expressing his desire for an attorney before giving a videotaped confession to an A.D.A. who ignored the request (U.S. Const., Amends. VI, XIV; NY Const., Art. 1,  6); and that he was the victim of prosecutorial misconduct during summations in which the People made blatant and inappropriate attempts to appeal to the jurors' sympathy and inflame their desire for revenge, depriving him of due process. (U.S. Const. Amend. XIV; NY Const. Art. 1,  6) (see Defendant's Appellate Brief).In addition, Defendant filed a 109-page pro se supplemental brief, in which he claimed: (1) trial counsel was ineffective for failing to object when a juror saw him in handcuffs; (2) he was prejudiced by the prosecutor's request of defense counsel for Defendant's medical records; (3) trial counsel was ineffective for not insisting upon a mistrial after the prosecutor's request for medical records; (4) trial counsel was ineffective for failing to conduct an adequate pre-trial investigation; (5) the trial court improperly responded to the jury note inquiring into what identification the detectives had when arresting defendant; (6) the jury did not deliberate properly due to second-hand smoke; (7) the trial court improperly admitted Defendant's videotaped statement into evidence; and (8) the trial court sentenced Defendant excessively (see Defendant's Supplemental Appellate Brief).

.On January 29, 2004, the Appellate Division, First Department, unanimously affirmed Defendant's conviction, holding that the trial court "properly denied defendant's motion to suppress his videotaped statement, since his vague reference to a prior request for counsel, apparently made at some unknown time and to an unknown person was not an unequivocal invocation of his right to counsel." People v. Lopez, 3 AD3d 455, 456 (1st Dept. 2004). The First Department further held that the prosecutor's summation did not deprive Defendant of a fair trial, the existing record established that Defendant received effective assistance of counsel, and there was no basis to reduce Defendant's sentence. Id. The First Department "considered and rejected the remaining claims contained in defendant's pro se supplemental brief." Id. On June 22, 2004, Defendant was denied leave to appeal to the Court of Appeals. People v. Lopez, 3 NY3d 643 (2004) (Kaye, J.).

In papers dated December 6, 2005, Defendant moved the Appellate Division, First Department, pro se, for a writ of error coram nobis, claiming that he was not afforded the effective assistance of appellate counsel because appellate counsel failed to raise a claim asserting trial counsel's ineffectiveness. Defendant claimed that trial counsel should have objected to the submission of the intentional murder count to the jury because Defendant's actions were depraved, not intentional (see Defendant's coram nobis application). The Appellate Division denied the writ. People v. Lopez,AD3d(1st Dept. July 6, 2006); on September 29, 2006, Defendant was denied leave to appeal to the Court of Appeals. People v. Lopez 7 NY3d 850 (2006) (Rosenblatt, J.).

Herein, in pro se motion papers dated August 8, 2005, Defendant seeks to have this Court set aside his sentence, pursuant to CPL § 440.20, claiming that it was excessive and illegally imposed because: (1) he received consecutive sentences for what was purportedly a single act, in violation of Penal Law § 70.25(2); and (2) his earlier "March 4, 1991" conviction did not qualify as a predicate offense under Penal Law § 70.06(1)(v) (see Defendant's 440.20 affidavit, p. 5-6). In [*3]addition, Defendant seeks vacatur of his judgment of conviction, pursuant to CPL § 440.10, claiming: (1) that the evidence was legally insufficient to prove Defendant's guilt of intentional murder beyond a reasonable doubt; (2) that the trial court erred when it (a) instructed the jury that "intentional and depraved mind murder are the same theory"; (b) provided the jury with a verdict sheet listing the statutory elements, without Defendant's consent; and (c) instructed the jury that it should not consider how Defendant was arrested, in response to a jury note inquiring into what identification the detectives had when arresting Defendant; (3) that the verdict was repugnant, in that Defendant was convicted of Murder in the Second Degree, Attempted Murder in the Second Degree, and Assault in the First Degree, while the lesser included crimes of Manslaughter in the First Degree, Assault in the Second Degree, and Criminal Possession of a Weapon, resulted in either acquittal or dismissal; (4) that the verdict was inconsistent, in that Defendant was convicted of two conflicting counts of murder (Murder in the Second Degree and Felony Murder) for the same act, because the court did not submit the counts to the jury "in the alternative"; and (5) that trial counsel was ineffective because he failed to (a) conduct pre-trial investigation, interview and secure testimony of eyewitnesses and expert witnesses; (b) object to the court's jury charge equating intentional murder and depraved indifference murder; and (c) object to the verdict sheet which listed statutory elements.

Subsequently, in pro se papers dated March 6, 2006, Defendant petitioned this Court for permission to proceed as a poor person and assignment of counsel.

Motion to Set Aside Sentence

Defendant asks this Court to set aside his sentence pursuant to CPL § 440.20, which states that a sentence may be set aside if it was "unauthorized, illegally imposed, or otherwise invalid as a matter of law." He claims that his consecutive sentences were illegally imposed because Penal Law § 70.25(2) mandates that sentences for conduct constituting a "single act" must run concurrently (see Defendant's 440.20 affidavit, p. 6-7). Concomitantly, Defendant asserts that his sentence was unduly harsh and excessive. Defendant further contends that his "March 4, 1991" conviction did not qualify as a predicate offense under Penal Law § 70.04(1)(b)(v)[FN2], thereby invalidating his sentence as a predicate felon (see Defendant's 440.20 affidavit, p. 3-5). Defendant's claims are utterly devoid of merit.[FN3]

Defendant claims that his consecutive sentences for murder, attempted murder, and assault were illegally imposed, in violation of Penal Law § 70.25(2), because they stemmed from the same act: the shooting on May 31, 1999 (Defendant's 440.20 affidavit, p. 6-7). Consequently, he urges this Court to modify his sentences so that they run concurrently. The Court denies Defendant's [*4]motion without a hearing because, as evidenced by the trial testimony, his assertion that the multiple offenses were committed through a single act is meritless. CPL 440.30(4)(c). Pursuant to Penal Law § 70.25(1), "when multiple sentences of imprisonment are imposed on a person at the same time . . . the . . . sentences imposed by the court shall run either concurrently of consecutively with respect to each other . . . in such manner as the court directs at the time of sentence." However, Penal Law § 70.25(2) provides:

[w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences . . . must run concurrently.

This section proscribes multiple punishments for the same act. It does not, however, prevent multiple punishments for separate acts that occur during a single criminal transaction. Accordingly, in People v. Brathwaite, 63 NY2d 839 (1984), the Court of Appeals upheld consecutive sentencing for two felony-murder convictions that arose from an armed robbery. "[A]lthough the two deaths may be said to have occurred in the course of a single extended transaction the robbery it was separate acts' which caused the deaths of the owner and the clerk (i.e., there is no contention that it was the firing of the same shot that killed both the owner and the clerk), and neither was a material element of the other." Brathwaite, id. at 843; see also People v. Rivera, 262 AD2d 31, (1st Dept. 1999) (consecutive sentences authorized for two assault convictions where defendant fired multiple shots, "each of which constituted a separate act," and resulted in the victims being wounded by different bullets); People v. Porter, 256 AD2d 363 (2d Dept. 1998) (firing multiple shots at both victims constituted separate acts such that consecutive sentences for murder convictions were permissible); compare with People v. Luster, 148 AD2d 305 (1st Dept. 1989) (firing single shot, which passed through one victim and entered a second victim, constitutes a single act for which sentences on multiple offenses should run concurrently).

Just as consecutive sentencing was authorized in Brathwaite, Rivera and Porter, it is authorized in the case at bar. Here, as in those cases, Defendant fired multiple shots and injured multiple victims. On May 31, 1999, Defendant fired approximately five to six shots while attempting to kill Ruben Turull. As a result, three-year-old Iris Turull was killed, and Jessica Serrano was injured. Although the attempted murder of Ruben, murder of Iris, and assault on Jessica occurred during the same transaction, each shot fired was a separate and distinct act. Moreover, given the number of bullets fired, and the circumstances surrounding the shooting, there was a sufficient factual basis for the court to conclude that the victims were wounded, and endangered, by different bullets. Further, in light of the absence of a weapons conviction in this case, Defendant's reliance upon cases prohibiting consecutive sentencing for criminal possession of a weapon and related crimes, such as armed robbery (see Defendant's 440.20 affidavit, p. 6), is misguided. The imposition of consecutive sentencing was proper.

Defendant's related claim, that his sentence was unduly harsh and excessive (Defendant's 440.20 affidavit, p. 3, 7-8), was already considered and rejected by the Appellate Division on Defendant's direct appeal (People v. Lopez, supra). Pursuant to CPL § 440.20(2), this Court "must deny [a motion to set aside a sentence] when the ground or issue raised thereupon was previously [*5]determined on the merits upon an appeal from the judgment or sentence."[FN4]

The second ground for Defendant's motion to set aside his sentence is based upon his apparent assertion that his "March 4, 1991" conviction is too remote in time to qualify as a predicate offense and support sentencing as a second violent felony offender (Defendant's 440.20 affidavit, p. 3, 5). Defendant's baseless claim is conclusively refuted by unquestionable documentary proof. CPL § 440.30(4)(c).

The Penal Law provides for enhanced sentencing based on a defendant's prior criminal history. A defendant is classified as a second violent felony offender if he "stands convicted of a violent felony offense . . . after having previously been subjected to a predicate violent felony conviction." Penal Law § 70.04(1)(a). The predicate violent felony conviction must have occurred within ten years of the commission of the current offense. Penal Law § 70.04(1)(b)(iv). Any time spent incarcerated, however, is excluded from the ten-year calculation. Penal Law § 70.04(1)(b)(v).

Here, for the events of May 31, 1999, Defendant was convicted of murder, attempted murder, and assault in the first degree, all of which are violent felony offenses. Penal Law §§ 70.02(1)(a); 70.04(1)(b)(i); 125.25(1); 110/125.25(1); 120.10(1). On March 4, 1992 (see Defendant's criminal history printout, p. 3), less than ten years before he committed the current crimes, Defendant was convicted of Robbery in the Second Degree, which is also a violent felony offense. Penal Law §§ 70.02(1)(b); 160.10(1). Even if Defendant's predicate conviction and sentence occurred on March 4, 1991, as Defendant contends (see Defendant's 440.20 affidavit, p. 3, 5), it would still fall within the ten-year time frame required by Penal Law § 70.04(1)(b)(iv), without invocation of the tolling provision provided by Penal Law § 70.04(1)(b)(v). Thus, based upon this predicate offense, Defendant was properly adjudicated a second violent felony offender, and sentenced as such. Defendant's allegation that his sentence was illegal because it violated Penal Law § 70.04(1)(b)(v) is devoid of merit. The motion to set aside his sentence is summarily denied.

Motion to Vacate Judgment of Conviction

In a laundry list of complaints, Defendant urges this court to vacate his judgment of conviction pursuant to CPL § 440.10. Specifically, Defendant claims: (1) that the evidence was legally insufficient to prove Defendant's guilt of intentional murder beyond a reasonable doubt; (2) that the trial court erred when it (a) instructed the jury that "intentional and depraved mind murder are the same theory"; (b) provided the jury with a verdict sheet listing the statutory elements, without Defendant's consent; and (c) instructed the jury that it should not consider how Defendant was arrested, in response to a jury note inquiring into what identification the detectives had while arresting Defendant; (3) that trial counsel was ineffective for failing to object to the verdict sheet and the court's jury charge on intentional and depraved mind murder; (4) that the verdict was repugnant, in that Defendant was convicted of Murder in the Second Degree, Attempted Murder in the Second Degree, and Assault in the First Degree, while the lesser included crimes of Manslaughter in the First Degree, Assault in the Second Degree, and Criminal Possession of a Weapon, resulted in either acquittal or dismissal; and (5) that the verdict was inconsistent, in that Defendant was convicted of two conflicting counts of murder (Murder in the Second Degree and Felony Murder) for the same act, because the court did not submit the counts to the jury "in the alternative" (see Defendant's [*6]440.10 affidavit, p. 73-74). Each claim, however, is record-based, and procedurally barred pursuant to CPL § 440.10(2)(a) or (c).[FN5]

Criminal Procedure Law section 440.10(2)(c) provides, in pertinent part, that a court must deny a motion to vacate a judgment of conviction where sufficient facts appeared in the record to have permitted adequate review of the issue yet Defendant unjustifiably failed to raise the issue on direct appeal. As the Court of Appeals held in People v. Cooks, 67 NY2d 100 (1986), the purpose of CPL § 440.10(2)(c) is to prevent post-judgment motions from being employed as substitutes for direct appeal. See also People v. Jackson, 266 AD2d 163 (1st Dept. 1999) ("[a] CPL 440.10 motion may not be used as a device to take a belated appeal on an issue that appears on the face of the record") (citations omitted); People v. Hall, 256 AD2d 139 (1st Dept. 1998) (rejecting defendant's motion to vacate his judgment of conviction because his claims should have been raised on his direct appeal). A court must also deny a motion to vacate a judgment of conviction if the claim raised "was previously determined on the merits" upon direct appeal. CPL § 440.10(2)(a).

Here, sufficient facts appeared on the face of the record to have permitted appellate review of the claims listed above. Indeed, in his pro se supplemental brief, one of the claims raised by defendant pertained to the alleged impropriety of the trial court's response to a jury note inquiring into what identification the detectives had when arresting Defendant. Since that claim of trial court error was "considered and rejected" by the First Department on direct appeal (People v. Lopez, supra), Defendant cannot relitigate it in a collateral attack on his judgment of conviction. Accordingly, defendant's CPL § 440.10 motion, based upon this particular claim, cannot meet with success. CPL § 440.10(2)(a).

Defendant failed to raise the remainder of the above-listed claims in his direct appeal, even though sufficient facts appeared in the record to permit appellate review. His claim that the verdict was not supported by legally sufficient evidence, and was against the weight of the evidence, is purely record-based. See People v. Bleakley, 69 NY2d 490 (1987)(legal sufficiency and weight of the evidence is determined by analyzing the evidence adduced at trial). Defendant implicitly conceded as much by quoting at length from the hearing and trial transcripts (Defendant's 440.10 [*7]affidavit). See Cooks, supra at 104 (Defendant's "concession" that his claim was record-based resulted in dismissal of his CPL § 440.10 motion). Similarly, Defendant's qualms with the court's jury instructions regarding intentional and depraved indifference murder, and trial counsel's failure to object to it, can be determined by referencing the trial transcript, which Defendant quoted in his motion papers. See People v. Felton, 239 AD2d 120 (1st Dept. 1997) (allegation of faulty jury instruction is record-based and barred from review in a CPL § 440.10 motion). Likewise, the trial transcript and verdict sheet are sufficient to permit full review of Defendant's claims that the trial court erred (and counsel should have objected) when it provided the jury with a verdict sheet that listed the statutory elements, without first obtaining consent from both parties, and then failed to charge inconsistent crimes in the alternative. Finally, Defendant's assertions that the verdict was repugnant (because he was purportedly convicted of greater crimes, but acquitted of lesser included crimes) and inconsistent (because he was purportedly convicted of two counts of murder for Iris's death, each of which required different, and conflicting, mental states) can be resolved by examining the record. Defendant has not attempted to support any of these claims with factual allegations dehors the record. Nor has he attempted to justify his failure to raise these record-based claims on direct appeal, procedurally barring and forfeiting them. CPL § 440.10(2)(c). The motion to vacate his judgment of conviction is summarily denied.

Ineffective Assistance of Counsel

Defendant also requests that this Court vacate his judgment of conviction pursuant to CPL § 440.10 because he contends that his trial counsel was constitutionally ineffective. Defendant sets forth an assortment of claims to support his motion. In particular, Defendant claims that he gave trial counsel a list of people who could testify on his behalf in support of an alibi, but counsel did nothing with that information (see Defendant's Mem. of Law, p. 128). Defendant further criticizes trial counsel for failing to interview the prosecution's witnesses to secure their testimony on Defendant's behalf, and failing to present expert witnesses on Defendant's behalf concerning the medical, ballistic, and latent fingerprint evidence (id., p. 127-30).[FN6] Defendant's ineffective assistance of counsel claim is denied without a hearing pursuant to CPL § 440.30(4)(d) because it is unsubstantiated and meritless.

The Court of Appeals has held that a defense attorney's performance will not be considered ineffective "[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation. . . ." People v. Baldi, 54 NY2d 137, 147 (1981). Perfect representation is not required. People v. Benevento, 91 NY2d 708 (1998)(citing People v. Flores, 84 NY2d 184 [1994] and People v. Modica, 64 NY2d 828 [1985]). Rather, "[t]he question is whether the attorney's conduct constituted egregious and prejudicial error such that defendant did not receive a fair trial." Benevento, 91 NY2d at 713 (citations and internal quotes omitted). Accordingly, the Court of [*8]Appeals cautioned against second guessing counsel's efforts "with the clarity of hindsight to determine how the defense might have been more effective." Benevento, 91 NY2d at 712 (citations omitted). Moreover, "it is incumbent on Defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings." Benevento, 91 NY2d at 713 (citing Rivera, 71 NY2d at 709)(internal quotes omitted).[FN7]

Defendant's allegations of ineffective assistance of counsel cannot withstand examination under this legal standard. As a review of the record makes clear, trial counsel provided exemplary representation. Before trial commenced, defendant's attorney successfully obtained three pre-trial hearings - - a combined Wade/Huntley, Ventimiglia, and Massiah [FN8] hearing. During those hearings, counsel vigorously opposed the admission of statement, identification, and uncharged crimes evidence. Additionally, counsel skillfully questioned prospective juror's during voir dire. Once trial commenced, he ably cross-examined the People's witnesses, made numerous objections on his client's behalf, many of which were sustained, and moved for a trial order of dismissal (T. 624-25). Counsel also competently led Defendant through his direct testimony. Further, counsel delivered a cogent and powerful summation, carefully outlining what he perceived to be the prosecution's weaknesses. Finally, after Defendant was convicted, trial counsel made a compassionate and successful plea for a sentence less than the maximum allowable by law. Viewing the record in its entirety, as a reviewing court must when deciding an ineffective assistance claim, this Court can have no doubt that Defendant's trial attorney provided meaningful representation. Defendant's current criticisms, which he cannot substantiate, do not detract from counsel's overall performance.

Defendant bears the evidentiary burden in questioning a presumptively valid judgment of conviction. See People v. Session, 34 NY2d 254 (1974). Bare allegations are insufficient to carry that burden or warrant a hearing. Session, 34 NY2d at 256. Yet, Defendant fails to substantiate his allegations. Pursuant to CPL § 440.30(4)(d), this Court may deny Defendant's motion, without conducting a hearing, if "[a]n allegation of fact essential to support the motion (i) . . . 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." In the case at bar, Defendant has utterly failed to support his self-serving allegations with affidavits or evidence from any individual who would be able to corroborate his claims, if they were true. Most notably, Defendant has not submitted an affidavit from his trial counsel, Edward Zizmor, Esq., the primary person who could substantiate or shed light on his allegations of ineffective [*9]assistance. See, e.g., People v. Morales, 58 NY2d 1008 (1983) (holding that Defendant's failure to supply attorney's affirmation or explain such failure warranted summary denial of motion collaterally attacking conviction based on attorney's alleged conduct); People v. Taylor, 211 AD2d 603 (1st Dept. 1995) (denying defendant's CPL § 440.10 claim, that he was deprived of the effective assistance of counsel, for failure to supplement his own affidavit with an affidavit from his former attorney).

Nor did Defendant obtain an affidavit from any other individual to support his allegations. There is no affidavit from the people whose names were purportedly provided to trial counsel (but Defendant has failed to name in his motion), or from David Farfan, Dorothy Moore or Ruben Turell, prosecution witnesses whom Defendant contends should have been interviewed by trial counsel and called to testify on Defendant's behalf. Similarly, there is no affidavit from any expert in the fields of medicine, ballistics, or latent fingerprint analysis to support Defendant's bald assertion that favorable testimony could have been provided. Without an affidavit from these people, swearing to the facts that they would have testified to on Defendant's behalf, it is pure speculation to conclude that they were readily available or could have provided any favorable testimony. See People v. Ford, 46 NY2d 1021, 1023 (1979) (without affidavits from potential alibi witnesses revealing the testimony they would have offered at trial, it is "pure speculation" to conclude that they would have established defendant's alibi defense; therefore, a CPL § 440 hearing is not warranted); see also People v. Nichols, 289 AD2d 605 (3d Dept. 2001) (CPL § 440 hearing properly denied where Defendant failed to produce affidavits from purported alibi witnesses), lv. denied, 98 NY2d 731 (2002).

Under the circumstances attending this case, there is no reasonable possibility that Defendant's allegations are true. Indeed, trial counsel refutes Defendant's assertions (see Zizmor Affirmation). In an affidavit obtained by respondent, Mr. Zizmor averred that despite his many inquiries, Defendant never provided counsel with information regarding his whereabouts at the time of the crime. Additionally, Defendant never told trial counsel that he was with anyone. Nor did Defendant give counsel a list of potential witnesses. Even after Defendant asserted an alibi on cross-examination, he still provided no information to aid counsel in locating "Vicky," "Tutu," or "Vaughn." In fact, Defendant was not even sure of their real names. Defandant also could not assist counsel in finding his ex-common-law-wife Shavonne, whom he claimed, for the first time at trial, to have been with. More importantly, however, Shavonne had already informed the police that Defendant was not with her during the crime. Thus, Defendant's claim that counsel knew about these witnesses who were purportedly readily available and willing to testify on Defendant's behalf, but ignored them, is simply not true.

Furthermore, although Defendant criticizes trial counsel for failing to present expert witnesses or convince the prosecution witnesses to testify on Defendant's behalf, at no point does Defendant describe what favorable testimony they could have provided. The absence of this vital information indicates that no such favorable testimony existed. Indeed, the thought that Ruben Turell (who was the target of Defendant's attack and the father of the deceased) or Dorothy Moore (who was Jessica Serrano's aunt and also in the line-of-fire during the shooting) would testify in favor of Defendant, and against the prosecution, is preposterous. In sum, Defendant's claim of ineffective assistance of counsel lacks any substantiation and is unlikely to be true; it should be summarily denied. CPL § 440.30(4)(d). [*10]

Aside from its lack of evidentiary or documentary support, Defendant's ineffective assistance claim also lacks merit. Mr. Turell and Ms. Moore testified that Defendant was the shooter who injured Ms. Serrano and killed Iris. To the extent that their prior statements were favorable to Defendant, trial counsel skillfully brought those statements to the jury's attention during cross-examination. There is no basis to believe that they had any evidence, other than what was elicited on cross-examination, favorable to Defendant, or that they were inclined to help him. Similarly, there is no reason to believe that David Farfan could have aided the defense. Although Mr. Farfan did not testify, it is evident from the hearing testimony that he told the police the shooter and his companion were the same individuals who were involved in the altercation three days earlier. Since Defendant admitted that he and his brother were a part of the fight the preceding Thursday, any testimony provided by Mr. Farfan would have been harmful to the defense. Thus, no deficiency was exhibited by the fact that trial counsel did not present these individuals as defense witnesses. To the contrary, calling these individuals, whose testimony was damning for the defense, to the stand would have been overwhelming indicia of ineffectiveness.

Nor can counsel be deemed ineffective for opting against calling Shavonne or Mark Lopez to testify on Defendant's behalf. Given that Shavonne previously told the police that she was not with Defendant at the time of the crime, her testimony would only have deflated the alibi Defendant asserted during cross-examination. Similarly, Defendant's alibi was refuted by Mark Lopez's statements to the police, in which he named Defendant as the shooter, and his acceptance of a guilty plea to Manslaughter. Had Mark testified and recanted his prior confessions, in light of his familial relationship with Defendant, it is likely that a jury would not have credited his testimony. Trial counsel made a sound strategic move in refusing to present either Shavonne or Mark as defense witnesses.

Finally, the absence of defense experts in the fields of medicine, ballistics and latent fingerprint analysis does not demonstrate any ineffectiveness. Defense counsel properly never challenged that a shooting occurred. Instead, counsel attempted to convince the jury that Defendant was not the shooter who killed Iris, injured Jessica, and attempted to kill Ruben Turell. The prosecution's expert witnesses provided no evidence indicating that defendant was the shooter. Thus, there was no reason to counter the medical examiner's testimony that a gunshot wound to the head killed Iris or the ballistics expert's testimony that the shooter used a .38 caliber firearm. Furthermore, it would have been absurd to counter the latent fingerprints analysis expert who testified that defendant's fingerprints were not in the van that transported the shooter. Since nothing could be gained from presenting defense experts in these fields, Defendant's ineffective assistance of counsel claim must fail.

In sum, Defendant's ineffective assistance of counsel claim is rejected as devoid of merit and unsubstantiated. CPL § 440.30(4)(d).

Poor Person Relief

Defendant asks this Court for permission to proceed as a poor person, and requests the assignment of counsel.

There is no constitutional right to counsel in a collateral attack on a judgment of conviction, such as a motion pursuant to CPL Article 440. Cf. Pennsylvania v. Finley, 481 U.S. 551 (1987) (there is no federal constitutional right to counsel to mount collateral attacks on state judgments of [*11]conviction); Evitts v. Lucey, 469 U.S. 387, 393-394 (1985) (defendant's right to an attorney is "limited to the first appeal as of right"); McKethan v. Mantello, 292 F.3d 119, 123 (2d Cir. 2002) (same).

Similarly, under the circumstances, Defendant is not statutorily entitled to assignment of counsel. In criminal actions, Judiciary Law §§ 35(1)(a) and (b) only authorize the appointment of counsel for the filing of appeals and writs of habeas corpus, not for CPL Article 440 motions. Pursuant to CPLR 1101, a court in which an action is "triable," or to which an appeal has been or will be taken, may grant permission to proceed as a poor person. Defendant, however, has no "triable" action in this Court because his motion should be summarily denied. Thus, although County Law § 722(4) provides that counsel may be appointed on a CPL 440 motion "when a hearing has been ordered," no hearing need be ordered here.

Moreover, given the speciousness of Defendant's claims, there is no reason to appoint counsel. Cf. People ex rel Williams v. La Vallee, 19 NY2d 238 (1967) (defendant seeking post-judgment relief may be entitled to counsel at hearing if claim is not specious); People v. Hill, 30 AD2d 976 (2d Dept. 1968) (since the record "conclusively refutes appellant's claim," there is "no obligation to assign counsel to assist in the prosecution of specious issues"); People v. Richardson, 159 Misc 2d 167 (Supreme Court, Kings Co., 1993) (historically, New York has not extended the right to counsel to post-conviction matters, nor is assigned counsel mandated by statute or by the New York State Constitution in post-judgment motions to vacate). Accordingly, Defendant's motion to proceed as a poor person for the assignment of counsel is denied.

On this record, then, Defendant's motion to set aside his sentence, vacate his judgment of conviction and receive poor person's relief is in all respects denied. This constitutes the decision and order of the Court.

December 21, 2006

Bronx, New York

Dominic R. Massaro

Justice of the Supreme Court Footnotes

Footnote 1: The co-defendant's were tried separately. On May 11, 2001 and July 24, 2001, respectively, co-defendants Mark Lopez and Jesus Pimental were convicted, upon their guilty pleas, of Manslaughter in the First Degree, and were sentenced to ten years of incarceration.

Footnote 2: Defendant asserts that his sentence violates Penal Law "§ 70.06(1),(v)" (Defendant's 440.20 affidavit, p. 5). Since that statute does not exist, Defendant presumably intended to cite Penal Law § 70.06(1)(b)(v). However, Defendant was sentenced as a second violent felony offender pursuant to Penal Law § 70.04, not as second felony offender under Penal Law § 70.06.

Footnote 3: Defendant also contends that his sentence was "illegally imposed in which the weight of the evidence is illegally insufficient to establish Defendant's conviction" (Defendant's 440.20 affidavit, p. 5, 9). Defendant's allegation that the evidence was legally insufficient to support his judgment of conviction is not a basis to set aside his sentence. CPL § 440.20.

Footnote 4: Additionally, Defendant's request that this Court exercise the powers afforded to intermediate appellate courts via CPL § 470.15 (Defendant's 440.20 affidavit, p. 7), cannot be entertained.

Footnote 5: Each claim is also patently meritless. The evidence of Defendant's guilt, which included three eyewitnesses and his own videotaped confession, was overwhelming. The trial court's jury charge regarding the elements of intentional murder and depraved indifference murder conveyed the appropriate legal standards (see T. 952-959). With the consent of both the prosecutor and defense attorney (T. 920-21), the verdict sheet, which set forth the statutory elements of each crime and the corresponding victim's name, was provided to the jury in accordance with CPL § 310.20(2). There

was no repugnancy or inconsistency in Defendant's verdict. He was convicted of intentional murder, attempted intentional murder, and intentional assault in the first degree, and acquitted of depraved indifference murder and depraved indifference assault in the first degree. He was neither convicted nor charged with felony murder. Despite Defendant's contentions to the contrary, he was not acquitted of any lesser included crimes. Since the jurors were instructed to cease deliberations after rendering a guilty verdict on the greater crimes (i.e., charged to consider the charges "in the alternative"), they never considered the manslaughter or second degree assault charges. Thus, the verdict was consistent and proper.

Footnote 6: The portion of Defendant ineffective assistance of counsel claim stemming from counsel's failure to object to the court's jury charge that purportedly equated intentional murder with depraved indifference murder, and to the submission of a verdict sheet to the jury, which listed statutory elements without the consent of both parties (Defendant's 440.10 affidavit, p. 14, 73) is purely record-based. Pursuant to CPL § 440.10(2)(c), Defendant's motion, on this ground, must be denied.

Footnote 7: Although Defendant also analyzes his ineffective assistance of counsel through Strickland v. Washington, 466 U.S. 668 (1984), which sets forth a two-prong test for evaluating counsel's performance, it should be noted that the New York standard offers defendants greater protection because it does not require satisfaction of Strickland's prejudice prong. See People v. Caban, 5 NY3d 143 (2005). Under the state standard, while the prejudicial effect of counsel's deficiency is a relevant factor, it is not dispositive. Thus, if counsel's performance is found constitutionally valid under the more demanding state standard, then it will also comport with the federal standard.

Footnote 8: See United States v. Wade, 388 U.S. 18 (1967); People v. Huntley, 15 NY2d 72 91965); People v. Ventimiglia, 52 NY2d 350 (1981); Massiah v. United States, 377 U.S. 201 (1964).