People v Frascone

[*1] People v Frascone 2007 NY Slip Op 51356(U) [16 Misc 3d 1109(A)] Decided on July 9, 2007 Supreme Court, Bronx County Dawson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 9, 2007
Supreme Court, Bronx County

People of the State of New York,

against

Giacomo Frascone, Defendant.



7272/1995

Joseph J. Dawson, J.

Defendant Giacomo Frascone ("Frascone") moves pro se for relief pursuant to CPL Section 440.20 from a judgment, dated June 19, 1997, convicting him, after a jury trial, of Robbery in the Second Degree and sentencing him, as a mandatory persistent violent felony offender, to a prison term of from 16 years to life under Indictment No. 7272/1995 (the "1995 Conviction"). In addition, Frascone moves separately for relief pursuant to CPL Section 440.20 from two judgments, both dated April 4, 1989, convicting him, pursuant to his guilty plea, of Robbery in the First Degree, under Indictment No. 5191/1988, and convicting him, pursuant to his guilty plea, of Attempted Robbery in the First Degree, under Indictment No. 1506/1989, and sentencing him to concurrent prison terms of from six to twelve years, and four to eight years, respectively (the "1989 Convictions").[FN1] We address each motion in turn.

THE 1989 CONVICTIONS

The legal grounds asserted in the notice of motion relating to the 1989 Convictions are that Frascone's trial counsel was ineffective and that he received an illegal sentence. In support thereof, Frascone included a Memorandum of Law ("Def. Mem.") that lists nine purported "Questions of Law,"[FN2] but which mostly argues that the 1989 Convictions are invalid because the trial court failed to ensure during the plea allocution that Frascone had knowingly waived a [*2]purported affirmative defense to the charges. See Def. Mem. at 3-6. This precise issue was raised and rejected on direct appeal. People v. Frascone, 176 AD2d 128, 129 (1st Dept. 1991) (holding that the "minutes make clear that defendant's decision to forego a possible affirmative defense was part of a knowing an voluntary bargain").

As a result, the Court denies the motion pursuant to CPL Section 440.10(2)(a), which provides in relevant part that the Court "must deny a motion to vacate a judgment" where the "ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment . . ." Similarly, CPL Section 420.20(2) mandates that the Court "must deny" a motion to set aside a sentence "when the ground or issue raised thereupon was previously determined on the merits upon an appeal from the judgment or sentence . . ." See also People v. Cooks, 67 NY2d 100, 104 (1986) (holding legality of plea allocution cannot usually be determined on a motion pursuant to CPL Section 440).

In a supplemental submission to the Court dated March 19, 2007, Frascone also contends (at p. 1) that there was "legally insufficient evidence for a conviction of attempted robbery in the (FIRST) degree under Penal Law 160.15(3)" because the "evidence did not establish that the defendant possessed a loaded operable weapon . . . . and because defendant never had a weapon during the alleged attempted robbery. . . ." The argument fails, however, because the 1989 Convictions were both based on Penal Law Section 160.15(4), which proscribes the display of "what appears to" be a firearm during a robbery. Thus, Frascone's argument is based on an erroneous factual premise that is "conclusively refuted by unquestionable documentary proof", namely, the plea and sentencing minutes. CPL 440.30(3)(c). Accordingly, this branch of the motion is denied as well.

THE 1995 CONVICTION

The legal grounds asserted in the notice of motion relating to the 1995 Conviction are that Frascone's trial counsel was ineffective and that he received an illegal sentence. In support thereof, Frascone includes a Memorandum of Law ("Def. Mem.") that lists 15 purported "Questions of Law,"[FN3] and makes the following arguments:

First, since Frascone was adjudicated a "second felony offender" when sentenced on the 1989 Convictions, the 1995 Conviction could only have resulted in Frascone being adjudicated a second violent felony offender, but not a persistent violent felony offender. See Def. Mem. at pp. 1-6;

Second, the two prior violent felony convictions used to adjudicate Frascone a persistent violent felony offender in connection with the 1995 Conviction were the 1989 Convictions, in violation of the sequentiality requirement of People v. Morse, 62 NY2d 205, 213 (1984). See Def. Mem. at pp. 7-13; and

Third, that his trial counsel was ineffective for not remedying these perceived errors, which resulted in Frascone having been sentenced as persistent violent felony offender. See Def. Mem. at pp. 13-17. [*3]

We address each of these arguments in turn.

First, when Frascone was sentenced on the 1995 Conviction, the prosecutor filed a Persistent Violent Felony Offender Information that listed Frascone's conviction for Attempted Burglary in the Second Degree from 1981 in County Court, Westchester County under Indictment No. 157/81-0 (the "1981 Conviction") and the Attempted Robbery conviction from the 1989 Convictions. These convictions are both violent felonies pursuant to Penal Law Section 70.02(1). Frascone contends, however, that when he was sentenced on the 1989 Convictions, the Court adjudicated him to be a second felony offender, Def. Mem. Ex. C at 4, and therefore the 1995 Conviction could only lead to his being adjudicated a second violent felony offender. This, however, is not correct. The First Department dealt squarely with this issue in People v. Carr, 244 AD2d 264, 264 (1997), appeal denied, 91 NY2d 889 (1998):

Defendant contends that the court erred in sentencing him as a persistent violent felony offender since he was not sentenced as a second violent felony offender for the second underlying felony conviction that formed the basis of the adjudication (Penal Law §§ 70.04, 70.08). However, since defendant stood convicted of a violent felony, had been previously convicted of two violent felony offenses in that he had committed the second violent felony offense after he had been sentenced for his first one, and had committed his third violent felony offense after he had been sentenced for the first two, he was properly sentenced as a persistent violent felony offender. While as a result of his use of aliases he escaped being sentenced as a second violent felony offender for his second violent felony conviction in 1989, neither People v. Morse (62 NY2d 205) nor Penal Law § 70.08 requires that a defendant be adjudicated a second violent felony offender in order to be sentenced as a persistent violent felony offender for his third violent felony conviction.

(Emphasis added.)

Carr constitutes controlling precedent, and this Court must follow it. Accordingly, Frascone's argument on this ground is rejected.

The second argument made by Frascone is that both 1989 Convictions were used to adjudicate him a persistent violent felony offender in connection with the 1995 Conviction. As noted above, this is simply not correct; the predicates for the finding were the 1981 Conviction and the 1989 Attempted Robbery conviction. Frascone's argument, therefore is "conclusively refuted by unquestionable documentary proof," namely, the plea and sentencing minutes, and the Persistent Violent Felony Offender Information that was filed with the Court. CPL 440.30(3)(c). Accordingly, this branch of the motion is denied as well.

The third argument made by Frascone is that his counsel was ineffective for not bringing to the court's attention that he was only adjudicated a second felony offender following the 1989 Convictions. As noted above, under the rule enunciated in Carr, this was not error, and therefore could not have prejudiced Frascone. See People v. Benevento, 91 NY2d 708, 713-14 (1998). This argument is rejected as well.

There is one final issue to be considered by the Court, which was not raised by Frascone but, to their credit, by the People. The People correctly point out that the Persistent Violent Felony Information filed by them in connection with the 1995 Conviction did not contain the dates and locations relating to any periods of time during which Frascone was incarcerated in [*4]violation of CPL Sections 400.16(2) and 400.15(2). See Affirmation of ADA Frances Y. Wang dated May 11, 2007 at ¶ 20 n.3. This is significant, as the 1981 Conviction was clearly more than 10 years prior to the 1995 Conviction. The First Department has found such an omission, when coupled with other errors, to require a new hearing on sentencing, even if not preserved. People v. Gines, 284 AD2d 134 (2001). While Frascone's NYSID Criminal History Record shows that he was incarcerated for sufficient periods of time to toll the ten year limitation period, the Court may not rely on said Record in making this determination. See People v. Ortiz, 188 AD2d 293 (1st Dept. 1992); People v. Williams, 294 AD2d 174 (1st Dept.), appeal denied, 98 NY2d 714 (2002).

Accordingly, the People are directed to produce Frascone in Supreme Court, Part 31, at 215 East 161st Street, Bronx, New York, on August 20, 2007, at 10:00 AM, or as soon thereafter as possible, so that Frascone may be arraigned upon a proper Persistent Violent Felony Information. See People v. Ogarra, 195 Misc 2d 248, 252-53 (Sup. Ct. Bronx Co. 2003) (Gross, J.). If Frascone controverts the People's allegations with respect to the applicable tolling periods, the People may introduce such evidence in rebuttal as authorized by law. Cf. CPL § 400.22 (stating certificates of convictions from correctional facilities prima facie evidence of imprisonment and discharge). Frascone's motion to set aside his sentence pursuant to CPL Section 440.20 is denied at this time since it appears he may still be adjudicated a persistent violent felony offender pursuant to Penal Law Section 70.08. Ogarra, 195 Misc 2d at 252-53. As Frascone is entitled to a hearing, his request for an attorney to be appointed in connection with the motion is granted. See County Law § 722(4).

The foregoing constitutes the Decision and Order of the Court.

Dated:July 9, 2007

Bronx, New York________________________

Joseph J. Dawson, A.S.C.J. Footnotes

Footnote 1:Frascone's motions purport to seek relief pursuant to CPL 440.20. To the extent, however, that the motions seek relief available only pursuant to CPL Section 440.10, the Court construes the motions as seeking relief under that Section as well.

Footnote 2:To extent the nine conclusory "Questions of Law" purport to raise other issues, Def. Mem. at 1-2, no facts whatsoever are put forth in support of these allegations. Accordingly, the Court denies this aspect of the motion pursuant to CPL Section 440.30(4)(b).

Footnote 3:No facts (or arguments) are set forth by Frascone in support of these fifteen "Questions of Law," except as noted below.