People v Barrington

[*1] People v Barrington 2008 NY Slip Op 52568(U) [21 Misc 3d 1149(A)] Decided on December 24, 2008 Supreme Court, Bronx County Davidowitz, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2008
Supreme Court, Bronx County

The People of the State of New York, Plaintiff,

against

Henry Barrington, DEFENDANT.



00073/2002



TO:HON. Robert T. Johnson

District Attorney, Bronx County

BY: Rafael Curbelo, Esq.

HENRY BARRINGTON,

DEFENDANT, PRO SE

Edward M. Davidowitz, J.

On July 2, 2003, following a trial by jury, defendant was convicted of two counts of Robbery in the First Degree (PL §160.15[4]) and one count of Robbery in the Second Degree (PL § 160.10[1]).

THE TRIAL

On November 1 and December 21, 2001, defendant, acting in concert with another unapprehended person, robbed Lenford Malcolm in his store at gunpoint. Mr. Malcolm testified that defendant and his accomplice were the same people who robbed him on both dates.

On November 1, 2001, defendant entered Mr. Malcolm's store, brought him to a rear office, took some money from a cabinet, Mr. Malcolm's wallet and money from his pocket. Then, defendant's accomplice struck Mr. Malcolm with a gun in the face and they left.

On December 21, defendant and the same person entered the store again, armed with guns.

Mr. Malcolm testified that he opened the door to the store for a lady he did not know. Defendant and the accomplice then entered the store. Both men hit Mr. Malcolm on the head with guns. Defendant demanded money and took one dollar from his pocket. Mr. Malcolm escaped by jumping from a back window into an alley. Defendant jumped from the same window, broke his leg and remained in the alley behind the store, where he was arrested.

The police recovered two nine millimeter guns in the alley as well as two shell casings. One of the guns was recovered approximately three feet away from defendant; the other was found on the street in front of an adjacent building.

Tasha Gadson, an employee at the store, who was present on both November 1,and December 21, identified defendant as the perpetrator of both robberies. Gadson testified that on November 1, 2001, defendant and another man entered the store armed with guns. Defendant pointed his gun at Mr. Malcolm, while his accomplice ordered her to open the cash register and empty it of money. Defendant then took Malcolm to the back of the store. When Malcom returned to the front of the store, Gadson noticed that he was bleeding. Defendant told his accomplice to get the car and they left.

Gadson went on to testify that on December 22, 2001, she was in the back of the store when she heard a noise and observed Malcolm on the security camera fighting with someone. Gadson then hid in the office unitl Malcolm told her to open the door. Malcolm was bleeding from the head. Defendant told Malcolm to empty his pockets. The accomplice went to the front of the store, [*2]returned and told defendant someone was watching. They then went to look, at which point Mr. Malcolm jumped out the window. Defendant and his accomplice jumped out after him.

Police Officer George Sichler testified that on December 22, 2001 he heard, almost simultaneously, shots and received a radio run of either a robbery or shots fired at 183rd and Third Avenue. He went to that location and saw a group of civilians on the corner pointing to an alleyway. Sichler observed an off duty police officer crouched at the alley with his weapon drawn. Sichler then entered the alley and saw defendant with a broken leg on the ground. He recovered a nine millimeter hand gun within feet of defendant; a second weapon was recovered by other police officers. At some point Ms. Gadson had an opportunity to view defendant and he was arrested.

Police Officer Jorge Hernaiz testified that on December 22, 2001, while off duty, he was informed that the 3M store was being robbed. Hernaiz told someone to call 911 and went to the front of the store but could not gain entry. Shortly thereafter he observed Lenford Malcolm bleeding, limping and shouting, "they are over here". Hernaiz heard two gunshots. He entered the alley and saw defendant on the ground. He told him not to move and held him at gunpoint until another police officer arrived. Later, after the responding police officer took charge of defendant, another person told Hernaiz that "another guy" jumped the fence and went into the building located at 2292 Bathgate Avenue. Hernaiz searched the building, found no one but recovered a blue cap.

Defendant was sentenced, as a second violent felony offender to three concurrent terms of imprisonment: two determinate terms of twenty years for each first degree robbery conviction and one determinate term of fifteen years for the second degree robbery conviction.

THEPOST TRIAL PROCEEDINGS

Since then, defendant has filed a number of motions both pro- se and with the aid of counsel. In June, 2004, defendant moved pro-se, to vacate the judgement of conviction, pursuant to CPL §440.30. He alleged that he was denied effective assistance of counsel by his attorneys, James Kousouros, Esq. and Ira Brown, Esq. Defendant alleged, in short, that he had not been arraigned in a local criminal court; denied his right to testify before the grand jury; his attorneys did not move to dismiss the counts of Robbery in the First Degree, based upon the inoperability of the two guns; and they did not adopt and file his motion to dismiss the indictment on speedy trial grounds. The Office of the Appellate Defender filed a supplemental affirmation in support of the motion, and a decision denying the motion was filed in November, 2005 [FN1]. [*3]

In March 2006, the Appellate Division permitted defendant to consolidate his CPL §440 motion with his direct appeal from the conviction. Defendant, on his direct appeal, argued that his pre-Miranda statements should have been suppressed; the prosecutor's summation impermissibly shifted the burden of proof to him; and defense counsel's failure to move to dismiss the first degree robbery count stemming from his December 21st arrest rendered their representation ineffective. Each of these claims was rejected by the Appellate Division in November, 2006 and the conviction affirmed. Defendant's application for leave to appeal to the Court of Appeals was denied in February,2007.

THE CURRENT CPL §440 MOTION

Defendant now moves to vacate the judgement of conviction on the following grounds: the People did not provide all "records/documents" relating to his case to him thereby violating his fifth and Fourteenth Amendment rights; Mr. Brown "knew of the prosecutor's perjury and/or should have known and, therefore, was ineffective..."; defendant's prior violent felony conviction was void as the Court had not taken it's "oath of office [in accordance with] Public Officer Law 10" and The United States was a federal corporation, the state of New York was a commercial entity, and defendant an "artificial person" and "straw man".

Defendant, in an addendum to this motion, alleged that the court erroneously denied his right to represent himself; Mr. Brown never instructed him that he could testify in his own behalf at the pre-trial Wade/Huntley hearing, and should have investigated the date when the court filed its "oath card", thereby creating an unfavorable plea negotiation as well as an erroneous Sandoval ruling; and, finally, his rights pursuant to People v. Antommarchi, 80 NY2d 247 were violated. The People filed affirmations in opposition from their trial counsel, Derek Lynton, Esq., exhibits, and from Mr. Brown.

Defendant pled guilty to the crime of Attempted Second Degree Murder (Penal Law §§ 110/125.25[1]) on September 15, 1992 (Indictment Number 6698/91). He was sentenced to an indeterminate term of imprisonment of two and one-third to eight years on October 8, 1992 and, as a result, was adjudicated a second violent felony offender after his conviction herein.

The Court's Oath of Office

Defendant erroneously argued that, since the Court's second term in office began on April 29, 1992, and an oath of office was not filed until June 29, 1993 the Court was not "entitled/empowered by law to discharge any official duty and in violation of the U.S.C.A. Const. Amend 9 and 14". Accordingly, he argues, the conviction must be set aside and he should be resentenced to a "minimum of seven years"[FN2]

Public Officers Law Section 10 requires that "every judicial officer ... shall file a copy of [the] oath of office in the office of court administration, before he shall be entitled to enter upon the discharge of any of his official duties". However, Section 15 provides that "[if] a public officer... [*4]shall enter on the performance of the duties of his or her office, without taking or filing an official oath, Section ten of this article provides that his acts as such officer "shall be valid and of as full force and effect as if such oath had been duly taken and filed...". Accordingly, defendant's claim is without merit, and his motion to set aside the sentence for this reason and for the reason that Mr. Brown did not investigate this issue, is denied.[FN3]

The Ineffective Assistance of Counsel Allegations

Defendant argues that he was also denied the effective assistance of counsel as Mr. Brown did not tell the court about defendant's desire to represent himself. Procedurally, defendant's claim is barred as he could have raised this issue in his original motion to vacate the judgement and set aside the sentence, submitted on June 9, 2004, but did not do so (See CPL §440.10(3)[c]). In any event, defendant alleges that after his statement to the court that he would "like to work with himself", the court's refusal to relieve Mr. Brown was improper.

Mr. Brown represented defendant at a Wade/Huntley hearing on May 22, 2003. On May 29 defendant's case was sent to this Court for trial. A jury was impaneled and sworn in. The Court then provided opening instructions and adjourned the case for the parties' opening statements. It was not until after that adjournment that defendant told the Court that he wanted to represent himself.

While a defendant in a criminal case may invoke the right to proceed pro-se, the right to do so is not absolute but, instead, subject to certain restrictions (People v. McIntyre, 36 NY2d 10, 16-17): the request must be timely, and unequivocally asserted; the defendant must knowingly, and intelligently waive the right to counsel; and has not engaged in conduct that would prevent the orderly administration of justice (Id.)

The court conducted a thorough inquiry of defendant, which addressed the dangers and disadvantages of giving up his right to counsel (People v. Sawyer, 57 NY2d 12, 21). At the end of this colloquy, defendant spoke quietly to Mr. Brown, and then expressly, and unequivocally withdrew his motion to represent himself and agreed that Mr. Brown could continue to represent him.

Defendant, concedes that he gave up his right of self representation, but now alleges that he was forced to give up this right after Mr. Brown, in an off-the-record discussion threatened him with physical harm (defendant's April 18, 2008 addendum, pg 16). First, Mr. Brown, in his affidavit, denies any such conduct. Second, the trial transcript reveals that defendant stated, after his off the record conversation with Mr. Brown, that "I'm going to be assisting him"(T. 286 Line 21-22). Accordingly, these allegations, some five years after the trial, are baseless and rejected.

Defendant alleges that Mr. Brown did not call an unnamed, previously unmentioned alibi witness, who, he claims, could have testified about his whereabouts on November 1, 2001. Procedurally, this claim is also barred as defendant could have raised that issue in his original motion [*5]to vacate the judgement, and set aside the sentence imposed on June 9, 2004 but did not do so (CPL §440.10(3)[c]).

In any event, defendant did not state who this witness is, or what information he could have provided. Moreover, Mr. Brown does not recollect that defendant informed him of the existence of such a witness. Accordingly, that argument is rejected.

The Violations of People v. Antommarchi

Defendant's assertion that the he was improperly barred from all side bar conferences is, similarly, meritless; it is, for one thing, directly contradicted by the trial transcript, which discloses that defendant expressly withdrew his request to be present at all side bar conferences (See Trial Transcript pg 5 , lines 12-14).

Defendant's allegation that the court's statement to him that his presence at side bar conferences might affect the proceedings constituted an abuse of judicial discretion is rejected. The Court repeatedly instructed defendant that he had a right to be present during side bar conferences, and explained the possible chilling effect on prospective jurors his presence might have at those conferences. Defendant repeatedly sought the court's opinion on how to proceed. The Court declined to provide an opinion and defendant stated, "I'm going to go with my lawyer's opinion. I withdraw that to be present." (Trial Transcript pg 5 lines 12-14). These allegations are, therefore, rejected.

Allegations Relating to the Federal and State Governments

Defendant argues that: the United States is a federal corporation; New York is a commercial entity; all claims are governed by the Uniform Commercial Code; the trial court was a "commercial entity; and "none of the party's are capable to contract being that they are all considered minor and of unsound mind thus again the commercial presentation is null and void" This argument is also barred as defendant could have raised it in his original motion to vacate the judgement and set aside the sentence but did not do so (See CPL §440.10(3)[c]).

In any event, even if the Court were to consider defendant's claim on the merits, it would be denied as there is no basis in the law to support these nonsensical and frivolous allegations.

Police Reports and the Rosario Violations

Through foil requests defendant received a number of police reports that were not provided to him prior to, or during his trial and were submitted in support of this motion. They consist of: a complaint follow up report, (No.1), dated December 22, 2001, prepared by Detective Gullo, which summarized his conversation with Police Officer Sichler. Sichler stated that, as he was driving his radio car, he heard a radio run of a male shot at East 183rd Street and Third Avenue. He arrived at the scene and heard three shots. He saw a man with a gun in the alleyway at East 183st and Third Avenue who said that he was a police officer. Sichler observed another man lying on the ground in an alley. He was identified by the complainant as the robber and arrested. Two nine millimeter guns and shell casings were recovered.

Police Officer Sichler testified at the trial and this report was Rosario material and should have been disclosed to defendant both before the pre-trial hearings and the trial.

A complaint follow up report, (#

2), dated December 22, 2001, prepared by Detective Gullo, contained a summary of his interview [*6]with Lenford Malcolm. Mr. Malcolm stated that he was in the store and saw an Hispanic female at the door. He let her inside the store and two male blacks with guns ran in behind her. Mr. Malcolm recognized them as the men who had previously robbed him on November 1, 2002. Both men hit Mr. Malcolm about the head with guns, demanded money and pushed him to the rear of the store. Mr. Malcolm gave them a dollar. The woman told the men that there were two white men at the front door,which was locked. The robbers and the woman ran out the back of the store into the alleyway.

A complaint follow up report (#

3), dated December 22, 2001, prepared by Detective Moroney, contained a summary of his interview with Police Officer Jorge Hernandez [Hernaiz]. Hernandez said that he saw a male going in and out of the front door of the store, but, when he approached, the man entered the store and locked the door. Hernandez was approached by the store owner, who was bleeding from the head, and told him that the perpetrator was around the corner on Bathgate Avenue. Hernandez went to the corner. He heard two gunshots and saw a male run down the stairs. He entered the alley and saw defendant lying on the ground, yelling something about his leg. An off duty correction officer came to his assistance and other police officers arrived and took charge of the scene.

Malcolm and Hernaiz testified at the trial, and these reports were Rosario material and should have been disclosed to defendant before the trial began.

A complaint report, (#

4), dated December 22, 2001, by Detective Moroney, contains a list of license plate numbers of vehicles parked in the area of East 183rd Street, and Bathgate Avenue, and a brief summary of Jose Flores's statement, an off-duty corrections sergeant who was walking down the stairs of his building when he heard two shots. Sergeant Flores did not testify at trial and was not an eyewitness to the crime. Therefore, this report was not discoverable pursuant to CPL §240.20 nor is it Rosario material

Complaint follow up reports, (#

5 and #

6), dated December 28, 2001, prepared by Detective Gullo, outlined his attempt to interview the defendant at Jacobi Hospital, and his attempts to learn if defendant was the subject of other robbery investigations. These reports are not discoverable, pursuant to CPL §240.20, nor are they Rosario material.

A complaint follow up report, (#

7), dated December 28, 2001, prepared by Detective Gullo, reports that Mr. Malcolm's credit cards were vouchered. A voucher for this evidence was provided to defendant, according to a receipt dated February 22, 2002. In any event, this document is not discoverable pursuant to CPL §240.20 and is not Rosario material.

Complaint follow up reports, (#

8 and #

9), dated December 28, and 29, 2001, prepared by Detective Gullo, report that a computer check on defendant and Mr. Malcolm disclosed a warrant for Mr. Malcolm on a "SAP docket"[FN4], and that [*7]Police Officer Sichler requested a ballistics report and latent print evidence. These reports are not discoverable, pursuant to CPL §240, nor are they Rosario material.

Complaint follow up reports (#

10 and #

11), dated December 29, 2001, prepared by Detective Gullo, record a statement from Police Officer Sichler that Tasha Gadson identified defendant in a show up procedure at the scene on December 21, 2002, and not Mr. Malcolm as he thought; that Mr. Malcolm selected a photo of defendant at the hospital; and that Ms. Gadson, basically, retold the version of the events that she testified to at trial during direct and cross-examination: she was in the rear of the store on December 22; saw Mr. Malcolm and two men fighting with each other on a video camera; locked herself in the office; then opened the door; was placed on the floor by the two men, who went to the front door and said there was someone outside and Mr. Malcolm, followed by the two men, jumped from the back window.

Ms. Gadson testified at trial and these reports constituted Rosario material and should have been disclosed to defendant before the trial.

The next nineteen police reports, prepared by Detective Gullo, were not discoverable, pursuant to CPL §240.20 and were not Rosario material: a complaint follow up report, (#

12), dated December 29, 2001, described his conversation with Bronx Robbery Squad detectives; complaint follow up reports, (#

13 and #

14), dated December 31, 2001, described his efforts to obtain evidence for testing at a police laboratory; complaint follow up reports, (#

15 and #

16), dated January 3, 2002, described his visits to defendant's and Mr. Malcolm's residences; complaint follow up report, (#

17), dated December 29, 2001, reported that he brought a baseball hat to a laboratory for DNA and fiber testing; a complaint follow up report, (#

18), dated January 4, 2002, summarized his conversation with defendant's parole officer, Terrances Kenny; a complaint follow up report, (#

19), dated January 4, 2002, states that Mr. Malcolm agreed to view photos that day but did not show up; complaint follow up reports, (#

20 and #

21), dated January 4 and 9, 2002, described his attempts to obtain information about defendant from the U.S. Attorney's Office, and the DEA; a complaint follow up report, (#

22), dated January 10, 2002, summarized a telephone call from a friend of defendant who asked how defendant could retrieve vouchered property; complaint follow up reports, (#

23 and #

24), dated January 12, 2002, described his efforts to obtain the identity of the other participant in the robberies; complaint follow up reports, (#

25, #

26 and #

27) dated January 16, January 22, and January 27,2002, report that Ms. Gadson and Mr. Malcolm viewed photos, and were unable to identify anyone; a complaint follow up report, (#

28), dated February 11, 2002, reported that a hair was found inside a baseball cap, and that neither [*8]Mr. Malcolm nor Ms. Gadson remembered if any of the perpetrators wore a blue baseball cap; a complaint follow up report, (#

29), dated February 13, 2002, described additional information from defendant's parole officer unrelated to this case; a complaint follow up report,(#

30), dated January 31, 2002, states that efforts to identify the second perpetrator herein were unsccessful.

CPL §240.45[1] provides that "after the jury has been sworn and before the prosecutor's opening address," the People are obliged to make available to defendant, "any written or recorded statement...made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness's testimony..." The information contained in complaint reports, 1, 2, 3, 10 and 11, is Rosario material; they set forth statements by Ms. Gadson, Mr. Malcolm and Police Officers Sichler and Hernaiz - - all of whom testified at defendant's trial - - which directly relate to the subject matter of their testimony and should have been disclosed to defendant before the trial began.

However, CPL §240.75 also provides that "the failure of the prosecutor or any agent of the prosecutor to disclose statements that are required to be disclosed...shall not constitute ground for any court to ... set aside a conviction...in the absence of a showing by the defendant that there is a reasonable possibility that non-disclosure contributed to the result of the trial..." (People v. Wolf, 284 AD2d 102, 103-104; see also People v. Brome, 278 AD2d 745).

Nevertheless, defendant argues, these reports are newly discovered evidence (CPL §440.10(1)[g)]) which would have influenced the verdict, and the conviction should be vacated. Evidence, to be considered newly discovered, must meet the following conditions: " (1) It must be such as will probably change the result if a new trial is granted; (2) it must have been discovered since the trial; (3) it must be such as could have not been discovered before the trial by the exercise of due diligence; (4) it must be material to the issue; (5) it must not be cumulative to the former issue; and (6) it must not be merely impeaching or contradicting the former evidence'" (People v. Reyes, 255 AD2d 261, 263)

Although the statements of Ms. Gadson, Mr. Malcolm, and Police Officers Sichler and Hernaiz were recently discovered, and did concern their testimony, they clearly would not have changed the outcome of the trial; the information contained in these reports was entirely consistent in every material aspect with their trial testimony. The notion that these reports offered nothing new to the litigation as they are not inconsistent, or contradictory to the witnesses' trial testimony and, therefore, would not have affected the verdict is underscored by several decisions which bear instructive parallels to this case. For example: People v. Wahad, 204 AD2d 156 held that a reasonable possibility that the People's failure to disclose the witnesses statements, which were not only inconsistent to witnesses' trial testimony but pertained to events crucial to the People's theory of the case contributed to the verdict; People v. White, 200 AD2d 351, held that a statement of a witness in a police report, which contradicted his trial testimony was significant enough so that there was a reasonable possibility that it contributed to the verdict [FN5]; See also People v. Samandarov, 867 NYS2d 497 {56 AD3d 575} which held that defendant's motion to vacate his conviction pursuant to CPL §440.10 was properly denied without a hearing as defendant failed to demonstrate "a [*9]reasonable possibility that any failure by the prosecution to make Rosario disclosure materially contributed to the verdict"; and People v. Reyes, supra , which restated the general rule that convictions are not to be vacated after trial on the ground of newly discovered evidence unless that evidence would change the result at a new trial. In short, this case is in accord with those decisions: the material in those reports, because it is consistent, would not have changed the verdict.

Moreover, Sichler and Hernaiz arrived at the alley after the robbery was over and their testimony did not add to an understanding of the crime. Accordingly, defendant's motion to set aside the verdict pursuant to CPL 440.10(1)(g) is denied.

However, CPL §440.10(1)(f), provides that a judgment may be vacated if the People's conduct is improper or prejudicial. Accordingly, in order to prevail on a Rosario claim pursuant to this section, the defendant must show that he was prejudiced by the nondisclosure— that is, there is a "reasonable possibility that the nondisclosure materially contributed to the verdict" (People v. Machado, 90 NY2d 187). An analysis of the foregoing reports, even under this less stringent standard, leads to the same conclusion; there is nothing within those reports that "materially contributed to the verdict" and defendant's motion is denied.

Finally, defendant alleges that his conviction was obtained in violation of his due process right to pretrial disclosure of Brady material - - the complaint reports - - pursuant to CPL §440.10(1)(h) . Suppression of evidence by a prosecutor, favorable to a defendant, violates due process principles where it "is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Brady v. Maryland, 373 US 83,87) , even in the absence of a request for the material by the defendant, (United States v. Agurs, 427 US 97, 107), and whether the evidence is for the purposes of impeachment or exculpation, (United States v. Bagley, 473 US 667,676) the rule includes as here, evidence that is "known only to police" even if unknown to the prosecutor (Id., at 438). However, the failure to provide defense counsel with exculpatory material will not automatically require reversal on appeal (United States v. Agurs, 427 US 97). Only if there is a "reasonable possibility" that the failure to disclose the evidence contributed to the verdict is reversal required (People v. Vilardi, 76 NY2d 67). Defendant did not establish that these complaint report were of sufficient significance to warrant the relief he seeks; they were in every material respect consistent with the witnesses' trial testimony.

Accordingly, under all the circumstances, the undisclosed reports prepared by Detective Gullo do not "undermine the court's confidence in the outcome" (People v. Bryce, 88 NY2d 124, 128; People v. Espinal, 234 AD2d 84), there is not a reasonable possibility that these documents contributed to the verdict and defendant's motion is denied.

This Court has considered defendant's remaining arguments and finds them to be without merit.

DATED:December 24, 2008

The Bronx, New York

Edward M. Davidowitz

Justice of the

Supreme Court

TO:HON. Robert T. Johnson

District Attorney, Bronx County [*10]

BY: Rafael Curbelo, Esq.

HENRY BARRINGTON,

DEFENDANT, PRO SE Footnotes

Footnote 1:Defendant moves, pursuant to CPLR Section 2221(e), for leave to renew this motion. Defendant's argued that his trial counsel, Mr. Brown, was ineffective as he did not raise the issue of "mirepresentation by his prior attorney James Kousouros"; he was not arraigned in a local criminal court; a preliminary/felony hearing was not conducted and he was deprived of his right to testify before the grand jury. In their reply to defendant's motion, the People relied upon People v. Jones, 281 AD2d 185; lv denied 96 NY2d 831, which held that, where a defendant was not arraigned upon the felony complaint while hospitalized due to injuries sustained at the time of his arrest, he was not entitled to notice of the grand jury proceeding. Accordingly, the Appellate Defender's office concluded that Mr. Kousouros was not ineffective for failing to file a motion to dismiss pursuant to CPL Section 190.50 and withdrew that portion of the motion. Defendant alleges no new facts to support his motion to renew. In any event, even if the court were to consider defendant's motion on the merits, it would be denied as the People had no obligation to inform defendant of the grand jury proceedings. Accordingly, his motion to renew is denied.

Footnote 2:The People argue that this claim must be denied as it relates solely to the validity of the sentence and not to the validity of the conviction. CPL Section 444.20(1), provides that "at any time after the entry of a judgment, the court in which the judgment was entered, may, upon motion of the defendant, set aside the sentence upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law". Defendant erroneously asserts that the "conviction" be set aside. Nevertheless, for the foregoing reasons, the court will treat this application as a motion pursuant to CPL Section 440.20(1).

Footnote 3:Defendant also challenges the court's Sandoval ruling and alleges that as the court had not filed its oath of office card, his 1992 conviction was illegal and therefore the People should have been precluded from using that conviction to impeach him if he decided to testify. This argument is untenable for the foregoing reasons.

Footnote 4:Mr. Malcolm was extensively questioned about his criminal history. Mr. Brown asked him about his arrests in April, 1993 on the charge of Criminal Sale of Marijuana; his December, 1993 arrest on the charge of Criminal Sale of Marijuana; his March, 1996 arrest on the felony charge of Criminal Possession of Marijuana and his January, 1999, arrest for Criminal Sale of Marijuana. It is unclear at this time whether Mr. Brown was aware of the warrant issued on the "SAP docket". However, even if it were undisclosed, this would constitute only a matter for general impeachment and would not be considered newly discovered evidence (People v. Reyes, 255 AD2d 261).

Footnote 5:In White, the witness initially told the detective, shortly after the incident, that the person who shot the victim was "unknown to him and that he could not identify the shooter. At trial, the same witness testified that he knew defendant vaguely and observed him chase the victim down the street while firing a weapon at him (People v. White, 200 AD2d 351).