People v David

[*1] People v David 2008 NY Slip Op 52666(U) [22 Misc 3d 1129(A)] Decided on October 27, 2008 Supreme Court, Kings County Parker, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 27, 2008
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Oswin David, Also Known as Oswind David, Defendant.



75/06



People of the State of New York, Charles Hynes by Camille Gillespie

Defendant represented by the Law Offices of Ronald Kuby by Ronald Kuby and David Pressman

Sheryl L. Parker, J.

Defendant moves pursuant to C.P.L. §440.10 (1)(b) and (h) for an order vacating his judgement after trial. Based on the parties' oral arguments, Defendant's motion and reply affirmation, the People's response and reply, the court file, the minutes of the proceedings, and the grand jury minutes [FN1], the following is the Court's decision.

Defendant was indicted under indictment number 793/2006 [FN2] for two counts of attempted murder in the second degree, four counts of assault in the first degree, four counts of assault in the second degree, two counts of assault in the third degree, two counts of robbery in the first degree, two counts of robbery in the second degree, robbery in the third degree, grand larceny in the fourth degree and petit larceny. Defendant was convicted after trial of two counts of assault in the first degree and sentenced to eighteen years in prison plus five years of post-release supervision on each count, to run concurrently with each other. (Chambers, J.).Defendant was convicted of assaulting both Bevan Caesar and Rudolph Harper with a box cutter. He now moves to vacate the judgement and dismiss the indictment.

Motion to Vacate Judgement

The gravamen of defendant's motion to vacate the judgement rests on the assertion that the assistant district attorney presenting the case to the grand jury suborned perjury from Bevan [*2]Caesar and therefore the integrity of the grand jury was impaired, requiring dismissal pursuant to C.P.L. §210.35(5). Additionally, the defendant contends that the failure of the defendant's trial attorney to raise this issue prior to sentence rises to the level of ineffective assistance of counsel and the judgement should be vacated on that ground as well.

C.P.L. §440.10 (1) states that at any time after an entry of judgement, the Court may vacate such judgement on the ground that:

(b) the judgement was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting on behalf of a court or prosecutor; Or,

(h) the judgement was obtained in violation of a right of the defendant under the constitution of this state or of the United States.

The People contend that the defendant's motion to dismiss is procedurally barred pursuant to C.P.L. §440.10(2), in that the defendant must raise the issue of defective grand jury proceedings on direct appeal and must do so because there are "sufficient facts appear[ing] on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal." (C.P.L. §440.10[2][b]). The People further contend that the defendant should have raised this issue prior to sentence (C.P.L. §330.30) and his failure to do so bars this Court from entertaining his motion to dismiss. Additionally, the People argue that the defendant's claim of ineffective assistance of counsel is barred in that it was "raised for the first time in his...reply to the People's answer to his motion to vacate the judgement." (People's Supplemental Affirmation in Opposition, relying upon People v. Napolitano 282, AD2d 49 [1st Dept 2001]).

While C.P.L. §440.10(2)(b) would bar defendant's first claim that the grand jury proceeding was defective, People v. Maldonado, 34 AD3d 497 ( 2nd Dept. 2006, appeal den'd, 8 NY3d 847), the People have provided an affidavit from Assistant District Attorney Grace Jeannie Lopez which is de hors the record, as is the "DD-5" provided by the defendant. Accordingly, the Court may and will reach the defendant's first contention on its merits. (C.P.L. §440.10[3][a]).

According to the record, Bevan Caesar was attacked by a man wielding an orange box cutter on the evening of January 2, 2006. When shown a photo array containing the defendant's picture, the witness stated that he would need to see the perpetrator in person in order to make an identification. When Caesar viewed a lineup containing the defendant, he identified a different man. On January 25, 2008 Petel Mingo and Rudolph Harper identified the defendant in a lineup. Subsequently, whether by conversations with Petel Mingo, Rudolph Harper, the assistant district attorney or the police, Caesar was informed that it was the defendant who attacked him with the box cutter. (See,trial transcript, pp. 92-96, 118-119; grand jury p 24, lines 5-7). On January 30, 2006 Petel Mingo, Bevan Caesar and Rudolph Harper testified in the grand jury. Assistant District Attorney Lopez conducted the presentation. It is not contested that she knew that Caesar was unable to previously identify the defendant. (See, Affirmation of ADA Grace Jeannie Lopez).

Petel Mingo testified in the grand jury that she was present the evening of the assault and that she observed the defendant, who is her cousin, along with Darwin David and others, beating Rudolph Harper. Additionally, she observed defendant running after Bevan Caesar with a box cutter in his hand. She observed the defendant cutting Caesar on the face and neck. She testified [*3]that she identified the box cutter recovered as the one that defendant used. Additionally, she testified that she identified the defendant in a line-up and informed the police that he was the person who cut Caesar.

Bevan Caesar testified that he was with Petel Mingo and Rudolph Harper the evening of the assault.He observed a group of men "jump" Harper and observed a man with a box cutter in his hand. He described the man as approximately six feet, two inches tall with braided hair. The man swung the box cutter in Caesar's direction. He testified that Oswind David and his co-defendant, Darwin David, approached him and said, "we (sic) going to kill you".The following colloquy then occurred:

Q:Did you know Oswind David's name at the time?

A:No.

Q:Did you later learn his name to be Oswind David?

A:Yes. As I'm on the phone with 911 giving them a description, they assumed I was calling for help. That's when they rushed me and I started fighting with them.

That's when I realized I got cut on the side of my face from my ear to the mouth.

*****

Q:Did you see who cut you at that time?

A:Yes.

Q:Who cut you?

A:That was Oswind David.

Q:Did you see Oswind David holding anything in his hand?

A:He had an orange box cutter with in (sic) his hand. He and me was across the street. He was the only one trying to cut me.

Subsequently, Rudolph Harper testified in the grand jury. He stated that he was with Bevan Caesar and Petel Mingo the night of the assault. Harper stated that he was attacked by 12 to 14 men who were punching, kicking and biting him. He was then cut on his throat. He called to Bevan Caesar who called 911. As Caesar was calling, Harper stated that he observed the same person who cut him cut Caesar on his face. Harper testified that the person was approximately six feet, two inches tall and had braided hair. He stated that he did not know the name of the person at the time of the assault but he later learned his name to be Oswind David. He also stated that the defendant is Petel Mingo's cousin. Harper testified defendant cut him in the throat with an orange box cutter. Additionally, Harper identified the defendant in a lineup.

Defendant now contends that the questions by the assistant district attorney in the grand jury to Bevan Caesar suborned perjury. His basis for that assertion is that the assistant district attorney knew that Mr. Caesar was unable to make an identification of the defendant as his assailant, so he would not be telling the truth if he told the grand jury that the defendant assaulted him or that he "saw" the defendant assault him. Defendant avers that the prosecution's elicitation of that testimony, along with her failure to correct the record before the grand jury, left the grand jury with the impression that the witness was able to identify the defendant as his assailant and thereby impaired the integrity of the grand jury to such a degree that the indictment must be dismissed. (See, Defendant's motion to vacate judgement, relying on C.P.L. §210.35[5]; People [*4]v. Pelchat, 62 NY2d 97 [1984]; People v. Huston, 88 NY2d 400 [1996]; People v. Wilkins, 68 NY2d 269 [1986]).

Dismissal of an indictment because its integrity has been impaired within the meaning of C.P.L. §210.35(5) is an extreme remedy and requires that the proceedings were impaired to such degree that the defendant may be prejudiced. (Huston, Supra; People v. Darby, 75 NY2d 449 [1990]). Whether or not there may have been prejudice to the defendant depends on the particular facts in the matter, and must be evaluated on a case by case basis. (Id.). In this matter, three people testified before the grand jury that indicted the defendant. All three observed a person cut Bevan Caesar with a box cutter. Bevan Caesar was able to describe his assailant. Petel Mingo, who knew the defendant and identified him in a lineup, and Rudolph Harper, who identified the defendant in a line-up, both testified that they observed defendant cut Bevan Caesar. While Bevan Caesar may not have been able to identify the defendant as his attacker, he did testify that he later learned the name of his assailant to be Oswind David.

Perjury is defined by the New York State Penal Law as "swearing falsely". (P.L. §210.05; §210.10; §210.15). Penal Law §210.00(5) defines "swear falsely": "A person swears falsely' when he intentionally makes a false statement which he does not believe to be true (a) while giving testimony...." In this matter, there is no evidence that Bevan Caesar did not believe that Oswin[d] David was his attacker. How Caesar learned the name of his attacker is irrelevant. Even if he did learn it from another party who either observed the attack or was present at the identification of defendant, such testimony, although hearsay, is not impermissible. (People v. Cedeno, 252 AD2d 307 [1stDept. 1999]; appeal dismissed, 93 NY2d 1015).

The assistant district attorney's failure to clarify the record does not rise to the level of impairing the integrity of the grand jury in this matter. As explained in People v. Huston, the likelihood of prejudice turns on the weight and nature of the admissible proof adduced and the degree of inappropriate prosecutorial influence. The evidence presented to the grand jury was overwhelming that defendant assaulted Rudolph Harper and Bevan Caesar.Unlike People v. Pelchat, 62 NY2d 97 [1984], where the only evidence identifying the defendant was in fact false or misrepresented by the police officer witness and the prosecution did not correct the record and allowed the defendant to plead guilty on the defective indictment, in this matter Rudolph Harper and Petel Mingo both testified that they observed the defendant cut Bevan Caesar. The fact that Caesar was unable to identify the defendant was not necessary to brought to the attention of the grand jury, in light of the fact that Caesar was able to describe him and the color of the box cutter used, which was corroborated by Harper's testimony. That evidence would not have eliminated a "needless or unfounded prosecution". (People v. Valles, 62 NY2d 36 [1984]). Rather, it would have raised a question of fact. The People have wide discretion in presenting evidence to the grand jury and that, in this circumstance, included the decision whether to provide the grand jury with the information that Caesar was unable to identify the defendant. (People v. Perry, 187 AD2d 678 [1992]; appeal den'd, 81 NY2d 891). The trial testimony by Caesar explaining the basis for his inability to identify defendant because he was concentrating on the box cutter, followed by the subsequent conviction of defendant for that assault, bolsters the People's position that the failure to identify defendant was not exculpatory evidence which if brought to the attention of the grand jury would have resulted in a dismissal of the charges. [*5]

Accordingly, neither the elicitation of hearsay nor the failure to divulge the mis-identification impaired the integrity of the grand jury.

The defendant's second contention, that his attorney was ineffective for failing to raise this issue before the trial court, is barred in that he failed to raise it in his initial motion to dismiss. (People v. Napolitano, 282 AD2d 49 [2001]; appeal den'd, 96 NY2d 866). However, were this Court to reach the defendants arguments on the merits, the motion would be denied. (C.P.L. §440.10[1][h]).

The Court of Appeals has held that under the New York State constitution "as long as the evidence, the law, and the circumstances of a particular case, viewed in the totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met." (People v. Baldi, 54 NY2d 137 [1981]). Under the state rule, a defendant need only show that under the totality of the case he was deprived meaningful representation.

When applying the state test, the Court finds under the totality of this case, the attorney's actions did not fall below an expected standard of reasonableness. There is nothing in the record provided by the parties that casts doubt on the apparent effectiveness of counsel. (People v. Boodhoo, 191 AD2d 448 [1993]).A previous Court determined that the evidence before the grand jury was legally sufficient (DiMango, J.), and this Court finds that the prosecutor's conduct did not impair the integrity of the grand jury. Accordingly, defense attorney's failure to raise this issue prior to sentencing did not constitute ineffective assistance of counsel.

Accordingly, for the above reasons, the defendant's motions to vacate the judgement is denied.

The foregoing constitutes the decision and order of the Court.

Dated: Brooklyn, NY

October 27, 2008

__________________

J.S.C.

Footnotes

Footnote 1: The Court requested, and was provided by the People, the entire grand jury presentation and charge on indictment 793/06.

Footnote 2: Indictment 793/06 was subsequently consolidated with indictment 75/06.