People v Jackson

[*1] People v Jackson 2010 NY Slip Op 50412(U) [26 Misc 3d 1236(A)] Decided on February 22, 2010 Supreme Court, New York County Berkman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 22, 2010
Supreme Court, New York County

The People of the State of New York

against

Trevers Jackson, Defendant.



1430/03



Defendant, pro se.

People, Hon. Cyrus Vance, Jr., District Attorney, New York County, 1 Hogan Place, New York, New York 10013 (Antonia Merzon, Esq., of counsel).

Carol Berkman, J.

On June 18, 2004, defendant was convicted after trial by jury of enterprise corruption, conspiracy in the fourth degree, burglary in the second degree, grand larceny in the second degree, criminal possession of stolen property in the second degree and two counts of perjury in the first degree. In connection with the conviction for enterprise corruption, the jury found defendant had committed eight pattern acts - six burglaries and two acts of perjury. He was sentenced to terms aggregating 25 years to life. The conviction was affirmed, 45 AD3d 433, and leave to appeal to the Court of Appeals was denied, 10 NY3d 812. The Supreme Court denied certiorari, 129 S. Ct. 462.

The prosecution arose from a burglary ring which victimized numerous commercial establishments and then sold the proceeds to various "buyers." Defendant was first arrested on November 24, 2001, when police were called by Miguel Pelaez, the superintendent of a building on Fourteenth Street housing a store called City Streets. Defendant testified before a Grand Jury, and was indicted for two counts of perjury in connection with that testimony, as well as the burglary. Defendant's wife, Aymee Minaya was convicted of offering a false instrument for filing in the first degree on December 22, 2003, for providing forged documents in connection with a surety examination after bond was posted for defendant.

The Facts

Defendant moves for relief pursuant to C.P.L. §440.10, claiming that he was deprived of effective assistance of counsel by his lawyer's alleged failure to present an alibi as to the September 29, 2001, burglary of a Nine West store at 557 Broadway,[FN1] to cross-examine two [*2]witnesses on certain topics - Jabar Williams, inter alia, about the low ceiling in defendant's basement in June 2001, which would have made it impossible, according to defendant, to store stolen goods there and Miguel Pelaez about his inability to make an in-court identification of any of the defendants whereas a police report indicated he had initially been specific as to their actions.[FN2] As to the former criticism, defendant complains further, but only in his memorandum of law, that had counsel investigated further "he would have elicited testimony of this type [with respect to the low ceiling] in June 2001. Nor did he live or own 439 Maple Avenue in June 2001" (Memorandum of law, p. 5).[FN3] Although defendant testified at some length at trial, he offered no testimony as to the alleged September 2001 alibi, and the court does not recall testimony about low ceilings or where defendant lived in June 2001. Defendant does not explain these omissions in his testimony; nor does he explain the long delay in filing this motion, which is entirely based on information known to defendant before the trial.

Nor does defendant now proffer an affidavit from counsel. He annexes instead a letter purportedly sent by him to counsel dated July 7, 2005, denominated "Questionnaire," demanding answers to certain alleged deficiencies in representation (Exhibit A). With respect to the September 2001 burglary, he simply says in the letter "I gave you evidence that I was not in the State of New York at this time." The questionnaire also includes various references to Williams' testimony that he had gone to defendant's home, and the issue of whether defendant lived at 439 Maple Avenue in June 2001, and refers to "evidence," otherwise unspecified, on this issue. The questionnaire also refers to a number of other matters not raised in this 440 motion. Defendant [*3]states he subsequently sent a copy of the motion to counsel, requesting a response in affidavit form (Exhibit D). This decision assumes, arguendo, that defendant has adequately explained his failure to include the lawyer's affidavit.

The People's response points out a number of factual defects in defendant's application, although the People do not address the more tangential matters mentioned in defendant's motion. With respect to the allegation that counsel failed to investigate defendant's alibi for the Nine West burglary, the People do not precisely state the relevant date, which was the night of September 28 going into the early morning hours of the 29th. The People's factual argument is still valid, notwithstanding the date confusion: as the People contend, "there is no reason the defendant could not have traveled back to New York sometime on . . . September 28th and, thus, have been present at the burglary." For this contention, no credibility determination is required, although in some respects, the People appear to ask the court to make credibility determinations on the papers. This would be inappropriate, People v. Coleman, 10 AD3d 487 (1st Dep't 2004). On the other hand, indulgence in reading defendant's petition is also inappropriate. People v. Ford, 46 NY2d 1021, 1023 (1979).

In fact, all of the witness statements submitted by defendant relate to September 27 and a few also to September 28, but the latter without specifying a time of day, a vital omission. Further, it is not clear that counsel was told of the actual identity of the other witnesses or whether they were available and willing to testify at the time of trial. The affidavit of defendant's wife, Aymee Minaya (Exhibit O), is vague in this regard: "I explained all of this to [counsel] long before my husband's trial. I gave him documents to prove what I was saying for him to contact family members and look into it further, but nobody paid attention to me."[FN4]

The other witnesses do not say whether they were contacted by counsel before trial, or whether they would have been available and willing to testify, and Minaya does not explicitly say whether she informed counsel of specific witnesses' identities. Additionally, all defendant offers to prove the lack of investigation by counsel is defendant's statement that "there is nothing in the [trial lawyer's case] file generated by trial counsel indicating that any investigation or inquires [sic] to place in reference to the claims herein" (Motion, ¶12, page 3; see also ¶16, pp. 4-5).

In any event, the witnesses whose statements are referenced do not provide an alibi for the time of the Nine West burglary, not even enough to establish that it was unlikely that defendant could have returned to New York to participate in that crime. People v. Jack, 74 NY2d 708 (1989). [*4]

In the motion, defendant says he told counsel that during the September 29 burglary "he was returning from a funeral in Virginia," and references Exhibit G (Motion ¶28, pp. 7-8), but this exhibit simply says "I was not in New York from September 21 to 29, 2001 . . . . Get all the information from my wife and I am going to have my sister call you." Defendant also swears that he gave counsel his EZ pass and bank records to prove he was not in New York for the Nine West burglary, and references Exhibits J and I (Motion ¶30, p. 8).

As to the bank records, a purchase of gas in Virginia on October 2 with one of defendant's accounts, even if by defendant, does not establish an alibi as to September 29, particularly as the records provided by defendant also show an ATM withdrawal in New Jersey on October 1 and a debit card purchase in East Elmhurst, New York on October 2, not to speak of the frequent funding and heavy usage of defendant's EZ pass account. A payment for a rental vehicle on October 9 to "Parchester Rent a Car" does not establish that this vehicle was used to travel to and from the funeral or by whom or when, especially since Minaya's affidavit recites that she rented the vehicle for this purpose from NY Rent a Car. Most importantly, neither defendant nor any of the witness statements annexed to this motion provides any sworn statement about how and when defendant actually returned to the New York City area.

There are many uses of defendant's EZ pass account on September 29, starting at 2:41 a.m. in Delaware, going through the Lincoln Tunnel at 6:10 a.m., and re-entering the Turnpike around 8:00 a.m. Assuming defendant drove his own rather than the rented vehicle back to New York and the EZ pass entries are attributable to his own travels — and defendant's allegations do not specifically address this issue - the burglaries were normally committed in the middle of the night, 6 and according to these EZ pass records, defendant certainly could have arrived at Nine West two or two-and-one-half hours after that burglary began, as the People's trial evidence showed.

Discussion

To prevail on a claim of ineffective assistance of counsel, a defendant must allege and show that defense counsel's representation fell below an objective standard of reasonableness. People v. McDonald, 1 NY3d 109, 113-14 (2003). In this case, the trial record demonstrates a vigorous defense, but defendant attacks certain alleged discrete inactions: the alleged failure to investigate and present an "alibi" for one particular pattern act, and the failure to examine two witnesses on specified issues, as well as a number of other cavils too numerous and too minor to recount. Under these circumstances, "it is incumbent on defendant to demonstrate the absence of strategic or otherwise legitimate explanations for counsel's failure[s] . . . ." People v. Rivera, 71 NY2d 705, 709 (1988).

To the extent that the alleged shortcomings in representation are or could have been matters of record, the court notes the People's argument that the issues should have been raised on appeal (People's response, ¶¶18-20). According to defendant's own exhibits, prior to trial he repeatedly expressed dissatisfaction with the quality of his representation to his retained attorney before trial (Exhibits G and M to defendant's motion), but neither replaced counsel nor informed the court of his dissatisfaction. We are left to speculate whether counsel explained his strategy to defendant's satisfaction at the time. [*5]

Notably, none of these alleged failures' on the part of counsel were dispositive of the case. Pelaez, the superintendent at City Lights was simply unable to make an in-court identification, as he stated on direct examination, and cross-examining him on his identification of the various actors at the time of the arrest seems hardly designed to help the defense. As to the Maple Avenue issue, there is a similar lack of sworn allegations, as well as a misapprehension by defendant of what the trial evidence showed. The testimony was not that proceeds were stored by the burglars in whatever New Jersey house they visited in June 2001, and if Williams was mistaken as to the address (Myrtle as opposed to Maple, perhaps) or ownership of the home, that would hardly deal the fatal blow to his credibility that hours of cross-examination by multiple defense lawyers did not.

While defendant submitted some affidavits in support of his alleged alibi defense, unlike the defendant in People v. Ozuna, 7 NY3d 913, 915 (2006), the affidavits here fail to establish an actual alibi close enough to the time of the crime to be probative. It would be "indulging in pure speculation . . . in the absence of evidentiary facts" (People v. Ford, supra, at 1023) to conclude that these witnesses, or the documentation' submitted by defendant, could have established his alibi defense at trial. Unlike the situation in People v. Coleman, 10 AD3d 487 (1st Dep't 2004), defendant did not support his motion with affidavits showing that the witnesses would have effective alibi evidence to supply and swearing that trial counsel had been informed of their existence and willingness to testify.

With respect to defendant's allegations that his lawyer failed to investigate his alibi for the September 28/29 burglary, defendant's sworn submissions do not establish any such failure to investigate. They do not establish that the witnesses were available and willing to testify at the time of the trial. They do not establish that the lawyer was given the name and address of any witness other than Ms. Minaya and defendant's sister. They do not establish what either of these women would have said about defendant's return to New York or what if anything they told the lawyer about it.

Certainly, the reason the lawyer would not rely on Ms. Minaya for this "alibi" is obvious: according to the trial evidence, she accompanied defendant to the scene of the Nine West burglary and she had already lied to authorities to get her husband out of jail. Moreover, the EZ pass records could well have supported the People's case, rather than an "alibi," as they showed defendant's EZ pass coming north, and through the Lincoln Tunnel at shortly after six in the morning, and then out of New York again about two hours later. This burglary was only one of eight pattern acts against defendant, and the decision not to put in a dubious alibi to only one of six alleged burglaries in which defendant allegedly participated is hardly surprising. As the documents defendant says he gave to his lawyer already demonstrated the grave defects in defendant's alibi, there is no need for a hearing to determine the scope of counsel's further investigation, and for his not probing at minor points, but instead globally challenging the cooperating witnesses' testimony in cooperation with the several codefendants who went to trial jointly with defendant. Cf., People v. Satterfield, 66 NY2d 796, 799 (1985)(choice not to impeach witness with prior statement); People v. Taylor, 222 AD2d 204 (1st Dep't 1995)(choice not to pursue weak alibi defense). [*6]

As defendant has failed to establish, prima facie, that he did not receive the effective assistance of counsel no hearing is required.

Defendant's motion to vacate the judgment is denied.

This shall constitute the decision and order of this court.

Dated: New York, New York

February 22, 2010

_________________________

BERKMAN, J. Footnotes

Footnote 1:The documents annexed to his motion show that defendant's grandmother died on September 23 (the date of a burglary at 39 West 37th Street in which defendant was found by the jury to be involved, but to which he makes no reference in this motion) and that her funeral, which he attended, was September 27. He provides affidavits to the effect that he went to visit his mother's grave in Virginia on September 28 at an unspecified time. Defendant states in his reply that "there is no doubt that defendant could not have traveled back to New York on September 28, and, thus, have been present at a burglary or the planning thereof." He does not provide a factual basis for the assertion that he "could not have traveled back" on the 28th. To the contrary, the EZ pass records defendant supplied as an exhibit to his motion show that someone using that EZ pass entered New York City at 6 a.m. on the 29th. According to the evidence at trial, defendant and his wife showed up at the Nine West burglary at least two hours after the burglars began their work (Tr. 3017-19).

Footnote 2:In his motion defendant also discusses at some length how he came to be at the scene of a burglary on 14th Street on November 24, 2001 (¶¶19-26), an incident was the subject of much defense evidence at trial. It is plain from the verdict that the jury rejected defendant's testimony in this regard.

Footnote 3:There is no clear reference to the latter allegation in defendant's affidavit, and no evidence that counsel was so informed. The allegation is in any event puzzling, as the testimony the court has found on this subject was that the burglary proceeds were sorted, but not stored, in defendant's home in New Jersey and then immediately brought elsewhere (Tr. 2874-2877, 2883-2887). It is not clear whether defendant is alleging that Williams supplied an address for this home at trial, but in any event the only evidence defendant offers as to where he lived at that time is a bill to Ms. Minaya in October 2001, referring to amounts past due for medical services rendered on a date unspecified, and reciting her address as 718 Myrtle Street in Elizabeth, New Jersey.

Footnote 4:Defendant's sister also submitted an affidavit (Exhibit R), and she says, on this subject: "I called my brother's attorneys . . . asking the status of my brother's case many times. I was waiting to be contacted about testifying and was never interviewed or asked to testify." In her affidavit, she does not say whether she specifically told counsel about the trip to her grandmother's funeral. Additionally she does not give the date or time when she visited her mother's grave, and she refers not at all to the time and method of return to the New York area. Although defendant says he got the addresses and phone numbers of the witnesses from his sister (Motion ¶17, p.5), possibly this one, she does not say in her affidavit whether she gave this information to defense counsel.