People v Lou

[*1] People v Lou 2010 NY Slip Op 50961(U) [27 Misc 3d 1229(A)] Decided on June 1, 2010 Supreme Court, Queens County Knopf, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 2010
Supreme Court, Queens County

The People of the State of New York

against

David Lou, Defendant



894/91



The defendant is represented by Joel Rudin, Esq. The People are represented by Assistant District Attorney Jennifer Hagan of the Queens District Attorney's Office.

Stephen A. Knopf, J.

The defendant, David Lou, seeks an order of this Court vacating his judgment of conviction, pursuant to CPL 440.10 or, in the alternative, a hearing on the matter. In this motion, the defendant asserts that his trial lawyer was ineffective in that: (1)he failed to mention the acting-in-concert' theory in his summation, (2)he failed to object to the trial court's acting-in-concert' charge to the jury, and (3)he had a conflict of interest in that as a result of a threat to his person, he failed to investigate and locate four of six potential witnesses that the defendant had asked him to investigate, each of whom would have allegedly testified that the co-defendant had confessed to them that he, not the defendant, had shot the victim in the head. The defendant attached exhibits to this motion: an affirmation from defendant's trial counsel, Mr. Thomas Ognibene, an affidavit from the defendant, decisions on the defendant's direct appeal, a prior CPL 440 motion and habeas corpus petition, the former pattern acting-in-concert' charge and records relevant to the prosecution of the co-defendant, Ferdinand Topino. The People disagree with this application, and oppose the defendant's motion in its entirety.

FINDINGS OF FACT

This indictment arose out of an incident that took place on December 24, 1990 at approximately 8:40pm at 94-03B 63rd Drive, inside a Chinese restaurant, in Rego Park, Queens. On that date, at that time, the defendant shot and killed Mr. Said Ghanem. Mr. Ghanem was a taxi driver who had transported the defendant to this location to meet the co-defendant, Ferdinand Topino. Upon arriving at such location, the defendant could not pay. Mr. Ghanem brought defendant inside in order to find the co-defendant. Once inside the location, the defendant and co-defendant pulled guns out. The defendant shot Mr. Ghanem in the head. Both the defendant and co-defendant then fled.

As a result of these actions, the defendant was ultimately charged with murder in the second degree and related charges.

The defendant proceeded to trial before the Hon. J Katz, JSC (now retired) and a jury. Following a jury trial, the defendant was convicted of murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the fourth [*2]degree.

On May 13, 1992, the defendant was sentenced to an indeterminate term of incarceration of twenty-five years to life on the murder in the second degree conviction, five to fifteen years on the criminal possession of a weapon in the second degree weapons conviction and a definite term of one year on the criminal possession of a weapon in the fourth degree conviction, all sentences to run concurrently.

Of note, on January 8, 1992, his co-defendant entered into a plea of guilty to criminal possession of a weapon in the fourth degree. The murder and robbery counts pending against the co-defendant were dismissed. He was originally sentenced to sixty days incarceration and three years probation and was later resentenced to one year incarceration.

In December of 1994, the defendant appealed this conviction to the Appellate Division, Second Department. He raised ten (10) claims: (1)his guilt was not proven beyond a reasonable doubt and the verdict was against the weight of the evidence, (2)the trial Courts's Sandoval ruling was incorrect, (3)he was denied his right to testify because the record does not reflect an oral waiver of that right,(4)a defense witness was improperly asked by the prosecutor if he was a gang member, and the prosecutor improperly mentioned this in summation, (5)the admission of the victim's photograph was unduly prejudicial, (6)the prosecutor did not comply with his Rosario obligations in a timely manner,(7)the defendant was not present at critical stages of the trial, (8)the trial court's charge contained numerous errors, (9)the trial court's conduct during jury deliberations was improper, and (10)his sentence was illegal and excessive. The People submitted a brief opposing these allegations.

As the defendant claimed in his brief that he was not present in court for a readback and for supplemental instructions given to the jury, the People moved for a hearing to re-settle the record, before the trial court. The People argued that the trial transcript was in error in that the defendant was present for all critical stages of the trial. The People submitted affidavits from the assistant district attorney who prosecuted the case at trial and the official court reporter. The People argued that the only time the defendant was not present in the courtroom was when the jury watched the defendant's videotaped statement during deliberations.

On December 8, 1995, a hearing was conducted on the People's application to re-settle the record. Testimony was taken of the assistant district attorney, the official court reporter, the official part court clerk and the court's law secretary, as well as the defendant himself. On January 26, 1996, the Court re-settled the record to reflect the defendant's presence at these critical stages of the trial.

On July 15, 1996, the defendant's conviction was affirmed by the Appellate Division, Second Department. People v Lou, 229 AD2d 505 (2d Dept 1996). The defendant moved to reargue this decision pro se. The People opposed this application. On October 17, 1996, the Appellate Division, Second Department, denied the defendant's application.

Additionally, the defendant sought leave through counsel to appeal to the Court of Appeals. The People opposed the defendant's application. On December 10, 1996, the defendant's application was denied. People v Lou,89 NY2d 925 (1996).

On March 4, 1997, the defendant filed a motion to vacate his judgment of conviction pursuant to CPL 440.10. The defendant argued he did not receive effective assistance of counsel, in that: (1)the defendant was not advised by counsel of his right to testify at trial, (2)his attorney [*3]did not file a motion to dismiss the indictment based upon a violation of defendant's right to testify before the grand jury, (3) his attorney failed to succeed at the pre-trial Wade hearing, (4)his attorney failed to object to certain portions of the court's final jury instructions,(reasonable doubt and adverse inference), (5)his attorney failed to move for a mistrial because the victim's girlfriend was in the courtroom, (6)his attorney failed to object to testimony concerning defendant's gang involvement, (7)his attorney failed to object to the admission of photographs of the victim, (8)his attorney failed to object to the alleged Rosario violation, (9)his attorney failed to object to the court's purported various ex-parte communications, (10)his attorney failed to argue that the verdict was coerced, (11)his attorney failed to properly cross-examine the eyewitness Salamack, (12)his attorney failed to secure favorable witnesses for the defense, (13)his attorney failed to consult with the defendant in preparation of a defense and (14)his attorney failed to advise the defendant of the consequences of not pleading guilty.

The People opposed the defendant's application, arguing the defendant's claims were procedurally barred and without merit.

On May 19, 1997, the trial count denied the defendant's motion to vacate his conviction, as procedurally barred and without merit.

On June 2, 1997, the defendant, pro se, sought leave to appeal the denial of this motion to the Appellate Division, Second Department. The People opposed the defendant's application. On January 22, 1998, the Appellate Division, Second Department denied the defendant's application. People v Lou, __ AD3d __, 97- 06012(2d Dept 1998).

The defendant also moved, pro se, to reargue his motion before the trial court. On September 4, 1997, this application was also denied.

In September, 1998, the defendant filed a petition with the United States District Court for the Eastern District of New York for a writ of habeas corpus. In this petition, the defendant raised nine (9) claims: (1)the verdict was not supported by legally sufficient evidence, and was against the weight of the evidence, particularly with regard to the evidence that he acted in concert, (2)he was denied his right to testify at trial by the trial court's Sandoval ruling, by the Court's failure to secure his waiver of that right on the record and by an erroneous "no adverse inference" charge, (3)he was denied effective assistance of trial counsel as a result of numerous alleged failures by counsel, (4)the trial court erred in admitting evidence of gang membership, (5)the trial court erred in admitting photographs of the deceased, (6)he was denied a fair trial as a result of an alleged Rosario and Brady violations, (7)he was denied a fair trial as a result of the trial court's alleged erroneous charge, ex-parte contacts with the jury and jury's deliberation outside the jury room, (8)he was denied his right to be present at material stages of his trial and (9)his sentence constituted cruel and unusual punishment and was illegal.

The People opposed the defendant's claims as procedurally barred and without merit and as directed by the district court, filed additional papers in opposition as to the defendant's claim of ineffective assistance of counsel.

In September 2001, the United States District Court for the Eastern District denied the defendant's petition.

In October 2001, the defendant applied to the United States Court of Appeals for the Second Circuit for a certificate of appealabity. In June of 2002, the Second Circuit denied the defendant's application. [*4]

CONCLUSIONS OF LAW

Criminal Procedure Law 440.10 governs the statutory mandates of vacating a judgment of conviction. CPL 440.10 (2) specifically provides, in pertinent part:

...the court must deny a motion to vacate a judgment when: ...(c)Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him;...

In addition, CPL 440.10 (3) provides that the court may deny a motion to vacate a judgment when: ...(c)Upon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so.

Criminal Procedure Law 440.30 governs the procedure for the determination of a motion to vacate judgment of conviction. CPL 440.30 describes the procedure whereby a Court may make a determination of a defendant's motion without conducting a hearing:

2. If it appears by conceded or uncontradicted allegations of the moving papers or of the answer, or by unquestionable documentary proof, that there are circumstances which require denial thereof... the court must summarily deny the motion. If it appears that there are circumstances authorizing, though not requiring, denial... the court may in its discretion either (a)summarily deny the motion, or (b) proceed to consider the merits thereof.

3. Upon considering the merits of the motion, the court must grant it without conducting a hearing and vacate the judgment or set aside the sentence, as the case may be, if:

(a) The moving papers allege a ground constituting legal basis for the motion; and

(b) Such ground, if based upon the existence or occurrence of facts, is supported by sworn allegations thereof; and

(c) The sworn allegations of fact essential to support the motion are either conceded by the people to be true or are conclusively substantiated by unquestionable documentary proof.

4. Upon considering the merits of the motion, the court may deny it without conducting a hearing if:...

(d) An allegation of fact essential to support the motion (i) is contradicted by a court record or other official document, or 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 considering these claims, this Court notes that the defendant asks the Court to overlook the mandates of CPL 440.10 (2)(c). As previously enumerated, in sum and substance, a court must deny a motion to vacate a judgment when sufficient facts appear on the record of the proceedings for the defendant to have raised the claim on his direct appeal, and the defendant, [*5]without justification, did not do so. See, CPL 440.10 (2)(c) generally. See, People v Kandekore,300 AD2d 318 (2d Dept 2002); People v Orr, 240 AD2d 213 (1st Dept 1997). As an example, in Orr, the Court held that: "Defendant's ineffective assistance of counsel claim, based primarily on counsel's failure to utilize impeachment evidence material that was indisputedly in counsel's possession, raised no issue that could not be resolved on the trial record, which establishes that defendant received meaningful representation..." Orr at 214.

This Court does not agree that this issue is predicated upon a subjective analysis of counsel's mental process as to why trial counsel did not address the acting-in-concert theory in his summation. Otherwise, claims of this nature could never be evaluated on direct appeal see, eg People v Jordan, 83 NY2d 785 (1994). In Jordan, counsel's failure to argue passionately' on summation was appropriately reviewed on direct appeal. In People v Nusbaum, 222 AD2d 723 (3rd Dept 1995), it was held that the effectiveness of trial counsel's summation is an on the record' claim. See also, People v Plaisted, 2 AD3d 906 (3rd Dept 2003). Even though the defendant's trial attorney did not address the acting-in-concert' theory during his summation, he discussed the concept in that the defendant did not shoot the decedent, the co-defendant did. Since this claim could have been raised on direct appeal, and was not, it is barred from review by this Court. CPL 440.10 (2)(c).

Also, counsel's failure to object is an issue that is easily ascertainable from reading the trial transcript. In People v Lewis, 2 NY3d 224 (2004), the Court of Appeals pointed out in a footnote that when an attorney's failure to object is the basis for a claim of ineffective assistance of counsel, that claim, by its very nature, will ordinarily be made for the first time on appeal. See, Lewis at 229, footnote 2. This claim should have been raised on the defendant's direct appeal, and without justification, was not. As such, consideration of this claim is barred from review. CPL 440.10 (2)( c).

Indeed, this Court notes that the defendant failed to raise these claims in his previous 440 motion. Here, the defendant should have known of these claims, like he knew of the reasonable doubt' and adverse inference' charges. There is no excuse for failing to raise these challenges regarding the acting in concert' charge or the so-called defects in his trial attorney's summation. See, CPL 440.10 (3)( c). For this reason, consideration of these claims will not be undertaken by this Court. This Court cannot accept the defendant's assertion that he lacked understanding of the law when he filed his previous motion; he has submitted no legal authority for this conclusion. The failure to assign counsel to represent the defendant cannot serve as an excuse for failing to raise these claims; as it is well-settled that a defendant has no constitutional right to an assigned counsel in a collateral proceeding. See, Pennsylvania v Finley, 481 US 551 (1987) This Court is therefore compelled to reject the defendant's claims that his attorney's incomplete summation and failure to object to the trial court's acting-in-concert' charge are a basis for granting this motions. See, CPL 440.10 (2)( c) & 440.10 (3)( c).

This Court now turns to the defendant's most serious claim, that his attorney suspended his investigation of defense witnesses as a result of a personal threat, that resulted in a conflict of interest and his ineffective representation.

As part of this motion, the defendant attached an affirmation from his trial counsel, Mr. Thomas Ognibene. Mr. Ognibene relates in his affirmation that the defendant provided him with the names of several individuals who heard the co-defendant (Topino) admit to personally [*6]shooting the victim. Mr. Ognibene found two witnesses (Ying and Lin). He later spoke with "either this witness himself or a member of his family" who advised Mr. Ognibene that Topino was aware of efforts to find people who could testify to Topino's confession and that he wanted...(the lawyer) to stop. As a result of this conversation, Ognibene states that he believed that if he did not stop investigating, his own life would be at risk. He articulates that he decided to go to trial with only two witnesses he already had.(Of note, in his affirmation, Mr. Ognibene does not name these 4 witnesses; nor does defendant offer affidavits from any of them.)

In reviewing portions of the trial transcript provided by counsel, several discrepancies became apparent. First, the record shows that the attorney did continue to investigate defendant's case throughout the trial, even after he allegedly learned of Topino's threat. He did not locate one of these witnesses, Mr. Lin, until after the trial started and after this threat was allegedly made. The trial record reflects that the existence of Lin became apparent only after the attorney examined the Rosario material, which he received after the trial had commenced. In fact, the trial records reflect that when counsel learned of the existence of Mr. Lin, he asked the trial court to direct the People to provide sufficient information for this witness to be located.

Additionally, the trial record reveals that the second witness Mr. Ying, only spoke with the attorney the day the witness came to court, and was not available or known about, prior to the trial, and prior to this threat'.

Also, there is colloquy during the trial proceeding that as the defendant's trial proceeded, the attorney continued to look for additional witnesses, particularly a reluctant witness. Again, it is clear that Mr. Ognibene's investigation did not end at the delivery of this threat'.

Finally, it is clear when Mr. Ognibene never really ended his search for witnesses. While he states in his affirmation that prior to trial he received the co-defendant's threat, there are multiple references to Mr. Ognibene's continued search for a reluctant witness throughout the trial. Additionally, it was only after the attorney articulated his continual unsuccessful efforts to find the co-defendant through a private investigator, that the trial court permitted a defense witness (Mr. Lin) to testify as to the co-defendant's declaration against penal interest. This belies the attorney's present claim that he was afraid of Mr. Topino.

This Court notes that Mr. Ognibene is recalling events that allegedly took place about 18 years ago. Yet of particular concern to this Court is the purported inability of this attorney to recall such alleged events with any specifity; ie who threatened him, how this threat took place, when it occurred, and most particularly, the names of these four additional witnesses he was compelled to stop searching for. This Court concludes that Mr. Ognibene does not have sufficient recollection to credit such claims and perhaps, for reasons only known to him, he is making such spurious claims in a misguided effort to benefit the defendant.

Most unbelievable to this Court is the claim that when Mr. Ognibene states he related the details of the threat to the Court's law secretary (now deceased), the law secretary failed to advise the Court. If so advised, the trial court (retired) could have conducted an in camera proceeding as to this issue. Thus such claim is unbelievable and certainly unverifiable.

Based on this Court's review of portions of the trial transcript when set beside the vague affirmation supplied by counsel, this Court finds the factual allegations set forth by defendant, essential to support this claim of conflict and less than meaningful representation, are belied by the record and unworthy of belief. These allegations are contradicted by a court record, and under [*7]these and all other circumstances, there is no reasonable possibility that such an allegation is true. See, CPL 440.30 (4)(d); see also, People v Verno, 297 AD2d 873 (3d Dept 2002).

In reviewing this challenge to the defendant's conviction this Court will examine if there, was indeed an actual conflict of interest, and if such conflict resulted in ineffective assistance of trial counsel.

It is well-settled that a defendant is entitled to "representation that is reasonably competent, conflict-free and single-mindedly devoted to the client's best interests". People v Ennis, 11 NY3d 403 (2008)[citations omitted]. A claim that a defense attorney had a conflict of interest does not, per se, require reversal of a defendant's conviction. First, this Court must examine whether there was an conflict of interest that affected and had a substantial relation to the conduct of the defense see, People v Ortiz, 76 NY2d 652 (1990).

In determining whether such a conflict existed in this case, it is necessary to examine whether the defendant received meaningful representation. It is clear the conflict alleged herein was an ethical or personal dilemma, rather then a professional one. A defense attorney is always obligated to pursue the best interests of the defendant. See, DR 5-101, generally. As counsel demonstrated in his vague affirmation where he claims to have abandoned the defendant in favor of his own personal safety, this conflict was personal and not professional. As no actual professional' conflict is demonstrated here, this Court will consider whether Mr. Ognibene provided the defendant with meaningful representation'. Ennis, supra at 411. This Court is aware that what qualifies as effective assistance of counsel is unique to each case and each representation. See, eg People v Benevento, 91 NY2d 708, 712 (1998). See also, People v Baldi, 54 NY2d 137 (1981). The question to be considered here is whether Mr. Ognibene committed egregious and prejudicial error such that this defendant did not receive a fair trial. See, Benevento at 713, quoting People v Flores, 84 NY2d 184, 188-189 (1994). The defendant is always guaranteed a fair trial, not necessarily a perfect one. Benevento at 712, Flores at 187.

To show that Mr. Ognibene was ineffective, the defendant must show that his performance fell below objective levels of reasonableness and that the defendant was denied a fair result. Benevento at 713.

In this case, Mr. Ognibene continued to investigate the defendant's case throughout the trial, and located and presented two defense witnesses. Counsel effectively cross-examined prosecution witness, revealing inconsistences in testimony. Counsel presented a well-reasoned and skillful summation. He objected to prosecution questions and his objections were sustained numerous times. Counsel exhibited a trial strategy focused on convincing the jury that the evidence established that Topino, not the defendant, had shot the victim. In no way did counsel's actions in representing this defendant prejudice him, or indirectly result in changing the outcome of the trial. Indeed, with no evidentiary support, this Court cannot conclude that the testimony of these missing' four witnesses, if presented, would have changed the outcome of the defendant's trial. Indeed, this allegation that there are such witnesses is made solely upon information supplied by the defendant and is not supported by any other affidavit or evidence, such as an affidavit from any of these four potential witnesses. Furthermore, there is no evidence that such witnesses, if they existed, would have been willing to testify at trial or that they would have credibly testified at trial that Topino had confessed to the crime. This Court cannot conclude that defendant was deprived of meaningful representation and deprived of a fair trial. [*8]

In sum, this Court cannot conclude that the defendant's attorney, Mr. Thomas Ognibene, was ineffective in failing to mention acting-in- concert' in his summation, in failing to object to the trial court's acting in concert' charge or that he had a conflict of interest that resulted in ineffective assistance of trial counsel. Based on all the facts and circumstances offered herein, this Court sees no necessity of ordering a hearing on this matter. Any evidence adduced at this hearing would not add any additional facts to assist this Court in determining this application. As such, for the reasons stated herein, the defendant's motion to vacate his judgment of conviction is denied in all respects.

The foregoing constitutes the decision and order of this Court.

_________________________Stephen A. Knopf, J.S.C.