People v Clarke

[*1] People v Clarke 2010 NY Slip Op 51012(U) [27 Misc 3d 1232(A)] Decided on June 10, 2010 Sullivan County Ct LaBuda, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through June 11, 2010; it will not be published in the printed Official Reports.

Decided on June 10, 2010
Sullivan County Ct

The People of the State of New York

against

Corey Clarke, Defendant.



189/2009



APPEARANCES: Hon. James R. Farrell

Sullivan County District Attorney

Sullivan County Courthouse

Monticello, NY 12701

Attorney for the People

Neroni Law Office

203 Main Street

Delhi, New York 13753

By: Frederick J. Neroni, Esq.

Attorney for defendant

Frank J. LaBuda, J.

By motion dated April 29, 2010, defendant moves post-judgment of conviction for review of the Grand Jury minutes and dismissal of the indictment pursuant to CPL 210.35(5) and 30.30 [FN1] and, inter alia, for an order vacating the jury verdict pursuant to CPL 330.30. By affirmation dated May 10, 2010, the People oppose the motion.

On September 23, 2009 defendant was charged in a multi-count indictment alleging that he sexually assaulted his seven month old daughter and abandoned her in the woods. On March 8, 2010, after a jury trial of several days, defendant was found guilty of the crimes of Attempted Murder in the Second Degree, Criminal Sexual Act in the First Degree, Sexual Abuse in the First Degree, [*2]Incest in the First Degree, Assault in the Second Degree, Abandonment of a Child, Endangering the Welfare of a Child and Predatory Sexual Assault Against a Child.

Defendant was arraigned on or about September 18, 2010 and represented by privately retained counsel at each stage of the proceedings. Defendant's pre-trial motion deadline was on or about October 30, 2009 (see CPL 255.20[1]). Although defendant substituted attorneys on October 29, 2009, his new attorney, who continues to represent him, did not request an extension of time in which to make motions.[FN2] Accordingly, the motion to inspect the Grand Jury minutes and dismiss the indictment for a defect in the Grand Jury proceedings is untimely. Good cause not having been shown, the Court declines to entertain the motion pursuant to CPL 255.20(3).

To the extent that defendant's attorney appears to have argued that the expert opinion dated April 22, 2010 provided on the motion should have been presented to the Grand Jury, the argument is misplaced. The expert's report post-dates the Grand Jury presentation and the record shows that the expert was retained after trial.

Further, defendant has failed to sufficiently raise any of the three grounds for vacatur of the jury verdict pursuant to CPL 330.30.

DNA tests results were provided to defendant prior to trial. Defendant's attorney cross-examined the People's forensic expert on those test results and on the lack of certain DNA and bodily fluids evidence and commented thereon on summation. Defendant's claim that Brady material was withheld until the time of trial is harmless error in that defendant was informed of a hair of unknown origin (not analyzed by the New York State Police) found in the infant's diaper and provided with a meaningful opportunity to cross-examine the People's witnesses regarding the allegedly exculpatory import of the evidence and to comment on summation (see People v Cortijo, 70 NY2d 868 [1987]; People v Reyes, 27 AD3d 584 [2nd Dept 2006]).

Additionally, there was no showing at the time of trial that defendant was indigent and entitled to funds for the purpose of hiring a rebuttal expert; nor has any showing been made on this motion. [*3]

The report of defendant's expert retained after the verdict, which challenges the New York State Police Forensic Investigation Center Laboratory Reports and results of certain scientific testing, is unsworn (bears no jurat) and unaffirmed and of no probative value on this motion (see CPL 330.40[2][a]). Further, defendant's expert admittedly bases his conclusions on assumptions and speculation about the procedures used by the New York State Police. This report is not sufficient to support a motion pursuant to CPL 330.30(3).

The Court has considered the other arguments of defendant and found them unpersuasive and unsupported in law and fact.

Based upon the above, it is

ORDERED that the motion of the defendant is denied in all respects.

This shall constitute the Decision and Order of this Court.

DATED: June 10, 2010

Monticello, NY

_______________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge Footnotes

Footnote 1:This citation is not related to any supporting argument in the motion; therefore, the Court addresses the substance of arguments made.

Footnote 2:Wade and Huntley hearings were held after oral motion of the defendant with the consent of the District Attorney.