People v Hernandez

[*1] People v Hernandez 2010 NY Slip Op 52108(U) [29 Misc 3d 1231(A)] Decided on November 23, 2010 Supreme Court, Bronx County Iacovetta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 23, 2010
Supreme Court, Bronx County

The People of the State of New York, Plaintiff,

against

Gregorio Hernandez, Defendant.



5632/96



The People were represented by Assistant D.A. Jason S. Whitehead, Office of the District Attorney, Bronx County, and the defendant pro se.

Nicholas Iacovetta, J.

Defendant moves pro se for an order pursuant to C.P.L. §440.10, vacating the February 17, 1998 judgment convicting him, after a jury trial, of Reckless Endangerment in the First Degree and Criminal Possession of Stolen Property in the Third Degree. Defendant alleges he was denied effective assistance of counsel due to counsel's failure to adequately investigate the charges, request a C.P.L. §730.30 examination, oppose defendant's predicate felony status, and object to the People's failure to file a signed indictment. For the reasons stated below, the motion is denied.

Procedural History

On July 26, 1996 defendant was indicted for the crimes of Attempted Murder in the First

Degree, Attempted Robbery in the First Degree, and other related charges. It is alleged that on July 3, 1996 the defendant climbed into a 1996 Toyota Four Runner, which was idle with the engine running, displayed what appeared to be a gun to the victim, and took the truck. With the police in pursuit with sirens and lights on, defendant drove at high speeds on the Major Deegan Expressway, crossed over a median onto the service road to avoid a police road block and nearly hit a police officer. Defendant then drove south on the northbound lane of the highway before making a sharp turn onto the Saw Mill River Parkway into the opposite lane of traffic causing motorists to crash and/or swerve to avoid a head-on collision. Defendant jumped another median getting into the correct lane, exited the parkway in Yonkers, Westchester County, when a tire [*2]went flat and police apprehended the defendant after a brief foot chase. The gun was not recovered.

Defendant testified at trial that he had stolen the vehicle, attempted to flee from the police, drove the "wrong" way on the highways, traveled at a high rate of speed as he exited the highway in Yonkers, and then tried to flee on foot after the flat tire. He denied possessing a weapon or threatening anyone or trying to run down anyone. The jury convicted him of Reckless Endangerment in the First Degree and Criminal Possession of Stolen Property in the Third Degree.

On March 16, 1998 a pre-sentence report was prepared. Although defendant declined an interview, this report included copies of defendant's previous pre-sentence reports for his 1984

conviction for Attempted Grand Larceny in the Second Degree and his 1985 conviction

Attempted Criminal Possession of Stolen Property in the First Degree in which defendant did

make statements.

At the predicate felony hearing on May 15, 1998, the defendant challenged a 1985 conviction for Robbery in the First Degree alleging he was not the same person, Jose Mateo, charged for that crime. However, when the hearing continued on June 10, 1998, the defendant presented his attorney with a copy of his updated fingerprint sheet which identified defendant and Jose Mateo as one and the same person (see People's Exhibit 4, pg. 2). Defendant thereafter also admitted on the record that he was in fact the same person known as Jose Mateo who was convicted on the 1985 Robbery. The defendant was adjudicated a persistent predicate felony offender and sentenced to concurrent terms of 15 years to life.

On December 30, 1999, defense counsel filed an appeal claiming the trial court's supplemental instruction on the elements of reckless endangerment constructively improperly amended the indictment and the trial court failed to comply with the procedural requirements of C.P.L. §400.20 prior to sentencing defendant as a persistent felony offender. In a decision dated June 29, 2000 the Appellate Court unanimously affirmed defendant's conviction and specifically rejected the two allegations raised by the defense (see People v. Hernandez, 273 AD2d 176 [2000]). Leave to appeal was denied by the Court of Appeals on September 20, 2000 (see People v. Hernandez, 95 NY2d 890 [2000]).

On November 26, 2001 defense counsel filed a motion to set aside the judgment and/or sentence pursuant to C.P.L. §440.10[1][h] and 440.20[1]. Relying on the United States Supreme

Court decision of Apprendi v. New Jersey, 120 S. Ct. 2348, decided June 26, 2000, defendant's single argument alleged that the sentence-enhancement procedure used herein pursuant to P.L.

§70.10 wherein the factual determination was made by the judge rather than a jury violated defendant's rights to due process and a jury trial as noted in Apprendi. Although the defense did note that the arguments raised in Apprendi were rejected by the Court of Appeals in People v. Rosen, 96 NY2d 329 [2001], and therefore "this court's disposition of defendant's motion is currently constrained by Rosen, defendant submits this motion to preserve his constitutional claims in the event that the Rosen analysis is subsequently rejected" (Defendant's Memorandum of Law submitted in support of 440 motion filed on 12/30/99, pgs 4-5).

In a decision filed October 25, 2002, the previous motion court denied defendant's 440 motion finding that Apprendi did not apply to the facts of the instant case. [*3]

Findings

This court finds that each branch of defendant's motion is procedurally barred and, or, in the alternative, without merit. It is, therefore, summarily denied without a hearing for the following reasons.

Defendant's Apprendi claim is procedurally barred since it was addressed in his prior motion (see C.P.L. §440.10[3][c]). This court, as conceded by the defendant's affirmation, is bound by the ruling in People v. Rosen, 96 NY2d 329 [2001]. Moreover, our Court of Appeals

has since reaffirmed its rejection of Apprendi on several subsequent occasions (see for example, People v. Quinones, 12 NY3d 116 [2009]; People v. Leon, 10 NY3d 122, 126 [2008], cert denied 128 S. Ct. 2976 [2008]; People v. Rivera, 5 NY3d 61 [2005]).

Defendant's claim that he was tried on an unsigned indictment is procedurally barred because it could have been raised on defendant's direct appeal (see C.P.L. §440.10[2][c]; People v. Cuadrado, 37 AD3d 218, 221 [First Dept. 2007]). Moreover, contrary to defendant's allegation, he was not tried on an unsigned indictment. A copy of the original indictment is

attached as People's Exhibit 1 (see C.P.L. §440.30[4][c]). It was signed by the foreperson, Ms. Dorothy Allen, before it was filed as noted in People's Exhibit 10.

Defendant's motion to vacate the judgment herein on the grounds his counsel was ineffective because he failed to request a C.P.L. §730.30 exam of the defendant, failed to adequately investigate the case, and failed to properly challenge defendant's prior felony and predicate felony status is likewise without merit.

A judgment of conviction is presumed valid, and a defendant moving to vacate his conviction bears the "burden of coming forward with sufficient allegations to create an issue of fact" (see People v. Session, 34 NY2d 254, 255-256 [1974]; People v. Braun, 167 AD2d 164, 165 [First Dept. 1990]).

Defendant's motion does not meet this burden. It is procedurally barred and denied without a hearing because his moving papers do not contain sufficient factual allegations substantiating or tending to substantiate all the essential facts (see C.P.L. §440.30[4][b]; C.P.L.

§440.30[4][d]).

Defendant's motion is also procedurally barred and summarily denied because he failed, without a reasonable explanation, to submit an affidavit from his trial counsel to substantiate his self-serving, unsubstantiated claims (see People v. Ozuna, 7 NY3d 913, 915 [2006] stating

failure to submit an affidavit from a corroborating source or explain failure to do so warranted summary denial; People v. Morales, 58 NY2d 1008 [1983] stating defendant's failure to supply attorney's affirmation without explanation warranted summary denial of motion collaterally attacking conviction based on attorney's misconduct; People v. Smiley, 67 AD3d 713, 714 [2009], lv denied 13 NY3d 713 [2009], stating defendant's failure to submit an affidavit from his attorney substantiating defendant's claim that attorney failed to advise him of the maximum sentence or that he faced consecutive sentences properly denied without a hearing; C.P.L. §440.30[4][b]).

Moreover, defendant's ineffective assistance claim is rebutted by the trial record. A defendant facing criminal charges is presumed competent (see People v. Gelikkaya, 84 NY2d 456 [1994]). Defendant's claim that defense counsel should have requested a C.P.L. §730.30 [*4]exam of the defendant is belied by the fact that the record is completely devoid of any suggestion that the defendant suffered any impairment of his mental abilities. In fact, the record clearly and directly contradicts defendant's current allegation. First the court notes the defendant took the

stand on his own behalf and testified before the jury. He was in fact so coherent, persuasive and believable, that the jury acquitted the defendant of all the charges except those charges which the defendant admitted during his testimony, to wit: he did take the Toyota Forerunner and did drive

the wrong way on the highway.

The court further notes that defendant's current pre-sentence report contained copies of his two prior pre-sentence reports which contained reports based on defendant's interviews at the time (copies attached to People's Affirmation in Opposition, Exhibit 2). The report for the 1984

conviction states, under "Physical and Mental Health": "The defendant claims that his physical health is good and he appears to be in good physical condition. Regarding his mental health the

defendant denied any psychiatric history or problems. He further denied the use of drugs or alcohol." In the pre-sentence report for his 1985 conviction, the report states, " The defendant maintained that he is in good physical and mental health. He admitted that he has taken valiums

for a "long time" due to his "nerves." He claimed that he was prescribed medication but this claim remains highly suspect." The defendant refused to be interviewed for the current pre-sentence report.

Nothing contained in the pre-sentence reports, or defendant's behavior before or during the trial constituted any "red flags" which could have, or should have, alerted the defense counsel, the People, or the court, that the defendant suffered any degree of mental impairment which required a 730.30 examination. Neither the court nor defense counsel, under the circumstances, were obligated to investigate defendant's mental status (see People v. Tortorici,

92 NY2d 757 [1999].) "A defendant is not denied effective assistance of trial counsel merely because counsel does not make a motion or argument that has little or no chance of success" (see People v. Stultz, 2 NY3d 277, 287 [2004]). Defendant's claim is, therefore, unsubstantiated,

contradicted by the court record, and there is no reasonable possibility that it is true (see C.P.L. §440.30[4][d]; C.P.L. §440.10[2][c]).

With respect to defendant's allegation that the defense counsel failed to properly investigate the matter, the record itself clearly contradicts defendant's assertions. The fact that the defendant was only convicted of the charges he admitted while testifying on his own behalf is

clearly evidence that defense counsel was properly prepared to not only rebut the remaining charges against the defendant but was also successful in doing so since the defendant was acquitted of the those charges which included Attempted Murder in the First Degree, Robbery in the First Degree, and Robbery in the Second Degree. Permitting defendant to testify as he did was not an indication of incompetence by counsel (see People v. Allen, 285 AD2d 470 [2001], lv denied 96 NY2d 915 [2001], where defense counsel admitted to the jury that defendant was guilty of the highest charge, and the appellate court held "[s]uch defense tactics, whereby counsel admitted guilt on a lesser charge in the hope that the jury would be more receptive to the claim that the defendant was innocent of the far more serious offense and acquit him thereof, is a perfectly acceptable strategy which should not be second guessed' by the courts" [internal citations omitted]). Here, the results attained by defense counsel demonstrate counsel was adequately prepared and had a legitimate trial strategy. [*5]

The court further notes the record also contradicts defendant's assertion that the defense counsel failed to properly challenge his prior felony and predicate felony status. Although defense counsel was present and ready to proceed on the predicate felony hearing, defendant,

immediately prior to the prosecution presenting its fingerprint expert, admitted on the record that he was the same person named Jose Mateo who was convicted on November 24, 1986 (see People's Exhibit No.4, pgs. 8-10). Since defendant conceded that he had the prior felony conviction, there was nothing for defense counsel to challenge (see C.P.L. §440.10[2][c]; People v. Stultz, 2 NY3d at 287).

Defendant's ineffective assistance claim is utterly baseless when examined under the

federal standard because here there is no "reasonable probability that.... the result of the proceeding would have been different" absent defense counsel's alleged mistakes (see Strickland v. Washington, 466 U.S. 668, 694 [1984]). New York case law agrees with the federal standard on its "reasonableness" prong, but departs on the "but for" prong by "adopting a rule somewhat more favorable to defendants" (see People v. Turner, 5 NY3d 476, 480 [2005]). The result, however, is the same when defendant's claim is examined under the more generous New York rule which applies a "flexible standard" which focuses on the "fairness of the proceeding as a whole" to evaluate claims of ineffective assistance of counsel (see People v. Benevento, 91 NY2d 708, 714 [1998)).

The court further notes that although defendant was convicted and sentenced in 1998, he waited 12 years before moving to vacate his conviction on the grounds raised herein. As noted

by the People, the validity of the defendant's motion to vacate this judgment is highly suspect

given the above delay (see People v. Haney, 255 AD2d 837, 838 (Third Dept. 1998] finding motion to vacate judgment undermined by the fact it was made three years after the plea. The

People, as noted in their affirmation, may also be unduly prejudiced by defendant's delay in waiting over 12 years to move to vacate the judgment on claims which could have been raised either in his direct appeal or first motion to vacate made almost 10 years ago (see Blackledge v. Allison, 431 U.S. 63, 71-74 [1977]; People v. Lopez, 71 NY2d 662, 665 [1988]; People v. Jackson, 78 NY2d 638, 646 [1991] noting "[a]s time passes, evidence is misplaced, witnesses disappear, and once vivid memories of a crime begin to fade into uncertainly"). Although there is no time limitation for filing a motion pursuant to C.P.L. §440.10, the defendant offered no

explanation for not raising the appealable issues in his prior appeal or previous 440 motion or not filing the instant motion during the past twelve years (see C.P.L.§440.10[2][c]; C.P.L.§440.10[3][c]; People v. Friedgood, 58 NY2d 467 [wherein defendant waited for over three years to file the motion]; People v. McKenzie, 88 AD2d 646 [wherein defendant filed his motion more than two years after sentencing]; People v. Dolan, 8 Misc 3d 555 [wherein defendant waited almost four years to file the motion]

Defendant's motion is therefore denied in all respects without a hearing (see C.P.L. C.P.L. §440.30[4][b]; §440.30[4][c]; C.P.L. §440.30[4][d]).

This shall constitute the decision and order of this court. [*6]

______________________________

Nicholas Iacovetta, A.S.C.J.

Dated:November 23, 2010

Bronx, New York