People v Shaw

[*1] People v Shaw 2015 NY Slip Op 51920(U) Decided on December 30, 2015 Supreme Court, Bronx County Price, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 30, 2015
Supreme Court, Bronx County

The People of the State of New York

against

Richard Shaw, Defendant.



9173-1990



Defendant, Pro Se Julia Chariot
Assistant District Attorney
Office of the Bronx District Attorney
Richard L. Price, J.

By motion submitted May 21, 2015, defendant pro se moved this court for an order vacating the judgment of conviction pursuant to Criminal Procedure Law § 440.10 (1) (h) on the basis that defense counsel was ineffective. Specifically, defendant claims that counsel failed to communicate the People's plea offer of twenty-two years imprisonment with a mandatory minimum period of eleven years, and further failed to discuss and advise him of the benefits associated with accepting it. By decision and order dated July 17, 2015, this court summarily denied defendant's motion.

Background and Procedural History

On September 17, 1992, judgment was entered against this defendant pursuant to his conviction after a jury trial of robbery in the first degree (PL 165.15 [4]) and criminal possession of a weapon in the second degree (PL 265.03). Adjudicating him as a persistent violent offender, this court sentenced defendant to two concurrent life terms of imprisonment, each with mandatory minimum periods of twenty-five years. On December 5, 2006, defendant filed pro se motion papers pursuant to CPL § 440.10 (h) to vacate the judgment of conviction on the basis of ineffective assistance of counsel, alleging counsel failed to provide "professional advice" during the plea stage, failed to communicate the People's offer of eleven to twenty-two years imprisonment, and failed to discuss with him the benefits of accepting such plea (see People's Exhibit 1, Defendant's 2006 CPL § 440.10 motion).

By order dated July 17, 2007, this court granted a hearing to determine whether counsel failed to convey and discuss that plea offer with the defendant, and whether he would have accepted it had counsel provided effective advice (see People's Exhibit 2, Order dated July 17, 2007). Following that hearing, by decision and order dated February 14, 2008, this court denied defendant's motion concluding, among other things, that he failed to establish: (a) counsel's failure to communicate any plea offers and/or failed to discuss the advisability of accepting such offers actually made, or (b) counsel's failure to advise him of the consequences associated with [*2]his persistent violent felony offender status (see People's Exhibit 3, Order dated February 14, 2008, p. 9).

On March 20, 2008, defendant sought a certificate granting leave to appeal the denial of his CPL § 440.10 motion pursuant to CPL § 460.15 (see People's Exhibit 4, CPL § 460.15, Motion for Leave to Appeal). On May 8, 2008, Justice DeGrasse, of the Appellate Division, First Department, denied defendant permission to appeal the denial of his CPL § 440.10 motion (see People's Exhibit 5, Certificate Denying Leave to Appeal).[FN1]

In pro se motion papers notarized June 10, 2008, defendant moved for leave to reargue the Appellate Division's Order denying his CPL § 460.15 leave application pursuant to CPLR § 2221 (a) and (d) (2) (see People's Exhibit 6, Motion to Reargue). By order entered September 2, 2008, Justice Degrasse denied defendant's motion to reargue (see People's Exhibit 7, Order entered September 2, 2008).

Then, in pro se papers notarized November 10, 2008, defendant moved, again, for CPL 440 relief. By decision and order dated May 21, 2009, this court denied that motion, and enjoined him from filing any further pro se motions without first seeking leave of this court. The basis of that enjoinder was the defendant's penchant for extensive post-conviction litigation in this matter, which included four CPL 440 motions, a direct appeal, a writ of error coram nobis, and a writ of habeas corpus. In addition, the court noted that defendant had filed pro se papers in many of these matters (see People's Exhibit 8, Order entered May 21, 2009, pp. 6-7).[FN2]

In a letter dated June 30, 2014, defendant sought leave from this court to file yet another a motion renewing his 2006 CPL § 440.10, the purported basis of which was his claim that a change in the relevant law with regard to ineffective assistance of counsel warranted it. In accompanying pro se motion papers, notarized June 17, 2014, defendant specifically claimed he received ineffective assistance of counsel on the grounds that he "was undoubtedly incapable of comprehending trial counsel's advise [sic], if in fact he did advise him at all" (defendant's moving papers, p. 13 paragraph 9).

By letter dated August 28, 2014, this court accepted defendant's papers but noted that the "sole basis of such acceptance [was his] claim that the Supreme Court's ruling in Lafler v Cooper represents a change in the law requiring that [his] conviction be vacated" (see People's Exhibit 9, Letter dated August 28, 2014).

As noted above, this court summarily denied defendant's motion by decision and order dated July 17, 2015.

Motion to for Leave to Renew

To be sure, defendant's motion has several flaws, not the least of which is that he surreptitiously characterized it as a change in the law. That aside, defendant seeks relief under CPLR 2221 (e). CPLR 2221 (e) states in pertinent part:

A motion for leave to renew:1. shall be identified specifically as such;2. shall be based upon new facts not offered on the prior motion that would change the prior determination; and3. shall contain reasonable justification for the failure to present such facts on the prior motion.

In general, the CPLR does not govern the CPL. The Appellate Division, First Department, opined the CPLR has "no application to criminal actions and proceedings" (People v Silva, 122 AD2d 750 [1986]). In Silva, though, defendants' motion to set aside the verdict was made orally, and the court ruled orally on the record. As such, the First Department found defendants' claim that the appeal was "procedurally flawed" pursuant to CPLR 2220 invalid because the People were not required to serve a copy of the written order as a prerequisite to appeal where the order was entered on the record (i.e., orally).

Since then, however, several courts have determined, as this court does, that where there [*3]are no applicable provisions in the CPL concerning the issue at hand, those provisions of the CPLR which address the issue at hand may be applied in a criminal action (see e.g. People v Davis, 169 Misc 2d 977 [County Ct, Westchester County 1996, Leavitt, J.] People v Radtke, 153 Misc 2d 554 [Sup Ct, Queens County 1992, Goldstein, J.]; People v Cortez, 149 Misc 2d 886 [Crim Ct, Kings County 1990, Stallman, J.]).

But the looming question is why, if as the defendant claims, a change in the law entitles him to relief that was previously denied, he would rely on a procedure specifically based on new facts not new law. As indicated, to prevail on a motion to renew, the defendant must establish that the "new facts . . . would change the prior determination" (CPLR 2221 [e] [2]; Siegel, New York Practice, 4th ed, § 254) (emphasis supplied). But here, defendant proffers "new" law, not new facts: Lafler v Cooper (132 S Ct 1376 [2012] and Padilla v Kentucky (130 S Ct 1473 [2010]).

Moreover, given that CPL 440.10 (1) (g) specifically provides a basis for moving to vacate a judgment of conviction where "[n]ew evidence has been discovered since the entry of a judgment . . . which is of such character as to create a probability that had such evidence been received at trial the verdict would have been more favorable to the defendant," it is confounding why he elected to move pursuant to CPLR 2221 (e). Perplexing, unless he had little or no expectation of succuss on that basis.

Indeed, the gravamen of defendant's motion is what he characterizes as the existence of new information not previously considered by this court. But as noted above and discussed below, neither leave to renew under CPLR 2221 (e) nor de novo review pursuant to CPL 440.10 (1) (g) would be appropriate. CPLR 2221 [e] requires a showing that omission of the new facts from the prior motion was reasonably justified (see CPLR 2221 [e]), and CPL 440.10 (1) (g) requires the defendant to demonstrate that upon the discovery of new evidence he move for such relief "with due diligence" (see CPL 440 10 [1] [g]).

The point here is that regardless of the legal mechanism upon which defendant seeks relief, he advertised it to this court as being rooted in law, not newly discovered facts or evidence. Yet, he squarely predicates it on so-called new evidence. But, not surprisingly, it is hardly new. In fact, what defendant peddles as new constitutes nothing more than a repackaging of his worn out, previously considered, and repeatedly rejected ineffective assistance claim. More poignantly, he abjectly fails to demonstrate a relevant change in law warranting a different result. His motion is therefore meritless.

III. Change in Law

Defendant's reliance on Lafler v Cooper is entirely misplaced. The issue in Lafler addressed affirmative misadvise, not the failure to advise as defendant claims (Lafler, 132 S Ct 1376). Specifically, defendant accuses counsel "did not fully advise" him whether the plea bargain was in his best interest and "never educated him" as to the risks of proceeding to trial (Shaw leave to renew at 10). In other words, the defendant is asserting, once again, that his lawyer failed to advise him, not that he misadvised him (emphasis supplied). Lafler, then, has no bearing on this court's previous determination denying defendant's ineffective assistance of counsel motion.

To the extent defendant asserts that Lafler represents a change in the law regarding ineffective assistance of counsel, this too, is baseless. The Supreme Court in Lafler did not create a new constitutional rule. Rather, the Court merely applied the decades-old standard set forth in Strickland v Washington (104 S Ct 2052, 2067[1984]; see Gallagher v US, 711 F3d 315 [*4][2d Cir 2013]). In fact, defendant's 2006 CPL § 440 motion alleging ineffective assistance of counsel was predicated on a claim under Boria v Keane (99 F3d 492 [2d Cir 1996]). In Boria, the Second Circuit, applying the same analysis as the Supreme Court would later use in Lafler, found that an attorney's failure to provide any advice regarding the advisability of accepting a plea offer constituted ineffective assistance under the Strickland standard (Boria at 497).

Thus, even if this court were to humor the defendant by entertaining his claim "that he is entitled to the plea offer of 15 years to life . . . because of counsel's failure to properly advise him of what was best for him" (defendant's moving papers, p. 14 ¶ 12), it would fail. Defendant insists that the Lafler standard, when applied, establishes he "was prejudiced by trial counsel's omissions" because he "explicitly stated that he would have accepted the plea, had he been properly advised that it was in his best interest to do so" (defendant's moving papers, p. 13 ¶ 11). The problem with defendant's reasoning is that in 2007, this court ordered and conducted a full evidentiary hearing to resolve such factual discrepancies (see People's Exhibit 2, Order dated July 17, 2007). Based on the evidence presented at that hearing, this court rejected defendant's claim as meritless (see People's Exhibit 3, Order dated February 14, 2008, p. 9). As such, having previously reviewed and rejected his claim under what was effectively a Lafler analysis, there is no basis do so again.

Defendant further argues that Padilla v Kentucky (130 S Ct at 1473) also represents a change in law. This assertion is baseless as well. Padilla requires attorneys to advise their clients about the possibility of deportation (Padilla at 1473). But Padilla is distinctive because the Supreme Court determined that the profound nature of deportation necessitated it be treated with greater significance than the collateral consequences usually associated with a criminal conviction. The Court therefore held that under the Sixth Amendment, counsel must advise the defendant about such deportation consequences. Nothing in Padilla, however, can be remotely construed as equating counsel's failure to advise a defendant of the risks of having a trial with the risk of deportation. And, even if it were, the Supreme Court subsequently ruled Padilla did not warrant retroactive application (Chaidez v United States, 133 S Ct 1103 [2013]).

IV. New Facts or Evidence

Not surprisingly, defendant manipulated this court's indulgence in permitting him to move for CPL 440 relief on the basis of a change in law into an opportunity to re-litigate his ineffective assistance of counsel claim, feigning new facts in the process. If such evidence is indeed new, it is only to the extent that he neglected to include it in any of his prior CPL 440 motions, not that he was unaware it. Now, more than 23 years post-conviction, defendant presents evidence purporting to demonstrate that he had a hearing deficiency and dyslexia, claims to have communicated this to trial counsel, and alleges that counsel ignored it. According to the defendant, "[a]s a result of [his] lack of understanding, in conjunction with all of [his] disabilities, [he] was simply incapable of understanding the ramifications of not accepting a plea offer" (defendant's moving papers, p. 14 ¶ 12). Such self-serving and conclusory assertion aside, he offers nothing to support it.

CPL 440.10 (3) provides that a "court may deny a motion to vacate judgment when: upon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground of issue underlying the present motion but did not do so" (see CPL § 440.10 [3]). In extensive post-conviction litigation spanning more than two decades consisting of three CPL 440.10 motions (all alleging ineffective assistance of trial counsel), a coram nobis application (also alleging ineffective assistance of trial counsel), and a CPL 440.20 motion, [*5]defendant never raised this claim. In fact, though arguing in his 2006 CPL 440 motion that trial counsel failed to communicate a plea offer to defendant, he made no allegation that counsel failed to take into account defendant's so-called disabilities (see Exhibit 1, defendant's 2006 CPL 440 motion). And, strikingly, despite claiming to have been learning disabled while testifying at the evidentiary hearing on that motion, he never asserted it as a basis to vacate his conviction. If indeed the defendant communicated it to trial counsel, at best a dubious assumption, then surely he was aware of it in 1993, 1998, 1999, 2006, and 2008. This alone warrants summary denial.

His claim is also meritless because it is based on unsubstantiated and conclusory allegations. Defendant fails to provide any specific allegations explaining how counsel's plea offer communications and the advisability of accepting it were lacking. In fact, notwithstanding this court's factual findings upon the 2006 CPL 440 hearing, defendant neither concedes nor acknowledges that trial counsel engaged in communications with him regarding a plea offer. Rather, in conclusory fashion, he merely claims that he "was undoubtedly incapable of comprehending trial counsel's advise [sic], if in fact he did advise him at all," (defendant's moving papers, p. 13 ¶ 9) (emphasis supplied).

As to whether the defendant's supposed disabilities rendered him incapable of comprehending counsel's communications, he offers nothing but conclusory assertions as well. Even during the 2006 hearing, defendant never indicated that his communications with counsel were significantly impacted by such disabilities let alone explain how. And, other than the two exhibits he appends documenting an ostensible diagnoses based partly on submissions dating from the 1960's, he conspicuously omits any affidavits or other documentation from medical professionals to corroborate it.

If in fact the defendant had dyslexia and hearing loss, he could have and should have taken the appropriate measures to provide this court with evidence of the manner and extent to which it impacted his communication with trial counsel in his first CPL 440 motion. While there is no statute of limitation barring motions seeking to vacate a judgment of conviction or leave to renew, as noted above, CPL 440.10 (1) (g) requires the defendant move on with "due diligence after the discovery of such alleged new evidence" (see CPL 440 10 [1] [g]). When moving pursuant to CPLR 2221 [e], a litigant must demonstrate that the omission of new evidence was "reasonably justified" (see CPLR 2221 [e]). He did neither.

V. Preclusion of Further Pro Se Applications

Finally, defendant is again enjoined from filing any further pro se motions without first seeking the permission of this court by specifically identifying and stating the basis upon which he believes he is entitled to legal relief. While this court recognizes that doing so is extreme, and should be reserved for those rare instances where such a measure is absolutely necessary, it is more than appropriate here. Clearly the right to defend oneself, pro se, is both constitutionally protected and statutorily granted in New York, such right "is not absolute but subject to certain restrictions" (People v McIntyre, 36 NY2d 10, 17 [1974]). Indeed, courts must not be "without authority to curtail the waste of resources resulting from these motions" (People v Rivera, 159 Misc 2d 556, 561 [Sup Ct, Bronx County 1993, Fisch, J.]; see People v Brown, 14 Misc 3d 1237(A), 2007 NY Slip Op 50401(U), 4 [Sup Ct, Queens County 2007, Knopf, J.] [enjoining a defendant from making future motions is "well within the Court's discretion").

In defendant's direct appeal, four CPL 440 motions, three of which have been pro se, writ of error coram nobis, and writ of habeas corpus, he has incessantly raised similar issues only to be struck down by this court as well as the Appellate Division, First Department, the United [*6]States District Court for the Southern District of New York, and the United States Court of Appeals for the Second Circuit. Moreover, the New York State Court of Appeals denied his petition for further appellate review. Given defendant's penchant for excessive, protracted, and unsuccessful litigation, this court finds it necessary to continue to enjoin this defendant from filing any further pro se CPL 440 motions without first obtaining permission from this court to do so (see In re Moore, 17 Misc 3d 228 [Sup Ct, Kings County 2007, Leventhal, J.] [enjoining defendant from filing further CPL 440.10 motions without the court's permission after defendant had moved five times in three years raising the same issues each time that were previously found to be without merit]).

Further, as previously noted, since the CPLR may be appropriately applied in a criminal action where there are no applicable provisions in the CPL, defendant ought to take particular note of 22 NYCRR § 130-1.1 (b), which provides that "[t]he court, as appropriate, may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both" (22 NYCRR § 130-1.1 [b]). Specifically, defendant should be on notice that merely because he is incarcerated does not immunize him from sanctions as a pro se litigant for engaging in frivolous conduct.

VI. Conclusion

For the reasons set forth above, defendant's motion to vacate the judgment of conviction pursuant to Criminal Procedure Law § 440.10 (1) (h) on the basis that defense counsel rendered ineffective assistance of counsel is both procedurally flawed and substantively baseless. As such, his claim of is devoid of any merit as a matter of law. Defendant's motion is therefore summarily denied in its entirety, and he remains enjoined from filing future CPL 440 motions without first seeking permission of this court.

This constitutes the decision and order of the court.

The clerk of the court is directed to forward a copy of this decision to the defendant at his place of incarceration.

Dated: December 30, 2015

E N T E R

__________________________________
Richard Lee Price, J.S.C. Footnotes

Footnote 1:People v Shaw, 259 AD2d 1058.

Footnote 2:Pursuant to his judgment of conviction, defendant filed his first motion to vacate his conviction pursuant to CPL 440.10 (1) (h) claiming he was deprived of effective assistance of counsel, and asserting Brady and Rosario violations. In a decision dated March 9, 1993, this court denied defendant's motion finding that notwithstanding defendant's failure to support the motion with sworn allegations, he was provided with meaningful representation, and that no Brady or Rosario material was withheld. This court also noted that the record contained facts sufficient so as to have permitted the defendant to raise these claims on direct appeal. Defendant then brought a direct appeal in the Appellate Division, First Department, asserting that this court admitted impermissible identification testimony and hearsay at trial. He also sought leave of the Appellate Division to appeal this court's denial of his CPL 440.10 (1) (h) motion. On June 24, 1993, Justice Israel Rubin granted defendant's application for leave, and ordered that his CPL 440.10 claims be consolidated with the issues contained in his direct appeal. Defendant then filed a pro se supplemental brief claiming that the description given was insufficient probable cause to arrest and that trial counsel's failure to obtain an alibi witness deprived him of ineffective assistance of counsel. He subsequently filed an addendum to the supplemental brief asserting that trial counsel's failure to request appropriate jury instructions also deprived him of ineffective assistance of counsel. Rejecting these claims, the Appellate Division, First Department, unanimously affirmed defendant's conviction on October 1, 1996 (People v Shaw, 232 AD2d 174). Defendant then sought a certificate seeking leave to appeal to the Court of Appeals, and subsequently filed both a pro se supplemental brief and an appendix to that application. On January 3, 1997, the Court of Appeals denied defendant's application stating that "there [was] no question of law presented which ought to be reviewed by the Court of Appeals." Defendant again moved pro se to vacate his judgement of conviction pursuant to CPL 440.10 (1) (h) and 440.30 (5) claiming that he was denied effective assistance of counsel because trial counsel failed to make certain arguments and objections thereby denying him effective appellate review (specifically that defendant claimed trial counsel failed to preserve those issues previously raised by appellate counsel, failed to have defendant present during side bar discussions during voir dire, failed to present an alibi defense, failed to request a missing witness charge, and failed to request an adverse inference charge relative to a missing 911 audiotape). This court denied that motion on July 6, 1998, upon which the defendant filed a pro se application for a certificate seeking leave to appeal to the Appellate Division, First Department. On November 12, 1999, that application was denied (People v Shaw, 259 AD2d 1058). Defendant then brought a writ of error coram nobis before the Appellate Division, First Department, asserting that appellate counsel deprived him of effective assistance of counsel because of his failure to raise the claim of ineffective assistant of trial counsel on direct appeal. The Appellate Division denied defendant's writ on March 30, 1999. Subsequently, the defendant filed a petition for writ of habeas corpus in the United States District Court, Southern District of New York, which was denied on December 21, 2001 (Shaw v Artuz, 2001 WL 1645933 [SDNY]). That court also denied defendant's application for a certificate of appealability because he failed to both present a question of substance and demonstrate that he was denial of substantial constitutional right.