People v. Brown

DANNY K. CHUN, J.

The defendant moves, pro se, to vacate the judgment of conviction against him claiming that the evidence was legally insufficient to support his conviction and that the he received ineffective assistance of counsel. The People oppose the defendant's motion.

The defendant was charged, under Kings County Indictment Number 12742/2007, with Burglary in the Second Degree (PL § 140.25[2]), Burglary in the Third Degree (PL § 140.20), Criminal Trespass in the Second Degree (PL § 140.15) and Attempted Petit Larceny (PL §§ 110/155.25). Following a jury trial, on April 1,2009, the defendant was convicted of Burglary in the Second Degree. On April 23,2009, the defendant was sentenced to a prison term of fifteen years followed by five years of post-release supervision.

In July 2010, the defendant appealed the judgment of conviction to the Appellate Division, Second Department, arguing that the prosecutor's summation comments were improper, and that he received ineffective assistance of counsel because his trial attorney failed to object to the prosecutor's summation comments. On December 28, 2010, the Appellate Division affirmed the judgment of conviction (People v. Brown, 79 A.D. 3d 1142 [2d Dep't 2010]). The Appellate Division decided on the summation comments issue but did not set forth its decision on the defendant's claim that he received ineffective assistance of counsel.

On August 23, 2011, the defendant filed a "Writ of Error Coram Nobis," in which he sought to vacate the judgment of conviction and set aside the sentence. Specifically, the defendant argued, among other things, that (1) the prosecution committed prosecutorial misconduct by inflaming the jury during summation; (2) he received ineffective assistance of counsel because his trial attorney failed to do any pretrial investigation nor present any witnesses and also, failed to object to the alleged prosecutorial misconduct; and (3) the evidence presented at trial was legally insufficient to support a guilty verdict. By decision and order dated October 12, 2011, this court stated that it was treating the defendant's papers as a motion pursuant to C.P.L §§ 440.10 and 440.20, and denied the defendant's motion as being procedurally barred pursuant to CPL §§ 440.10(2)(a) and 440.10(2)(c).

The defendant now moves again to vacate his judgment of conviction under CPL § 440.10 claiming that: (1) he received ineffective assistance of counsel because his trial counsel was unprepared to proceed to trial and failed to raise that the evidence was legally insufficient, and (2) the trial evidence was legally insufficient.

This court denies the defendant's motion as procedurally barred pursuant to CPL § 440.10(2)(c). Section 440.10(2)(c) of Criminal Procedure Law provides that a court must deny a motion to vacate a judgment when, 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.

The issues brought up by the defendant are matters that appear on the record, and could have been argued on his direct appeal. Having failed to do so, CPL 440.10(2)(c) states that the court must deny the motion to vacate the judgment brought after the final affirmance on appeal (CPL 440.10(2)(c); People v Cooks, 67 N.Y. 2d 100, 103-04 [1986]; People v Bvrdsong, 234 A.D. 2d 468, 469 [2d Dep't 1996]; People v. Skinner, 154 A.D. 2d 216, 221 [1990]).

In addition, this court denies the defendant's motion as procedurally barred pursuant to CPL § 440.10(3)(c). Under C.P.L. § 440.10(3)(c), this court has the discretionary power to deny a motion if "[u]pon 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." Here, the defendant raises ineffective assistance of counsel claims on the basis on matters that appear on the record, which the defendant could have raised in his previous motion. Therefore, this court denies the defendant's motion pursuant to CPL § 440.10(3)(c).

However, even if this motion was not procedurally barred, this court finds that all the claims raised by the defendant in his motion to be without merit.

To establish ineffective assistance, the defendant bears the burden of proving the absence of strategic or other legitimate reasons for counsel's alleged errors. People v. Colville, 79 A.D.3d at 197. A defendant in a criminal proceeding is constitutionally entitled to effective assistance of counsel. Strickland v. Washington, 466 US 668 (1984); People v. Linares, 2 N.Y.3d 507, 510 (2004); see U.S. Const., 6 Amend.; N.Y. Const, art. 1 §6. Under the two-prong test of the federal standard, a court must decide (1) whether the counsel's performance fell below an objective standard of reasonableness and (2) whether the defendant suffered actual prejudice as a result. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Strickland v. Washington, 466 U.S. 668, 687 (1984). In New York, "[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met." People v. Baldi, 54 N.Y.2d 137, 147 (1981). "A contention of ineffective assistance of trial counsel requires proof of less than meaningful representation, rather than simple disagreement with strategies and tactics." People v. Rivera, 71 N.Y.2d 705, 708-09 (1988); See People v. Benn, 68 N.Y.2d 941 (1986).

In contrast to the federal standard, which looks to the outcome of the case, in New York, a court must consider "prejudice... [,] a component which focuses on the fairness of the process as a whole rather than any particular impact on the outcome of the case." People v. Yagudayev, 91 A.D.3d 888, 890 (2d Dep't 2012) quoting People v. Colville, 79 A.D.3d 189, 197 (2d Dep't 2010). Defendant bears the burden of overcoming the strong presumption that defense counsel rendered effective assistance by demonstrating the absence of strategic or other legitimate explanations for counsel's alleged errors. People v. Colville, 79 A.D.3d at 197.

Upon careful review of the record and the papers filed by the defendant and the People, this court finds that the defendant was not deprived of effective assistance of counsel. Contrary to the defendant's contention, his trial counsel moved at the end of the People's case to dismiss the indictment arguing that the People failed to make a prima facie case or establish the defendant's identity. Accordingly, the defense counsel's motion adequately preserved for appellate review any claim that the trial evidence was legally insufficient to establish the defendant's identity as the perpetrator, or his intent to commit the crime. In addition, the defense counsel made opening and closing statements and cross-examined the People's witnesses. When viewed in light of the trial as a whole, the actions of defense counsel of which defendant now complains could be attributed to tactical trial decisions. People v. Ryan, 90 N.Y. 2d 822, 823 (1997). Therefore, defendant failed to establish that he was denied his constitutional right to effective assistance of counsel.

The court denies the remaining claims of the defendant's motion finding them to be meritless.

Wherefore, the defendant's motion to vacate his judgment is denied in its entirety.

The foregoing constitutes the decision, opinion and order of the court. Dated: Brooklyn, New York

January 6, 2015

/s/
_________

DANNY K. CHUN, J.S.C. You are advised that your right to an appeal from the order determining your motion is not automatic except in the single instance where the motion was made under CPL §440.30(1-a) for forensic DNA testing of evidence. For all other motions under Article 440, you must apply to a Justice of the Appellate Division for a certificate granting leave to appeal. This application must be filed within 30 days after your being served by the District Attorney or the court with the court order denying your motion. The application must contain your name and address, indictment number, the questions of law or fact which you believe ought to be reviewed and a statement that no prior application for such certificate has been made. You must include a copy of the court order and a copy of any opinion of the court. In addition, you must serve a copy of your application on the District Attorney. APPELLATE DIVISION, 2 Department
45 Monroe Place
Brooklyn, NY 11201
Kings County Supreme Court
Criminal Appeals
320 Jay Street
Brooklyn, NY 11201
Kings County District Attorney
Appeals Bureau
350 Jay Street
Brooklyn, NY 11201