Summary
stating that "[i]t is well-settled . . . that a defendant's claim is not a proper subject of a CPL 440.10 motion where it is based on the record and defendant could have raised it on direct appeal but failed to do so."
Summary of this case from Green v. LegoneyOpinion
3676-99.
Decided April 27, 2010.
Hon. Charles J. Hynes, District Attorney, Kings County, Assistant District Attorneys Leonard Joblove, Thomas M. Ross and Judith Aarons, of counsel, For the People.
Angel Morales, pro se, For the Defense.
Defendant Angel Morales has submitted a pro se motion dated November 17, 2009 seeking to set aside his February 17, 2000 judgment of conviction pursuant to CPL 440.10 on the grounds that he was denied the effective assistance of counsel in that his trial counsel did not complain that the jury verdict was repugnant — specifically referencing his conviction of burglary in the second degree but acquittal of burglary in the third degree. In addition defendant claims his attorney failed to be familiar with the facts and the law as they applied to these burglary counts.
The People have submitted a response dated March 18, 2010 in opposition to defendant's motion. They in effect concede that the portion of the verdict in question was repugnant but maintain that under the particular circumstances of this case defendant's related claim of ineffective assistance of counsel should have been raised on direct appeal since it is based upon matters of record and therefore defendant is procedurally barred from bringing it now. Defendant has also filed supplemental pro se papers dated March 8, 2010 seeking a default judgment in his favor for the People's alleged failure to answer his motion timely. Defendant has submitted reply papers dated March 25, 2010 and has also sent the Court a letter dated April 5, 2010 alerting the Court to a recent Third Department ineffective assistance of counsel case.
This Court has considered this case, People v Hull, 71 AD3d 1336 (3d Dept March 25, 2010). Unlike the instant case, Hull combined a direct appeal with an appellate review of a denial of Hull's 440 motion, granted by permission.
The 19 count indictment charged defendant with two separate burglaries. The first set of counts related to a May 1, 1999 burglary of the dwelling of Theodoshia Huggins ("Huggins") where no fingerprints were recovered. The second set of counts related to an earlier April 5, 1999 burglary of the home of Maqueda Sanderson ("Sanderson"). The third set of counts related to defendant's escape on May 5, 1999 from a hospital and his alleged assault on a police officer. Defendant was tried by a jury before a now retired Supreme Court Justice.
Defendant was acquitted of the burglary and criminal trespass counts and convicted only of criminal trespass third degree and criminal mischief fourth degree for the Huggins incident. He raises no issues regarding any of these counts. Therefore any further discussion of these counts will be omitted from this Opinion.
SANDERSON APARTMENT/THOMPKINS AVENUE — APRIL 5, 1999
On April 5, 1999 Maqueda Sanderson returned to her Thompkins Avenue, Brooklyn apartment and found a window broken, the apartment in disarray and property missing. Four fingerprints were recovered in the apartment with one matching defendant's fingerprint. The Trial Judge charged all eight Sanderson counts which were in the indictment.
In its final instructions the Court charged the jury inter alia:
Now, when a person is charged with a crime, depending on what happened during the course of the crime, different scenarios of what took place can give rise to different charges. That's why you get several charges arising out of the same episode.
The first two counts are two burglary counts. And, the difference between the two burglary counts is that the legislature makes it a burglary to enter into a dwelling; and, then, the legislature also makes it a crime to enter into a building. So you can see if a person enters into a dwelling, that automatically is going to give rise to two charges because every dwelling is a building.
And, then, there's going to be criminal trespass and there's going to be two counts because, once again, the legislature distinguishes going into a building and a dwelling; and, if the fact pattern is a person entered into a dwelling, since all dwellings are buildings, you are going to get two counts. [Trial Transcript at 498-499].
The Trial Judge did not charge the jury in the alternative as to any of the lesser included counts nor did the submitted verdict sheet contain any directions for the jury to follow regarding what order to consider the charges or how to handle the lesser charges. As for the Sanderson Thompkins Avenue burglary the jury found defendant guilty of burglary in the second degree but acquitted him of burglary in the third degree. Defendant, as limited by his papers, now only claims ineffective assistance of counsel regarding these alleged repugnant burglary verdicts. Defendant was also found guilty of criminal trespass in the second degree and trespass (as a violation) but not guilty of criminal trespass in the third degree. Defendant in his papers fails to raise any repugnancy claims about these trespass verdicts. Defendant was also found not guilty of grand larceny in the fourth degree but guilty of petit larceny and criminal mischief in the fourth degree.
ESCAPE AND ASSAULT — MAY 5, 1999
On May 5, 1999, while defendant was in police custody, he was being treated at a Brooklyn hospital for drug withdrawal when he escaped and was pursued by an Officer Timothy Crowley, who re-arrested defendant. Defendant was acquitted of two counts of assault in the second degree, guilty of escape in the second degree, but not guilty of escape in the third degree. Defendant does not raise any repugnancy issues relating to the escape verdicts.
REPUGNANCY COLLOQUY
After the verdict was rendered and before the jury was discharged the Trial Judge sua sponte asked the jury to step into the hallway. The following colloquy then ensued on the record in open court between the Assistant District Attorney and defense attorney. The Court: Is there repugnancy on 7 and 8 not guilty? [These counts relate to the Sanderson burglary — Count 7 being burglary 2° and Count 8 being burglary 3°].
The Clerk: Of breaking into a dwelling but guilty —
ADA Kohler: Judge, I think the jury, I'd have to check with Appeals, but I think what the jury has done is convicted the defendant, at times they convicted the defendant of top counts and then not considered convicting him of the lesser counts.
The Court: The other way around. Oh, I see, guilty, in, right.
Mr. Sartori: Right, so it's not repugnant.
ADA Kohler: It's not?
Mr. Sartori: I don't think it's repugnant if I convicted the top and not —
ADA Kohler: Because they —
The Court: So what they're saying is this is the non-fingerprint case.
ADA Kohler: That is the fingerprint case burglary in the second degree and not the third degree.
The Court: Wait. This is the non-fingerprint.
ADA Kohler: Top one is non-fingerprint.
The Court: Oh, they had reasonable doubt, okay. Now, on the next one, the fingerprint case top count compromise of the lower count, trespass is logical. Oh, I see. These are compromises, convicted on the top and not on the lower. So there's enough logic for me to deny the motion of repugnancy.
ADA Kohler: Judge, would you like me to check with my office first?
The Court: No. The People have five years to work on it. I'm just going to step down.
Mr. Sartori: I am going to ask that they be poled. [sic]. [Trial Transcript at 516-518].
After the Court polled the individual jurors it accepted the verdict and dismissed the jury.
PROCEDURAL HISTORY
On March 15, 2000 the Trial Judge sentenced defendant to concurrent terms of imprisonment of 16 years to life on the second degree burglary count, one and one-half to three years on the second degree escape count, and lesser concurrent sentences on the remaining misdemeanor counts. Defendant's sentence and Order of Commitment were amended on March 28, 2000 to reflect defendant's adjudication as a mandatory persistent violent felony offender. ( See Penal Law § 70.08).
Defendant's conviction was affirmed by the Second Department of the Appellate Division in People v Morales, 308 AD2d 229 (2d Dept 2003). The Court rejected defendant's Sandoval claims and also held that defendant's remaining contentions lacked merit. According to defendant's appellate brief (which is contained in the court file), besides arguing the Trial Court erred by conducting a Sandoval hearing outside defendant's presence, defendant argued the Court abused its discretion by denying defendant the right to fully cross-examine the People's fingerprint expert and the right to call his own fingerprint expert. No repugnancy or ineffective assistance of counsel claims were raised on direct appeal. Leave to appeal from the Appellate Division's affirmance was denied by the Court of Appeals in People v Morales, 1 NY3d 576 (2003) (Ciparick, J.).
On February 28, 2005 defendant filed a federal writ of habeas corpus in the Eastern District of New York alleging that the Trial Judge improperly excluded his expert fingerprint witness (to show that police frequently fabricated fingerprints) and that the Court unduly limited the scope of his cross-examination of the People's expert fingerprint witness. The District Court (Judge Sifton) denied defendant's application. ( Morales v Smith, 2005 WL 2367621 [Sept 27, 2005]). The Court however granted defendant a Certificate of Appealability. The parties' chronology in the instant case reveals that on February 13, 2006 defendant appealed to the Court of Appeals for the Second Circuit and in an unreported Summary Order filed on August 22, 2006 the Second Circuit affirmed the District Court's decision. ( Morales v Smith, No. 05-6059 pr [2d Cir. Aug 22, 2006]). On January 27, 2007 defendant's petition to the United States Supreme Court for a writ of certiorari was denied. See Morales v Smith, 549 US 1181 (2007).
ANALYSIS
DEFAULT
In his March 8, 2010 supplemental papers defendant argues that this Court should summarily grant his pro se 440 motion since the People failed to timely respond to it. That application is DENIED. Although defendant served his papers on the People in November 2009, this case was not administratively put on the Motions Calendar until February 4, 2010 and assigned to me by virtue of my presiding in the Miscellaneous Motions Part on that date. No date was set for the People's response until February 4, 2010 when a motion schedule was established by me and the People were notified that their answer was due on or before March 18, 2010. The People filed their response on that date, and accordingly their answer is timely.
REPUGNANCY OF THE VERDICT
Defendant argues that the jury's verdict finding him guilty of burglary in the second degree (dwelling) and not guilty of burglary in the third degree (building) was repugnant and trial counsel, who was allegedly unfamiliar with the facts and law concerning the burglaries ( see People v Droz, 39 NY2d 457, 462), was ineffective in not recognizing this. The People concede the verdict was repugnant but maintain this Court is mandatorily and procedurally barred from determining defendant's pro se 440 ineffective assistance claim. The Court agrees with the People that it does not have the authority or discretion to grant defendant the relief he now seeks since his claim was reviewable on direct appeal based upon the trial record.
Defendant is correct that a single egregious and prejudicial error may qualify as ineffective assistance of counsel. See People v Baker, ___ NY3d ___, 2010 WL 1063945 (March 25, 2010); People v Carncross, ___ NY3d ___, 2010 WL1063952 (March 25, 2010).
Burglary in the third degree (building) [Penal Law § 140.20] is clearly a lesser included offense of burglary in the second degree (dwelling) [Penal Law § 140.25-2] . See People v Barney, 99 NY2d 367 (2003); People v Mora , 36 AD3d 1142 (3rd Dept 2007), lv denied 8 NY3d 988 (2007); People v Thomas, 237 AD2d 468 (2d Dept 1997), lv denied 90 NY2d 864 (1997); People v Holmes, 211 AD2d 824 (2d Dept 1995), lv denied 85 NY2d 910 (1995); People v McCarron, 114 Ad2d 977 (2d Dept 1985); People v Ramos, 110 AD2d 860 (2d Dept 1985). However, based upon a reasonable view of the evidence adduced at trial the Court could (and arguably should) have properly declined to submit the lesser offense of burglary in the third degree. Having elected to submit it, however, the Trial Court should have charged the two burglary counts in the alternative, thereby avoiding the danger of a repugnant or inconsistent verdict. See People v Helliger, 96 NY2d 462 (2001); People v Johnson, 87 NY2d 357 (1996); People v Boettcher, 69 NY2d 174 (1987); People v Flecha , 43 AD3d 1385 (4th Dept 2007), lv denied 9 NY3d 990 (2007); People v Fort, 292 AD2d 821 (4th Dept 202), lv denied 98 NY2d 710 (2002); Matter of Morgenthau v Yates, 262 AD2d 83 (1st Dept 1999), appeal dismissed 93 NY2d 1039 (1999), People v Garofalo, 192 AD2d 619 (2d Dept 1993), lv denied 81 NY2d 1014 (1993); People v Rivera, 268 AD2d 538 (2d Dept 2000), lv denied 95 NY2d 802 (2000); CPL 300.50. The Sanderson burglary verdicts were clearly repugnant. Therefore, as both parties agree, defense counsel's failure to so argue (since there was no apparent legitimate trial strategy not to do so) and the Trial Court's ruling to the contrary were erroneous. The question presented, however, is whether defendant's repugnancy and ineffective assistance claims are properly now before this Court. That issue turns on the strict procedural rules contained in CPL 440.10, including whether there was any trial strategy behind defense counsel's repugnancy actions which cannot be discerned from the trial record.
A verdict is repugnant where acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime, as charged, for which the defendant was found guilty. See People v Tucker, 55 NY2d 1, 7 (1981). A determination of whether a verdict is repugnant is based solely on a review of the trial court's charge regardless of its accuracy. See People v Green, 71 NY2d 1006, 1008 (1988).
It is obvious that the jury made similar decisions and rendered similar "not guilty" repugnant verdicts on other "lesser" counts, as discussed earlier in this Opinion, which are not challenged by defendant in this CPL 440 motion. While, as defendant rightly argues in his reply papers, People v Tucker, supra precludes this Court from basing its decision on speculation, and I am not doing so, [ see also People v Horne, 97 NY2d 404 (2002); People v Gonzalez, 71 AD3d 742 (1st Dept 2010)], it does appear to me that the only logical explanation for this jury's action is manifestly that it chose the higher instead of the lesser count based on its evaluation of the character of the building as a dwelling, and that the jury wrongly believed that voting an acquittal on the lesser count was the proper way to express that choice.
PROCEDURAL BAR
CPL 440.10(2)(c) provides: "Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when: [a]lthough 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 defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him." (Emphasis provided). It is well-settled, therefore, that a defendant's claim is not a proper subject of a CPL 440.10 motion where it is based on the record and defendant could have raised it on direct appeal but failed to do so. See People v Mower, 97 NY2d 239 (2002); People v Cooks, 67 NY2d 100, 103 (1986); People v Mobley , 59 AD3d 741 (2d Dept 2009), lv denied 12 NY3d 856 (2009); People v Maldonado , 34 AD3d 497 (2d Dept 2006), lv denied 5 NY3d 830 (2005); People v Jossiah , 2 AD3d 877 (2d Dept 2003), lv denied 2 NY3d 742 (2004); People v Smith, 269 AD2d 769 (2d Dept 2000), lv denied 95 NY2d 858 (2000).
Many claims of ineffective assistance of counsel involve matters reviewable from the record, including some involving trial strategy. See People v Evans , 69 AD3d 649 (2d Dept 2010); People v Gomez , 67 AD3d 927 (2d Dept 2009); People v Moore , 66 AD3d 707 (2d Dept 2009); People v Lacey , 66 AD3d 704 (2d Dept 2009). It has been held that claims regarding failure to object to an inconsistent verdict may be reviewable on direct appeal. See People v Roberts , 26 AD3d 775 (4th Dept 2006), lv denied 6 NY3d 837 (2006), lv denied 6 NY3d 837 (2006); People v Carter , 21 AD3d 1295 (4th Dept 2005), affd 7 NY3d 875 (2006). This Court finds that defendant's instant claims, including counsel's lack of trial strategy, are reviewable from the record and accordingly should have been raised on his 2003 direct appeal. Therefore this Court is mandatorily barred from determining defendant's repugnancy and ineffective assistance claims. See CPL 440.10(2)(c).
Of course, there are situations where the issue of trial counsel's strategy or lack thereof concerning repugnant verdicts involves matters outside the record and therefore cannot be addressed upon direct appeal. See People v Hamilton , 24 AD3d 241 (1st Dept 2005), lv denied 6 NY3d 848 (2006). Not so here.
The People correctly point out that since defendant was already convicted on the top count of burglary in the second degree there was no conceivable strategic reason for trial counsel not to object to the repugnant verdict. Had he done so the jury would have been told to resume deliberations and cure the repugnancy. Defendant too recognizes that trial counsel "had neither a reasonable strategy nor excusable justification for failing to be familiar with the facts and law of defendant's case regarding the repugnant verdict and failing to challenge the repugnant verdict; counsel should have challenged the repugnant verdict via motion to dismiss or set aside the verdict." (Defendant's motion at 10). Resubmission of the repugnant counts is of course the appropriate remedy and not dismissal or setting aside the verdict, as defendant erroneously maintains. Specifically in order to preserve claims that a jury verdict is repugnant or inconsistent, such claims must be made before the jury is discharged, at a time when the court can resubmit the matter to the jury to obtain a consistent verdict. People v Alfaro, 66 NY2d 985 (1985); People v Satloff, 56 NY2d 745 (1982); People v Stahl, 53 NY2d 1048 (1981). Failure to do so will result in a denial of relief on that claim on direct appeal for lack of preservation. People v Phillips , 68 AD3d 1137 (2009); People v Lobban , 59 AD3d 566 (2d Dept 2009), lv denied 12 NY3d 818 (2009); People v Hall , 56 AD3d 798 (2d Dept 2008); People v Ferguson , 55 AD3d 926 (2d Dept 2008), lv denied 12 NY3d 783 (2009); People v Moses , 36 AD3d 720 (2d Dept 2007), lv denied 8 NY3d 948 (2007).
The cases cited in defendant's pro se papers do not alter this Court's conclusion. People v Hoyte, 185 Misc 2d 587 (Sup Ct, Bronx County, 2000), affd 294 AD2d 263 (1st Dept 2002) presents a situation different from Morales. In Hoyte the Appellate Division ordered an evidentiary hearing on an ineffective assistance of trial counsel CPL 440 claim (but not a repugnancy error), which hearing established counsel's lack of strategic reason for failing to request a certain charge to the jury. Because the trial record in Morales fully established the lack of any strategic reason as conceded by both sides, this claim should have been made on direct appeal and not in a CPL 440 motion.
Accordingly, defendant's 440 motion is summarily DENIED.
The Clerk of the Court is directed to send a copy of this Decision and Order to defendant Angel Morales, DIN No. 00A2085, Shawangunk Correctional Facility, P.O. Box 700, Wallkill, New York 12589 and to Assistant District Attorney Judith Aarons, Kings County District Attorney's Office, 350 Jay Street, Brooklyn, New York 11201.
IT IS SO ORDERED.