MEMORANDUM
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS : CRIMINAL TERM : PART K-8
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X
THE PEOPLE OF THE STATE OF NEW YORK
: BY: ROBERT CHARLES KOHM, J.
:
-against-
: DATE: JANUARY 3, 2000
:
RAMON RAMOS,
: INDICT. NO. 4193/96
:
Defendant :
X
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Defendant makes this motion, pro se, for an order vacating the judgment of conviction and to set aside the sentence.
Defendant was charged with robbery in the third degree and criminal possession of stolen property in the fifth degree. Defendant waived his right to a jury trial and was tried before this court. At the conclusion of the trial, defendant was found guilty of both counts. He was sentenced as a persistent felony offender to an indeterminate term of imprisonment of fifteen years to life on the robbery conviction, which was ordered to run concurrently to a definite term of imprisonment of one year on the possession of stolen property conviction.
Defendant appealed the judgment of conviction to the Appellate Division, Second Department, and claimed, that: the evidence was legally insufficient and he should not have been sentenced as a persistent felon.
The Appellate Division, Second Department affirmed defendant's judgment of conviction. The court held that the evidence adduced at trial was legally sufficient to establish defendant's guilt beyond a reasonable doubt. The verdict was not against the weight of the evidence. The court further held that the trial court properly exercised its discretion and sentenced the defendant as a persistent felony offender.
Defendant requested leave of the Court of Appeals to appeal the decision of the Appellate Division. Application for leave to appeal to the Court of Appeals was denied.
Defendant now makes this motion to vacate the judgment of conviction. He argues in support of the motion, inter alia, that he was denied effective assistance of counsel since his attorney based on the following grounds: his attorney failed to obtain Rosario material and failed to ask for a missing witness charge. Also, defendant was not properly represented at sentencing and he should not have been sentenced as a persistent felon.
There is no merit to defendant's arguments.
Section 440.10(2) of the Criminal Procedure Law provides, in pertinent part, that the court must deny a motion to vacate a judgment when: "(a) The ground or issue raised upon the motion was previously determine on the merits upon an appeal from the judgment ***; or (c) 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 *** or his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him".
Section 440,10(3) of the Criminal Procedure Law provides, in pertinent part, that the court may deny a motion to vacate a judgment of conviction when: " (a) Although facts in support of the ground or issue raised upon the motion could, with due diligence by the defendant, have readily been made to appear on the record in a manner providing adequate basis for review of such ground or issue upon appeal from the judgment, the defendant unjustifiably failed to adduce such matter prior to sentence and the ground or issue in question was not subsequently determined upon appeal."
Section 440.20(1) of the Criminal Procedure Law provides that the court may set aside the sentence if it was unauthorized, illegally imposed or otherwise invalid as a matter of law. However, section 444020(2) of the Criminal Procedure Law provides that the court must deny a motion to set aside the sentence when the ground or issue raised thereupon was previously determined on the merits upon an appeal.
After a review of all the papers submitted and a review of the sentencing minutes the court finds that all of defendant's arguments relate to claims previously determined on the appeal from this judgment, or the arguments relate to claims that are on the record and defendant failed to raise them on appeal, or the arguments could, with due diligence, have been placed on the record for appellate review.
As to defendant's claim of ineffective assistance of counsel, what constitutes effective assistance of counsel varies according to the unique circumstances of a particular case. The circumstances must be viewed in totality and, as of the time of representation, to reveal that the attorney provided meaningful representation (People v Wilson, 133 AD2d 179, citing People v Baldi, 54 AD2d 137). Care must be taken "to avoid both confusing true ineffectiveness with mere losing tactics and accordingly undue significance to retrospective analysis" (People v Baldi, supra, at 146).
A contention of ineffective assistance of counsel requires proof of true ineffectiveness rather than mere disagreement with strategies and tactics (People v Benn, 68 NY2d 941). "So 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 NY2d 137, 147). To establish a claim of ineffective assistance of counsel, a defendant must demonstrate the absence of strategies or other legitimate explanations for counsel's failure to pursue "color able" claims (People v Rivera, 71 NY2d 705, 709).
In the instant matter, defendant has submitted no such claims which would establish a lack of meaningful representation. The fact that defendant is unhappy with the results of his trial is also not a sufficient basis to establish such a lack of meaningful representation (People v Garcia, 149 AD2d 241, affd 75 NY2d 973).
Defendant's argument of ineffective assistance of counsel is purely conjectural and it is not the duty of the court "to second-guess whether a course chosen by defendant's counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation" (People v Satterfield, 66 NY2d 796, 799-800). "A convicted defendant, with the benefit of hindsight, often can point out where he or she thinks trial counsel went awry" (People v Rivera, supra, at 708; see also, People v Aiken, 45 NY2d 394).
Defendant is attempting to use this motion to vacate the judgment of conviction as a method of appeal. However, this motion may not be used as a vehicle for an additional appeal (People v Howard, 12 NY2d 65, cert denied 374 US 840; People v Shapiro, 3 NY2d 200; People v Balsamo, 11 AD2d 1040).
A judgment of conviction is presumed to be valid. This presumption of regularity exists until contrary substantiating evidence appears. The party challenging the validity has the burden of coming forward with sufficient allegations to create an issue of fact (People v Richetti, 302 NY2d 290). Bare allegations are insufficient to carry this evidentiary burden. It is not enough to make conclusory allegations. Supporting facts must be provided (People v Session, 34 NY2d 254). Defendant has not met his burden of creating an issue of fact.
Based on the foregoing, the motion to vacate the judgment of conviction is denied.
Order entered accordingly.
The clerk of the court is directed to mail copies of this decision and order to the defendant at his place of incarceration and to the District Attorney.
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ROBERT CHARLES KOHM, J.S.C.