On March 14, 1991, following a jury trial, the defendant was convicted of murder in the second degree (PL §125.25[1]), under the theory of "transferred intent;" assault in the first degree (PL §120.10[1]), also under the theory of "transferred intent;" and criminal possession of a weapon in the second degree (PL §265.03). On April 22, 1991, judgment was entered, and the defendant was adjudicated a second violent felony offender and sentenced to a prison term of twenty-five years to life for the murder count, and to concurrent terms of seven-and-one-half to fifteen years for each of the assault and weapon possession counts (Juviler, J., at trial and sentence). The defendant is currently incarcerated pursuant to this sentence.

In papers dated January 17, 2006, the defendant claims that his conviction was obtained in violation of his constitutional right to effective assistance of counsel, and moves pro se on that ground, pursuant to CPL §440.10[1][h], for an order vacating the judgment of conviction, or in the alternative, granting him a hearing on the issue raised. The motion was calendared in the "Miscellaneous Motions Part" on March 23, 2006, while this court was presiding, and the matter was adjourned to April 21, 2006 for the People to reply.

In papers dated April 20, 2006, the People filed an affirmation opposing the defendant's motion to vacate judgment, and this court adjourned to May 31, 2006, for decision. In the meantime, on May 10, 2006, this court received additional papers from the defendant, dated April 28, 2006, responding to the People's affirmation.

This court has reviewed the papers filed by the parties and the documents appended^[FN1] thereto, and for the reasons set forth below, summarily denies the defendant's vacatur motion.

Facts Underlying the Defendant's Conviction

On the afternoon of April 11, 1989, Eduardo Manuel was at a store on the corner of Rogers Avenue and Sullivan Place, in Brooklyn, while his friend Rogelio Brooks waited for him [*2]outside. A group of eight or nine men were also at the corner; three of these men, the defendant, the defendant's co-defendant [and brother] Randolph Rossi, and Sean McLennan, were arguing with one of the others (the "unknown man"). As Messrs. Manuel and Brooks walked away from the corner of Sullivan Place, heading north on Rogers Avenue toward Montgomery Street, a shot rang out. The unknown man ran past Manuel and Brooks in the direction of Montgomery Street, as the defendant, co-defendant and McLennan, each holding a gun, fired shots in his direction. The unknown man, who was also holding a gun, fired back in the direction of Sullivan Place. As Manuel and Brooks started running, still heading toward Montgomery Street, Manuel was shot in the back of his neck, chest and both arms, and Brooks was struck by a bullet which shattered his ankle. Manuel and Brooks were taken to a hospital where Mr. Manuel died ten days later; Mr. Brooks required four operations, and was still in a cast two years later.

Post-Judgment Procedural History

The defendant's conviction was affirmed by the Appellate Division on the defendant's direct appeal,^[FN2] and his application for leave to appeal to the Court of Appeals was denied. See People v Rossi, 210 AD2d 511 (2d Dept. 1994); leave to appeal denied, 85 NY2d 979 [1995]. According to the People, the defendant also unsuccessfully petitioned for a writ of federal habeas corpus.

In addition, the defendant has moved to set aside his sentence under CPL §440.20 (motion denied), and has filed two previous motions to vacate judgment under CPL §440.10. (1) By papers dated April 22, 1997, the defendant moved for vacatur claiming ineffective assistance of counsel.^[FN3] The motion was summarily denied in its entirety (Juliver, J.). (2) By papers dated May 24, 2004, the defendant moved for vacatur on a variety of other grounds.^[FN4] This motion was also summarily denied in its entirety (Gary, J.); leave to appeal the decision to the Appellate Division was also denied.

Motion to Vacate Judgment under CPL §440.10

[*3]CPL §440.10 provides that at any time after judgment is rendered, the defendant may move to vacate such judgment on a variety of grounds, including the claim that it was obtained in violation of his rights under the New York State and/or U. S. Constitution (CPL §440.10[1][h]); one such right is a criminal defendant's right to effective assistance of counsel at trial.

However, under CPL §440.10[2][c], a motion to vacate judgment must be summarily denied to the extent it raises an issue which could have been adequately reviewed on direct appeal on the basis of facts appearing on the record, but for the fact that the defendant unjustifiably failed to raise the issue on his direct appeal.

Similarly, under CPL §440.10[3][c], the court may summarily deny a motion to vacate judgment to the extent it raises an issue which the defendant was in a position to raise on a previous vacatur motion, but did not. The statute provides that "although the court may deny the motion" under this circumstance, the court has the discretion to grant the motion "in the interest of justice and for good cause shown" if the motion is "otherwise meritorious."

The Defendant's Current Motion to Vacate Judgment under CPL §440.10[1][h]

In the defendant's current and third vacatur motion, he claims that his trial counsel rendered ineffective assistance in not challenging the guilty verdicts on the transferred-intent murder and assault charges on the ground that they are "inconsistent as a matter of law,"as defined in CPL §300.30[5], which provides that two counts of an indictment are inconsistent when guilt of one necessarily negates guilt of the other.

Specifically, the defendant claims that the "intent to cause the death of a person,"an element of murder in the second degree under PL §125.25[1], is inconsistent with, or negates, the "intent to cause serious physical injury to another person," an element of assault in the first degree under PL §120.10[1]. Noting that his convictions were based on the theory that his intent toward the unknown man was deemed "transferred" to Manuel and Brooks, the defendant asserts that he could not be guilty of simultaneously intending both to kill and to cause serious injury to the "unknown man."

The defendant urges this court not to bar his motion on procedural grounds under either CPL §440.10[2][c] or CPL §440.10[3][c]. He acknowledges that sufficient facts appear on the record to have permitted appellate review, but contends that his failure to raise the issue on appeal was not "unjustifiable," because it was caused by his trial counsel's failure to preserve the issue for appeal by raising it at trial. He also acknowledges that he previously submitted "a motion" [sic]^[FN5] to vacate judgment in which he did not raise the issue, but explains that it was not until he read the People's response to his prior motion that he discovered "the error." The defendant claims that he tried to raise the issue in his reply to the People's response to his prior motion, but the court refused to address it.

Finally, the defendant asserts that he is "actually innocent of the crime [sic] for which he has been convicted," and that a "fundamental miscarriage of justice" will result if he is not allowed to proceed on the merits of his claim, citing Murray v Carrier, 477 U.S. 478 [1986].

Decision [*4]

This court agrees with the People that defendant's current motion to vacate judgment on the ground that he was denied his right to effective assistance of trial counsel must be denied pursuant to CPL §440.10[2][c]. The defendant concedes that counsel's failure to challenge the verdicts as "legally inconsistent" is a matter of record, and therefore could have been reviewed by the Appellate Division on direct appeal. Moreover, were this court to consider the motion on the merits, it would find the defendant's underlying claim to be plainly erroneous.

As noted, supra, the defendant was convicted of killing Mr. Manuel under PL §125.25[1], which provides that a person is guilty of murder in the second degree when, with intent to cause the death of another person, he causes the death of such person or of a third person; and of seriously injuring Mr. Brooks under PL §120.10[1], which provides that a person is guilty of assault in the first degree when, with intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon. Far from being inconsistent, the definition of "serious physical injury" under the Penal Law specifically includes "physical injury***which causes death." See PL §10.10. Moreover, it should be obvious as a matter of common sense that a person who intends to kill another person by shooting him also intends to cause the victim serious physical injury.

The facts established at the defendant's trial in the case at bar, summarized supra, support the jury's finding that the defendant, acting in concert with the co-defendant and the unapprehended McLennan, fired multiple gunshots at the "unknown man" with the intent of causing the unknown man's death by seriously injuring him with a deadly weapon — but instead shot and seriously injured Messrs. Manuel and Brooks, ultimately causing Mr. Manuel's death. Accordingly, the defendant was properly found guilty of both killing Mr. Manuel and seriously injuring Mr. Brooks. These convictions are not inconsistent, and it therefore follows that the defendant's trial counsel did not render ineffective assistance in failing to challenge them as such.

The defendant's motion to vacate judgment is summarily denied in its entirety.

The foregoing constitutes the opinion, decision and order of the court.

Dated: May 31, 2006

Brooklyn, New York

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Raymond Guzman

Justice of the Supreme Court