The defendant, John Smith, seeks an order from the court to vacate the judgment of conviction pursuant to CPL 440.10. He argues in support of his motion, that the court committed errors which denied him a fair trial and that he was denied the effective assistance of counsel.

The defendant was indicted by a Queens County Grand Jury and charged with committing the crimes of murder in the second degree, attempted robbery in the first degree and other related crimes. Thereafter, a jury trial was conducted before Justice Farrell in Supreme Court, Queens County. The defendant was found guilty of murder in the first degree (two counts), attempted robbery in the first degree, criminal possession of a weapon and criminal possession of stolen property in the second degree.

The defendant's conviction was affirmed by the Appellate Division, Second Department (People v Smith, 110 AD2d 669 (2d Dept. 1985). The Court of Appeals granted leave to appeal. The defendant's conviction was reversed and a new trial was ordered

(People v Smith, 68 NY2d 737 [1986]). The Court found that the trial court had denied the defendant's right to proceed pro se, thereby denying the defendant the constitutional right to present his own defense.

The defendant's case was re-tried on August 23, 1988. The defendant was permitted to represent himself at trial. He was assigned two attorneys to act as his legal advisors. After a jury trial, the defendant was convicted of two counts of murder in the second degree, attempted robbery in the first degree, possession [*2]of weapons and dangerous instruments and appliances as a felony, and criminal possession of stolen property in the second degree.

The defendant was sentenced to terms of imprisonment of twenty five years to life on the murder in the second degree convictions, five to fifteen years on the attempted robbery in the first degree conviction, two and one third years to seven years on the weapons conviction and one and one third to four years on the criminal possession of stolen property in the second degree conviction.

The defendant appealed the judgement of conviction to the Appellate Division, Second Department. He challenged the jury sequestration procedure and the admission of certain testimony concerning how the murder weapon was stolen from the police lieutenant. The Appellate Division remitted the matter for the trial court to hold a hearing concerning the jury sequestration issue. The trial court held such hearing and issued a memorandum containing findings of fact. The Appellate Division affirmed the defendant's conviction.

The defendant sought leave to appeal to the Court of Appeals. The defendant's application was denied (see People v Smith, 80 NY2d 896 [1992]). The defendant sought reargument, which was denied (see People v Smith, 80 NY2d 896 [1992]). The defendant then filed another application for reconsideration, which was also denied (see People v Smith, 81 NY2d 1080 [1993]). The People informed the Court, in their response papers, that the defendant has also filed a motion for a writ of error coram nobis that is currently pending before the Appellate Division, Second Department.

In the defendant's present motion before the Court, he moves pursuant to CPL 440.10 (1)(b)(d)(f) and (h) to set aside the conviction. Specifically, the defendant sets forth the following alleged errors:

1. He received ineffective assistance of counsel.

2. The People failed to turn over Rosario and Brady material in connection with the case.

3. The Court should have granted his motion to suppressidentification testimony.

4. There was no probable cause for his arrest.

In the caption of the defendant's motion he also appears to be requesting that this motion be consolidated with a prior motion made on September 13, 2006, by an individual named Woodrow Fleming, who refers to himself as a " pro se paralegal". That request is denied for the reasons previously enunciated by this Court in a decision dated August 4, 2006.

In response to the defendant's claims, the People assert that the defendant's motion should be denied in its entirety for the following reasons (1) the defendant represented himself at trial, and thus cannot complain that his counsel was ineffective; [*3](2) the defendant's allegations are not cognizable in a motion to vacate as they are primarily based on events that occurred during trial; (3) the motion is not based on sworn allegations of fact; (4) the defendant's claims are conclusory and (5) the proper vehicle for defendant's claims is a petition for a writ of error coram nobis.

The defendant's claim that he received ineffective assistance at trial is totally without merit. He fails to mention anywhere in his motion papers that he represented himself at trial. Once the defendant elected to proceed pro se, he cannot later claim he received ineffective assistance of counsel. The defendant now complains about two legal advisors appointed by the court to assist him. "By exercising his right to proceed pro se, defendant waived his further contention that he was denied his right to effective assistance of counsel (see generally People v. Garcia, 69 NY2d 903, 904 [1987], rearg denied 70 NY2d 694 [1987]). A criminal defendant has no Federal or State constitutional right to hybrid representation [citations omitted]. While the Sixth Amendment and the State Constitution afford a defendant the right to counsel or to self-representation, they do not guarantee a right to both' (People v Rodriguez, 95 NY2d 497, 501 [2000])." (People v Peterkin, 12 AD3d 1026, 1028 [4th Dept. 2004].

As such, the defendant's claim of ineffective assistance of counsel is without merit and does not provide a basis on which to vacate his conviction.

The defendant's further arguments, including failure to turn over Rosario and Brady material; suppression of identification testimony and lack of probable cause for arrest as a basis for vacating the judgment are also without merit as they do not comply with the requirements set out under CPL 440.10 (1)(b)(d)(f)or(h).

CPL 440.10 (1) provides in pertinent part, that the court must deny a motion to vacate judgement when:

"(b) The judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or in behalf of a court or a prosecutor; or"

"(d) Material evidence adduced by the people at a trial resulting in the judgment was procured in violation of the defendant's rights under the constitution of this state or of the United States; or"

"(f) Improper and prejudicial conduct not appearing in the record occurred during a trial resulting in the judgment which conduct, if it had appeared in the record, would have required a reversal of the judgment upon an appeal therefrom; or"

"(h) The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the [*4]United States."

The defendant has raised a long laundry list of claims upon which he seeks to have this judgment vacated. However, his claims are simply conclusory. They are not developed sufficiently to make out a legal basis for relief.

Additionally, the defendant claims do not establish grounds to vacate the judgment under CPL 440.10 (2) or 440.10 (3).

CPL 440.10 (2) 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 determined on the merits upon an appeal from the judgment, unless since the time of such appellate determination there has been a retroactively effective change in the law controlling such issue; 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 during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him."

The defendant's claims are based on events that took place at trial. These events either appear on the record or could have been made to appear on the record for appellate review.

Finally, CPL 440.10 (3) provides, in pertinent part, that a court may deny a motion to vacate a judgment 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 an 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. This paragraph does not apply to a motion based upon deprivation of the right to counsel at the trial or upon failure of the trial court to advise the defendant of such right."

Furthermore, it should be noted that "[a] motion to vacate a judgment of conviction pursuant to CPL 440.10 (1)(h) cannot be made as a substitute for a direct appeal from the judgment when the defendant could have raised his claims on appeal, but failed to do so." (People v. Williams, 5 AD3rd 407 [2d Dept. 2004]).

Based on the foregoing, the defendant's motion to vacate the judgment of conviction is denied in all respects.

The foregoing constitutes the order, opinion and decision of this court. [*5]

_________________________STEPHEN A. KNOPF, J.S.C.

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