Wayne Hunt, the within Defendant, was on January 17, 1986, convicted by a jury of his peers of two counts each of Murder in the Second Degree (Penal Law § 125.25[1], [3])), Attempted Murder in the Second Degree (Penal Law § 110/125.25[1]), and Robbery in the First Degree (Penal Law § 160.15[1]) (Warner, J). This conviction arose out of the shooting death of one Javier Flores two years before. Defendant was thereafter sentenced, as a second felony offender, to concurrent indeterminate prison term of from twenty-five years to life for the murder counts and from twelve and one half to twenty-five years each for the attempted murder and robbery counts (Warner, J.). Defendant, pro se, now moves, pursuant to Criminal Procedure Law §§ 440.10 for this Court to vacate the judgment of conviction on the grounds that: (1) the People, in violation of Brady v. Maryland, 373 U.S. 83 (1963) and People v. Rosario, 9 NY2d 2d 286 (1961) cert. denied 368 U.S. 886 (1961), withheld police reports that were exculpatory in nature; (2) new evidence which was unavailable at the time of trial has been discovered; and (3) trial counsel was ineffective, namely, because he suffered from Obsessive Compulsive Disorder at the time of Defendant's trial, resulting in counsel's overlooking the alleged Brady/Rosario violations.

[*2][*3]Procedural History

Defendant, pro se,has filed two prior CPL § 440.10 motions herein arising out of his 1986 conviction, one of which was based, in part, on the claim that his trial attorney was ineffective. Prior thereto, in July 1987, Defendant filed a direct appeal claiming that he was denied his due process rights; on January 21, 1988, the Appellate Division, First Department, affirmed Defendant's conviction without opinion (People v. Hunt, 136 AD2d 974 [1st Dept. 1988]). Leave to appeal to the Court of Appeals was denied on April 8, 1988 (People v. Hunt, 71 NY2d 969 [1988]), (Bellacosa, J).

On April 11, 2002, Defendant filed the first aforesaid pro se motion pursuant to CPL 440.10 on the grounds that: (1) material evidence known by the prosecutor or Court to be false resulted in the judgment of conviction; (2) newly discovered evidence exists; and (3) the judgment was obtained in violation of Defendant's constitutional rights; on September 12, 2002, the Court denied Defendant's motion (Byrne, J). The Appellate Division, First Department denied Defendant's application for leave to appeal on November 6, 2002 (Buckley, J).

In his second pro se motion dated April 7, 2004, Defendant, pursuant to CPL § 440.10, moved the Court to vacate his judgment of conviction on the grounds that: (1) the trial court's jury charge and its response to a request for the clarification of the meaning of "intent" was prejudicial; and (2) counsel was ineffective for failuring to investigate potential alibi witnesses. Defendant's motion was denied on May 11, 2004 (Byrne, J.) The Appellate Division, First Department, denied Defendant's application for leave to appeal on September 1, 2004 (Friedman, J.).

For the reasons set forth below, Defendant's instant motion is denied in its entirety.

Facts Elicited at Trial

On the night of January 17, 1984, Albert Flores and Javier Perez were at 65 West 192nd Street, Apartment 2E, awaiting potential drug customers. They were armed with a .38 caliber revolver and a .22 caliber rifle. At approximately 2:00 a.m, Defendant, along with an individual referred to as "Mike" and two unidentified males, arrived at this location. Mr. Flores immediately recognized Defendant as a regular customer who purchased cocaine from Mr. Perez and himself about once a week. He also knew Defendant from selling him a shotgun prior to this incident. Mr. Flores, however, did not recognize the other two individuals and told them to leave, or otherwise the drug exchange would not occur. Defendant said that the two unidentified individuals were there to sell some gold jewelry. Mr. Flores indicated he was not interested in purchasing these goods, and after his second request, the two unidentified individuals left.(T. 29-31, 33-38, 42-44, 67, 69, 99, 102, 105-115).

Defendant and "Mike" went to the back room of the apartment with Messrs. Flores and Perez to complete the drug exchange. Defendant briefly left the apartment to get the mentioned gold items. Defendant returned, bringing with him one of the unidentified individuals. Mr. Perez opened the door, but Mr. Flores, again, suspicious about this person, asked about his identity. Mr. Perez then attempted to close the door, when Defendant grabbed Mr. Perez, pointed a gun to his head and fired a single fatal bullet. The unidentified man then grabbed Mr. Flores' gun, pointed at his head, forcing Mr. Flores to the back room, stating "Where is the stash?" he then shot him in [*4][*5]the ear at close range. (T. 44-48, 116, 120-124, 127-130, 133-144, 165-166, 173-174).^[FN1] Thereupon, "Mike" ran out of the back room with a metal box containing six ounces of cocaine and approximately forty dollars. He and Defendant then fled the apartment.

After everyone left, Mr. Flores went to a fifth floor apartment, where an individual he knew as "Eno" and his girlfriend resided, and asked them to take him to the hospital. Mr. Flores was taken to North Central Bronx Hospital, where he received treatment and was admitted for approximately one week. (T. 61-62, 78-79). Police Officers Kevin Burke and his partner responded to the hospital and briefly spoke with Mr. Flores. The officers went to Mr. Flores' residence and discovered Mr. Perez's body. (T. 203-207, 211-221, 235).

Initially, Defendant's motion is procedurally barred. He has filed two previous pro se CPL  440.10 motions and "was in a position adequately to raise the ground or issue underlying the present motion but did not do so." See CPL  440.10 (3)(c); People v. Dominguez, 257 AD2d 511 (1st Dept. 1999) (where the court denied defendant's CPL  440.10 motion on the ground that he could have raised the issues in a previous CPL  440.10 motion but failed to do so). Specifically, Defendant had raised the argument of ineffective counsel in his previous motion, yet he failed to include his counsel's alleged psychological condition. Additionally, Defendant could have raised the argument of the People withholding some discovery items in his previous motions, but inexplicably failed to do so. Therefore, Defendant's motion is procedurally barred, and, therefore, denied.

Respecting Defendant's claim that pursuant to CPL  440.10 the Court should vacate his judgment of conviction on the grounds that: (1) there was prosecutorial misconduct during the trial; (2) new evidence has come to light since the conclusion of the trial; and (3) he had ineffective assistance of counsel. He specifically claims that the People did not turn over to him all of the police reports and the laboratory examination request report generated by Detective Roger Cortez during the course of his investigation of this case. Defendant argues that this alleged withholding of police paperwork violates Brady v. Maryland, supra, and People v. Rosario, supra, and the missing paperwork constitutes new evidence. One of the reports which the People allegedly withheld indicates that at some point during the course of the investigation, Mr. Flores identified one Marvin Pitt as Mr. Lopez's shooter, not Defendant. Related to this argument, Defendant alleges prosecutorial misconduct in that the prosecutor allowed Mr. Flores to testify that Defendant shot Mr. Perez, which is inconsistent with the withheld police report. Finally, Defendant claims that his counsel suffered from Obsessive Compulsive Disorder at the time of Defendant's trial, precluding him from effectively advocating for Defendant. (see Defendant's Motion pp. 3-5, 26, 33-40). In the alternative, Defendant requests that a hearing be granted to determine whether his sentence should be set aside.

A. Prosecutorial Misconduct

CPL § 440.10(1)(b) provides that a judgment may be vacated on the ground that "the [*6][*7]judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor...." CPL §440.10(1)(c) provides that a judgment may be vacated on the ground that "material evidence adduced at a trial resulting in the judgment was false and was, prior to the entry of the judgment, known by the prosecutor...."

Defendant's claim that the People improperly withheld Detective Cortes' investigative reports is denied pursuant to CPL §§ 440.30(4)(b) and 4(d) in that the claim is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts. The motion papers do not allege any ground constituting a legal basis for its submission, do not contain sworn allegations tending to substantiate essential facts, and the claim is made solely by Defendant, unsupported by any other affidavit or evidence. Defendant failed to provide any documentation whatsoever such as an affidavit from his attorney substantiating his claim that the People withheld any documents prepared by Detective Cortes. Under all of the circumstances attending the case, there is no reasonable possibility that the allegation is true. See People v. Messina, 73 AD2d 899, 900 (1st Dept. 1980) (" To grant . . . a hearing where the court is able to reach its conclusion on the papers alone would serve no end of justice but would only protract futile litigation.'"), quoting, People v. Crimmins, 38 NY2d 407, 417 (1975).

Contrary to Defendant's contentions, the People provided Defendant pursuant to CPL Article 240, in their prosecutor's discovery list, follow-up complaint reports and the laboratory request form prepared by Detective Cortes prior to trial. (see Exhibit 9 of the People's Affirmation in Opposition). In the People's trial folder is the redacted discovery packet that was made available to defense counsel prior to trial. Included were the documents Defendant claims were withheld resulting in the alleged Brady/Rosario violations.^[FN2] The People further aver that since Defendant's counsel was aware of "Eno" and his involvement in Mr. Flores' drug related activities and cross-examined Mr. Flores about "Caesar," and defense counsel was clearly in possession of Detective Cortes' police reports, which contained these individuals' names.^[FN3]

Accordingly, Defendant's claim that the People failed to turn over police records requiring this Court to vacate his judgment of conviction is rejected, as "there is no reasonable possibility that such allegation is true." See CPL §§ 440.30(4)(d) and People v. Brown, 56 NY2d 242 (1982).Therefore, Defendant's contention that the prosecutor had violated Defendant's rights under Brady, supra,and Rosario, supra,by failing to provide him required discovery materials is, without merit.

With respect the Defendant's claim that the prosecutor improperly allowed Mr. Flores to testify that Defendant fatally shot Javier Perez, when, he had previously identified Martin Pitt as the shooter, this argument is also without merit (see Defendant's motion pp. 3-5). As the People explain in their response, although Defendant's Exhibit G, a police report dated June 29, 1984, [*8][*9]indicates that Mr. Flores identified Mr. Pitt as Mr. Lopez's shooter on March 8, 1984, a police report generated on the same day as the identification procedure, that is, Exhibit H, indicates that Martin Pitt was identified as the "second shooter".^[FN4] As the People point out, the original police report is wholly consistent with Mr. Flores' trial testimony, where he stated that Defendant first shot Mr. Lopez and then Mr. Pitt shot and seriously wounded, Mr. Flores (T. 39-42, 48-50, 66, 75-76, 138-144). The People argue that since the police report that was generated immediately after the identification procedure indicates that Mr. Pitt was identified as the "second shooter" , the fact that another police report generated three months later identifies Mr. Pitt as Mr. Lopez's "the shooter ," is more likely the result of police error than witness recantation or inconsistency.

In People v. Armer, 119 App. Div. 2d 930 (3rd Dept. 1986), the Court held that vacation of judgment convicting a defendant of murder in second degree was not warranted by reason of prosecutions failure to disclose identity of a witness who at least twice misidentified defendant, where both defendant and his attorney were aware of misidentification but made no formal request for identity. Here, defense counsel was aware that Mr. Flores stated that Mr. Pitt was Mr. Lopez's shooter at an earlier time and had an opportunity to cross-examine him. Therefore, there was no prejudical error.

Therefore, this branch of Defendant's motion is denied.

B. Newly Discovered Evidence

Criminal Procedure Law § 440.10 (1) (g) states, in pertinent part:

the court . . . may . . . vacate . . . judgment upon the ground that . . . [n]ew evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence.

It is well settled that a "[n]ewly-discovered evidence [claim]. . . must fulfill all of the following requirements: (1) It must be such as will probably change the result if a new trial is granted; (2) It must have been discovered since the trial; (3) It must be such as could have not been discovered before the trial by the exercise of due diligence; (4) It must be material to the issue; (5) It must not be cumulative to the former issue; and, (6) It must not be merely impeaching or contradicting the former evidence." People v. Salemi, 309 NY 208, 215-16, (1955), cert. denied, sub nom., Salemi v. New York, 350 U.S. 950 (1956).

In People v. Melton, 35 NY2d 327, 329 (1974), the Court of Appeals rejected a newly discovered evidence claim on the ground that "defendant fail[ed] to allege that the facts on which the claim is based were unavailable to him at the time of the underlying conviction. Moreover, he offer[ed] no explanation for failing to press it at that time. On this record, we may only assume that, by his plea of guilty, he made a conscious choice to forego this purported defense." See also People v. Flores, 237 AD2d 128, 129 (1st Dept. 1997) ("factual issues are waived by . . . [*10][*11]guilty plea"), lv. denied, 90 NY2d 857 (1997).

As discussed above, the police reports to which Defendant refers to as "newly discovered evidence" were generated prior to trial and were made available to defense counsel as part of the redacted discovery packet before the commencement of trial. In People v. Latella, 112 AD2d 321, 322 (2nd Dept. 1985) stated that "[t]he power to grant an order for a new trial based on newly discovered evidence is purely statutory and such power may be exercised by the court only when the requirements of the statute have been satisfied."(citing People v. Powell, 102 Misc 2d 775, 779 (1980), aff'd 83 AD2d 719 (1981); People v. Balan, 107 AD2d 811 (1985); See also People v. Wagner, 51 AD2d 186 (1976); People v. Maynard, 80 Misc 2d 279, 283 [1974]).

Furthermore, as the People correctly argue, even if the documents were not made available for defense counsel, Defendant was aware that Detective Cortes was the investigative officer on the case.^[FN5] During trial, counsel cross-examined Mr. Flores about his interview with Detective Cortes (T. 75-78, 155)^[FN6]. Thus, with due diligence, Defendant could have obtained any documents from Detective Cortes if the People inadvertently failed to provide it.

Therefore, this branch of Defendant's motion is likewise denied.

C. Ineffective Assistance of Counsel CPL § 440.10(1)(h) provides that a judgment may be vacated upon the ground that "the judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States". Defendant requests the Court to vacate his judgment of conviction pursuant to this section claiming that defense counsel was constitutionally ineffective. Defendant alleges that counsel was suffering from Obsessive Compulsive Disorder, which prevented him form objecting to the alleged Brady/Rosario violations by the prosecution.

The Court of Appeals has held that a defense attorney's performance will not be considered ineffective "[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. . . ." People v. Baldi, 54 NY2d 137, 147 (1981), aff'd 96 AD2d 212 (1983), lv. denied, 61 NY2d 761 (1984). See People v. Braun, 167 AD2d 164, 165 (1st Dept. 1990) ("Defendant offered only bare allegations of innocence, coercion and ineffective representation which would not require granting his motion to withdraw the guilty plea."). Perfect representation is not required. See People v. Benevento, 91 NY2d 708 (1998) (citing People v. Flores, 84 NY2d 184, 187 [1994] ["The phrase 'meaningful representation' does not mean 'perfect representation' "]; and People v. Modica, 64 NY2d 828, 829 [1985]) ["the test being 'reasonable competence', not perfect representation"]). That a defendant was convicted may have little to do with counsel's performance, and courts are properly skeptical when "disappointed prisoners try their former lawyers on charges of incompetent representation"..

In People v. Session, 34 NY2d 254, 255-256 (1974), the Court addressed this issued, stating, "a judgment of conviction is presumed valid, and the party challenging its validity (defendant here) [*12][*13]has a burden of coming forward with allegations sufficient to create an issue of fact (citing People v. Richetti, 302 NY 290, 298).... While the production of contrary evidence will satisfy the burden of going forward and eliminate the presumption of regularity from the case, bare allegations are insufficient to carry this evidentiary burden." See also, People v. French, 292 AD2d 813 , 814 (4th Dept. 2002) (" [The] Court properly denied the motion of defendant to withdraw his plea where the motion was supported only by bare allegations of innocence, coercion and ineffective representative' that are unsupported by the record of the plea proceeding.")

Defendant fails to substantiate allegations of ineffective assistance of counsel according to the criteria set forth by CPL § 440.30(4)(d). See also People v. McKenzie, 224 AD2d 173 (1st Dept. 1996) ("CPL 440.30(4)(d) is designed to weed out manufactured claims premised on nothing more than a defendant's self-serving affidavit."). See People v. Williams, 24 AD3d 575, 575-576 (2nd Dept. 2005) ("The defendant failed to establish, prima facie, that there were no strategic or other legitimate explanation for counsel's alleged shortcomings."). See also People v. Cross, 262 AD2d 223, 224 (1st Dept. 1999), ("defendant's routine attorney-coercion claim amounted to nothing more than the attorney's fulfillment of his obligation to render appropriate advice concerning the strength the prosecution's case"), lv. denied, 94 NY2d 902 (2000);

In Benevento supra at 712-13, our Court of Appeals opined the standard for ineffective assistance of counsel:

The core of the inquiry is whether defendant received meaningful representation . . . the test being reasonable competence, not perfect representation. . . . It is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings. . . Counsel's performance should be objectively evaluated . . . [t]o determine whether it was consistent with strategic decisions of a reasonably competent attorney. . . . As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance. . . . We have . . . noted that a claim of ineffective assistance of counsel will be sustained only when it is shown that counsel partook an inexplicably prejudicial course.

Here, Defendant has utterly failed to support self-serving allegations with evidence of any sort which could corroborate his claim, if it were true. Most notably, Defendant has not submitted an affirmation from trial counsel, David Segal, Esq., the primary person who could substantiate or shed light on the allegation of ineffective assistance. See, e.g., People v. Morales, 58 NY2d 1008 (1983) (holding that Defendant's failure to supply attorney's affirmation or explain such failure warranted summary denial of motion collaterally attacking conviction based on attorney's alleged conduct); People v. Taylor, 211 AD2d 603 (1st Dept. 1995) (denying defendant's CPL § 440.10 claim, that he was deprived of the effective assistance of counsel, for failure to supplement his own affidavit with an affidavit from his former attorney).

As for the portions of Defendant's ineffective assistance of counsel claim that are not record based, they are also procedurally barred pursuant to CPL § 440.30 (4) (c) and (d), conclusively refuted by unquestionable documentary proof and contradicted by Court records. Criminal Procedure Law §440.10 (2)(b) provides "...the court must deny a motion to vacate judgment when: the judgment is at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate [*14][*15]review thereof upon such an appeal...." Criminal Procedure Law §440.10 (2)(c) provides "...the court must deny a motion to vacate 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 on appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him...." Criminal Procedure Law §440.30 (4)(d) provides "...upon considering the merits of the motion, the court may deny it without conducting a hearing if: an allegation of fact essential to support the motion (i) is contradicted by a court record or other official document, or is made solely by the defendant and is unsupported by any other affidavit or evidence and (ii) under these and all the other circumstances attending the case there is no reasonable possibility that such allegation is true." 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." (see People v. Williams, 5 AD3d 407 [2nd Dept. 2004]).

In sum, Defendant's ineffective assistance of counsel claim is likewise rejected as both devoid of merit and unsubstantiated pursuant to CPL §§ 440.30(4)(d) and 440.10(1)(h).ORDERED, that Defendant's motion to vacate his judgment of conviction and set aside his sentence is in its entirety denied.

This constitutes the opinion and decision of the Court.

Dated: Bronx, New York

April 24, 2007

_______________________

Dominic R. Massaro

Justice of the Supreme Court