Pedro Soto, the within Defendant, was on July 2, 1993, convicted by a jury of his peers of one count of Murder in the Second Degree (Penal Law § 125.25[3]), three counts of Kidnaping in the First Degree (Penal Law § 105.15), and one count each of Conspiracy in the Second Degree (Penal Law § 190.26) and Criminal Impersonation in the First Degree (Penal Law § 190.26). Defendant was thereafter sentenced to concurrent indeterminate prison terms of from twenty years to life for the murder count, from fifteen years to life for each count of kidnaping, from six to twelve years for the conspiracy count, and from one and one half to three years for the criminal impersonation count. Defendant thereupon filed a timely appeal.

Pro se, Defendant now moves, pursuant to Criminal Procedure Law § 440.10, for this Court to vacate the judgment of conviction on the grounds that: (1) a copy of his indictment supplied to him in response to a request pursuant to the Freedom of Information Law ("FOIL") was unsigned by the grand jury foreperson, and, therefore, is invalid; (2) he was not afforded the opportunity to testify on his own behalf before the grand jury prior to trial; and (3) the Certificate [*2]of Disposition, which he received from the Court contained an error regarding the length of imposed sentence with respect to his conspiracy conviction. Defendant, requests that his conviction be vacated, or, in the alternative, requests a hearing to determine whether his conviction should be vacated. Finally, Defendant petitions the Court for permission to proceed as a poor person pursuant to CPLR § 1101.^[FN1]

The motion in its entirety is denied

On December 29, 1995, supplemented on March 15, 1996, Defendant, pursuant to CPL § 440.10, moved for an order vacating his judgment of conviction, alleging that (1) the People, in violation of People v. Rosario, 9 NY2d 2d 286 (1961) cert. denied 368 U.S. 886 (1961), withheld prior statements made by a witness testifying at trial; (2) the trial court erred in denying Defendant's Payton motion (Payton v. New York, 445 U.S. 573 [1980]); and (3) Defendant could not avail himself of a plea offered by the People, who withdrew the plea without informing the Defendant. On June 18, 1997, the Court denied the motion.

Defendant thereupon moved the Appellate Division, First Department, for leave to appeal said denial. The Appellate Division granted leave. Defendant's 440.10 appeal was then consolidated with his pending direct appeal.

In January 1998, Defendant perfected his appeal, arguing that: (1) the trial court erred in failing to suppress Defendant's inculpatory statements which were elicited after almost fourteen hours of police interrogation without the administration of Miranda warnings (Miranda v. Arizona, 384 U.S. 436 [1966]); and (2) the trial court erred in denying Defendant's motion without ruling in his Payton motion challenging a warrantless arrest in his home (Payton v. New York, 445 U.S. 573 [1980]). On August 6, 1998, the Appellate Division affirmed Defendant's judgment of conviction (People v. Soto, 253 AD2d 359 (1st Dept.), lv. denied, 92 NY2d 1039 [1998]).

On November 19, 1998, Defendant, by petition, sought a writ of habeas corpus in the United States District Court for the Southern District of New York. He argued, inter alia, that his conviction was obtained in violation of his constitutional rights in that his confession was obtained only after he was verbally and physically abused, and he was interrogated by police officers without having been advised of his Miranda rights. On May 5, 1999, Defendant submitted a supplemental memorandum in support of his petition, arguing that the appellate court's decision was contrary to federal law.

On January 22, 2002, United States Magistrate Judge Michael H. Dolinger issued a Report recommending that Defendant's writ be denied and the petition dismissed with prejudice. On February 22, 2002, Defendant objected to the Report; however, on May 8, 2002, United States District Court Judge Deborah A. Batts adopted the Report and dismissed Defendant's [*3]petition.

On January 8, 2003, the United States Court of Appeals for the Second Circuit issued a Certificate of Appealability on the issue of the voluntariness of Defendant's statement. In March 2003, Defendant filed a brief in the Second Circuit, arguing that his statement to the police was involuntary. The People filed a brief in opposition in May 2003. On October 23, 2003, the Second Circuit ruled that the Defendant's claim was without merit. (Soto v. Artuz, 78 Fed.Appx. 760 [2nd Cir. 2003]). On March 22, 2004, the United States Supreme Court denied Defendant's writ of certiorari. (Soto v. Philip, 541 U.S. 945 [2004]).

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 ground that his right to confront witnesses at trial pursuant to Crawford v. Washington, 541 U.S. 36 (2004), was violated when the statements of two unavailable witnesses were introduced at trial. On December 6, 2004, the People filed an Affirmation in Opposition. On March 25, 2005, the Court denied Defendant's motion.

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

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). Specifically, since Defendant's conviction, which occurred over thirteen years ago, he has filed a direct appeal, the referenced CPL  440.10 motions and a federal habeas corpus petition; notwithstanding, he raises his current claims for the first time in the instant motion. In People v. Dominguez, 257 AD2d 511 (1st Dept. 1999), the court denied defendant's second 440.10 motion on the ground that defendant could have, but inexplicably failed to raise the legal issues set forth in his instant motion in the prior 440.10 application to the court (lv. denied, 93 NY2d 872 [1999].

The argument that Defendant did not receive a copy of his indictment until his request in 2006 does not warrant a vacatur of his judgment of his conviction. Nothing prevented Defendant from requesting a copy of his indictment at an earlier time. Additionally, Defendant received the Certificate of Disposition in January 2004, seven months prior to the filing of his first 440.10 motion. Inexplicably, however, he did not raise this issue in that motion. Lastly, his motion is procedurally barred because Defendant knew thirteen years ago that he did not testify before the Grand Jury, yet he failed to raise this argument in his prior motions. Therefore, Defendant's motion is denied as procedurally barred.

A. Defective Indictment

Defendant argues that the indictment against him was defective because (a) the foreperson of the grand jury did not sign the indictment and (b) he was not give the right or opportunity to testify before the grand jury. As an initial matter, this branch of Defendant's motion is denied as untimely, pursuant to CPL §§ 255.20 and 210.20(2). When challenging an [*4]indictment on the ground that it is defective, or that the grand jury proceeding was defective, a motion to dismiss said indictment must be filed within the time period provided by section 255.20. See CPL 210.20(2). The time period for filing such a motion is "[e]xcept as otherwise provided by law...within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment." See CPL § 255.20(1). See also People v. Di Noia, 105 AD2d 799, 800 (2nd Dept. 1984) (lv. denied, People v. Rapetti, 64 NY2d 763 [1984]), habeas corpus proceeding at Rapetti v. James, 784 F.2d 85 (2nd Cir. NY 1986), cert. denied, DiNoia v. New York, 471 U.S. 1022 [1985]) (where the Court held that the proper means of challenging the validity of an indictment is "via a pretrial motion to dismiss," and the failure to do so, renders the issue unpreserved for appellate review).

With respect to Defendant's claim that he was not given the opportunity to testify before the grand jury, this claim is likewise untimely. When there is a claim of defect premised upon an alleged denial of the right to testify before the grand jury, such motion must be made "not more than five days after the defendant has been arraigned upon the indictment...and [i]f the contention is not so asserted in timely fashion, it is waived and the indictment...may not be thereafter challenged on such ground." See CPL § 190.50 .

Defendant's instant motion for dismissal of the allegedly defective indictment, thirteen years after his conviction, is, therefore, untimely. See People v. DiFondi, 275 AD2d 1018 (4th Dept. 2000) (lv. denied, People v. DiFondi, 95 NY2d 933 [2000]), (where defendant did not move to dismiss the indictment within five days of his arraignment thereon, defendant waived his claim that he was denied the right to testify). As Defendant's motion to dismiss the indictment for facial insufficiency and his alleged denial of the right to testify is beyond the statutory limit, Defendant's motion is denied. See CPL § 440.30(4)(a). See also People v. Rajigah, 265 AD2d 580, 582 (2nd Dept. 1999) ("The defendant's claims that the indictment contained duplictive charges and that it failed to afford him with fair notice of all of the charges against him are without merit.") (see, CPL § 200.30; People v. Keindl, 68 NY2d 410 (1986); People v Cosby, 222 AD2d 690 (1995); People v. Anderson, 173 AD2d 478 (1991). See also People v. DiRoma, 251 AD2d 1063 (4th Dept. 1998) ("Defendant failed to raise in his omnibus motion his present contention that the assault counts of the indictment should have been dismissed because they failed to apprise him sufficiently of the operative facts constituting the crimes of assault. Thus, defendant has failed to preserve that contention for our review (see People v. Waldron, 162 AD2d 485 (1991)...; see also, CPL 210.20, 210.25). In any event, defendant was given fair notice of the charges against him (see People v. Nichols, 193 AD2d 764, 765 (1993), lv. denied 82 NY2d 723[1993]).With his respect to the merits of Defendant's claims, they also fail. Firstly, Defendant avers that his indictment, a copy of which he received in response to his FOIL request, is facially insufficient because it is unsigned by the grand jury foreperson. As the People illustrate, this argument is without merit as the original indictment upon which Defendant was arraigned is, in fact, signed by the grand jury foreperson. (see Exhibit 5 of the People's Affirmation in Opposition, a copy of the original indictment bearing a signature of the grand jury foreperson and a filing date stamp of May 28, 1991). As Defendant's claim is refuted by the record, this branch of Defendant's motion is denied.

Defendant's second contention that his judgment of conviction should be vacated because [*5]his indictment was invalid for an alleged lack of opportunity to testify before the grand jury, is also without support. Pursuant to CPL § 440.30(4)(b) and 4(d), "upon considering the merits of the motion, the court may deny it without conducting a hearing if...the motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating...all the essential facts...." Here, 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 alleges that "[a]t no time following his 1991 arrest was defendant given the opportunity to appear before the Grand Jury of Bronx County, and such request by defendant was in fact made to the District Attorney via defendant (directly) and through his counsel, prior to an indictment...being issued in this case." (Defendant's moving papers, p. 10). Defendant, however, fails to provide any documentation whatsoever such as an affidavit from his attorney substantiating his claim how notice was given to the District Attorney or how he was denied an opportunity to testify. Although he alleges that a request to appear before the grand jury to testify was made by his counsel, Defendant provides no affirmation or his trial attorney to support same, nor does he even provide his counsel's name. 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, he has not submitted an affirmation from trial counsel, the primary person who could substantiate or shed light on the this issue. 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); See also People v. Lopez, NY Sup. Ct., No. 1612/93 slip. op. at 3 (Dec. 18, 2000) ("Other than his own self-serving affidavit, defendant has provided the Court with no documentation (from his attorney, doctors, etc.) to support a claim that his plea was anything other than knowing and voluntary"). 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) 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." Where "there is no reasonable possibility that such allegation is true." See CPL §§ 440.30(4)(d) and People v. Brown, 56 NY2d 242 (1982). The People argue that based on the records kept by the District Attorney, Defendant was, indeed, served with CPL §190.50 notice of his right to testify before the grand jury. Additionally, said records indicate that Defendant's counsel informed the People that Defendant would not testify, in contrast to Defendant's alleged claims to the contrary. (People's Affirmation p. 5). Therefore, this branch of Defendant's motion is likewise denied.

B. Error in Certificate of Disposition

Defendant claims that a Certificate of Disposition that he received from the Clerk of the Court contained an error with respect to his sentence for Conspiracy in the Second Degree. Defendant, following his conviction, was sentenced from six to twelve years on this count. Defendant's moving papers contain a copy of said Certificate, and, indeed, it appears an error has been made, the document reflecting that he was sentenced fifteen years to life. Although this is [*6]an apparent clerical error, it has no effect on the Court's imposed sentence (which Defendant is currently serving), and, therefore, the claim must be rejected.

As an initial matter, to the extent that Defendant is challenging the legality of his imposed sentence, he has not brought his claim properly. A court "must deny a motion to vacate a judgment...when [t]he ground or issue relates solely to the validity of the sentence and not the validity of the conviction." See CPL §440.10(2)(d). Therefore, the legality of Defendant's sentence is improperly challenged in Defendant's instant motion.

While, Defendant's contention that there was a clerical error made on the Certificate of Disposition issued is correct, this error is wholly irrelevant to his conviction. It is "well settled that irregularities or defects in the proceedings for commitment pursuant to a judgment of conviction are not grounds for the discharge of the defendant from the custody of the Warden as long as there is valid judgment of conviction underlying the commitment." See People ex rel. Harrington v. McMann, 23 AD2d 940, 940 (3rd Dept. 1965) (quoting People ex rel. Harris v. Lindsay, 21 AD2d 102, 106 [1st Dept. 1964]). The court in Harris further noted that an "error or mistake' [in the commitment proceedings] "will not invalidate the same unless the defendant is prejudiced in a substantial right." Harris, supra at 106.

As Defendant concedes, he is serving a sentence of six to twelve years incarceration which was imposed by the Court upon his conviction of Conspiracy in the Second Degree (see Defendant's Exhibit C). The People aver that the Inmate Records Department of Sing Sing Correctional Facility confirmed that Defendant is presently incarcerated there and, further, that the records maintained by the State Department of Correctional Services ("DOCS") indicate that Defendant's sentence on his conspiracy conviction is, indeed, an indeterminate term of from six to twelve years. As the Court records,^[FN2] the DOCS records and Defendant's own moving papers reflect that he received and is serving an indeterminate sentence of from six to twelve years upon his conviction of Conspiracy in the Second Degree, the apparent clerical error made by the Clerk of the Court, did not in any way give rise to prejudice. As such, it does not warrant vacating his judgment of conviction, and, therefore, this branch of Defendant's motion is likewise denied.

C. Application for Poor Person Status Pursuant to CPLR § 1101, a court in which an action is "triable," or to which an appeal has been or will be taken, may grant permission to proceed as a poor person. Defendant has no "triable" action in this Court. County Law § 722(4) does provide that counsel may be appointed on a CPL 440 motion "when a hearing has been ordered"; no hearing is ordered here. Moreover, given the speciousness of Defendant's claims, there is no reason to appoint counsel. Cf. People ex rel Williams v. La Vallee, 19 NY2d 238, (1967) (defendant seeking post-judgment relief may be entitled to counsel at hearing if claim is not specious); People v. Hill, 30 AD2d 976 (2nd Dept. 1968) (since the record "conclusively refutes appellant's claim," there is "no obligation to assign counsel to assist in the prosecution of specious issues"). Accordingly, Defendant's motion to proceed as a poor person is also denied.ORDERED, that Defendant's motion to vacate his judgment of conviction and/or proceed as a poor person is in its entirety [*7]denied.

This constitutes the opinion and decision of the Court.

Dated: Bronx, New York

August 10, 2007

_______________________

Dominic R. Massaro

Justice of the Supreme Court