Ignacio Reynoso, the within Defendant, was on May 23, 1986, convicted by a jury of one count of Manslaughter in the First Degree (Penal Law § 125.20 & lbrac;1 & rbrac;), and was thereafter sentenced to an indeterminate term of imprisonment of from eight and one third to twenty-five years (Vitale, J.). Defendant is currently incarcerated pursuant to that judgment. In a lively decade old engagement with the courts, he has since filed two direct appeals, six federal habeas corpus petitions, three coram nobis petitions, and three Criminal Procedure Law § 440 motions.

Defendant, pro se, now moves this Court to vacate his judgment of conviction by way of a fourth motion pursuant to CPL § 440.10, on the grounds that the trial court erred, when it: (1) failed to instruct the jury that it could find the Defendant not responsible for the crime due to a mental defect; (2) failed to instruct the jury on a justification defense; (3) failed to order a competency hearing after viewing the pre-sentence report; (4) found the Defendant competent without Defendant being present at the competency hearing; (5) refused Defendant's request for a mental health expert; and (6) did not allow testimony from Defendant's sister regarding his statement to her in which he stated that he believed the deceased victim was armed. Additionally, that trial [*2]counsel was ineffective on the grounds that he (1) waived Defendant's right to be present during the competency hearing; (2) failed to obtain a jury instruction on Defendant's lack of responsibility due to mental disease; (3) failed to obtain a jury instruction for a justification defense; (4) failed to request a competency hearing for Defendant; (5) failed to raise a insanity defense; and (6) failed to bring to the Court's attention Defendant's inability to communicate with defense counsel due to a language barrier. Defendant further requests that if his judgment of conviction is not so vacated, in the alternative a hearing to determine whether his conviction should be vacated be convened.^[FN1]

For the reasons set forth below, the motion is denied in its entirety.

On appeal to the Appellate Division, First Department, Defendant through his counsel alleged that the trial court: (a) erroneously refused to admit medical testimony about a previous unrelated injury; (b) erred in refusing to allow into evidence Defendant's statement to his sister stating that the deceased victim was armed; (c) improperly refused to issue a justification defense charge; and (d) imposed an excessive sentence.

On October 20, 1987, the Appellate Division unanimously affirmed Defendant's conviction without opinion. (See People v. Reynoso, 133 AD2d 1019 & lbrac;1st Dept. 1987 & rbrac;).

On December 23, 1987, Defendant's application for leave to appeal to the New York State Court of Appeals was granted. (See People v. Reynoso, 70 NY2d 936 & lbrac;1987 & rbrac;).

On December 15, 1988, the New York Court of Appeals, in a memorandum decision, unanimously affirmed the Defendant's conviction. (See People v. Reynoso, 73 NY2d 816 1987 & rbrac;).

2. Defendant's First Federal Habeas Corpus Petition

On July 6, 1989, Defendant, pro se, moved for a writ of habeas corpus to the United States District Court, Southern District of New York, putting forth the same legal arguments from his direct appeal. (See Reynoso v. Leonardo, 89 Civ. 5116 & lbrac;WK & rbrac;).

On April 24, 1990, the court denied the motion on the merits (Knapp, J.). (See Reynoso v. Leonardo, 735 F.Supp. 134 & lbrac;S.D.NY & rbrac;).

On September 21, 1990, the United states Court of Appeals for the Second Circuit, affirmed, without opinion, the order of the District Court. (See Reynoso v. Leonardo, 916 F.2d 709 & lbrac;2nd Cir. 1990 & rbrac;).3. Defendant's First Coram Nobis Petition

On April 22, 1991, Defendant, claiming ineffective assistance of counsel, filed a motion for a writ of error coram nobis with the Appellate Division, First Department. Defendant argued that counsel was ineffective in that he failed to raise the issue of Defendant's absence from the robing room prior to the Court issuing a supplemental charge to the jury regarding admission of identification evidence.

On July 27, 1991, the Appellate Division ruled that its order of October 20, 1987, be recalled and that the determination of Defendant's appeal be held in abeyance pending further review.

4. Defendant's Second Direct Appeal [*3]

Defendant, through newly appointed counsel, filed a second brief with the Appellate Division, First Department, raising claims that the trial court erred in permitting the allowance of identification testimony and refusing to charge Manslaughter in the Second Degree as a lesser included offense.

On January 8, 1992, Defendant, pro se, requested the Appellate Division to consider the argument he put forth in his coram nobis application, which was excluded from the brief filed by his counsel, that he was absent from the in-chambers discussion regarding the supplemental charge to the jury. On April 23, 1992, the Appellate Division affirmed the conviction. (See People v. Reynoso, 182 AD2d 546 & lbrac;1st Dept. 1992 & rbrac;). On June 15, 1992, Defendant's application for leave to appeal to the New York State Court of Appeals was denied.5. Defendant's Second Federal Habeas Corpus Petition

On March 10, 1993, Defendant, in his second petition for a writ of habeas corpus to the United States District Court for the Southern District of New York, raised the following claims: (a) Defendant was denied his right to be present at material stages of his trial; (b) the pre-trial identification procedures were unduly suggestive; (c) the People's evidence was untrue; (d) the autopsy evidence was improper because the doctor was not certified as an expert by the court; and (e) the court erred in not charging Manslaughter in the Second Degree as a lesser included offense.

On April 23, 1995, the United States District Court dismissed the petition without prejudice for putting forth a combination of exhausted and unexhausted claims (Sand, J.).

6. Defendant's Second Coram Nobis Petition

In pro se motion papers dated February 15, 1995, Defendant filed his second motion for writ of error coram nobis with the Appellate Division, First Department. Defendant argued, with respect to his second direct appeal to that Court, ineffective assistance of counsel on the grounds that counsel did not raise the following issues in his Appellate Brief: (a) Defendant's absence from the robing room prior to the court charging the jury; (b) the People allegedly withholding evidence favorable to Defendant and allowing witnesses to testify falsely; (c) the People allegedly withholding Rosario material (People v. Rosario, 9 NY2d 2d 286 (1961) cert. denied 368 U.S. 886 & lbrac;1961 & rbrac;); (d) the court allegedly substituting an alternate juror and improperly issuing an Allen charge (Allen v. United States, 164 U.S. 492 (1896); (e) trial counsel was ineffective; (f) there was a "mid-term conference with a witness;" (g) the identification evidence was insufficient; (h) defense counsel improperly waived Defendant's presence at material stages of the trial; (i) the trial court improperly refused to charge the jury with justification and second-degree manslaughter as a lesser included offense; (j) the doctor was not certified as an expert by the court; and (k) the trial court's sentence was excessive.

On June 8, 1995, the Appellate Division denied Defendant's motion. On June 29, 1995, Defendant's application for leave to appeal to the New York State Court of Appeals was denied.

7. Defendant's Third Federal Habeas Corpus Petition

On March 15, 1996, Defendant filed his third petition with the United States District Court for the Southern District of New York (See Reynoso v. Leonardo, 96 Civ. 3442 & lbrac;WK & rbrac;).Defendant raised the following arguments: (a) counsel was ineffective because he did not raise an issue in his brief regarding Defendant's absence from the robing room prior to the court charging the jury; (b) the identification procedure was unduly suggestive; (c) the People withheld exculpatory evidence and presented witnesses who testified falsely; (d) the People violated their Rosario obligation by withholding their witnesses' criminal histories and the police officers' memo books; (e) the court [*4]erroneously substituted alternate jurors and failed to issue a supplemental charge to deadlocked jurors; (f) trial counsel was ineffective; (g) the court erroneously allowed the prosecutor a midterm conference with a witness outside the courtroom; (h) the autopsy evidence was flawed because the doctor was not certified as an expert by the court; and (i) the court erroneously failed to charge the issue of identification, denied Defendant's suppression motion and diverted the truth about Defendant's probation report.

On August 7, 1998 The United States District Court denied Defendant's application to file a successive petition holding that it constituted abuse. (See Reynoso v. Kuhlman, 1998 WL 472049 & lbrac;S.D.NY 1998 & rbrac;). Additionally, the United States Court of Appeals for the Second Circuit denied a certificate of appealability on June 29, 2000.

8. Defendant's First CPL 440 Motion

On February 29, 2001, Defendant moved, pro se, to vacate his judgment of conviction pursuant to CPL 440.10 on the grounds that: (a) Defendant had discovered new evidence; (b) the identification procedures were unduly suggestive; (c) Defendant's apartment was subject to an illegal search; (d) the People's witnesses falsely testified; (e) the doctor who performed the autopsy was not certified by the Court; (f) the doctor falsely testified about who performed the toxicology test; (g) the People didn't turn over the witnesses' criminal records; (h) the People did not turn over Detective Burns' memo book; (i) the People acted with misconduct during the summation; (j) counsel was ineffective because he waived Defendant's presence during the Sandoval hearing and the discussion of the jury note and allowed Defendant's brother to testify without an translator; (k) the trial court erred when it substituted three alternate jurors, failed to give an Allen charge and induced defense counsel to consent to the jury receiving exhibits into evidence without notifying the attorneys; and (i) defense counsel told a private investigator not to provide Defendant with any information even though Defendant had paid for the investigator's services.

On March 26, 2001, Supreme Court, Bronx County, denied Defendant's motion (Byrne, J.). In a pro se motion dated April 10, 2001, Defendant sought leave to appeal from denial of his CPL 440.10 motion. The Appellate Division, First Department, denied Defendant permission to appeal said decision on June 28, 2001, and, on August 30, 2001, the Appellate Division denied reargument.

9. Defendant's Fourth Federal Habeas Corpus Petition

On April 22, 2002, Defendant sought leave to file his fourth habeas corpus petition with the United States District Court, Southern Division from the United States Court of Appeals, Second Circuit, arguing: (a) new evidence has been discovered; (b) he was subjected to suggestive identification procedures; (c) the Prosecutor committed misconduct; (d) he was denied effective assistance of counsel; and (e) he was improperly denied parole. The court denied leave on May 20, 2002.

10. Defendant's Second CPL 440 Motion

On May 15, 2002, Defendant, pro se, moved pursuant to CPL 440.10 to vacate his judgement of conviction, arguing that: (a) the court lacked jurisdiction to preside over the case; (b) the federal and state courts conspired to deny his release after his conviction was vacated pending his appeal; (c) the People introduced evidence against him that was a product of an illegal search; (d) his counsel was ineffective because he did not allow Defendant's mother to testify at a suppression hearing; and (e) the trial court, inter alia, erroneously refused to charge Manslaughter in the Second Degree as a lesser included offense and justification as a defense and improperly informed the jury about [*5]Defendant's prior convictions.

On May 29, 2002, Defendant's motion was denied (Byrne, J.). In pro se papers dated June 11, 2002, Defendant sought leave from the Appellate Division, First Department, to appeal the decision. Leave to appeal was denied on October 15, 2002 (Sullivan, J.).

11. Defendant's Third Coram Nobis Petition

On June 6, 2002, Defendant, pro se, moved, for a third time, for a writ of error coram nobis before the Appellate Division, First Department, arguing that his second appellate counsel was ineffective for not raising the argument that Defendant's trial counsel was ineffective.

On May 22, 2003, the Appellate Division denied Defendant's motion and on October 14, 2003, the court also denied Defendant's motion to reargue.

12/13. Defendant's Fifth and Sixth Federal Habeas Corpus Petitions

On September 15, 2003, Defendant, sought leave to file his fifth habeas corpus petition with the United States District Court, Southern Division from the United States Court of Appeals, Second Circuit, arguing that two different indictment numbers had been used and that his conviction was obtained by duress. On October 15, 2003, leave was denied.

Shortly thereafter, on February 3, 2004, Defendant again sought leave to file a successive sixth habeas corpus petition with the United States District Court for the Southern District of New York, putting forth the same argument, that two different indictment numbers were used in his prosecution and adding that the trial court erroneously substituted three alternate jurors and failed to give an Allen charge. On March 11, 2004 the Second Circuit denied leave.

14. Defendant's Third CPL 440 Motion

On October 24, 2005, Defendant, pro se, moved to set aside his sentence pursuant to CPL §440.20, alleging that : (a) his rights guaranteed by the Due Process clause had been violated; (b) his sentence of from eight and one-third to twenty-five years was "unreasonable;" (c) his sentence was invalid as a matter of law because it was based on prosecutorial misconduct and misinformation; (d) the trial court was not impartial; (e) a trial witness testified falsely; (f) the identification evidence was insufficient; (g) the trial court induced defense counsel to waive Defendant's presence during material stages of the trial; (h) trial counsel was ineffective for waiving Defendant's presence at such stages; (i) the trial court erred in failing to give an instruction of identification and justification to the jury; and (k) the trial court erred in failing to charge the jury that they could find the Defendant not guilty' for reason of mental disease or defect.

On May 25, 2006, Supreme Court, Bronx County, denied Defendant's motion (Byrne, J.). On December 14, 2006, the Appellate Division, First Department, denied Defendant leave to appeal that decision, and, further, denied Defendant's motion to reargue on January 25, 2007.

On February 22, 2007, the Court of Appeals, dismissed Defendant's applications for leave to appeal the Appellate Divisions' denial of leave and reargument for leave to appeal was denied.

Initially, Defendant's instant and fourth pro se CPL § 440 motion is procedurally barred. As we have seen, since Defendant's conviction he has filed three previous CPL � 440 motions before this Court; additionally, two direct appeals, six federal habeas corpus petitions and three coram nobis petitions.

In his previous pro se CPL � 440 motions Defendant "was in a position adequately to raise [*6]the ground or issue underlying the present motion but did not do so." See CPL � 440.10 (3)(c). Specifically, he raises his current claims, over twenty years after his conviction. (" & lbrac;u & rbrac;pon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion, but did not do so." People v. Dominguez, 257 AD2d 511, 512 (1st Dept. 1999) (lv. denied, 93 NY2d 872 & lbrac;1999 & rbrac;), (writ of habeas corpus dismissed, judgement entered, Dominguez v. Portuondo, 93 NY2d 872 & lbrac;2004 & rbrac;). (See also People v. Lopez, 289 AD2d 76 & lbrac;1st Dept. 2001 & rbrac;). (Where the court denied defendant's motion there were no factual issues to warrant a hearing on defendant's motion to vacate judgment).

Defendant's claims against the trial court are procedurally barred from review. See CPL & dblsecmk; 440.10(2)(a) and (c). Adequate facts existed in the records to have permitted review of each of these claims on direct appeal. In fact, two of the claims have already been litigated and rejected on Defendant's first direct appeal. (See People v. Reynoso, 73 NY2d 816 & lbrac;1988 & rbrac;). (rejecting Defendant's claims that the trial court should have charged the jury on justification and permitted testimony from Defendant's sister). Defendant is procedurally barred from relitigating these claims herein. See CPL § 440.10(2)(a) ("the court must deny a motion to vacate a judgment when & lbrac;t & rbrac;he ground or issue was previously determined on the merits upon an appeal from the judgment.").

With respect to Defendant's other claims regarding the court's other purported errors, these claims are inherently record-based, yet, Defendant, inexplicably failed to raise them on his two direct appeals. Pursuant to CPL § 440.10(2)(c), denial of motion is required 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 raise such ground or issue upon an appeal perfected by him." Therefore, Defendant is precluded from raising them in a CPL 440 motion. See CPL §440.10(2). See also People v. Cooks, 67 NY2d 100 (1986) (holding that the purpose of CPL § 440.10(2)(c) is to prevent post-judgment motions from being employed as substitutes for direct appeal); see also People v. Jackson, 266 AD2d 163 (1st Dept. 1999) (" & lbrac;a & rbrac; a CPL 440.10 motion may not be used as a device to take a belated appeal on an issue that appears on the face of the record."

Similarly, Defendant's present arguments alleging ineffective assistance of counsel, specifically, that counsel failed to obtain jury instructions on justification and mental disease or defect and purportedly waiving Defendant's presence during the "competency heating", are arguments that could be resolved by examining the record, and, therefore, should have been determined on direct appeal.^[FN2] Consequently, Defendant is procedurally barred from raising them herein. See CPL § 440.10(2)(c).

With respect to the remainder of Defendant's claims against trial counsel, namely, that he failed to request a competency hearing on behalf of the Defendant; failed to investigate or raise an insanity defense; and failed to assert that Defendant, due to a language barrier, was unable to [*7]communicate effectively with him, these allegations, even if true, are also procedurally barred. They should have been asserted, along with other grounds raised, in Defendant's previous CPL 440 motions filed in 2001 and 2002. Both of said motions addressed ineffective assistance of counsel-yet did not include these claims. Pursuant to CPL § 440.10(3)(c), these claims are summarily denied because the Defendant previously moved for such relief and "was in a position adequately to raise the ground or issue underlying the present motion but did not do so." Indeed, Defendant was present during the trial, and any issues regarding ineffective assistance of counsel should have been raised in his three prior 440 motions.

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

Nor is a hearing warranted because, as evidenced by the record, Defendant's assertion that his counsel was ineffective is meritless. Respecting his claim that pursuant to CPL � 440.10 the Court should vacate its judgment of conviction on the ground that counsel (a) waived Defendant's right to be present during the competency hearing; (b) failed to obtain a jury instruction on Defendant's lack of responsibility due to mental disease; (c) failed to obtain a jury instruction for the justification defense; (d) failed to request a competency hearing for Defendant; (e) failed to raise the insanity defense; and (f) failed to bring to the Court's attention Defendant's inability to communicate with defense counsel due to a language barrier. Defendant, pursuant to § 440.10, requests that his conviction be vacated, or, in the alternative, a hearing be convened to determine whether the conviction should be vacated. For the reasons set forth below, his motion is further denied.

Defendant's contention that trial counsel was ineffective fails as the record does not provide any indication or support for same. Pursuant to CPL � 440.30(4)(b), "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...." 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 relies upon his own self-serving allegations referring to his pre-sentence report, that, Defendant was "depressed," received "psychiatric therapy," and took "medications" after a work-related accident and injuries sustained during a protest (Defendant's affidavit, p. 3-6). Defendant further asserts feelings of dizziness and headaches between 1981-1983, however, the crime for which he was convicted occurred on November 17, 1984. Defendant goes on to claim that he suffered "bouts of depression" while in custody during the pendency of this case.

A criminal defendant is presumed to be competent. See People v. Gelikkaya, 84 NY2d 456 (1994). Only when, "a court has reasonable ground for believing that a defendant is in such a state of idiocy, imbecility or insanity that he is incapable of understanding the charge, indictment or proceedings... & lbrac;is & rbrac; it... the duty of the court to direct him to be examined in these respects." See People v. Horan, 290 AD2d 880, 882 (3rd Dept. 2002). lv. denied, 98 NY2d 638 (2002). However, " & lbrac;a & rbrac; defendant is presumed to be competent and is not entitled, as a matter of law, to a competency hearing unless the court has reasonable grounds to believe that, because of mental disease or defect, the defendant is incapable of assisting in his or her own defense or of understanding the proceedings against him." People v. Medina, 249 AD2d 694, 694 (3rd. Dept. 1998), quoting People v. Planty, 238 AD2d 806, 807 (3rd Dept.1997), lv. denied, 89 NY2d 1098 (1997).

Defendant's claim that he suffered from a mental defect, depression and was on medications [*8]at the time of his trial is wholly unsupported by the record. Based thereon, Defendant appeared lucid and coherent throughout. As Defendant appeared capable of coherently discussing his medical history, the facts of his case with a representative of the probation department and lucidly addressing the court during trial summations, this Court has no reason to believe he suffered from a mental disease or defect (as defined by Penal Law § 40.15) or that he was an incapacitated person (as defined by CPL § 730.10 & lbrac;1 & rbrac;).^[FN3] Even when a defendant has had a history of mental problems (which the court is not made aware of by defendant's counsel prior to sentence), the court may rely on its own observations of the defendant in determining his ability to understand sentencing procedures. See People v. Poquee, 9 AD3d 781, 783 (3rd Dept. 2004) ("Notwithstanding defendant's history of mental illness and prior drug abuse, defendant's claim of his incompetency at the time of trial is not supported by the record. Indeed, evidence demonstrates that defendant grasped the nature of the proceedings before Supreme Court and actively participated by rejecting a plea bargain, exploring with the court his right to testify, and demonstrating a clear and coherent recollection of events during his testimony."). See People v. Daley, 302 AD2d 745, 750-751 (3rd. Dept. 2003). ("Defendant's remarks and conduct at his court appearances were lucid and oriented, albeit argumentative and critical of the legal system, but not delusional nor suggestive of mental impairment requiring a competency hearing, and defendant's allocution evidenced a knowing, voluntary and intelligent guilty plea. In our view, there was nothing in defendant's remarks or conduct to suggest that as a result of mental disease or defect he lacked the capacity to understand the proceedings against him or to assist in his own defense.")

Defendant fails to name the alleged mental defect or discuss how it prevented him from comprehending sentencing procedures; provide the name of medications he was allegedly prescribed; or provide the names of medical or mental health professionals with whom he purportedly consulted. See People v. Degondea, 3 AD3d 148 (1st Dept. 2003), lv. denied, 2 NY3d 798 (2004); See 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, et cetera.) to support a claim that his plea was anything other than knowing and voluntary. His plea was accepted only after a lengthy allocution, during which the defendant responded meaningfully and appropriately to every single question posed by the Court"). See People v. Brown, 23 AD3d 702, 702-703 (3rd Dept. 2005) ("Defendant's conclusory and vague allegations that his mental capacity was impaired by illness from methadone withdrawal were inadequate to raise an issue and are flatly refuted by the record which is not only devoid of evidence suggesting that the defendant did not understand the proceeding, but which affirmatively established that defendant's plea was voluntary, knowing and intelligent.").

Defendant fails to provide proof that he informed his counsel about any of his purported maladies, nor, more significantly, does he provide an affirmation from his counsel which would support his claims of mental problems or difficulties in communication due to a language barrier. (See, e.g. People v. Morales, 58 NY2d 1008 & lbrac;1983 & rbrac;) (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. [*9]1995) (denying defendant's 440.10 motion in which he argued ineffective assistance of counsel, on the grounds of failing to supplement his own affidavit with that of his former attorney).

To the contrary, as the People show in their Exhibit 1 supporting their answer, an Affirmation from Gerald J. McMahon, Esq., Defendant's trial counsel, attesting that Defendant was lucid, coherent and fully capable of understanding the trial proceedings and assisted in his own defense. Additionally, as Mr. McMahon states, Defendant was instrumental in the attempt to develop a justification defense; Defendant neither said nor did anything to cause Mr. McMahon to believe he suffered from any mental defects; and to the best of his recollection, there were no language barriers between him and Defendant. Defendant's bare bones allegations and conclusory statements are insufficient either to warrant vacatur of his judgment of conviction or warrant a hearing. In People v. Session, 34 NY2d 254, 255-256 (1974), the Court addressed this issue, 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. See also, People v. French, 292 AD2d 813 , 814 (4th Dept. 2002) (" & lbrac;The & rbrac; 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.")

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

August 31, 2007

_______________________

Dominic R. Massaro

Justice of the Supreme Court