[*1]
People v Shaw
2009 NY Slip Op 51068(U) [23 Misc 3d 1133(A)]
Decided on May 21, 2009
Supreme Court, Bronx County
Price, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on May 21, 2009
Supreme Court, Bronx County


The People of the State of New York

against

Richard Shaw, Defendant.




9173-1990



Defendant, pro se

Office of the District Attorney

Bronx County

Dana Levin

Richard Lee Price, J.



On September 17, 1992, judgment was entered against this defendant pursuant to his conviction after a jury trial of robbery in the first degree (PL 165.15 [4]) and criminal possession of a weapon in the second degree (PL 265.03). Adjudicating him as a persistent violent offender, this court sentenced defendant to two life terms of imprisonment with the mandatory minimum period being twenty-five years, each to run concurrent with the other. By motion pro se submitted March 20, 2009 [FN1], defendant moves this court to set aside the sentence as having been illegally imposed and otherwise invalid pursuant to CPL 440.20, asserting that this court's adjudication of him as a persistent violent offender was unconstitutional.

[*2]Procedural History

Pursuant to his judgment of conviction, this defendant filed a motion to vacate his conviction pursuant to CPL 440.10 (1) (h) claiming he was deprived of effective assistance of counsel and asserting Brady and Rosario violations. In a decision dated March 9, 1993, this court denied defendant's motion finding that notwithstanding defendant's failure to support the motion with sworn allegations, he was provided with meaningful representation and that no Brady or Rosario material was withheld. This court also noted that the record contained facts sufficient so as to have permitted the defendant to raise these claims on direct appeal.

Defendant then brought a direct appeal asserting in his brief that this court admitted impermissible identification testimony and hearsay at trial. He also sought leave of the Appellate Division to appeal this court's denial of his CPL 440.10 (1) (h) motion. On June 24, 1993, Justice Israel Rubin granted defendant's application for leave and ordered that his CPL 440.10 claims be consolidated with the issues contained in his direct appeal. Defendant then filed a pro se supplemental brief claiming that the description given was insufficient probable cause to arrest and that trial counsel's failure to obtain an alibi witness deprived him of ineffective assistance of counsel. He subsequently filed an addendum to the supplemental brief asserting that trial counsel's failure to request appropriate jury instructions also deprived him of ineffective assistance of counsel. Rejecting these claims, the Appellate Division unanimously affirmed defendant's conviction on October 1, 1996.[FN2] Defendant then sought a certificate seeking leave to appeal to the Court of Appeals and subsequently filed both a pro se supplemental brief and an appendix to that application. On January 3, 1997, the Court of Appeals denied defendant's application stating that "there is no question of law presented which ought to be reviewed by the Court of Appeals."

Defendant then moved pro se a second time to vacate his judgement of conviction pursuant to CPL 440.10 (1) (h) and 440.30 (5) claiming that he was denied effective assistance of counsel because trial counsel failed to make certain arguments and objections thereby denying him effective appellate review.[FN3] This court denied that motion on July 6, 1998 upon which the defendant filed a pro se application for a certificate seeking leave to appeal to the Appellate Division. On November 12, 1999, that application was denied.[FN4]

Defendant then brought a writ of error coram nobis before the Appellate Division First Department asserting that appellate counsel deprived him of effective assistance of counsel because of his failure to raise the claim of ineffective assistant of trial counsel on direct appeal. The Appellate Division denied defendant's writ on March 30, 1999.

Subsequently, the defendant filed a petition for writ of habeas corpus in the United States [*3]District Court, Southern District of New York, which was denied on December 21, 2001.[FN5] That court also denied defendant's application for a certificate of appealability because he failed to both present a question of substance and demonstrate that he was denial of substantial constitutional right.

Defendant then moved pro se for a third time to vacate his judgement of conviction pursuant to CPL 440.10 (1) (h), again claiming that he was denied effective assistance of counsel because trial counsel. This time, however, the basis was that trial counsel failed to provide professional advice during the plea stage of the proceedings in that he failed to communicate the District Attorney's plea offer of eleven to twenty-two years incarceration and failed to discuss the advisability of accepting it. This court ordered, and held, a hearing on this issue finding that defendant's claims were without merit and denied his motion. Defendant then filed a pro se application pursuant to CPL 460.15 for a certificate from the Appellate Division seeking leave to appeal this court's denial of defendant's CPL 440.10 motion. On May 8, 2008, that application was denied.[FN6] Defendant filed a pro se motion seeking leave to reargue the Appellate Division's Order denying his CPL 460.15 request for leave, which, on September 2, 2008, was also denied.

Discussion:


CPL 440.20 provides that "at any time after the entry of a judgment, the court in which the judgment was entered may, upon motion of the defendant, set aside the sentence upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law" (CPL 440.20 [1]). CPL 440.30 (4) further provides as follows:
Upon considering the merits of the motion, the court may deny it without conducting a hearing if: . . . (b) [t]he motion 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, as required by subdivision one; or . . . (d) [a]n 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 (CPL 440.30 [4] [b] & [d]).


Defendant contends that his sentence should be set aside pursuant to CPL 440.20 on the basis that this court improperly adjudicated him to be a persistent violent felony offender because he was not provided an opportunity to challenge the validity of the prior convictions relied upon by the People and that the People failed to establish he was in fact the person named in the predicate statement filed with this court at sentencing. Notwithstanding that defendant's claim is procedurally barred, it is entirely without merit. [*4]

On September 14, 1992, this court engaged in the process of arraigning the defendant as a persistent violent offender. The minutes of that proceeding reflect that the defendant, through counsel, informed the court that "the defendant indicated he is challenging this persistent violent felony statement" on the grounds "[t]hat it's not him." This court then adjourned the matter until September 17, 1992 for the specific purpose of conducting a hearing on this issue. The minutes of the hearing conducted on September 17, 1992 clearly reflect that based upon the testimony taken regarding the defendants fingerprints and New York State Identification number, and after considering the arguments offered by counsel, this court determined that the defendant was indeed the person named in the predicate statement presented at sentencing. Accordingly, the defendant's baseless assertion that he was not afforded an opportunity to controvert the allegations in the predicate statement relied on by this court is unequivocally contradicted by these minutes. Not only was the defendant afforded a hearing to controvert the allegations, he in fact did, through counsel. The People correctly argue, therefore, that there is no reasonable possibility that defendant's allegation is true and that his motion should be denied without a hearing.

The People also correctly argue that defendant's claims should be denied pursuant to CPL 440.10 (3) (c), which provides that a "court may deny a motion to vacate a judgment when [u]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." It is not lost on ths court that the minutes containing a clear record of this issue have been available since the hearing was held, and in fact the defendant asserted and unsuccessfully argued this issue at that time. That he cited portions of those minutes in his moving papers suggests that he apparently had access to them and indeed obtained them. Yet, despite being in a position to have brought this motion immediately thereafter, defendant has waited more than 16 years to do so. This court can only conclude that this, in and of itself, indicates he had little, if any, expectation of success on this issue.

In their opposition to defendant's motion, the People ask this court to enjoin the defendant from filing any further pro se motions without first seeking the permission of this court by specifically identifying and stating the basis upon which he believes he is entitled to legal relief. This court is certainly cognizant that granting such a request is extreme and should be reserved for those rare instances where such a measure is absolutely necessary. However, while the right to defend oneself pro se is both constitutionally protected and statutorily granted in New York, such right "is not absolute but subject to certain restrictions" (People v McIntyre, 36 NY2d 10, 17 [1974]). Indeed, courts must not be "without authority to curtail the waste of resources resulting from these motions" (People v Rivera, 159 Misc 2d 556, 561 [1993]; See People v Brown, 14 Misc 3d 1237(A), 2007 NY Slip Op 50401(U), 4 [2007] [enjoining a defendant from making future motions is "well within the Court's discretion").

Here, the defendant has filed four CPL 440 motions, three of which have been pro se, a direct appeal, a writ of error coram nobis and a writ of habeas corpus. In so doing, he has repeatedly raised similar issues, only to be struck down by this court as well as the Appellate Division, First Department, the United States District Court for the Southern District of New York, and the United States Court of Appeals for the Second Circuit. Moreover, the New York State Court of Appeals denied his petition for further appellate review. Under such [*5]circumstances, this court finds it appropriate to enjoin this defendant from filing any further pro se CPL 440 motions without first obtaining permission from this court to do so (See In re Moore>/I<, 17 Misc 3d 228 [Kings Co Supreme Ct 2007, J. Leventhal] [enjoining defendant from filing further CPL 440.10 motions without the court's permission after defendant had moved five times in three years raising the same issues each time that were previously found to be without merit]). Accordingly, in light of the defendant's litigious behavior and previous failures, the People's request to enjoin him from filing future CPL 440 motions without first seeking permission of the court is granted.

Defendant's pro se motion pursuant to CPL 440.20 to set aside the sentence as having been illegally imposed is denied. The People's request to preclude defendant from filing any further CPL 440 motions without first seeking permission of the court is granted.

This constitutes the decision and order of the court.

Dated:May 21, 2009

E N T E R

________________________________

Richard Lee Price, J.S.C.

Footnotes


Footnote 1: It should be noted that this court initially deemed defendant's motion submitted on February 6, 2009. However, by letter dated February 9, 2009, defendant requested an opportunity to reply to the District Attorney's opposition. This court directed defendant to file his reply by March 20, 2009. Indeed, this court received defendant's reply dated March 17, 2009. Accordingly, defendant's motion was deemed submitted on March 20, 2009.

Footnote 2: People v Shaw, 232 AD2d 174.

Footnote 3: Specifically, defendant asserted that trial counsel failed to preserve those issues previously raised by appellate counsel, that he failed to have defendant present during side bar discussions during voir dire, that he failed to present an alibi defense, that he failed to request a missing witness charge, and that he failed to request an adverse inference charge relative to a missing 911 audiotape.

Footnote 4: People v Shaw, 259 AD2d 1058.

Footnote 5: Shaw v Artuz, 2001 WL 1645933 (SDNY)

Footnote 6: People v Shaw, 259 AD2d 1058.