Defendant has moved, pro se, for an order pursuant to CPL § 440.10 vacating the judgment and sentence of the Supreme Court, Kings County, convicting him, after a jury trial, of two counts of murder in the second degree (PL § 125.25 [1], [3]); one count of robbery in the first degree (PL § 160.15 [1]); one count of attempted murder in the second degree (PL § 110/125.25 [1]); and two counts of assault in the first degree (PL § 120.10 [1], [4]). In a pro se motion dated September 2, 2008, defendant alleges that: (1) the trial court's instructions on accessorial liability and intent were erroneous; (2) the trial court, prosecutor, and defense counsel plotted to deny defendant a fair trial; (3) his Antommarchi rights were violated; (4) the trial court's interjections denied him a fair trial; (5) the indictment was improperly amended; and (6) he was denied the effective assistance of counsel. The People have filed an answer in opposition to defendant's motion. Defendant then filed a rebuttal to the People's affirmation in opposition. For the reasons stated below, the motion is denied.

The charges under indictment 12894 of 1990 arose out of a incident occurring on March 3, 1990, in Kings County, NY, during which defendant and three unapprehended accomplices entered into the apartment of Pasqual Rodriguez and Hilda Maldonado. Mr. Rodriguez was strangled and stabbed, and subsequently died of his injuries. Ms. Maldonado was stabbed in the neck. She survived, and testified at the trial. Defendant and the three unapprehended accomplices fled the scene of the crime with money and jewelry. Defendant was convicted, after a jury trial, of two counts of murder in the second degree (PL § 125.25 [1], [3]), one count of attempted murder in the second degree (PL § 110/125.25 [1]), one count of robbery in the first degree (PL § 160.15 [1]), and two counts of assault in the first degree (PL § 120.10 [1] [4]). Defendant was sentenced to an indefinite [*2]prison term of twenty-five to life for each of the murder counts, and twelve and one-half to twenty-five years for the robbery count. These sentences were ordered to run consecutively to concurrent terms of eight and one-third to twenty-five years for the attempted murder count and five to fifteen years on each of the two assault counts (Rappaport, J. At hearing, trial and sentence).

On November 28, 1994, the Appellate Division, Second Department, reversed defendant's conviction, holding that the trial court erred by sending alternate jurors out to dine with deliberating jurors. The appellate court did so despite defense counsel's failure to preserve the claimed error.The appellate court further held that defendant's remaining contentions were "unpreserved for appellate review, without merit, or academic." People v. Agramonte, 209 AD2d 707 (2d Dep't 1994). The Court of Appeals granted the People's motion for leave to appeal and reversed the decision of the Appellate Division, finding that CPL §§s 270.30 and 320.20 required preservation of such errors. People v. Agramonte, 87 NY2d 765 (1996). Upon remand, the Appellate Division, based on its interest of justice jurisdiction, declined to reverse the conviction. People v. Agramonte, 228 AD2d 607, 608 (2d Dep't 1996). However, the Appellate Division reduced defendant's sentenceon the robbery count from twelve and one-half to twenty-five years to eight and one-third to twenty five years because robbery in the first degree is not an "armed felony offense" as defined in the penal law. Leave to appeal to the Court of Appeals was denied. People v. Agramonte, 88 NY2d 979 (1996).

Defendant has since filed three pro se motions to vacate the judgment of conviction pursuant to CPL.§ 440.10 and all of said motions were denied procedurally and on the merits. Defendant's first motion was denied on November 23, 1998. The court held that the defendant was not denied his right to effective assistance of counsel (Rappaport, J.). On March 10, 1999, the defendant moved in the Appellate Division for a writ of error coram nobis, claiming that he had received ineffective assistance of appellate counsel. On June 28, 1999, the Appellate Division, Second Department, denied defendant's motion for a new appeal. Defendant's untimely motion for leave to appeal from the denial of the coram nobis application was denied on February 3, 2003 (Ciparick, J.).

Defendant's second motion to vacate his judgment of conviction was denied by the trial court on December 14, 1999, which determined that defendant had raised the identical claims which had been raised in his first motion (Rappaport, J). On April 5, 2000, a judge of the United States District Court for the Eastern District of New York, sua sponte dismissed as untimely defendant's petition for a writ of habeas corpus. The Second Circuit then remanded the matter in order for the District Court to consider any excuses for defendant's untimeliness. On remand, the District Court sustained its prior decision and found that there were no extraordinary circumstances excusing the untimeliness of the petition. See, Agramonte v. Walsh, [WL 1364086 Gerson, J., E.D. NY 2002].

By a pro se motion dated September 1, 2005, defendant moved for a third time to vacate his conviction on the ground that his trial counsel was ineffective. By a memorandum order dated July 31, 2006, this motion was denied (Lott, J.). The court held that the defendant's claims were procedurally barred because defendant failed to raise, but could have raised, these claims in one of [*3]his two then prior motions. The court further held that the claims of ineffective assistance of counsel were belied by the record and that defendant's claims regarding an alleged alibi did not qualify as newly discovered evidence. On February 5, 2007, the Appellate Division denied defendant's motion for leave to appeal from the Supreme Court's denial of his motion to vacate judgment.

Defendant then moved, for a fourth time, to vacate the conviction (this time pursuant to CPLR§ 2221 [d] [e]), and moved to dismiss the underlying indictment. Defendant also moved to reargue the previous motion to vacate his conviction (Lott, J). This motion was denied (Chambers, J.). The Appellate Division subsequently held that the denial of the motion was not appealable.

The Current Motion to Vacate the Judgment of Conviction

In the instant motion, defendant argues: (1) that the trial court's instructions on accessorial liability and intent were in error; (2) that the trial court, the prosecutor, and defense counsel plotted to deny him a fair trial; (3) that his Antommarchi rights were violated; (4) that the court's interjections denied him a fair trial; (5) that the indictment was improperly amended; and (6) that he was denied effective assistance of trial counsel.

As previously indicated herein, since his conviction, defendant has filed three motions pursuant to CPL § 440.10, as well as a motion to reargue pursuant to CPLR § 2221 (d) (e). As a threshold matter, this court notes that defendant's motion is procedurally barred. First, with respect to the claim alleging error in the indictment, this claim must be denied as it was previously determined on the merits upon an appeal from the judgment. CPL § 440.10 (2) (a); People v. Chapman, 10 Misc.3 211, 213 (Sup. Ct. Kings County 2005). The Appellate Division, Second Department, held that, other than his claim regarding the jurors, defendant's contentions, were "unpreserved for appellate review, without merit, or academic." People v. Agramonte, 209 AD2d 707. Since this issue was previously determined on the merits, as part of defendant's direct appeal, this portion of his motion to vacate judgment must be summarily denied pursuant to CPL § 440.10 (2) (a).

In addition, this claim must be denied pursuant CPL § 440.10 (2) (c). The court must deny the motion whenever sufficient facts appear on the record to permit appellate review of the issue raised, but defendant unjustifiably failed to raise these issues on direct appeal. Thus, this claim, as well as defendant's claims that the trial court's jury instructions were erroneous; that his Antommarchi rights were violated; and that the trial court's "interjections" deprived him of a fair trial, were fully set out in the record and could have been raised on direct appeal. Therefore, they are procedurally barred. CPL § 440.10 (2) (c). See, People v. Cochrane, 27 AD3d 659, 660 (2d Dep't 2006); People v. Jossiah, 2 AD3d 877 (2d Dep't 2003), lv denied, 2 NY3d 742 (2004).

Furthermore, this court may deny the motion because these issues could have been raised in defendant's three previous motions to set aside his judgment, as well as his fourth motion to reargue these issues. All of defendant's claims are denied as defendant was in a position to have raised these grounds or issues in his previous motions, but failed to do so. See, CPL § 440.10 (3) (c) ; People v. [*4]Dominguez, 257 AD2d 511 (1st Dep't 1999); People v. Cochrane, 27 AD3d 659, 660 (2d Dep't 2006); People v. Dover, 294 AD2d 594 (2d Dep't 2002). Specifically, defendant asserted a claim of ineffective assistance of trial counsel in his previous motions, but did not mention any of the grounds asserted in the present motion. Defendant now alleges that his defense counsel was somehow involved in a "plot" against him with the trial court and the prosecutor, and that his counsel "abandoned the defendant's defense." In the present motion, defendant, for the first time, approximately seventeen years after his conviction, asserts these particular claims. In addition, defendant has not demonstrated good cause for not raising these claims in his previous motions. Indeed, a delay in making a claim can be considered in evaluating the seriousness and validity of a claim and may undermine the claim's legitimacy. See, People v. Nixon, 21 NY2d 338, 352 (1967). Defendant has provided no sufficient explanation for his failure to assert these grounds until now. Thus, these claims must be denied as defendant was in a position to have raised those claims in his original motion but failed to do so. CPL § 440.10 (3) ( c).

Moreover, defendant's new claims of ineffective assistance of counsel, as well as his allegation of the existence of a plot between the defense counsel, the trial court, and the District Attorney "in contemplation of causing the defendant's demise" are contradicted by court records. Therefore, "under these and all other circumstances attending the case, there is no reasonable possibility that such allegation[s] [are] true." CPL § 440.30 (4) (d).

Even if this court were to review defendant's ineffective assistance of counsel claim on the merits, his motion must be denied. To be successful on a claim of ineffective assistance of counsel, a defendant must establish the "absence of strategic or other legitimate explanations" for counsel's conduct, and overcome the legal presumption that counsel's performance falls within the wide range of reasonable professional competence. See, Strickland v. Washington, 466 U.S. 668; People v. Rivera, 71 NY2d 705. Without such a demonstration, "it will be presumed that counsel acted in a competent manner and exercised professional judgment." Rivera, 71 NY2d at 709.

Accordingly, the question to be resolved is not whether defendant demonstrated that his counsel provided "less than meaningful representation" under the broad standards detailed above, but whether the attorney's conduct constituted "egregious and prejudicial" conduct, such that the defendant did not receive a "fair trial." See, People v. Benevento, 91 NY2d 708, 714, quoting People v. Flores, 84 NY2d 184, 188. Defendant has failed to meet his burden of proving that trial counsel failed to provide meaningful representation and/or committed such egregious and prejudicial errors that he was deprived of a fair trial. Thus, to the extent that defendant asserts "new claims" regarding the effectiveness of his trial counsel, those arguments are found to be without merit.

For the foregoing reasons, defendant's motion to vacate the judgment of conviction is hereby denied.

This constitutes the decision and order of this court. [*5]

Dated:May 28, 2009

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James P. Sullivan, J.S.C.