Defendant Angel Morales has submitted a pro se motion dated November 17, 2009 seeking to set aside his February 17, 2000 judgment of conviction pursuant to CPL 440.10 on the grounds that he was denied the effective assistance of counsel in that his trial counsel did not complain that the jury verdict was repugnant - specifically referencing his conviction of burglary in the second degree but acquittal of burglary in the third degree. In addition defendant claims his attorney failed to be familiar with the facts and the law as they applied to these burglary counts.

The People have submitted a response dated March 18, 2010 in opposition to defendant's motion. They in effect concede that the portion of the verdict in question was repugnant but maintain that under the particular circumstances of this case defendant's related claim of ineffective assistance of counsel should have been raised on direct appeal since it is based upon matters of record and therefore defendant is procedurally barred from bringing it now. Defendant has also filed supplemental pro se papers dated March 8, 2010 seeking a default judgment in his favor for the People's alleged failure to answer his motion timely. Defendant has submitted reply papers dated March 25, 2010 and has also sent the Court a letter dated April 5, 2010 alerting the Court to a recent Third Department ineffective assistance of counsel case.^[FN1]

The 19 count indictment charged defendant with two separate burglaries. The first set of [*2]counts related to a May 1, 1999 burglary of the dwelling of Theodoshia Huggins ("Huggins") where no fingerprints were recovered.^[FN2] The second set of counts related to an earlier April 5, 1999 burglary of the home of Maqueda Sanderson ("Sanderson"). The third set of counts related to defendant's escape on May 5, 1999 from a hospital and his alleged assault on a police officer. Defendant was tried by a jury before a now retired Supreme Court Justice.

In its final instructions the Court charged the jury inter alia:

Now, when a person is charged with a crime, depending on what happened during the course of the crime, different scenarios of what took place can give rise to different charges. That's why you get several charges arising out of the same episode.

The first two counts are two burglary counts. And, the difference between the two burglary counts is that the legislature makes it a burglary to enter into a dwelling; and, then, the legislature also makes it a crime to enter into a building. So you can see if a person enters into a dwelling, that automatically is going to give rise to two charges because every dwelling is a building.

And, then, there's going to be criminal trespass and there's going to be two counts because, once again, the legislature distinguishes going into a building and a dwelling; and, if the fact pattern is a person entered into a dwelling, since all dwellings are buildings, you are going to get two counts. [Trial Transcript at 498-499].

The Trial Judge did not charge the jury in the alternative as to any of the lesser included counts nor did the submitted verdict sheet contain any directions for the jury to follow regarding what order to consider the charges or how to handle the lesser charges. As for the Sanderson Thompkins Avenue burglary the jury found defendant guilty of burglary in the second degree but acquitted him of burglary in the third degree. Defendant, as limited by his papers, now only claims ineffective assistance of counsel regarding these alleged repugnant burglary verdicts. Defendant was also found guilty of criminal trespass in the second degree and trespass (as a violation) but not guilty of criminal trespass in the third degree. Defendant in his papers fails to raise any repugnancy claims about these trespass verdicts. Defendant was also found not guilty of grand larceny in the fourth degree but guilty of petit larceny and criminal mischief in the fourth degree.

After the verdict was rendered and before the jury was discharged the Trial Judge sua sponte asked the jury to step into the hallway. The following colloquy then ensued on the record in open court between the Assistant District Attorney and defense attorney.The Court: Is there repugnancy on 7 and 8 not guilty? [These counts relate to the Sanderson burglary - Count 7 being burglary 2° and Count 8 being burglary 3°].

The Clerk: Of breaking into a dwelling but guilty - -

ADA Kohler: Judge, I think the jury, I'd have to check with Appeals, but I think what the jury has done is convicted the defendant, at times they convicted the defendant of top counts and then not considered convicting him of the lesser counts.

The Court: The other way around. Oh, I see, guilty, in, right.

Mr. Sartori: Right, so it's not repugnant.

ADA Kohler: It's not?

Mr. Sartori: I don't think it's repugnant if I convicted the top and not - -

ADA Kohler: Because they - -

The Court: So what they're saying is this is the non-fingerprint case.

ADA Kohler: That is the fingerprint case burglary in the second degree and not the third degree.

The Court: Wait. This is the non-fingerprint.

ADA Kohler: Top one is non-fingerprint.

The Court: Oh, they had reasonable doubt, okay. Now, on the next one, the fingerprint case top count compromise of the lower count, trespass is logical. Oh, I see. These are compromises, convicted on the top and not on the lower. So there's enough logic for me to deny the motion of repugnancy.

ADA Kohler: Judge, would you like me to check with my office first?

The Court: No. The People have five years to work on it. I'm just going to step down. [*4]

Mr. Sartori: I am going to ask that they be poled. [sic]. [Trial Transcript at 516-518].

After the Court polled the individual jurors it accepted the verdict and dismissed the jury.

On March 15, 2000 the Trial Judge sentenced defendant to concurrent terms of imprisonment of 16 years to life on the second degree burglary count, one and one-half to three years on the second degree escape count, and lesser concurrent sentences on the remaining misdemeanor counts. Defendant's sentence and Order of Commitment were amended on March 28, 2000 to reflect defendant's adjudication as a mandatory persistent violent felony offender. (See Penal Law § 70.08).

Defendant's conviction was affirmed by the Second Department of the Appellate Division in People v Morales, 308 AD2d 229 (2d Dept 2003). The Court rejected defendant's Sandoval claims and also held that defendant's remaining contentions lacked merit. According to defendant's appellate brief (which is contained in the court file), besides arguing the Trial Court erred by conducting a Sandoval hearing outside defendant's presence, defendant argued the Court abused its discretion by denying defendant the right to fully cross-examine the People's fingerprint expert and the right to call his own fingerprint expert. No repugnancy or ineffective assistance of counsel claims were raised on direct appeal. Leave to appeal from the Appellate Division's affirmance was denied by the Court of Appeals in People v Morales, 1 NY3d 576 (2003) (Ciparick, J.).

On February 28, 2005 defendant filed a federal writ of habeas corpus in the Eastern District of New York alleging that the Trial Judge improperly excluded his expert fingerprint witness (to show that police frequently fabricated fingerprints) and that the Court unduly limited the scope of his cross-examination of the People's expert fingerprint witness. The District Court (Judge Sifton) denied defendant's application. (Morales v Smith, 2005 WL 2367621 [Sept 27, 2005]). The Court however granted defendant a Certificate of Appealability. The parties' chronology in the instant case reveals that on February 13, 2006 defendant appealed to the Court of Appeals for the Second Circuit and in an unreported Summary Order filed on August 22, 2006 the Second Circuit affirmed the District Court's decision. (Morales v Smith, No. 05-6059 pr [2d Cir. Aug 22, 2006]). On January 27, 2007 defendant's petition to the United States Supreme Court for a writ of certiorari was denied. See Morales v Smith, 549 US 1181 (2007).

Defendant argues that the jury's verdict finding him guilty of burglary in the second degree (dwelling) and not guilty of burglary in the third degree (building) was repugnant and trial counsel, who was allegedly unfamiliar with the facts and law concerning the burglaries (see People v Droz, [*5]39 NY2d 457, 462 [1976]), was ineffective in not recognizing this.^[FN3] The People concede the verdict was repugnant but maintain this Court is mandatorily and procedurally barred from determining defendant's pro se 440 ineffective assistance claim. The Court agrees with the People that it does not have the authority or discretion to grant defendant the relief he now seeks since his claim was reviewable on direct appeal based upon the trial record.

Burglary in the third degree (building) [Penal Law §140.20] is clearly a lesser included offense of burglary in the second degree (dwelling) [Penal Law § 140.25-2] . See People v Barney, 99 NY2d 367 (2003); People v Mora, 36 AD3d 1142 (3rd Dept 2007), lv denied 8 NY3d 988 (2007); People v Thomas, 237 AD2d 468 (2d Dept 1997), lv denied 90 NY2d 864 (1997); People v Holmes, 211 AD2d 824 (2d Dept 1995), lv denied 85 NY2d 910 (1995); People v McCarron, 114 Ad2d 977 (2d Dept 1985); People v Ramos, 110 AD2d 860 (2d Dept 1985). However, based upon a reasonable view of the evidence adduced at trial the Court could (and arguably should ) have properly declined to submit the lesser offense of burglary in the third degree. Having elected to submit it, however, the Trial Court should have charged the two burglary counts in the alternative, thereby avoiding the danger of a repugnant or inconsistent verdict.^[FN4] See People v Helliger, 96 NY2d 462 (2001); People v Johnson, 87 NY2d 357 (1996); People v Boettcher, 69 NY2d 174 (1987); People v Flecha, 43 AD3d 1385 (4th Dept 2007), lv denied 9 NY3d 990 (2007); People v Fort, 292 AD2d 821 (4th Dept 202), lv denied 98 NY2d 710 (2002); Matter of Morgenthau v Yates, 262 AD2d 83 (1st Dept 1999), appeal dismissed 93 NY2d 1039 (1999), People v Garofalo, 192 AD2d 619 (2d Dept 1993), lv denied 81 NY2d 1014 (1993); People v Rivera, 268 AD2d 538 (2d Dept 2000), lv denied 95 NY2d 802 (2000); CPL 300.50. The Sanderson burglary verdicts were clearly repugnant.^[FN5] Therefore, as both parties agree, defense counsel's failure to so argue (since there was no apparent [*6]legitimate trial strategy not to do so) and the Trial Court's ruling to the contrary were erroneous. The question presented, however, is whether defendant's repugnancy and ineffective assistance claims are properly now before this Court. That issue turns on the strict procedural rules contained in CPL 440.10, including whether there was any trial strategy behind defense counsel's repugnancy actions which cannot be discerned from the trial record.

CPL 440.10(2)(c) provides: "Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when: [a]lthough 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 defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him." (Emphasis provided). It is well-settled, therefore, that a defendant's claim is not a proper subject of a CPL 440.10 motion where it is based on the record and defendant could have raised it on direct appeal but failed to do so. See People v Mower, 97 NY2d 239 (2002); People v Cooks, 67 NY2d 100, 103 (1986); People v Mobley, 59 AD3d 741 (2d Dept 2009), lv denied 12 NY3d 856 (2009); People v Maldonado, 34 AD3d 497 (2d Dept 2006), lv denied 5 NY3d 830 (2005); People v Jossiah, 2 AD3d 877 (2d Dept 2003), lv denied 2 NY3d 742 (2004); People v Smith, 269 AD2d 769 (2d Dept 2000), lv denied 95 NY2d 858 (2000).

Many claims of ineffective assistance of counsel involve matters reviewable from the record , including some involving trial strategy. See People v Evans, 69 AD3d 649 (2d Dept 2010); People v Gomez, 67 AD3d 927 (2d Dept 2009); People v Moore, 66 AD3d 707 (2d Dept 2009); People v Lacey, 66 AD3d 704 (2d Dept 2009). It has been held that claims regarding failure to object to an inconsistent verdict may be reviewable on direct appeal. See People v Roberts, 26 AD3d 775 (4th Dept 2006), lv denied 6 NY3d 837 (2006), lv denied 6 NY3d 837 (2006); People v Carter, 21 AD3d 1295 (4th Dept 2005), affd 7 NY3d 875 (2006). ^[FN6] This Court finds that defendant's instant claims, including counsel's lack of trial strategy, are reviewable from the record and accordingly should have been raised on his 2003 direct appeal.^[FN7] Therefore this Court is mandatorily barred from [*7]determining defendant's repugnancy and ineffective assistance claims. See CPL 440.10(2)(c).^[FN8]

Accordingly, defendant's 440 motion is summarily DENIED.

The Clerk of the Court is directed to send a copy of this Decision and Order to defendant Angel Morales, DIN No. 00A2085, Shawangunk Correctional Facility, P.O. Box 700, Wallkill, New York 12589 and to Assistant District Attorney Judith Aarons, Kings County District Attorney's Office, 350 Jay Street, Brooklyn, New York 11201.

IT IS SO ORDERED.

ENTER,

_____________________________

J.S.C.