Defendant Camillo LoVacco has submitted a pro se motion dated December 6, 2010 seeking to vacate his judgment of conviction pursuant to CPL 440.10(1)(h) or for a 440 evidentiary hearing, upon the ground that his right to be present at all material stages of his homicide trial was violated when he was not present during jury selection.^[FN1] The People have submitted an Affirmation in Opposition to defendant's motion with an accompanying Memorandum of Law. Defendant has submitted a March 7, 2011 reply.

Defendant was convicted of murder in the second degree (Penal Law § 125.25-1) on March 4, 1986 after a jury trial before the Honorable Francis X. Egitto (now retired).^[FN2] Defendant was sentenced by Justice Egitto on March 31, 1986 to an indeterminate term of imprisonment of 25 years to life and remains incarcerated.

Defendant's conviction was affirmed by the Appellate Division - Second Department on February 14, 1989. See People v LoVacco, 147 AD2d 592 (2d Dept 1989). The Appellate Division held that the trial court had geographical jurisdiction over the offense and that trial counsel rendered [*2]effective assistance of counsel. On June 12, 1989 defendant's application for leave to appeal to the Court of Appeals was denied. See People v LoVacco, 74 NY2d 743 (1989) (Wachtler, J.).

Defendant received a letter from one of his trial counsel, Robert J. Amoury, Esq.^[FN3] dated September 26, 1989, stating that he wanted to apprise defendant that during jury selection the prosecutor exercised a peremptory challenge to exclude a juror with an Italian surname and this occurred in the hallway outside the courtroom.^[FN4] In addition he informed defendant that co-counsel was deceased.

Based upon Amoury's letter defendant, some three and a half years later in March of 1993, moved in the Appellate Division for a writ of error coram nobis on the grounds that 1) defendant's alleged absence from the voir dire of prospective jurors violated his right to be present at his trial; 2) the People exercised their peremptory challenges in a discriminatory manner by challenging a prospective juror who had an Italian surname and 3) appellate counsel rendered ineffective assistance by not raising these two claims. Defendant's application was denied on June 24, 1993 in an unreported order [People v LoVacco, No. 93-01764 (2d Dept 1993)].

On September 12, 1996 defendant submitted a pro se CPL 440 motion which sought to vacate his judgment of conviction on the grounds that trial counsel was ineffective for stipulating to the identity of the decedent and that the People introduced false evidence concerning the strangulation of the deceased. These claims were based upon information obtained from the trial transcripts of accomplice Joseph Marano, who went to trial in April 1986 before Justice Egitto and was acquitted. On December 12, 1996 Justice Egitto denied defendant's pro se 440 motion, holding that the ineffective assistance claim was procedurally barred because it had been previously raised on direct appeal and the false evidence claim was barred because it could and should have been raised on direct appeal. On January 29, 1997 defendant's application for leave to appeal the denial of his 440 motion was denied by the Appellate Division [People v LoVacco, (No. 97-00100, 2d Dept 1997) (Friedmann, J.)].

By papers dated February 27, 1997 and March 25, 1997 defendant moved in the Appellate Division for renewal/reargument of his direct appeal on the grounds that he had obtained additional facts from the Marano transcripts. This motion was denied without opinion on May 19, 1997. Subsequently on June 27, 1997 the Court of Appeals dismissed defendant's application to appeal the denial of his motion to review/reargue his direct appeal. See People v LoVacco, 90 NY2d 860 (1997) (Bellacosa, J.).

On September 8, 1997 defendant petitioned the Eastern District of New York for a federal writ of habeas corpus. The eight grounds raised were that 1) defendant was denied the effective assistance of counsel because counsel stipulated to the deceased's identity; 2) the prosecutor [*3]committed misconduct by allegedly arguing that defendant strangled the victim; 3) he was denied an evidentiary hearing in state court on his motion to vacate the judgment of conviction; 4) defendant's right to be present at trial was violated by his alleged absence from the selection of the jury [defendant's present claim]; 5) the prosecutor's use of a peremptory challenge against a prospective juror with an Italian surname violated defendant's right to equal protection; 6) he was denied the effective assistance of appellate counsel because counsel failed to raise claims (4) and (5) above on direct appeal; 7) the trial court lacked geographical jurisdiction over the crime and 8) the Appellate Division mis-characterized defendant's motion to reargue/review his appeal and denied him due process by denying the motion. See LoVacco v Stinson, 2004 WL 1373167 (EDNY 2004, Judge Sterling Johnson)^[FN5] at 2.

Defendant's habeas corpus petition was denied by Judge Johnson, who specifically addressed defendant's claim that he was not present during voir dire. Judge Johnson found that defendant was procedurally barred from raising the claim and, in any event, the claim was without merit. At 5 - 6. The Court stated that "absent some indication that petitioner was removed from the courtroom between proceedings the failure of the clerk to note the appearance of any of the parties does not indicate the absence of petitioner." At 6. The Court in reaching its decision relied upon Hearing and Trial voir dire stenographic minutes. The Court, however, also stated: "Because petitioner has failed to introduce any evidence outside of the record which would indicate that he was excluded, this court must reach a conclusion based on an examination of the record, which strongly supports that Petitioner was present." At 6. Judge Johnson denied defendant a certificate of appealability. At 11. On July 14, 2005 the Second Circuit denied defendant's application for a certificate of appealability. See LoVacco v Stinson, No. 04-5673-pr (2d Cir 2005). On December 5, 2005 the United States Supreme Court denied defendant's petition for a writ of certiorari. See LoVacco v Greene, 546 US 1064 (2005).

In this pro se 440 motion, which is defendant's second, defendant, as he did in his state writ of error coram nobis and federal habeas corpus petition, again claims that his alleged absence from jury selection violated his right to be present at a material stage of his trial. Defendant, however, now supports his claim with two affidavits made in November 2010. A November 16, 2010 affidavit from Marie LoVacco, identified as defendant's ex-wife ^[FN6], avers that she observed that defendant was not present during jury selection, and she called over to defendant's attorney (Richard Reigi, Esq. - now deceased) in the courtroom and asked where her husband was and he told her he did not know but not to worry. She further stated that he was not brought to the Courtroom until the afternoon, after the jury had been selected. It flies in the face of reason and experience that a jury of twelve and two alternates (out of a panel of 60)^[FN7] in a murder case would be selected in one short morning and [*4]in the absence of defendant.^[FN8]

A November 19, 2010 affidavit from retired court officer John Basciano, who was defendant's friend, avers that he saw defendant in the holding pens of the courthouse on the day of jury selection. Defendant informed him he had been arrested for murder and that he was going to the courtroom to select a jury on that day. Defendant argues, but the affidavit does not so state, that it was at this point he should have been brought to the courtroom but was not. (Defendant's Memorandum of Law at 3). On its face the Basciano affidavit adds nothing helpful to defendant on this motion, and the Marie LoVacco affidavit fares no better.

To the extent that defendant's claim that he was absent during jury selection is based upon inferences defendant wishes to be drawn directly from the trial record I find that this Court is mandatorily barred from addressing such claim since the claim could and should have been raised on direct appeal, but defendant, without justification, failed to do so. CPL § 440.10(2)(c); People v Cuadrado, 9 NY3d 362 (2007); People v Cooks, 67 NY2d 100 (1986). Moreover, a 440 motion to vacate a judgment may be summarily denied if the claim was raised in a prior motion in state or federal court [CPL 440.10(3)(b)] unless defendant demonstrates good cause and that the interest of justice would warrant entertaining the claim on the merits. See 440.10(3)(c). The identical issue regarding defendant's absence from jury selection was raised in defendant's 1993 coram nobis application and that motion was denied by the Appellate Division without opinion. Moreover, Senior District Judge Johnson of the Eastern District of New York in a detailed decision specifically rejected defendant's claim on both procedural grounds as well as on the merits.

The two affidavits referred to above now submitted in support of this claim, although not before Judge Johnson, are hardly the kind of reliable information ^[FN9] which would change the result reached by Judge Johnson or adds any substance to the claim before me.In addition to being grossly untimely,^[FN10] these affidavits seem suspiciously contrived to satisfy what Judge Johnson wrote was lacking in his writ petition and to rebut earlier contrary Court findings, and they lack any [*5]semblance of reliability sufficient to overcome those previous Court rulings.^[FN11] In any event, defendant's claim should still be permissively barred because defendant could have raised his claim in his previous 1996 440 motion before Justice Egitto, who presided over the trial. See CPL 440.10(3)(c).

There is a presumption of regularity which attaches to judicial proceedings, which a defendant can only overcome by presenting substantial evidence, which I conclude was not done in this motion. See People v Cruz, 14 NY3d 814, 816 (2010); People v Andrew, 1 NY3d 546, 547 (2003); People v Velasquez, 1 NY3d 44, 48 (2003); People v Bogan, 78 AD3d 855 (2d Dept 2010), lv denied 16 NY3d 742 (2011). Defendant is presumed to have been present, as required, during all material stages of his trial, sufficiently inferred from the record and not convincingly rebutted by any of defendant's submissions. See Velasquez, 1 NY3d 44 supra. See also People v Walker, 78 AD3d 1671 (4th Dept 2010); People v Williams, 11 AD3d 810 (3d Dept 2004), lv denied 4 NY3d 769 (2005); People v Gargano, 222 Ad2d 694 (2d Dept 1995), lv denied 88 NY2d 878 (1996).

Accordingly, for all the reasons addressed herein defendant's motion is summarily DENIED in all respects.

The defendant is hereby advised of his right to apply to the Appellate Division, Second Department, 45 Monroe Place, Brooklyn, New York 11201 for a certificate granting leave to appeal the denial of defendant's CPL 440.10 motion. This application must be made within 30 days of service of this Decision and Order. Upon proof of financial inability to retain counsel and to pay the costs and expenses of the appeal, the defendant may apply to the Appellate Division for the assignment of counsel and for leave to prosecute the appeal as a poor person and to dispense with printing. Application for poor person relief will be entertained only if and when permission to appeal or a certificate granting leave to appeal is granted (22 NYCRR 671.5).

The Clerk is directed to mail a copy of this Decision and Order to defendant Camillo LoVacco, DIN No. 86-A-2926, Sing Sing Correctional Facility, 354 Hunter Street, Ossining, New York 10562 and to Assistant District Attorney Thomas M. Ross, Kings County District Attorney's Office, 350 Jay Street, Brooklyn, New York 11201.

IT IS SO ORDERED.

ENTER,

_____________________________

J.S.C.