Pursuant to CPL §440.10, Defendant Anthony Lewis moves to vacate the judgment of conviction finding him guilty of criminal sale of a controlled substance in or near school grounds (see, Penal Law §220.44[2]). That judgment was rendered on February 28, 2006,^[FN1] and affirmed on May 8, 2008 (see, People v. Lewis, 51 AD3d 475 [1st Dept.]; appeal denied, 11 NY3d 738 [2008]). Defendant also seeks an order requiring the Warden of the facility wherein he is incarcerated to produce him at any hearing conducted regarding the instant motion (see, CPL § 440.30[5]).

Background

The Court (Stadtmauer, J.) rendered a judgment following a jury trial convicting Defendant of criminal sale of a controlled substance in or near school grounds and sentenced him, as a second felony offender, to a term of four and one half to nine years imprisonment. On appeal, the Appellate Division affirmed the conviction, finding there was no basis to determine that the jury would have found him not culpable if the Court had delivered an "agency instruction" (see, People v. Lewis, supra.). Subsequently, the Court of Appeals denied appeal (see, People v. Lewis, 11 NY3d 738 [2008]).

Defendant's Position

As the Court understands, Defendant's sole argument here is that his conviction must be reversed because he received insufficient assistance of appellate counsel. He claims his conviction violates the [*2]sixth and fourteenth amendments.^[FN2] However, Defendant submitted no exhibits with his motion, but only a narrative focused upon his appellate counsel's reaction to Detective Lita Steed's alleged perjured testimony concerning her observations of Defendant at the time of the drug sale. In essence, Defendant says that his appellate counsel failed to bring up the detective's alleged perjury, thereby denying him due process. Further, the failure to highlight perjury caused the appellate courts to erroneously decide against him upon the agency theory.

Prosecutor's Position

The prosecutor disputes that Defendant's counsel was ineffective and rejects criticism of appellate tactics as unjustified. In essence, the prosecutor's case is that Defendant provided no corroboration or substantiation of either his claim of ineffective assistance of counsel or other error.

In answering papers, the District Attorney argues that Defendant's claim is procedurally barred and otherwise meritless. He says Defendant neither explained nor substantiated his position that there was ineffective assistance of appellate counsel. Noting that Defendant already unsuccessfully litigated ineffective assistance of trial counsel, among other issues, in an attempt to set aside the jury's verdict (see, CPL 330.30[1]), the prosecutor says ineffective assistance of appellate counsel must be brought in the court where the representation occurred. Here, insofar as Defendant contends that appellate counsel rendered ineffective assistance by failing to use Detective Steed's allegedly perjured statement to raise weight and sufficiency of evidence claims, his application must be brought in the First Department in the form of a petition for a writ of coram nobis.

Because this Court lacks jurisdiction to determine that Defendant's appellate counsel rendered ineffective assistance, the instant motion should be denied without conducting a hearing (see, CPL §440.30[4][a]). Even if the motion is viewed expansively, the essence of the District Attorney's opposition is that Defendant's claims remain unsupported and unsubstantiated. This Court (Stadtmauer, J.) already decided the issue of ineffective assistance of trial counsel and the conviction and judgment have been affirmed.

Legal Discussion

Article 440 of the Criminal Procedure Law sets forth procedure for post judgment motions. CPL § 440.10 provides grounds for vacating a criminal judgment. Curiously, Defendant cites no subdivision under CPL §440.10 upon which to base his relief and, therefore, the Court finds his motion is vague and unclear. As best the Court can determine, the essence of Defendant's claim appears an attempt to state it based upon ineffective assistance of appellate counsel and includes reference to the VI and XIV amendments.

Initially, the Court notes the Appellate Division previously affirmed Lewis' conviction, finding that the evidence was sufficient to support the conviction and rejecting Defendant's arguments concerning the agency charge (see generally, People v. Lewis, supra.). This Court sees no reason to disturb that conclusion or otherwise modify the conviction.

Addressing the ineffective assistance of appellate counsel argument, the Court agrees with the District Attorney that the issue can only be raised in a coram nobis proceeding in the Appellate Division (see generally, People v. Charles, 24 Misc 3d 1219A [Sup. Ct. 2009]). Such claim is improperly brought in this court (see generally, People v. Bachert, 69 NY2d 593 [1987]). Therefore, Defendant's motion must be denied. No different result is possible in light of the Court's previous ruling concerning ineffective assistance of trial counsel and the lack of any other supportive evidence presented by Defendant for consideration (see, People v. Lewis, Ind. 1419-2003 [February 28, 2006][Stadtmauer, J.]). No specific constitutional issue has been presented and no purpose would be served by conducting a CPL [*3]§ 440.30(5) hearing

Conclusion

Upon this record,^[FN3] the Court finds that Defendant fails to set forth adequate grounds upon which to set aside his conviction. Accordingly, Defendant's motion is in its entirety denied.

The foregoing constitutes the Decision and Order of this Court.

Dated: Bronx, New York

August 18, 2011

___________________________DOMINIC R. MASSARO, JSC