Defendant makes this motion pursuant to CPL sections 440.10(1)(b), (c), (d), (g) and (h)^[FN1] seeking to vacate his convictions under Indictment No. 614N-06. For the reasons stated herein, relief is denied in all respects. [*2]

The defendant was observed by police selling cocaine in a daylight, pre-arranged drug transaction on March 8, 2006, in a parking lot on Hempstead Avenue in West Hempstead. The buyer and defendant were arrested immediately after the sale and two bags of cocaine were recovered from the buyer. Defendant was searched and found to have concealed eleven small, plastic bags containing cocaine tied to the buttonhole of his boxer shorts in his pants. In addition, defendant had $1,635 on his person. Defendant made a spontaneous statement to the effect "that's all I had," in reference to the cocaine. Later, after defendant was advised of his rights, understood and waived them, he confessed to selling cocaine. Defendant was convicted after trial of Criminal Sale of a Controlled

Substance in the Third Degree, Criminal Possession of a Controlled Substance in the Third Degree, Criminal Possession of a Controlled Substance in the Fourth Degree and Criminal Possession of a Controlled Substance in the Seventh Degree, for possessing and selling cocaine. The Defendant was sentenced as a Prior Felony Offender to concurrent terms of incarceration, the longest being twelve years, plus three years of post release supervision. Defendant appealed and, by unanimous decision, all of his contentions were found to be without merit, unpreserved or, in the case of inappropriate summation comments by the People, harmless error because, inter alia, "the evidence of the defendant's guilt is overwhelming." People v, McCants, 67 AD3d 821 (2d Dep't. 2009), lv. denied, 13 NY3d 940 (2010); lv. denied upon reconsideration, 15 NY3d 807 (2010).

Defendant's CPL 440.10 motion to vacate his convictions can be broken down into three main areas:

1.The first is the claim that the People committed a Brady/Due Process violation by failing to provide to defendant a 2005 and a 2006 report of the American Society of Crime Laboratory Directors/Laboratory Accreditation Board, referred to as ASCLD/LAB, as well as related letters and other documents. Defendant refers to these items as the "2005/2006 documents." Defendant contends that the 2005/2006 documents were both exculpatory and material as they would have provided impeachment material on the prosecutions's key witness, Detective Pinsky, who preformed the chemical analysis. The People contend that defendant fails to show that the documents were material or exculpatory and thus there was no Brady/Due Process violation.

2.The second area pertains to N.C.P.D. Detective Pinsky's direct testimony. Defendant argues that Pinsky's testimony was perjured. Defendant's related contention is that Pinsky misrepresented that he was an expert and that the People intentionally misled the Court and jury by asking Pinsky to be deemed an expert by the Court. Defendant concludes this section of his attack by arguing that documents provided by Pinsky about the calibration of the testing instrument and the certification of the control used in the test were fraudulent. The People deny that Pinsky's testimony was perjured, argue that the Court properly deemed Pinsky to be an expert witness and further contend that the documents provided by Pinsky were not fraudulent. [*3]

3.The third branch of Defendant's motion is that a 2010 report of the ASCLD/LAB constitutes "newly discovered evidence" that would probably change the result of the trial. The People contend that Defendant fails to show how this document would have changed the verdict in his trial.

Brady

Defendant's first set of contentions allege that the so-called 2005/2006 documents were Brady material and that the People's failure to disclose them to defendant deprived him of Due Process. The six documents comprising the 2005/2006 documents are:

September 28, 2005 ASCLD/LAB report

July 24, 2006 ASCLD/LAB report

August 14, 2006 ASCLD/LAB letter advising that the NCPD Crime Lab's accreditation was on Probation

Remediation Plan in Response to September 2005 Inspection, dated February 6, 2006

Remediation Plan in Response to September 2005 Inspection, dated March 31, 2006

Letter from NYSCFS to NCPD Crime Lab expressing concerns over the findings of the September 2005 ASCLD/LAB report, dated January 5, 2006.

The People must disclose to the defense any evidence in their control that is favorable and material to the defense. Brady v. Maryland, 373 U.S. 83 (1963). To establish a Brady violation the defendant must show that a) the evidence in question is favorable to the defendant because it is exculpatory or impeaching, b) the prosecution suppressed the evidence and c) defendant was prejudiced because the suppressed evidence was material. People v. Fuentes, 12 NY3d 259, 263 (2009)(citing Strickler v. Greene, 527 U.S. 263, 281-82 [1999]).

September 28, 2005 ASCLD/LAB report and related documents

In pertinent part, the 2005 ASCLD/LAB Report indicates that six months prior to the testing of the substance in this case the N.C.P.D. Crime Lab was non-compliant - did not follow its own procedures - in four essential criteria related to controlled substances. Technical manuals were not available to personnel for review; Thin Layer Chromatography (TLC) standards were not dated; Scott II and Chloral Hydrate color reagents were not routinely checked and the Scott II reagent was used beyond the expiration date set by the lab; Two scales, the Ohaus and the C and [*4]S, were not externally calibrated consistent with the lab's operating procedures.

An October 6, 2005, letter (People's exhibit 3) told the lab to bring these areas into compliance and that a revisit to verify compliance may not be necessary. Then came the two remediation letters from N.C.P.D. Crime Lab, one dated February 6, 2006 (People's Ex. 4), and the other March 31, 2006, (People's Ex. 5), detailing the ways in which the lab became compliant. Clearly the remediation letters are not exculpatory or impeaching. The March 31, 2006, remediation letter covers the date of the test in defendant's case, demonstrating that the compliance issues were corrected as of the time of the test. Thus, the 2005 Report and related correspondence are not exculpatory nor, taken together, were they impeaching.

Assuming for the sake of argument, however, that the 2005 Report and related documents were impeaching, and that non-disclosure equals suppression, the next issue is to determine whether the evidence was material and therefore that the non-disclosure caused defendant prejudice.

To know whether the evidence was material, the Court first looks at whether there was a specific request for it. People v. Bryce, 88 NY2d 124, 126 (1996); People v. Villardi, 76 NY2d 76, 77 (1990). If there was a specific request for the evidence, the evidence will be deemed material if there is a reasonable possibility that it would have changed the outcome of the proceedings. Without a specific request, the evidence will be deemed material only if there is a reasonable probability that it would have changed the outcome of the proceedings. People v. Fuentes, 12 NY3d 259 at 263; People v. Bryce, 88 NY2d 124 at 126; People v. Salton, 74 AD3d 997, 998-99 (2d Dep't. 2010). See also United States v. Bagley, 473 U.S. 667, 682 (1985).

Clearly, as defendant claims to have been unaware of the existence of these documents at the time of the trial he was unable to make a specific request for documents pertaining to the inspection of the lab. Yet, the defendant did request documents pertaining to the maintenance and calibration of the instruments used by Detective Pinsky in his test as well as documents pertaining to the solution and comparison samples as well as documents relating to the test results. The Court must therefore decide whether such requests are detailed enough to be considered "specific" for purposes of the materiality and prejudice prong of the Brady analysis.

In People v. Scott, 88 NY2d 888(1996), the defense requested "a copy of the report of the polygraph exam(s) given to the confidential informant [Shaw] showing the date(s) of the exam and all results." The People failed to disclose in response to that request a "Homicide Bureau Information Sheet." In it Detective Ponzi reported after a polygraph examination that witness Shaw was withholding information and was uncooperative. The Court held that the request was indeed a specific one, despite the fact that the defense did not know the precise form of the document, because it provided specific notice of the defense's desire for the witness' polygraph test results. The Scott court held that the demand gave "particularized notice of the information sought"and applied the reasonable possibility test to determine prejudice. [*5]

Arguably, the request for maintenance and calibration records of the instrument used by Detective Pinsky, as well as documents about the solution and comparison samples and the test results, put the People on notice of the information defendant sought. The defendant's request was specific about a discrete test, a particular instrument, solutions, etc. The request in Scott was similarly specific. The 2005/2006 documents on the other hand are generally about the laboratory, rather than specific to individual cases or individual staff members. A close review of Defendant's Memorandum of Law and Affirmation in Support fails to show any claim that defendant's case was specifically referenced in any of the 2005/2006 documents and defendant makes no showing that Detective Pinsky or any of his work was referenced in the report. Therefore, the Court does not find the 2005/2006 documents within the ambit of the specific request made and determines that the appropriate test for determining prejudice and materiality is therefore the one for general requests, i.e., the reasonable probability test.

Even assuming, arguendo, that the 2005 Report and related documents were impeaching, there was no reasonable probability that they would have changed the outcome of the trial. Taken together the 2005 Report and the remediation letters are a story of problems found and solved by the relevant time, that being the time of the test in defendant's case. As well, the defendant fails to produce evidence that either defendant's test or Detective Pinsky are specified in the 2005 Report or related correspondence.

Moreover, the People's exhibits put the 2005 Report, remediation letters and related correspondence in a context making it clear that they are not exculpatory or impeaching and that they would not change the outcome of the case at all:

1) The People have provided copies of reports of a recent re-testing of the materials originally tested by Detective Pinsky done at an independent lab, NMS. The result of the NMS Labs re-testing is that the material in question was again found to be cocaine. (People's Ex. 1 and 2). This result independently corroborates Detective Pinsky's findings and the process by which he reached those findings.

2) The People have produced an affidavit from Dr. Pasquale Buffolino, Director of the Department of Forensic Genetics at the Nassau County Medical Examiner's Office, who also worked on developing the remediation plan for the N.C.P.D. lab in the winter of 2010-2011 and who has been trained as and worked as an ASCLD/LAB inspector. People's Exhibit 8. Buffolino affidavit analyzes in great detail the 2005 ASCLD/LAB findings as well as the work of Detective Pinsky and concludes that there is no negative impact on the accuracy of defendant's test results.

3) The 2005 Report found that copies of the lab's technical procedures were not readily accessible to lab personnel. Defendant makes no showing that this affected the test results and makes no specific claims of discrete errors in Detective Pinsky's process. In fact, Dr. Buffolino's review of the procedures employed by Detective Pinsky concluded that with or without the written procedures available to him, Detective Pinsky in fact followed the correct procedures. [*6](People's Ex. 8, Buffolino, paragraph 12). Further, as part of the remediation, the technical manuals were back in place before the defendant's test. (People's Ex. 4, paragraph 5).

4) As for the inspectors' finding that the expiration dates were not on the bottles containing the standards, the remediation letters (Peoples Ex. 4 and 5), show that the standards were replaced just prior to the September 2005 inspection and thus were in fact fresh when used in defendant's test. Dr. Buffolino goes on to explain (People's Ex. 8, paragraph 17) that the thin layer chromatography (TLC) test actually confirmed the integrity of the control standard as did the Gas Chromatograph/ Mass Spectrometer (GC/MS) test. Thus the finding of the 2005 Report as to the standards had no effect on the accuracy or reliability of defendant's test.

5) As for the 2005 Report's findings regarding a failure to check Scott II and Chloral Hydrate color reagents, the February 6, 2006 remediation letter shows that the problem was corrected before defendant's test (People's Exhibit 4). Moreover, Dr. Buffolino explained that the color reagents are merely presumptive tests and that Detective Pinsky did not conclude that the substance was cocaine based on the reagent test. In addition, had the reagent failed to react properly it would have produced a false negative, not a false positive (People's Ex. 8, paragraph 20-21). Finally, Dr. Buffolino indicated that the TLC and GC/MS tests also confirmed the proper action of the Scotts II and Chloral Hydrate reagents (People's Ex. 8, paragraph 22). Clearly, then the 2005 Report findings about the reagents did not affect the accuracy or reliability of defendant's test either.

6) As for calibration issues regarding the two scales cited in the 2005 Report, there was likewise no impact on defendant's test. First, defendant did not allege that Detective Pinsky used either of the two flawed scales. Second, Detective Pinsky provided an affidavit to the effect that he did not use either of the two scales mentioned in the 2005 report and the one he did use was calibrated (People's Ex. 9, paragraph 6); (People's Ex. 10).

Moreover, in a case where the scientific analysis was contested, the Second Department looked to other evidence and found that a defendant's admission to selling cocaine was significant in sustaining the convictions for sale and possession of a controlled substance. People v. Wicks, 122 AD2d 239 (2d Dep't. 1986). In the instant case, defendant also admitted he sold cocaine. Finally it bears noting that the Appellate Division found "the evidence of the defendant's guilt is overwhelming." People v, McCants, 67 AD3d 821 (2d Dep't. 2009), lv. denied, 13 NY3d 940 (2010); lv. denied upon reconsideration, 15 NY3d 807 (2010).

Thus, the People's failure to disclose these documents was not a Brady/Due Process violation. People v. Fuentes, 12 NY3d at 263; People v. Bryce, 88 NY2d at 126.

August 10, 2006 Report and August 14, 2006 Probation letter

The thrust of the August 2006 Report was that with respect to the 2005 findings of non-[*7]compliance:

"all Essential criteria have either been brought into compliance since the initial inspection or the service for which compliance was not achieved has been permanently or temporarily discontinued."

August 14, 2006, letter from ASCLD Board (People's Exhibit. 6).

While the N.C.P.D. lab's accreditation was placed on probation in 2006, that was due solely to the non-compliance found in 2005; ironically, in 2006 the N.C.P.D. lab was in full compliance while it was on probation. Moreover, the 2006 probation (which was due to the 2005 problems) was lifted by ASCLD in April, 2007, after another inspection found the lab to be fully compliant with all essential criteria. See People's Exhibit 7. Thus, the 2006 Report and the August 14, 2006, "Probation" letter are neither impeaching nor exculpatory. Even assuming that these documents contained some impeachment value, however, for all the reasons stated above there is no reasonable probability that they would have changed the outcome of the trial. Thus, the People's failure to disclose these documents was not a Brady/Due Process violation. People v. Fuentes, 12 NY3d at 263; People v. Bryce, 88 NY2d at 126.

Misrepresentation, Perjury and Fraud

Defendant also argues that his conviction was obtained by fraud, misrepresentation and perjury on the part of Detective Pinsky. Further, defendant claims that the Prosecution knowingly introduced false, material evidence at his trial.

Defendant contends that Detective Pinsky misrepresented that he was an expert. His argument goes like this: the 2005 ASCLD/LAB Report found the lab non-compliant for a) failing to perform "proficiency testing with blind and re-examination techniques" and for b) lacking a "system for monitoring ... court testimony." (Defendant's Memorandum of Law, p. 6). Defendant concludes that because Detective Pinsky worked in a lab found to have deficiencies and received some of his training there, he was not an expert. Thus a claim to expert status in court was fraudulent. Other than this facile analysis defendant offers no evidence of anything that would have prevented the Court from properly concluding that Detective Pinsky was an expert witness. People v. Wright, 13 AD3d 726 728 (3d Dep't. 2004).

Defendant goes on to assert that Detective Pinsky perjured himself when he declared that the substance he tested for defendant's trial was in fact cocaine. The argument proceeds that since he did not test the entire contents of the drugs submitted to him through the GC/MS that he committed perjury by stating the substance was cocaine. In fact the reports of his tests indicate the amounts he tested. This issue was also rejected on appeal. People v. McCants, 67 A.D3d 821, 824 (2d Dep't. 2010). Thus, there is no good faith basis provided for claiming that Detective Pinsky committed perjury. Moreover, the Court rejects outright any claim of insufficiency of the [*8]testing as being previously determined on the merits on appeal CPL 440.10(2)(a).

Defendant's further claim, that Detective Pinsky submitted three fraudulent documents,^[FN2] is also without merit. The sum total of defendant's basis for claiming that the quick-tune report was fraudulent amounts to the fact that Detective Pinsky testified to performing an autotune but submitted a quick-tune report when asked to produce documentation for the GC/MS calibration. In any event defendant had the quick-tune document at trial yet chose not to examine the witness on the discrepancy. Thus the claim regarding the quick-tune is rejected. CPL 440.10(3)(a). As to defendant's claim that a control standard certification obtained online by Detective Pinsky was fraudulent, any omissions or limitations in the document were fully explored by trial counsel on cross-examination and weighed by the jury, along with defendant's trial attack on the validity of the control. Thus this claim lacks merit as well. Defendant's argument regarding the remaining document, also regarding the certification of the control sample, likewise falls short.

Simply put, every testimonial inconsistency is not fraud, perjury or misrepresentation and defendant has provided no good faith basis to have made such claims in the first place.

Newly Discovered Evidence

Defendant's final attack is based on a CPL 440.10(1)(g) claim of newly discovered evidence, namely, the 2010 ASCLD/LAB report. To qualify as newly discovered evidence, six requirements must each be met. Newly Discovered Evidence must be such as will probably change the result in a new trial. It must be discovered after the trial and could not have been discovered before trial with due diligence. It must be material, not cumulative and must not be merely impeaching or contradicting of the evidence at trial. People v. Salemi, 309 NY 208, 215-216 (1955).

Defendant's claim, that a 2010 ASCLD/LAB Report ruled a quick-tune test an invalid calibration method, is unsubstantiated. The 2010 Report states, in sum and substance, that a quick-tune is not an autotune and that an autotune is required by procedure. (Defendant's exhibits, A-D, exhibit D, ASCLD/LAB Report 2010, excerpt only, page 22). Use of a quick-tune where an autotune is required is obviously a negative inspection finding. Still, there is nothing cited by defendant from the 2010 Report, or any other competent source, that supports the further assertion that use of a quick-tune by itself means an invalid calibration occurred. It appears that many other factors go into a determination of whether a particular device gave accurate results. Moreover such an argument cannot stand against Dr. Buffolino's approving review of Detective Pinsky's work (People's Ex. 8) and the independent, confirmatory and corroborative tests performed by NMS labs, which completely undermine defendant's argument. Defendant's other contention, that the [*9]2010 deficiencies must have existed in 2005 and 2006 and that ASCLD/LAB must have either under reported them or left them out of their findings in 2005 or 2006 (Defendant's Counsel's affidavit, paragraphs 21, 24-27) is similarly unsupported and wholly speculative.

Even assuming that the Court were to find that the information contained in the 2010 ASCLD/LAB report was impeaching or contradicting of the trial testimony, that is not new evidence. People v. Salemi, supra, at 215-216. In any event, in view of Dr. Buffolino's affidavit (People's Ex. 8) and the independent, confirmatory NMS Labs re-test (People's Ex. 1 and 2), defendant fails to show that the alleged "new evidence" would have any effect on a re-trial. Thus, the motion to vacate the judgment because of newly discovered evidence is denied.

Defendant's remaining contentions have been reviewed and are found to be without merit.

A judgment of conviction is presumed valid, and a defendant moving to vacate a judgment of conviction has the burden "of coming forward with allegations sufficient to create an issue of fact." People v. Braun, 167 AD2d 164, 165 (1st Dept.1990), citing People v. Session, 34 NY2d 254 (1974). People v. Samuels, 14 Misc 3d 1230(A), 836 N.Y.S.2d 494 (NY Sup. Ct. 2006). As defendant has failed to create evidentiary issues of fact, no hearing is required. People v. Ford, 46 NY2d 1021 (1979).

Defendant's relief is denied in all respects.

SO ORDERED.

E N T E R

Dated: September 13, 2011

Joseph C. Calabrese, AJSC