Defendant Brandon Holmes has filed four CPL 440.10 motions to vacate his 1989 murder in the second degree judgment of conviction.^[FN1] These 440s have been denied twice by the trial and sentencing Judge [the Honorable Sheldon Greenberg], in 1991 and 1998, once in 2003 by another Justice of this Court [the Honorable Joseph Silverman], who was assigned the third motion after Justice Greenberg retired, and the fourth 440 filed in 2009 and decided by this Court in 2010, after Justice Silverman's retirement. Defendant now moves pro se on papers dated January 30, 2012 for leave to renew all four motions pursuant to CPLR 2221(a) based upon certain psychological evaluations of him made in 1987 in preparation for a 1987 Manhattan robbery case, which defendant alleges were not available to him until February 2011. The People oppose defendant's motion (which they misconstrued as a fifth 440 motion) in papers dated April 18, 2012. Subsequently, defendant provided the Court and the People with certain mental health records, which were received by the Court on April 27, 2012. The People then filed supplemental papers dated June 1, 2012 addressing these recently filed psychological records. Finally, defendant submitted a two-page surreply dated June 4, 2012, and a slightly revised version of the same surreply, dated June 6, 2012, and received in Kings Supreme Court, Criminal Term, on June 13, 2012.^[FN2] [*2]

From Justice Greenberg's two 440 decisions the following facts were clearly established:

Defendant was 16 years old at the time he shot a Waldbaum's security guard to death on April 8, 1988. When the guard, Leslie Sterling, asked defendant, who was standing by the checkout counter, what he had in his hands under his jacket, defendant shot Johnson in the shoulder and chest and ran to the rear of the store, where he fired more shots. Unable to locate an exit in the rear, defendant returned to the front of the store and fired again at the wounded guard who was lying on the floor. Sterling died in a hospital later that day. Defendant was treated at that same hospital for a gunshot wound to his leg, apparently accidentally self-inflicted during the shooting incident. There were testifying eyewitnesses to the shooting as well as ballistics linking defendant to the murder.

Defendant now argues that renewal should be granted for all four previous 440s and his judgment of conviction vacated since the submitted mental health records, coupled with the modern studies on adolescent brain development, constitute newly discovered evidence, allegedly demonstrating defendant's diminished culpability because of his still developing adolescent brain and his difficulty in controlling his violent impulses at the time of the commission of the crime in question. For reasons stated below, his renewal motions are all summarily DENIED.

Other than the tenuous argument that these records may somehow enhance his previously rejected ineffective assistance of counsel claims, defendant provides no specific ways in which these mental health records relate to his first 440 motion, which was denied by Justice Greenberg on August 9, 1991, or his third 440, which was denied by Justice Silverman on April 8, 2003. Accordingly, based upon the lack of any specificity or cognizable connection with those earlier motions, as well as the extreme remoteness in time in making this renewal motion, those portions of defendant's instant motion which seek to renew these first ^[FN3] and third 440 motions are DENIED in their entirety.

Defendant's second 440 motion, which was denied by Justice Greenberg in an October 26, 1998 Opinion, is also extremely remote in time from this renewal motion. In that motion defendant made various claims of Kings County prosecutorial misconduct, none of which related to defendant's mental health. Defendant now presents a tortured new argument that the Manhattan District Attorney had his mental health evaluations while the People in his Kings County homicide misrepresented his mental health history prior to and during trial and that somehow constituted prosecutorial misconduct. Defendant also appears to be making a similarly strained argument that his Kings County trial attorney was ineffective for not obtaining these mental health records. This Court now DENIES that part of defendant's motion which is to renew this 1998 440 motion because [*3]of its remoteness and the lack of merit in defendant's arguments.

In his fourth motion dated November 30, 2009 440, denied by this Court in a May 5, 2010 written Decision and Order, defendant sought the vacatur of his murder judgment of conviction on the grounds of newly discovered evidence in the form of recent scientific literature, findings and testing procedures (including brain imagining) concerning the development of the adolescent brain as compared with that of adults. Defendant argued that his sentence of 25 years to life imposed by Justice Greenberg for a murder committed when he was only 16 years old constituted cruel and unusual punishment. Defendant, without elaboration, also made a claim of actual innocence.^[FN4]

Defendant's application for leave to renew his fourth (2009) 440 motion is hereby DENIED as well. Aside from the fact that defendant acknowledges that the written psychological evaluations ^[FN5] were in his hands since February 2011, he was surely aware he was evaluated at the bequest of his attorney in 1987, but he never made this Court aware of these mental health examinations in his 2009 papers or elsewhere. In any event, even if renewal were to be granted this Court would adhere to its original determination for the reasons stated in the May 5, 2010 Decision and Order.

The Court has nevertheless reviewed these psychological evaluation records and has determined that they do not constitute newly discovered evidence of the quality sufficient to afford defendant any of the relief he has sought in his most recent 440 motion, even assuming they actually constitute newly discovered evidence in the first place.^[FN6] Above and beyond any other observations and diagnoses, these records paint a picture of an adolescent with a history of continuing negative anti-social behavior, with an average appreciation of societal rules and mores and an ability to use common sense, but one who had difficulty controlling his anger and his violent impulses.^[FN7]

Notwithstanding recent studies about the development of the adolescent brain,^[FN8] I cannot find [*4]in these records a defense or cognizable mitigation that would undermine this murder conviction for defendant's execution of the supermarket security guard in this case, or that would or should affect the 25 to life imprisonment sentence imposed by Justice Greenberg in 1989, even assuming this Court would be authorized to take the unprecedented step of vacating his sentence on the grounds alleged. Therefore, this motion for leave to renew all four of defendant's 440 motions is summarily DENIED in all respects.

The Clerk of the Court is directed to send a copy of this Decision and Order to defendant Brandon Holmes, DIN No. 89-B-1812, Sing Sing Correctional Facility, 354 Hunter Street, Ossining, New York 10562 and to Assistant District Attorney Shulamit Rosenblum Nemec, Kings County District Attorney's Office, 350 Jay Street, Brooklyn, New York 11201.

Without determining whether the denial of this motion is appealable, the Court advises defendant that to seek such determination he should 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 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).

IT IS SO ORDERED.

ENTER,

____________________________

J.S.C.