By motion submitted June 6, 2011, defendant moves to vacate his judgment of conviction pursuant to CPL 440.10 (1) (g) on the basis that newly discovered documents indicate he is being held beyond the imposed term of imprisonment. After review of the motion papers, papers on file with the court, and prior court proceedings, defendant's motion is denied.

In December 1993, defendant, through assigned counsel (Gary E. Eisenberg, Esq.), appealed his conviction to the Appellate Division, First Department, asserting that: (1) his statement should have been suppressed, (2) the delay of his arraignment violated his right to a speedy trial and due process under the constitutions of the United States and New York, as well as under state law, and (3) his sentence was excessive and unduly harsh.

On October 13, 1994, the Appellate Division, First Department unanimously affirmed both the judgment of conviction and imposed sentence of twenty-five years to life (People v [*2]Neal, 208 AD2d 400 [1st Dept 1994]). On December 9, 1994, retired Court of Appeals Associate Judge Joseph W. Bellacosa denied defendant's application for leave to appeal (People v Neal, 84 NY2d 1014 [1994]).

In 2009, defendant moved pro se to vacate his judgment of conviction pursuant to CPL 440.10 (1), asserting that the trial court lacked personal jurisdiction over him. By decision and order filed February 25, 2010, the Supreme Court, Bronx County (Collins, J.), denied the motion. No appeal was taken.

Defendant now moves pursuant to CPL 440.10 (1) (g) to set aside his sentence on the basis that newly discovered documents indicate he is being held beyond the imposed term of imprisonment. Defendant contends a Freedom of Information Letter Records Access Officer's letter (FOIL Letter), dated December 3, 2010, constitutes newly discovered evidence because it indicates that defendant's sentence was substantially different from that which was imposed at sentencing, specifically that he was sentenced to a mandatory minimum term of twelve years imprisonment.

As a preliminary matter, defendant is precluded from filing his motion pursuant to CPL 440.10 (1). CPL 440.10 (3) (c) permits the court to deny a motion pursuant to CPL 440.10 if "[u]pon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so" (CPL 440.10 [3] [c]).

In June of 2009, defendant filed a CPL 440.10 motion but failed to raise the newly discovered evidence claim he asserts here. Defendant argues he first learned that he was incorrectly sentenced to a mandatory minimum term of twenty-five imprisonment based upon a FOIL Letter December 3, 2010, that stated he was sentenced to a minimum term of twelve years. His claim, however, lacks credibility because he attaches as an exhibit to his motion a 1997 affirmation in opposition filed by Assistant District Attorney Daniel Wanderman in connection with a post-judgment proceeding (Wanderman Affirmation) that indicates the defendant had been sentenced to an indeterminate term of imprisonment of twelve years to life.

To be sure, the existence and disclosure of the Wanderman Affirmation clearly demonstrates that he should have been aware of this issue nearly thirteen years before filing his first CPL 440.10 motion in 2009. Yet, he inexplicably failed to include it. While it is true the defendant did not receive the FOIL Letter until December 3, 2010, it merely confirmed the sentencing discrepancy of which he now complains. It therefore could have, and should have, been raised in his 2009 motion.

Assuming this court was to excuse such failure, which it does not, defendant further fails to explain why he did not assert this claim upon receiving the Wanderman Affirmation. CPL 440.10 (1) (g) provides that "a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence." A defendant acts with due diligence by timely filing a CPL 440.10 motion once he knows or learns of the new evidence (People v Friedgood, 58 NY2d 467 [1983] [three-year delay in bringing newly discovered evidence to the court's attention absent an explanation did not satisfy due diligence requirement of CPL 440.10]; People v Stuart, 123 AD2d 46, 54 [2d Dept 1986] [one-year delay reflects lack of due diligence]). [*3]

While it is well established that "the due diligence requirement is measured against the defendant's available resources and the practicalities of the particular situation" (People v Tankleff, 49 AD3d 160, 180 [2d Dept 2007], quoting 34 NY Jur. 2d, Criminal Law § 3064, at 866; see People v Hildenbrandt, 125 AD2d 819, 821 [3d Dept 1986]), "the passage of so much time before defendant made the court aware of his purported new evidence undermines the seriousness with which the court views such evidence and reflects a lack of due diligence on defendant's part" (People v Carrington, 2010 NY Slip Op 32834(U) [Crim Ct, Kings County 2010, Carroll, J.] ). Here, defendant knew of the existence of the Wanderman Affirmation for approximately thirteen years, waited until now to file his motion, and offers no explanation for the delay. Thus, this court views defendant's claim as lacking in seriousness; it is therefore procedurally barred.

Even if the defendant is not procedurally barred, which he is, this court finds defendant's argument that the FOIL Letter constitutes newly discovered evidence meritless. CPL 440.10 (1) (g) considers evidence newly discovered when it:

has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence . . . (CPL 440.10 [1] [g]).

In other words, newly discovered means that: (1) it will probably change the result if a new trial is granted; (2) it was discovered after the trial; (3) it could not have been discovered before the trial by the exercise of due diligence; (4) it is material; (5) it is not cumulative; and, (6) it does not merely impeach or contradict the former evidence" (People v Salemi, 309 NY 208, 216 [1955], cert denied 350 US 950, quoting People v Priori, 164 NY 459, 472 [1900]). A motion for a new trial on the basis of newly discovered evidence must satisfy these requirements (Salemi at 208; People v Taylor, 246 AD2d 410, 411 [1st Dept 1998]; People v Gurley, 197 AD2d 534, 536 [2d Dept 1993]). Whether or not these requirements have been satisfied is left to the discretion of the courts (People v Baxley, 84 NY2d 208, 212 [1994]; Tankleff, 49 AD3d at 160).

It is the defendant who bears the burden of demonstrating that evidence is newly discovered. Here, defendant fails to do so. Under the first Salemi requirement alone, the FOIL Letter is unlikely to change the result of the judgment if a new trial were granted (Salemi at 216). The letter, even if "newly discovered" by the defendant, has no evidentiary value as it relates to his guilt. Since it has no relevance to his underlying conviction, it follows that it is unlikely to have an effect on the final judgment should a new trial be granted. At most, it would only affect the validity of his sentence. Accordingly, the FOIL Letter does not constitute newly discovered evidence under CPL 440.10 (1) (g).

To prevail on a motion to vacate the sentence, the defendant must establish that his sentence "was unauthorized, illegally imposed or otherwise invalid as a matter of law" (CPL 440.20 [1]). Here, defendant was sentencing on June 12, 1990. The record of that proceeding indicates the court explicitly stated, "[i]t is the judgment of this court . . . that you be sentenced to an indeterminate term of imprisonment, the maximum term of which shall be life, and the court sets a minimum term of imprisonment of twenty-five years" (Sentence Minutes tr at 19, lines 2-4). And, as noted above, the Appellant Division, First Department, unanimously affirmed it.

Significantly, the official record of the imposed sentence — the sentencing minutes — along with the appellate record, are authoritative. Unlike where there is a discrepancy between the sentencing minutes and a certificate of conviction (see People v Ingram, 263 AD2d 959, 960 [1999] ["Because of the discrepancy between the sentencing minutes and the certificate of conviction, the sentence imposed on count two must be vacated and the matter remitted to Ontario County Court for resentencing on that count."]), here, there is no discrepancy between the sentence and appellate records.

Defendant's entire claim is predicated on an unofficial court record, the FOIL Letter, which erroneously states he was sentenced to a term of twelve years to life imprisonment. Such an error is nothing more than ministerial. A ministerial error is insufficient to vacate defendant's sentence (People v Banks, 242 AD2d 726, 727 [2d Dept 1997], lv denied 91 NY2d 868 [A discrepancy between the court reporter's transcript showing a different indeterminate sentence than those of the clerk's minutes, which were set forth in the order of commitment, did not affect the validity of defendant's sentence]). Such an error is of no consequence to the validity of defendant's sentence, and in no way indicates that is was "unauthorized, illegally imposed or otherwise invalid as a matter of law." Rather, the error was merely a clerical error in the Bronx District Attorney's internal database resulting in an incorrect statement of defendant's sentence.

In fact, defendant does not argue that his sentence was invalid. Instead, he argues that the ministerial error should be charged to the People, and entitles him to be resentenced to a minimum term of twelve years. Alternatively, he seeks an evidentiary hearing on the issue. Considering that the Appellate Division found no infirmity with the imposed sentence, however, neither remedy is appropriate.

Finally, defendant also moves pursuant to CPL 390.20 to expunge from the presentence report what he characterizes as false allegations in order to prepare for his upcoming parole hearing, specifically that he waived his right to be interviewed by refusing to cooperate with the Department of Probation's background investigation in preparing the presentence report. He further implies that the court sentenced him without having received or reviewed the report. [*5]Both claims are entirely without merit. First, the sentencing minutes clearly reflect that the defendant's attorney read it before sentence was imposed. And although the court did not specifically indicate whether it reviewed the report, defendant is not entitled to presume from such silence that it did not. Nor may the defendant infer that counsel was not afforded an opportunity to argue from it (People v Marcano, 199 AD2d 86 [1st Dept 1993]; see also People v Nazario, 253 AD2d 726 [1st Dept 1998]; People v Hurd, 200 AD2d 521 [1st Dept 1994]). And in fact, nothing suggests he was. If anything, defendant's and counsel's silence suggests that had defendant truly believed the presentence report contained false information, the proper time to articulate it would have been before sentence was imposed, not twenty-two years later.

For the reasons stated above, this court finds that defendant's motion to vacate his judgment of conviction under CPL 440.10 (1) (g) is both procedurally barred and substantively flawed as the FOIL Letter does not constitute newly discovered evidence. Moreover, when properly construed as a CPL 440.20 motion to set aside the sentence, defendant's sentence of twenty-five years to life imprisonment was valid as a matter of law and otherwise entirely proper. Defendant's motion is therefore denied in all respects.

This constitutes the decision and order of the court.

The clerk of the court is directed to forward a copy of this decision to the defendant at his place of incarceration.

Dated: September 25, 2012

__________________________________Richard Lee Price, J.S.C.