Defendant (hereinafter also "the movant") seeks, pursuant to CPL 440.10(1)(b), (f)^[FN1] and (h), to vacate the judgment of conviction against him on the grounds that the People committed (1) a Brady ^[FN2] violation by failing to turn over to Defendant a statement made by a co-defendant; (2) a discovery violation under CPL 240.20(1)(c); and (3) a prosecutorial ethics violation by failing to turn over to Defendant a ballistics comparison report. In the alternative, the movant seeks a hearing to determine the merits of the motion.

Background

On January 5, 2006, Defendant and co-defendants, Lewis Santos, Herick Ventura and [*2]Yudith Gonzalez, were arrested and charged in a felony complaint with Criminal Possession of a Weapon in the Third Degree (PL 265.02[4]) and related charges. Defendant and the co-defendants were stopped by police, in an automobile driven by Ventura, when Ventura made an illegal U-turn. Defendant was in the front passenger seat, Santos was in the rear seat behind

Ventura and Gonzalez was in the rear seat behind Defendant. A .38 caliber revolver, loaded with six hollow point live rounds, was found under the front passenger seat. All four occupants were arrested and charged pursuant to the automobile possession presumption rule (PL 265.15[3]). After the arrest, co-defendant Ventura gave a written statement ^[FN3] to the police wherein he stated in pertinent part "...me, Raymond, El Cordito' [Lewis Santos] and the girl left. We went to my car and we was driving the girl to her house. I made an improper u-turn and the detective stopped us. While parking El Cordito' trows [sic] me a real firearm and I grabbed it an trew [sic] it back at him, saying how stupid he was and that we were going to get caught."

On August 28, 2007, Defendant pled guilty under the instant indictment to Criminal Possession of a Weapon in the Third Degree (PL 265.02[4]) and under an unrelated indictment number 18292C-2005 to Attempted Criminal Possession of a Weapon in the Second Degree (PL 110/265.03[2]). On September 18, 2007 ^[FN4], Defendant was sentenced as promised by Judge Nicholas Iacovetta to concurrent determinate sentences of imprisonment of two years and three years post release supervision.

Sometime in 2006, former ADA John Tseng ^[FN5] was assigned the case of People v. Miguel Frometa, (indictment number 49-2006). The Bronx Grand Jury charged that on December 11, 2005, Frometa committed Murder in the Second Degree (PL 125.25[1]) of Miguel Perez. Perez had been shot but no gun was recovered. On March 7, 2007, ADA Tseng sent a letter to the NYPD Firearm Analysis Section requesting a comparison of the ballistics evidence recovered from Perez with two firearms, one being the firearm recovered from the vehicle in the instant case. On March 13, 2007, ADA Tseng received said report stating that the firearm in the instant case fired a bullet recovered from Perez. ADA Tseng did not inform Defendant or his counsel of the ballistics report.

On December 12, 2012, Defendant and numerous other defendants were charged in a federal indictment for their alleged participation in a racketeering enterprise. Defendant is charged with having allegedly participated with five others in the murder of Miguel Perez on December 11, 2005 in the Bronx. Defense counsel claims that the only evidence provided to him so far in the federal case linking Defendant to the murder is the instant conviction for criminal possession of a weapon, which weapon, unbeknownst to the movant at the time of the plea, was the murder weapon in the Perez homicide.

[*3]Defendant's Argument

Defendant maintains that before he pled guilty on August 28, 2007, neither he, nor his attorneys, were ever provided with co-defendant's Ventura's statement. He argues that failure to turn over this exculpatory statement constituted a Brady violation. In support of his position, Defendant has attached to his motion affidavits from Jason Steinberger, Esq.^[FN6] (Exhibit F), Defendant's original court appointed attorney, and Michael Greifinger, Esq. (Exhibit F), one of Defendant's retained attorney. Mr. Steinberger states that the Bronx District Attorney did not file a response to his omnibus motion, which he had filed on March 28, 2006, nor provide him with Ventura's statement exculpating the movant. Mr. Greifinger states that he, along with Justin Levine, Esq.^[FN7], were the retained counsel on this case and that he has no recollection of the Bronx District Attorney providing him with Ventura's statement.

Also attached to Defendant's motion is the omnibus motion (Exhibit B) by Mr. Steinberger. In the motion, Defendant moves for preclusion of statement and identification evidence for which no CPL 710.30 notice was given. Attached to the omnibus motion is a Bill and Demand which includes a demand for: (I) any written, recorded or oral statements of any alleged co-defendant made other than in the course of the criminal transaction to a law enforcement officer; (ii) any scientific test reports relating to the criminal action or proceeding; and (iii) all material pursuant to CPL 240.20 and Brady v. Maryland, supra.

On July 17, 2006, Judge Iacovetta ruled on Defendant's omnibus motion stating in relevant part, "[d]efendant moved to preclude any identification and statement testimony for which the People failed to serve timely notice .... The court notes the People did not serve identification or statement notice in the Notices and Voluntary Disclosure Form attached to the indictment. The court further notes the People failed to file a response to the instant motion."

People's Response

In response, the People maintain that they turned over to Defendant, co-defendant Ventura's statement and that this is supported by unquestionable documentary proof. They state that attached to the copy of the indictment in the court file is the Bronx District Attorney's "Notices & Voluntary Disclosure Form," which includes a typed form of Ventura's statement and that also attached is a copy of Ventura's written statement. They note that in his omnibus decision, Judge Iacovetta, referred to this Notice & Voluntary Disclosure form being attached to the indictment.

The People also rely on a discovery receipt, dated May 23, 2006, signed by Mr. Greifinger, which they have attached to their response as Exhibit 1. The People also attach as Exhibit 2, an affirmation from former ADA Janet McFarland, the ADA assigned to this case in 2006 - 2007. ADA McFarland states that she had reviewed the contents of the discovery file in this case via email. She relays that she personally wrote out discovery receipts and made copies [*4]of the discovery materials. Based on her practice, all three defendants received the same discovery and she kept a copy for her file. The discovery receipts indicate that she provided a "Copy of Defendant's Written Statement." The discovery materials include a three page written statement by Defendant Ventura and no other written statement. ADA McFarland states that it appears to her that she turned over co-defendant's Ventura's written statement to Defendant.

The People likewise refer to Exhibit 5, a February 8, 2007 colloquy, which took place during Defendant's trial of indictment number 1678-2005, an attempted murder case. After Defendant's direct testimony, a discussion was held, outside the presence of the jury, between Judge Peter Benitez and the parties, which included the movant, his counsel Justin Levine and ADA Jan Kum ^[FN8]. In discussing whether Defendant's direct testimony had "opened the door" to the instant case, which was a pending indictment at the time, Judge Benitez referred to the existence of a statement from this case, "...that there are statements of one or more defendants in that case that indeed it was one of the co-defendant's [sic] that at the defendant's behest brought that gun into the vehicle. Anyway — so — which even raises the question whether it's his gun, not whether or not he's culpable of it. And certainly I don't want to get into litigating here that case."^[FN9]

Non Disclosure of Ballistics Report: Defendant

Defendant argues that the failure to disclose the ballistics report that linked the weapon he pled guilty to possessing to the Perez homicide violated New York's discovery statute and a number of prosecutorial ethics rules. Citing CPL 240.20(1)(c), Defendant argues that the ballistics report should have been turned over as part of pretrial discovery. Defendant compares this case to People v. Pilotti, 127 AD2d 23 (1st Dept 1987). Pilotti was arrested for the murder of Jose Melendez and a possession of a weapon charge but indicted only on the possession of a weapon charge. He was given two police reports, neither of which established a link between the gun recovered from Pilotti and the Melendez homicide. One of the reports even concluded that the gun was not used in the Melendez homicide. However, a third ballistics report concluded that the gun was the Melendez homicide weapon. Not only was Pilotti not given the third report, but he was affirmatively told by prosecutors that there was no connection between the gun and the Melendez homicide.

In February, 1978, Pilotti pled guilty to possessing the gun. He had been given two plea options. He could plead guilty to possession of the gun and receive a sentence of 2 ½ to 5 years, concurrent with a previously imposed sentence of 11 to 22 years for another homicide, or he could receive 2 ½ to 5 years to run consecutively with the previously imposed 11 to 22 years term if he pled guilty to the Melendez homicide. Defendant chose the concurrent sentencing because he believed that the weapon had not been linked to the Melendez homicide. Two years [*5]later Pilotti was indicted in Bronx County for the Melendez homicide. The Appellate Division, First Department, reversed the trial court's denial of the motion to vacate Pilotti's gun possession plea, after a hearing, stating, "[t]he facts and the credible evidence permit only one conclusion. Defendant was misled by the withholding of a critical, discoverable document. Its contents were never disclosed prior to his plea to weapons possession." (Pilotti at 31). The First Department found especially significant Pilotti's reliance on the second report stating that the gun was not the Melendez murder weapon.

Similarly, in this case, Defendant argues that had he known of the ballistics report linking the weapon he was charged with possessing to the Perez homicide, he would not have pled guilty. Defendant maintains that his guilty plea serves as the basis for the murder charge against him in the pending federal indictment. Defendant claims that the withholding of this information constituted improper and prejudicial prosecutorial conduct.

In his reply affirmation, dated August 7, 2013, Defendant's current counsel, Russell Neufeld, Esq. states that based on his conversations with Mr. Levine ^[FN10] and Defendant, it is evident that the prosecution's behavior misled Defendant into believing he would not be charged with the Perez homicide. According to information he received from Mr. Levine, detectives investigating the Perez homicide contacted the attorney, wanting to question Defendant.

Mr. Levine made his client available and the movant was questioned about the homicide. He was then placed in one or more line-ups and was informed that he was not identified. At no time was he told that the gun he was charged with possessing was a ballistic match for the Perez murder weapon.

Non Disclosure of Ballistic Report: People

The People do not dispute that they did not inform Defendant of the results of the ballistic report linking the gun he was charged with possessing to the Perez murder weapon. Rather they argue that the discovery statute CPL 240.20(1)(c) states that Defendant was entitled to discovery of a scientific test or experiment relating to the criminal proceeding for which he had been indicted and which was made by a person whom the prosecutor intends to call as a witness at trial, or which the People intend to introduce at trial. Thus, the People claim that they fulfilled their responsibility pursuant to CPL 240.20(1)(c) by providing the movant with a ballistics report indicating that the gun was operable and loaded with ammunition.

Moreover, the People maintain that a violation of CPL 240.20 would not be a legal basis for CPL 440.10 relief. The People argue that in this case Defendant would have to also show constitutional violation (CPL 440.10[1][h]) or that the judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or in behalf of a court or a prosecutor (CPL 440.10[1][b])^[FN11] [*6]

The People also stress that they never did indict Defendant for the Perez homicide and no one in their office informed the federal prosecutors of the ballistics report until Defendant already was under federal indictment for the Perez homicide.

Legal Arguments: Ventura's Statement

Pursuant to CPL 440.30(4), when considering the merits of a motion to vacate, the court may deny the motion without a hearing when as relevant here: (c) an allegation of fact essential to support the motion is conclusively refuted by unquestionable documentary proof or (4)(d)(i) an allegation of fact essential to support the motion is contradicted by a court record or other official document and under these and (ii) under these and all other circumstances attending the case, there is no no reasonable possibility that such allegation is true. The People have provided sufficient documentary proof and supporting affirmations indicating that they turned over co-defendant Ventura's written statement to Defendant before he entered his guilty plea. Attached to the indictment is the Notices and Voluntary Disclosure Form with the sum and substance of Ventura's statement plus a copy of his written statement. Also, Judge Iacovetta's decision on the omnibus motion confirms that the Notices and Voluntary Disclosure Form was attached to the indictment. Additionally, ADA McFarlane's affirmation describes how she provided the May 23, 2006 discovery to defense counsel and there is the signed receipt by Mr. Greifinger indicating that he had been given a copy of Defendant's written statement. Since Ventura was the only co-defendant who made a written statement, this was undoubtedly the statement he received. Also, the trial transcript of indictment number 1678-2005 before Judge Benitez, with movant and his attorney present, contains a reference to the existence of the statement. Accordingly, there is no indication that "the evidence was suppressed by the prosecution" (see People v. Fuentes, 12 NY3d 259, 263 [2009]), one of the three factors necessary to establish a Brady violation. Thus, this branch of defendant's CPL 440.10 motion is denied without a hearing. (See People v. Session, 34 NY2d 254 [1974])

Legal Arguments: The Ballistics Report

"Discovery of inculpatory items in the prosecutor's file is limited to those required for constitutional or fundamental fairness ... and the limited matters set forth in CPL 240.20." (Peter Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 240.10). Under CPL 240.20(1)(c), the Defendant was entitled to any report made by a public servant engaged in law enforcement, which was made by a person whom the prosecutor intended to call as a witness at trial or a report that the People intended to introduce at trial. In this case, Defendant received the ballistics report indicating that the gun in the vehicle and the ammunition

were operable. Thus, there was no violation of the People's disclosure obligation under CPL 240.20. Furthermore a violation of CPL 240.20 would be a statutory violation and not a basis for vacatur under CPL 440.10 unless there was a constitutional violation under CPL 440.10(1)(h) or "[t]he judgement was procured by duress, misrepresentation or fraud on the part of the court or prosecutor or a person acting for or in behalf of a court or a prosecutor or a person acting for or [*7]in behalf of a court or a prosecutor" under CPL 440.10(1)(b)^[FN12]

Although the Defendant relies on People v. Pilotti, supra, in which the First Department found that Pilotti was misled by the prosecutor's withholding of a critical, discoverable document, the case at bar is distinguishable on several significant grounds. In Pilotti, defendant was arrested on the Melendez murder charge, along with the weapons charge, but only indicted on the weapons charge. Before he pled guilty to the weapons charge, Pilotti was affirmatively given ballistics information that the gun was not the murder weapon but additional ballistics information was withheld indicating that there was a match. Pilotti was also offered a plea deal which included pleading to the Melendez homicide which he rejected, because he was relying on misinformation. Then, several years after defendant pled guilty to the weapons charge, the Bronx District Attorney indicted Pilotti for the Melendez murder.

Here, Defendant was arrested and indicted, along with the co-defendants, on a weapons charge based on the automobile presumption. On a separate case, People v. Frometa ^[FN13], ADA Tseng requested a ballistics comparison test between the gun in this case with the Perez homicide. He received results that indicated a positive match. Defendant, however, was never charged with the Perez homicide by the Bronx District Attorney, but by a separate jurisdiction some five years later.

"A judgement of conviction is presumed valid and the party challenging its validity (Defendant here) has a burden of coming forward with allegations sufficient to create an issue of fact." (People v. Session, 34 NY2d 254, 255-256 [1974]). Under CPL 440.30(4)(b), a court upon considering the merits of a motion to vacate a judgement may deny it without conducting a hearing if "[t]he motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts." The Court finds premature and unsubstantiated, defense counsel's representation in his affirmation, filed on April 29, 2013, that "thus far," the only evidence provided to him in the federal case linking Defendant to the Perez murder is this conviction for possession of a weapon. ADA Tseng affirms that he did not provide any information about the Perez homicide to federal prosecutors and that when he left the Bronx District Attorney's office in October 2008, he turned over the files regarding the Perez homicide to ADA Terry Gensler. In her affirmation ^[FN14], ADA Gensler states that she learned of the federal indictment against Defendant from a news report on December 12, 2012 and it was then that she contacted the Office of the United States Attorney for the Southern District of New York, informing them that the Bronx District Attorney had materials possibly pertinent to the federal investigation.

Now, in his reply affirmation, dated August 7, 2013, defense counsel additionally claims that based on his conversations with Defendant and Mr. Levine, it is evident that the [*8]prosecution's behavior misled Defendant into believing that he would not be charged with the Perez homicide. This behavior included detectives who were investigating the Perez homicide asking Mr. Levine if they could question Defendant about the Perez homicide and Mr. Levine making Defendant available for such questioning. Defendant was then placed in one or more lineups and told that he had not been identified.

Notwithstanding, the movant has failed to provide an affidavit from Mr. Levine, who is still a practicing attorney in Bronx County, concerning under what circumstances the interview and lineups took place and what exactly was said to Defendant to mislead him and how this would involve a federal prosecution. The Court also notes that Defendant failed to mention this additional information in his affirmation dated April 17, 2013. Based on the foregoing, Defendant's motion pursuant to CPL 440.10(1)(b) and (h) is denied without a hearing.

The constitutes the decision and order of the Court.

October 2, 2013______________________________Dominic R. Massaro, JSC