On November 23, 1994, a judgment was rendered before this Court, convicting defendant, after a trial by jury, of Rape in the First Degree (Penal Law § 130.35[1]) (four counts), Sodomy in the First Degree (Penal Law §130.50[1]) (three counts), and Robbery in the First Degree (Penal Law § 160.15[3])(two counts), and sentencing him to nine consecutive indeterminate terms of imprisonment of from eight and one third to twenty-five years.^[FN1] Defendant, an illegal taxicab driver, was convicted of raping three women — Elizabeth J., Khrystal O. and Michelle R. — after picking them up as fares.

In pro se papers, filed almost twenty-two years after his conviction, defendant moves for the fourth time to vacate his conviction pursuant to C.P.L. 440.10. In essence, defendant now claims that his conviction should be vacated because the cases arising from the rapes of Khrystal O. and Elizabeth J. were not initiated by the filing of felony complaints. Initially, defendant's motion is denied as procedurally barred because his claim is record-based and could have been raised on direct appeal, or it could have been raised in his previous three 440 motions. See 440.10(3)(c), 440.10(2)(c). With respect to the merits, for the reasons stated in the footnote [*2]below, defendant's motion is denied.^[FN2]

Having disposed of the merits of defendant's claim in a footnote, I devote the body of the opinion to the vexing issue of repeated meritless applications. In addition to his three prior 440 motions, which were all denied by this Court, defendant has filed a direct appeal, three coram nobis applications, two petitions for habeas relief, all of which have been denied, as have his numerous appeals of these denials. (For a full recitation of the procedural history of this case, the Court relies upon the affirmation of ADA Eric Washer, pp. 2-7. ) All told, defendant has sought post-conviction relief from various trial and appellate courts on at least eighteen occasions. While the Court is well aware of the importance of the post-conviction review process, especially in light of the power of DNA evidence to exonerate a defendant, this defendant has had more than an ample opportunity to litigate any and all issues with respect to his case. For this reason alone, defendant is enjoined from filing any further motions without prior leave of the Court.

However, in addition to defendant's excessive litigiousness, an injunction against defendant from initiating further collateral proceedings is further justified in this case because, as this Court stated in its decision dated July 25, 2014 on defendant's last 440 motion, the evidence at trial was overwhelming. Defendant was convicted of raping three young woman during the one month period between March 19, 1993 and April 16, 1993. Each of the women bravely testified to her ordeal of being raped by defendant after hailing a white, four-door livery cab with tinted windows and a cracked windshield that had been driven by defendant. Each woman had a prolonged opportunity to observe defendant's face. Elizabeth J. testified that during the two hours that she was being terrorized by defendant, she focused on defendant's face and thus she was able to identify his large nose, his mustache, his fade hairstyle, and his clothing. Khrystal O.'s testimony was even stronger as she was held hostage by defendant for four to five hours and she testified that during the course of being raped, she was face-to-face with defendant. Similar to Elizabeth J., Khrystal O. testified that defendant wore his hair in a fade hairstyle and sported a mustache. Khrystal O. further stated that after defendant had raped her, he offered to give her a [*3]piece of jewelry, which Elizabeth J. identified as having been stolen from her after defendant had finished raping her.

Lastly, and quite possibly the strongest evidence of all, was the evidence that defendant had raped Michelle R. Not only did Michelle R. (who was only fourteen years of age at the time she was raped) identify defendant as her rapist, but her identification was corroborated by the testimony of Police Officer Scott Cunningham. Officer Cunningham was on routine patrol when he heard screams emanating from a parked, white, four-door Oldsmobile. He exited his police van, opened the car door, and saw defendant thrusting his penis into Michelle R.'s vagina. Officer Cunningham literally pulled defendant off Michelle R. and asked her if she was being raped, to which she replied, "Yes." At the time, Michelle R. was crying and her hair was a mess.

Further evidence of defendant's guilt was provided by the fact that defendant employed a distinctive pattern in raping these three women. Each victim testified that the rape occurred after she had hailed a white, four-door livery cab with tinted windows and a cracked windshield that was driven by defendant. Each woman stated that, while being threatened with force by defendant, she was driven to a deserted area, and that during the course of each rape, she was forced to remove just her left leg from her pants and underpants and to squeeze defendant's nipples as he bit and raped her.

In light of this overwhelming evidence, which includes being literally caught in the act of raping a fourteen-year-old girl, defendant steadfastly maintains his innocence and continues to file frivolous motions some twenty years after these serial rapes took place. (See Defendant's Reply Affirmation at pp. 3-5.) Thus it appears quite evident that instead of using his time in prison to gain insight, take responsibility and express remorse for his horrific actions, defendant has used his time to become a jailhouse lawyer and to waste the resources of this Court and the District Attorney's Office. As it is with all defendants, even those convicted of unspeakable crimes such as this defendant, whenever the Court imposes sentence it is the Court's sincere hope that that defendant would use his time in prison constructively so that he could someday reenter society as a changed man. Unfortunately, even with his parole eligibility date drawing near, this defendant's repeated filings strongly suggest not a changed man, but a man who refuses to acknowledge his guilt and who stubbornly clings to his criminal past with little hope for redemption.

Accordingly, defendant's motion is denied, defendant is enjoined from filing further motions without seeking leave of the Court, and the Clerk is directed to send a copy of this decision to the Parole Board. See Executive Law §§ 259-i(2)(c)(A)(i), 259-c(4); 9 NYCRR § 8002.3 (in determining discretionary release on parole, the Parole Board shall consider defendant's institutional record including program goals and accomplishments and therapy); Correction Law §168-l(5); 2006 SORA Commentary and Guidelines at p. 15 (describing Factor 12, acceptance of responsibility, in assessing a sex offender's risk level).^[FN3]

This opinion constitutes the decision and order of the Court.