City Court of Rochester, December 12, 2019

Charles R. Grefer, defendant pro se.

Sandra Doorley, District Attorney (Scott Myles of counsel), for plaintiff.

On February 20, 2019, defendant was convicted of driving while intoxicated after a jury trial. The court sentenced him to six months incarceration on June 13, 2019. Defendant has filed an appeal from his conviction. Proceeding pro se, defendant has also moved this court to vacate his judgment of conviction pursuant to CPL 440.10.

Defendant seeks to vacate his conviction on several grounds. First, he contends that both of his assigned attorneys provided him with constitutionally ineffective assistance. Second, he contends that the court failed to rule, or ruled improperly, on several defense motions. Third, he contends that the discovery of newly discovered evidence compels the grant of his CPL 440.10 motion. Fourth, he contends that he is entitled to vacatur of his conviction because the People failed to respond to his supplementary submission. The court's decision and order will address each of defendant's claims.

As a preliminary matter, the court observes that pursuant to CPL 440.10, the court must deny any issue that is a matter of record that may be raised on appeal. (See CPL 440.10 [2] [b].) Several of defendant's claims must be dismissed for this reason.

I. Ineffective Assistance of Counsel Claims

Defendant was assigned one attorney who represented him from his arraignment through his trial. A second attorney was assigned to represent him following his trial. Before defendant{**66 Misc 3d at 490} was sentenced, however, the court granted defendant's motion to relieve his second attorney and to proceed pro se. Defendant contends that both his assigned attorneys were constitutionally ineffective.

To prevail in New York on an ineffective assistance of counsel claim

" 'it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations' for counsel's alleged shortcomings . . . As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will [*2]not fall to the level of ineffective assistance." (People v Benevento, 91 NY2d 708, 712-713 [1998]; see People v Rivera, 71 NY2d 705, 709 [1988]; People v Carver, 124 AD3d 1276 [4th Dept 2015], affd 27 NY3d 418 [2016]; People v Atkins, 107 AD3d 1465 [4th Dept 2013], lv denied 21 NY3d 1040 [2013].)

Moreover, under the U.S. Constitution, an attorney is not ineffective if his or her failures did not have a reasonable probability of affecting the outcome and did not deprive defendant of a fair trial. (See Strickland v Washington, 466 US 668, 694 [1984]; People v Parker, 103 AD3d 465, 466 [1st Dept 2013].)

A. Defendant's First Trial Attorney

Defendant claims that his first attorney provided him with constitutionally ineffective representation because she failed to submit a CPL 30.30 motion to the court, failed to properly impeach allegedly false testimony given at trial by the arresting officer, failed to object to prosecutorial misconduct, failed to obtain defendant's medical records, failed to submit a CPL 330.30 motion to the court, and refused to provide defendant's case file to him after his trial so that he could bring this motion. Each claim is addressed below.

1. Defense Attorney's Failure to File Motion to Dismiss under CPL 30.30

Defendant claims that his first attorney was ineffective because she failed to file a motion to dismiss under CPL 30.30. Specifically, defendant asserts that although he was arraigned on September 15, 2018, the People did not declare their readiness for trial until January 23, 2019, a date that exceeds the time limit under CPL 30.30.

Because the People's declarations of readiness are readily apparent from the record and therefore may be raised on appeal,{**66 Misc 3d at 491} this claim must be denied. (See CPL 440.10 [2] [b].) Moreover, this claim is meritless.

Contrary to defendant's assertion, the record reflects that when defendant was arraigned on September 17, 2018, the People declared their readiness in a written CPL 710.30 notice that was filed with the court and served on defense counsel on that date. The record also demonstrates that the People declared their readiness in open court on September 26, 2018, and at several subsequent court appearances.

Because the record demonstrates that the People declared their readiness well within the time limits of CPL 30.30, filing a motion to dismiss for the reason asserted by defendant would have been pointless. A defense attorney is not required to file meritless motions. (See People v Hymes, 174 AD3d 1295, 1300 [4th Dept 2019]; People v Reed, 151 AD3d 1821, 1821-1822 [4th Dept 2017], lv denied 30 NY3d 952 [2017].) Accordingly, plaintiff's ineffective assistance of counsel claim in this regard is without merit.

2. Defense Attorney's Alleged Failure to Properly Impeach a Prosecution Witness's Allegedly False Testimony

Defendant contends that his first attorney failed to object to or adequately impeach the allegedly false testimony of a People's witness. Specifically, defendant claims that Rochester Police Officer Zachary Costello falsely testified at trial that at the scene of the arrest, defendant admitted to him that he had been drinking alcohol. Defendant asserts that Costello's body camera recording proves that Costello's testimony in this regard was untrue. As a result, defendant contends, his trial attorney provided him with constitutionally ineffective assistance because she failed to impeach Costello with the recording and because she failed to object to the prosecutor's reference to Costello's allegedly false in-court testimony.

In considering defendant's claim regarding Costello's allegedly false trial testimony, the court reviewed the body camera footage of Costello's encounter with defendant.^[FN1] The footage [*3]does not support defendant's assertion that Costello's trial testimony was materially false.{**66 Misc 3d at 492}

To the contrary, the recording shows that in response to Costello's inquiry about defendant's alcohol consumption, defendant replied in the affirmative by nodding his head up and down.^[FN2] The fact that defendant's response was a nonverbal statement as opposed to a verbal statement is of no legal consequence. (See Schmerber v California, 384 US 757, 761 n 5 [1966] ["A nod or headshake is as much a 'testimonial' or 'communicative' act in this sense as are spoken words"]; see also Pennsylvania v Muniz, 496 US 582, 595 n 9 [1990]; People v Crespo, 29 Misc 3d 1203[A], 2010 NY Slip Op 51680[U], *4 [Sup Ct, NY County 2010].) The recording also shows that in response to Costello's inquiry, defendant did not deny his consumption of alcohol, either verbally or nonverbally.

Significantly, Costello's body camera footage also reveals why defendant's attorney could have made a legitimate and reasonable strategy decision not to introduce this recording at trial for any purpose, let alone for impeachment purposes. Costello's body camera footage shows that defendant exhibited many of the behaviors and actions associated with intoxication. He was unsteady on his feet, had difficulty with both large motor movement (walking, entering, and exiting the police car) and fine motor movement (removing his driver's license from his wallet), spoke with slurred speech, showed mental confusion, and was very slow to respond to Costello's questions. Also, as previously stated, Costello commented on the recording that he could smell alcohol on defendant. Had this video been shown to the jury for impeachment or any other purposes, defendant's defense position could have been substantially damaged.

Rather than introducing the recording, defendant's trial attorney attempted to impeach Costello with his testimony from the earlier suppression hearing. (See trial tr at 9-11.) During that hearing, Costello stated that he could not recall whether{**66 Misc 3d at 493} defendant answered his question as to whether defendant had been drinking. Plainly, defense counsel's decision to impeach Costello with his hearing testimony, and not the body camera footage, reflected "a reasonable and legitimate strategy under the circumstances and evidence presented." (People v Benevento, 91 NY2d at 712-713.) Further, in view of the contents of the recording, defense counsel's failure to use it at trial did not negatively affect the outcome of the trial. (See Strickland v Washington, 466 US at 694; People v Parker, 103 AD3d at 466.)^[FN3]

3. Defense Attorney's Failure to Obtain Defendant's Medical Records

Defendant asserts that his first attorney was constitutionally ineffective because she did not obtain his medical records for use at trial. Even if defendant's attorney failed to obtain defendant's medical records, defendant's legal claim in this regard is conclusory and meritless. Defendant offers no explanation, let alone a reasonable explanation, as to how his medical records would have been helpful to his defense with respect to what occurred.

4. Defense Attorney's Failure to File a CPL 330.30 Motion on Defendant's Behalf

Defendant's attorney's failure to file a motion under CPL 330.30 on defendant's behalf is a matter of record that may be raised on appeal. Consequently, this claim must be denied. (See CPL 440.10 [2] [b].) Moreover, this claim is meritless.

The record shows that at his May 15, 2019 court appearance, defendant filed a pro se CPL 330.30 motion. He also made a verbal motion, which the court granted, to relieve his trial attorney and to proceed pro se. On May 21, 2019, at defendant's request, the court appointed a second attorney to represent defendant, and directed the People to respond to defendant's CPL 330.30 motion. On defendant's next court appearance on June 13, 2019, the court granted defendant's request to relieve his second attorney, granted defendant's request to proceed pro se, denied defendant's CPL 330.30 motion on the record, and sentenced defendant.

As noted above, a defense attorney is not required to file meritless motions. (See People v Hymes, 174 AD3d at 1300; People v Reed, 151 AD3d at 1821-1822.) Moreover, defendant's{**66 Misc 3d at 494} attorney's decision not to file a CPL 330.30 motion on defendant's behalf did not impede either defendant's ability to file the motion or the court's ability to consider and rule on his motion.

5. Defense Attorney's Failure to Give Defendant Her Trial Folder

Defendant claims that his first attorney was constitutionally ineffective because after the trial verdict, she failed to give defendant her trial folder. Even if his attorney failed to give him the folder, such claim is not a valid basis for vacating a judgment of conviction because such action did not affect his underlying conviction. (See CPL 440.10 [1].)

B. Defendant's Second Attorney

Defendant alleges that his second attorney, whom the court assigned to represent him following his conviction and filing of his CPL 330.30 motion, was constitutionally ineffective because he failed to give him a correct mailing address, would not accept his phone calls, and did not review the case file prior to appearing with defendant in court. Defendant claims that because of his second attorney's ineffectiveness, he was unable to present effective arguments in support of his CPL 330.30 motion.^[FN4]

Even if defendant's assertions regarding his second attorney's actions are true, such assertions are not a valid basis for vacating a judgment of conviction because such alleged conduct, which occurred after his conviction, did not affect his underlying conviction. (See CPL 440.10 [1].) Moreover, this claim is meritless.

The post-conviction record shows that on June 13, 2019, the court considered and rejected, on the merits, the various claims asserted in defendant's CPL 330.30 motion. Moreover, the People's June 13, 2019 two-page responding affirmation to defendant's CPL 330.30 motion consisted only of a single sentence conclusory denial of factual allegations not otherwise admitted, and a three-paragraph conclusory statement that nothing in defendant's motion required "reversal or modification of the judgment as a matter of law by an appellate court." (Affirmation of Kelly Pettrone, Assistant District Attorney, June 13, 2019.) As such, any further submissions by defendant would have been unnecessary and superfluous. Stated differently, defendant{**66 Misc 3d at 495} has failed to demonstrate that he was prejudiced by his second attorney's alleged conduct. Consequently, defendant's claim that his second attorney was constitutionally [*4]ineffective is without merit.

II. Court's Alleged Failure to Rule, or to Rule Properly, on His Motions

Defendant claims that the court failed to rule, or ruled improperly, on his motions. Specifically, defendant alleges that (1) the court failed to rule on his May 14, 2019 pro se motion to dismiss under CPL 30.30; (2) the court failed to rule on his October 31, 2019 pro se motion for a default judgment; and (3) the court improperly denied his first attorney's motion for a mistrial.

A. Defendant's Motion to Dismiss under CPL 30.30

On May 14, 2019, defendant sent to the court a pro se motion to dismiss the charges against him pursuant to CPL 30.30 on the ground that the People did not declare their readiness to proceed to trial within the applicable time limits.^[FN5] Defendant's motion under CPL 30.30 is denied as both untimely and meritless.

Pursuant to CPL 210.20 (2), a motion to dismiss an action on speedy trial grounds, including a CPL 30.30 motion, "must be made prior to the commencement of trial." (See People v Allard, 28 NY3d 41, 45 [2016].) However, defendant did not send his pro se CPL 30.30 motion to the court until months after his jury trial commenced on February 19, 2019. Further, as discussed above, defendant's motion to dismiss on this ground is meritless inasmuch as the record shows that the People declared their readiness for trial within the legally required time frame.

B. Defendant's Trial Motion for a Mistrial

Defendant alleges that the court erred when it denied his attorney's motion for a mistrial during the trial. Defendant's motion and the court's ruling is a matter of record that may be raised on appeal. Consequently, this claim must be denied. (See CPL 440.10 [2] [b].)

III. Newly Discovered Evidence

Defendant claims that Costello's allegedly false testimony at trial is newly discovered evidence that could not have been discovered "with due diligence" before trial. According to defendant, {**66 Misc 3d at 496}until the trial, neither he nor his attorney knew that the police officer would testify falsely at trial. Defendant claims that because he and his attorney did not know that the police officer was going to testify falsely, his attorney did not have time to find evidence to refute his testimony.

To succeed on the ground of newly discovered evidence, defendant must show that

"[n]ew evidence 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." (CPL 440.10 [1] [g].)

The evidence that defendant describes, Costello's trial testimony, occurred during trial, not "since the entry of a judgment." (CPL 440.10 [1] [g].) Therefore, by definition it was not "newly discovered" evidence that would entitle defendant to vacatur of his conviction.^[FN6]

IV. Defendant's Motion for a Default Judgment

On November 7, 2019, defendant filed a motion for a default judgment with respect to his CPL 440.10 motion on the ground that the People did not respond to his supplemental submission. In a motion under CPL 440.10, a defendant bears the burden of proving his or her legal claims. Consequently, unless ordered by the court to respond, the People's failure to [*5]respond to a defendant's submission under CPL 440.10 has no bearing on whether a defendant has satisfied his legal burden, and does not, in itself, entitle a defendant to vacatur of his conviction under CPL 440.10. Therefore, consequently, defendant's motion for a default judgment based on the People's failure to respond to his supplemental submission is denied.

For the reasons set forth above, defendant's motion to vacate his conviction pursuant to CPL 440.10 is denied without a hearing.

In a subsequent submission, defendant states that because of his confinement at Elmira Correctional Facility in an unrelated matter, he is unable to receive or view the recording. For that reason, defendant has asked this court to schedule an in-court hearing so that he can watch Costello's body camera footage in court. Given the court's review of the recording and defendant's access to the recording before and during the trial, defendant's request is denied as unnecessary.