PROCEDURAL HISTORY

1. On March 12, 2019, Roderick Covlin was convicted by a jury of Murder in the Second Degree of his wife, Shele Danishefsky Covlin. This Court noted at the time of sentence that " [t]he evidence at trial was overwhelming. The jury spoke. I sentence Mr. Covlin to 25 years to life. " Mr. Covlin's conviction was unanimously affirmed by the First Department, [People v. Covlin. [205 AD3d 578 (1st Dept. 2022); lv, to app. den.. People v. Covlin, 38 NY3d 1149 (2022)].

2. Mr. Covlin currently seeks to vacate his judgment of conviction entered April 10, 2019, pursuant to CPL 440.10(l)(b),(c),(f),(h), and the Due Process Clause of the United States Constitution and the New York State Constitution. The defendant asserts that he is entitled to relief "...based upon the People's violation of Mr. Covlin's due process rights stemming from egregious prosecutorial misconduct and other errors that resulted in his unjust conviction. In the alternative, should the court find any issues of fact, Mr. Covlin seeks an evidentiary hearing on this motion." (Defense CPL 440.10 Motion, par. 3).

3. The principal issues discussed in the First Department decision affirming the conviction, related to the admission during trial of various items of evidence pursuant to People v, Molineux, 168 NY 264 (1901). This included the admissibility of expert testimony in martial arts and in domestic violence; an audio recording of a conversation between Mr. Covlin and his parents as well as other evidentiary matters. The admissibility of those matters was fully litigated at the time of trial and resulted in a written decision issued by this Court on September 14, 2018. This Court notes that there was additional Molineux evidence excluded from the trial over the People's objections because this Court believed the probative value of that evidence was outweighed by the prejudicial effect that information would have on the jury,

4. During the trial, at the Appellate Division, and again in this motion, the defense also claimed that the prosecutor improperly changed his theory during summation. This was also argued at the time of trial and rejected by this Court, and it was also rejected by the First Department which stated, "... [i]n particular, we find meritless defendant's arguments about a purported change in the prosecutor's theory," People v. Covlin at 581.

5. Under the law, when the People include specific factual allegations in the indictment, they may not present proof that contradicts those allegations. People v. Grega, 72 NY2d 489, 496 (1988). In this case, the indictment did not include specific facts as to how the defendant committed the crime. Regarding the intentional murder count it alleged "...with intent to cause [*2]the death of Shele Covlin, caused the death of Shele Covlin." (Exhibit A) Therefore, this Court again rejects this argument on the merits under a CPL 440.10 review.

6. While this was an entirely circumstantial case, this Court presided over the eight-week trial and finds that there was overwhelming evidence of guilt and that the proof of guilt came from fair inferences that the jury properly drew from the trial facts. [See, e.g. People v. Kennedy, 47 NY2d 196 (1979); People v. Betancourt, 68.Y.2d 707 (1986).]

7. Generally, CPL 440.10 is the vehicle where off the record information can be brought to the court's attention to try and vacate the judgment. The statute provides a remedy in cases where the appellate record is insufficient to demonstrate a wrong was suffered by the defendant.^[FN1]

8. The relevant sections of CPL 440.10(1) provides that at any time after the entry of judgment, the court in which it is entered, may upon motion of the defendant, vacate such judgment upon the ground that the:

(b) judgment was procured by duress, misrepresentation, or fraud.

The hallmark of this type of claim is allegations of malfeasance by the Court or prosecutor. (See, People v. Ramos, 201 AD2d 78(lst Dept.l994);People v. Harper, 171 AD2d 468(lst Dept. 1991) (No evidence was submitted by defense counsel to properly substantiate any such allegations under this section.)

(c) material evidence adduced at trial resulting in the judgment was false and was prior to entry known by the prosecutor or court to be false.

(f) improper and prejudicial conduct not appearing in the record occurred during the trial resulting in the judgement which conduct if it appeared in the record, would have required reversal of judgment upon an appeal therefrom.

This section generally includes Brady violations, juror misconduct and Court Officer misconduct. (No evidence of any off the record misconduct was presented by the defense to properly substantiate any allegations under this section. All of defendant's complaints were about things that occurred on the record.)

(h) The judgment was obtained in violation of a right of the defendant under the constitution of this state or the United States.

This is the main section to raise claims of ineffective assistance of trial counsel. (No evidence was submitted by defense counsel to properly substantiate any allegations of ineffective assistance of counsel under this section.)

9. Appellate Courts are reluctant to consider such claims on direct appeal since counsel's strategic decision-making will not be apparent from the record. See, People v. Rivera, 71 NY2d 705 (1988). There are exceptions to this rule such as where a blunder cannot be explained away as a rational strategic choice; People v. Brown. 45 NY2d 852 (1978); or where counsel has stated [*3]on the record the reason for his strategic choices. People v. Nesbitt, 20 NY3d 1080 (2013).

10. To the extent certain issues were framed by the defendant on appeal as claims of ineffective assistance of counsel, the First Department held that they were "unreviewable on direct appeal because they involve matters outside the record concerning possible strategic explanations for not objecting." The Appellate Division went on to say that because Mr. Covlin had "not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal."

11. This Court also rejects on the merits any ineffective assistance of counsel claims under a CPL 440.10 review. During the eight weeks this Court presided over the trial, I observed some of the best lawyering I have seen on both sides during my thirty-years on the bench. Every potential issue that could be raised, was raised, and hotly litigated by both sides, and my decisions were issued after fully hearing all arguments and according to the law.

12. Attorney strategies vary widely, and Courts should not second guess decisions made by defense counsel who is fully cognizant of all the facts of the case and the defense theory. Importantly, the same defense counsel who brings this motion was co-counsel for defendant during the trial. This is important because he has unique insights and perspectives into the defense strategies at trial. Yet, defense counsel has completely failed to specify any acts or any failures by the defense that demonstrate ineffective assistance of counsel.

This omission is glaring. Therefore, this Court rejects any ineffective assistance of counsel argument under the state and federal standards [see, People v. Benevento, 91 NY2d 708 (1998);Strickland v. Washington, 466 US 668 (1984)].

13. After a review of the First Department decision and the post-conviction submissions by defense counsel, the only other issues for CPL 440.10 review are the admissibility of the chokehold video and whether there was prosecutorial misconduct during summation that would require this court to vacate the conviction.

14. Defendant's arguments to the Appellate Division regarding the chokehold video were the same arguments raised by defense counsel during the trial and now in the instant motion. Here, defendant continues to argue that the video was not properly authenticated and should not have been admitted. This claim is without merit. The custodian of the video apparatus at the Department of Corrections testified at trial and authenticated the video. There was no audio. The jury just watched the actions of the two individuals depicted in the video. (One of those individuals was Mr. Covlin). The fact that the other individual in the video did not testify is irrelevant. The People are free to present their case as they see fit. Further, it was completely appropriate for the expert in martial arts to comment on the actions he recognized happening in the video. Also, this court disagrees with the defense counsel's position that this was a key moment for the jury. There was other independent evidence that established Mr. Covlin's knowledge of taekwondo. While the defendant did not present any evidence at trial, both parties agreed to a stipulation which read in sum and substance:

a. If counsel for defendant had testified, he would state that prior to November 9, 2018, which was the date of the video of defendant in prison speaking with another inmate, the People had stated in open court that the cause of Shele's death was neck compression with a choke hold: that defendant had a background in marital arts and that the People [*4]intended to call an expert in marital arts to testify about chokeholds. (Stipulation: T: p. 4329)

b. Additionally, defendant's attorney would testify that he and defendant spoke regularly and they had discussed the fact that the People intended to call this expert.

c. Finally, prior to the date of the video, they stipulated that the People had never demonstrated a chokehold or indicated which arm was "allegedly used to perform a chokehold" (Stipulation T: p. 4329-30.)

Further, the fact that the video showed his ability to do the chokehold was one amongst many other layers of circumstantial evidence that built this complicated case. This was a hotly contested issue during the trial and fully argued on the record.

15. Lastly, defense counsel did not request a missing witness charge for the in-mate depicted in the video. [T: p. 4347 through p. 4381] [see, CPL 470.05(2); People v. Bvnum. 70 NY2d 858 (1987).]. Therefore, since defense counsel has failed to set forth any new facts, any new law or any additional information that would require this Court to vacate the conviction on this basis, the motion is denied.

16. The only remaining issue is defense counsel's allegations of prosecutorial misconduct during summation. The First Department opinion about this issue stated as follows:

''Defendant's challenges...to the prosecutor's summation... are unpreserved, waived, or unreviewable, and we decline to review them in the interests of justice. As an alternative holding, we find no basis for reversal or a new sentencing proceeding." (at 581)

17. First, to be considered here is the role of summations during a trial. Instructive on this issue is the Model CJI Charges that Judges use when charging a jury'. (Exhibit B) Using the Model CJI Charge as a guide, this Court in sum and substance then charged the jury the contents of that charge. [T: p, 4340, line 11 through T: p. 4341, line 10.]

"Let me tell you a little bit about summations. It is the last time the lawyers have an opportunity to address you. They are entitled to address you. They are entitled to make arguments to you and to give you their opinions of what the evidence has shown, what they say is not evidence. It's just their opinions.

(T p. 4340 line 22 through T p. 4341 line 3)

18. Second, where a CPL 440 motion is based upon allegations of prosecutorial misconduct a defendant must allege sufficient facts to show that the prosecutors alleged conduct could have prejudiced his defense. People v. Friedgood. 58 NY2d 467. 471 (1983). So, to have a conviction vacated the defense must prove prejudice. [Id. at 472, CPL 440.30(4)(b)] The prejudice analysis is also known as a "harmless error analysis." People v. Banch. 80 NY2d 610, 624 (1992). An error may be found to be harmless where the proof of defendant's guilt, without reference to the error is overwhelming and where there is no significant probability that the jury would have acquitted the defendant had it not been for the error. People v. Gillyard, 13 NY3d 351, 356 (2009).

19. Third, under New York law, isolated instances of prosecutorial misconduct on summation are insufficient to justify a reversal in the absence of an "obdurate pattern of inflammatory remarks throughout the prosecutor's summation." People v. Oritz 116 AD2d 531 (1st Dept. 1986); or unless the prosecutorial misconduct is so pervasive so egregious and the prosecutor's disregard of court rulings and warnings is deliberate and reprehensible." People v. Sandy. 115 AD2d 27 (1st Dept. 1986).The essential question here is whether upon consideration of the entire record, defendant has been deprived of his "fundamental right to a fair trial." People v. Arce, 42 NY2d 179, 191(1977); People v. Jorge. 171 AD2d 498, (Sup.Ct. App. Term NY 2007.

20. Prosecutors, however, have broad latitude available in summation, particularly when responding to defense counsel's summation. People v. Galloway, 54 NY2d 396 (1981), People v. Ortiz, supra, People v. Liang, 208 AD2d 401 (1st Dept. 1994); People v. D'Alessandro, 184 AD2d 114 (1st Dept. 1992). Courts have also held that when proof of defendant's guilt is overwhelming, any alleged prosecutorial misconduct under the circumstances of the particular facts of the case could be harmless error. People v. Villarino, 184 AD2d 475 (1st Dept. 1992).

21. Defense counsel's allegations of misconduct on the part of the prosecution have no merit. After presiding over this trial, a full review of the trial transcript, and all the postconviction motions, this Court not only strongly disagrees that there was prosecutorial misconduct but is concerned that such a serious assertion was made without substantial proof.

This Court did not find any intentional misrepresentation of a material fact by the People. Also, all the alleged facts set forth by defense counsel to support his conclusion are based upon comments and actions of the prosecutor that occurred in open court, on the record, and/or during summation. As a result, CPL 440.10 (b), (c), and (f) are not even relevant.

22. Also, here is just one of multiple examples of the prosecutor specifically telling the jury that they must rely on the evidence, "...when we are here, talking about whether or not the People have proven beyond a reasonable doubt, the defendant's guilt, it's the evidence, and what you may reasonably infer from the evidence that you must rely on." (T: p, 4519)

23. Further, defense counsel's continued arguments regarding the photo in Slide 143 is disingenuous. The assertion that the prosecutor used a photograph "not in evidence" during summation when it was known at the time to be an enlargement of a photograph already in evidence, is concerning. Notably, Mr. Zuckerman was present in open court when People's exhibit 262 was enlarged in front of this Court, the jury, and defendant (T: p, 4583). Therefore, Mr. Zuckerman had personal knowledge that the People's PowerPoint slide 143 used during summation was simply an enlarged version of People's Exhibit 262. Mr. Zuckerman as cocounsel also failed to object to the use of this slide at the time it was published to the jury [T page 4583 line 15]. No objection was made when the People asked to enlarge the photo during the summation itself, "...let's blow it up, keep blowing it up, now stop." [T4583 line 18-20] . There was also no objection when the People's summation concluded for the day. [T4587-4588]; nor any objection the next morning before the People resumed their summation. [T: 4592] Yet, Mr. Zuckerman continues to argue that "the prosecutor misrepresented the evidence adduced at trial by publishing to the jury a photograph that was not admitted in evidence." (Defense Motion at p. 16. emphasis in original). Also, the "objection" defense counsel cites to in his 440 motion at paragraph 78, refers to the People's comments about the "wet stain" and the "blood spots" - not the publication of the photo itself, [see, CPL 470.05(2); People v. Bynum 70 NY2d [*5]858 (1987).] The People's comments on their view of what that photograph depicted was fair comment and the jury was free to accept or reject those arguments as it deemed appropriate. [T 4583 line 8 through 4584 line 1]

24. While the prosecutor concedes that he misspoke and stated that the photograph of Shele's bed had been taken the morning of the murder, rather than in the afternoon, this does not rise to the level of intentionally misleading the jury, particularly given the complex nature of this case and the voluminous amount of evidence involved.

25. The defense motion also asserts that Mr. Covlin was deprived of a fair trial by several other instances of "misconduct" that occurred during summation. These included claims that the prosecutor: (1) misrepresented that the bedsheets had two rips; (2) misrepresented a series of "blood-splatter" photographs;(3) misrepresented the time of death; (4) misrepresented Shele's intention to change her will; (5) misrepresented knowledge of building surveillance.

The defendant made these exact arguments at trial and again on appeal to the First Department. The Appellate Court rejected all of them. This Court again rejects them pursuant to a CPL 440.10 review.

26. First, labeling proper argument as misrepresentations is without merit.

27. Second, the Court rejects each one of those assertions.

After a review of the trial transcript as well as both summations this Court finds that those comments were all proper arguments by the People and fair comments based upon the evidence at trial.

28. This Court also concludes after reviewing the prosecutor's summation in its entirety, that there were no comments so pervasive or egregious as to deprive defendant of a fair trial. People v. Elmore, 175 AD3d 1003 (4th Dept. 2019); lv, den., 34NY3d 1158 (2020); People v. Babb, 186AD3d 1058 (4th Dept. 2020); lv. den., 36 NY3d 1049 (2021); People v. Forde, 140 AD3d 1085 (2nd Dept. 2016); lv. den., 28 NY3d 929 (2016).

29. Any remaining instances of alleged impropriety were either fair comment on the evidence or appropriate responses to arguments made in defendant's summation. People v. Speaks, 23 NY3d 990 (2016). A prosecutor, like defense counsel, has the right to comment on every pertinent fact bearing upon the issues the jury must decide. People v. Ashwal, 39 NY2d 105 (1976). They also are entitled to propose to the jury their view of the evidence. See also. People v. Burke, 72 NY2d 833 (1988).

30. Even where courts have found that prosecutor's comments were improper, where there is overwhelming evidence of defendant's guilt, such as in this case, it was ruled to be harmless error, and therefore the defendant was not deprived of a fair trial, (see. People v. Crimmins, 36 NY2d 230 (1975); People v. Brosnan, 32 NY2d 254 (1973). People v. Roopchand, 65 NY2nd 837 (1985).

31. As the Court of Appeals declared in People v. Morgan, 66 NY2d 255, 256, also pertinent here:

When the ... evidence in this case is viewed in a light most favorable to the prosecution, as we are required to do on this appeal (People v. Kennedy, 47 NY2d 196;People v. Benzinger, 36 NY2d 29, 32, and the prosecution is given the benefit of every reasonable inference to be drawn therefrom (People v. Lewis, 64NY2dllll, 1112 [490 NYS.2d 166, 479 N.E.2d 802]; People v. Way, 59 NY2d 361, 365; People v. Montanez, 41 NY2d 53, 57, the facts from which the inference of defendant's guilt is drawn, when perceived as a whole, overwhelmingly establish his guilt beyond a reasonable doubt, are inconsistent [*6]with his innocence and exclude to a moral certainty every other reasonable hypothesis.

{People v. Lewis, supra; People v. Way, supra, People v. Barnes, 50 NY2d 375, supra.) (Excerpted from People v. D'Allessandro, supra, at p. 120, certain internal citations omitted

32. This Court agrees with the First Department's summarization of the essential facts in this case that supports the view that there was overwhelming evidence of guilt.

"There was ample evidence that the victim's death was a homicide that had been disguised as an accident. The doctor who conducted the autopsy concluded that the victim's death was caused by a chokehold, and there was evidence that defendant was proficient in Taekwondo and knew how to perform a lethal chokehold. While defendant and the victim were in divorce proceedings, defendant had a motive to kill his wife in order to inherit her money before she modified her will, as well as to access money defendant's children would inherit from the victim, their mother. Defendant had an opportunity to commit the crime because he lived across the hall from his wife, and there was evidence that he had a key to her apartment; it was also highly unlikely that an unknown person had an opportunity to commit the crime. There were many additional layers of persuasive circumstantial evidence, including evidence of defendant's incriminating behavior shortly before and after his wife's death, along with extensive evidence that defendant made efforts to cover up the crime, and otherwise displayed a consciousness of guilt.'

(People v. Covlin, supra., at 579.)

These facts along with many others within the entire trial transcript overwhelmingly support evidence of defendant's guilt.

33. Therefore, defendant's motion to vacate his conviction pursuant to CPL 440.10 (1)(b)(c)(f)(h) and the Due Process Clauses of the United States and New York Constitutions is denied on all grounds. Further, there are no issues of fact to support a CPL 440.10 hearing.

Lastly, defendant has failed to establish a legal basis for requiring a DNA profile at this juncture of the proceedings.