Opinion
106239
07-23-2015
The PEOPLE of the State of New York, Respondent, v. Talib F. ALSAIFULLAH, also known as Victor Dennis Goree, also known as Salaam Goree, Appellant.
Henry C. Meier, Delmar, for appellant. P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Henry C. Meier, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Before: GARRY, J.P., ROSE, DEVINE and CLARK, JJ.
Opinion
GARRY, J.P.Appeal from an order of the Supreme Court (Breslin, J.), entered June 27, 2013 in Albany County, which, among other things, denied defendant's motion pursuant to CPL 440.30(1–a) for the performance of forensic DNA testing on specified evidence.
In 1986, defendant was charged by indictment with one count of rape in the first degree alleging that he had sexual intercourse with a child under age 11. Defendant pleaded guilty to attempted rape in the first degree and was sentenced to 5 to 15 years in prison. Thereafter, this Court affirmed his conviction on appeal (136 A.D.2d 774, 523 N.Y.S.2d 236 [1988], lvs. denied 71 N.Y.2d 892, 896, 527 N.Y.S.2d 1001, 1006, 523 N.E.2d 308, 313 [1988] ). From 2001 to 2012, defendant made three separate motions pursuant to CPL article 440 seeking to vacate the judgment of conviction, and each was denied. In this fourth such application, defendant seeks appointment of counsel and DNA testing of certain evidence pursuant to CPL 440.30(1–a). Supreme Court denied the motion. Defendant appeals.
A criminal defendant does not have an unqualified right to the appointment of counsel in collateral proceedings (see County Law § 722[4] ; Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 [1987] ; People ex rel. Williams v. La Vallee, 19 N.Y.2d 238, 241, 279 N.Y.S.2d 1, 225 N.E.2d 735 [1967] ). Here, no hearing was required, and defendant had previously sought DNA testing of the same evidence on two of his prior applications. We find no abuse of discretion in Supreme Court's denial of his request for appointed counsel (see People ex rel. Williams v. LaVallee, 19 N.Y.2d at 241, 279 N.Y.S.2d 1, 225 N.E.2d 735 ; People ex rel. Sanchez v. Hoke, 132 A.D.2d 861, 862, 518 N.Y.S.2d 69 [1987] ; People v. Richardson, 159 Misc.2d 167, 172, 603 N.Y.S.2d 700 [Sup.Ct., Kings County 1993] ). As it does not appear that defendant provided notice to the County Attorney, as required, we further find no error in the court's denial of defendant's request for poor person status (see CPLR 1101[c] ; Sebastiano v. State of New York, 92 A.D.2d 966, 966, 460 N.Y.S.2d 841 [1983] ).Defendant's challenge to the constitutionality of CPL 440.30(1–a) is unpreserved, as this argument was not asserted before Supreme Court (see People v. Mays, 54 A.D.3d 778, 778, 864 N.Y.S.2d 442 [2008], lv. denied 11 N.Y.3d 927, 874 N.Y.S.2d 12, 902 N.E.2d 446 [2009] ; People v. Schaurer, 32 A.D.3d 1241, 1241, 820 N.Y.S.2d 827 [2006] ). Further, the record lacks any indication that defendant provided the Attorney General with notice of his challenge to the constitutionality of the statute (see Executive Law § 71[1], [3] ; People v. Perez, 93 A.D.3d 1032, 1038–1039, 942 N.Y.S.2d 227 [2012], lvs. denied 19 N.Y.3d 1000, 951 N.Y.S.2d 476, 975 N.E.2d 922 [2012] ). Accordingly, this argument is not properly before us.
ORDERED that the order is affirmed.
ROSE, DEVINE and CLARK, JJ., concur.