Opinion
1497-1994.
Decided May 1, 2009.
Office of the District Attorney, Bronx County, Noah Chamoy, Defendant, pro se.
On February 27, 1996, this defendant was convicted after a jury trial of murder in the second degree. Adjudicating him as a second felony offender, this court sentenced defendant to a life term of imprisonment with the mandatory minimum period being twenty-five years. By motion submitted March 9, 2009, defendant moves to vacate his judgment of conviction as jurisdictionally defective pursuant to CPL 440.10 based upon this Justice's status at the time of his trial as a Judge of the Civil Court of the City of New York. Defendant asserts that such judicial status was in violation of the New York Constitution, article VI, § 26 (i), as well as the Fourteenth Amendment of the United States Constitution. Defendant further moves this court to recuse itself because he believes this claim creates a conflict of interest.
Procedural History
Pursuant to his judgment of conviction, this defendant appealed to the Appellate Division, First Department, claiming that this court violated his due process rights on several grounds including the admission of certain statements made by him before and during the crime, the failure to declare a mistrial for a witness testifying that he was on parole and improper prosecutorial comments during summation. Rejecting these claims, the First Department unanimously affirmed defendant's conviction on April 6, 1999. The Court of Appeals denied defendant's application for leave to appeal the First Department's decision.
People v Duvall, 260 AD2d 183.
People v Duvall, 93 NY2d 924.
Defendant then moved to vacate his judgment of conviction pursuant to CPL 440.10 claiming that the People presented false testimony concerning fingerprint evidence and that he received ineffective assistance of counsel. On September 8, 2000, this Court, in denying that motion, found that his assertions were "conclusory, unsubstantiated, and self-serving" and held such claims should have been raised on his direct appeal. The First Department denied defendant's application for leave to appeal that decision.
On December 20, 2000, defendant petitioned the United States District Court, Southern District of New York, for a federal writ of habeas corpus asserting his claims contained in his direct appeal and from his CPL 440.10 motion. Although that court initially denied the petition, it subsequently issued an order staying denial and granting defendant's request to amend his petition to include certain claims that were not raised and exhausted in state court.
On October 1, 2002, defendant filed another motion pursuant 440.10 claiming that the People failed to provide certain fingerprint evidence as well as an additional claim of ineffective assistance of counsel for allegedly failing to request such evidence and reports, failing to conduct an independent investigation concerning fingerprint evidence and failure to assert a perceived Rosario violation. This court denied that motion on February 14, 2003 finding it to be entirely baseless and without legal merit. This court further found that such claims could have, and should have, been brought in his earlier 440 motion, and that any other asserted claims had been previously addressed and decided.
On March 4, 2003, defendant brought a writ of error coram nobis before the First Department arguing that he was deprived of effective assistance of counsel because he failed to make certain arguments and objections thereby denying him effective appellate review. That court denied his writ on July 10, 2003. On September 30, 2003, the Court of Appeals denied defendant's petition seeking leave to appeal the First Department's denial.
On October 17, 2003, the defendant filed a supplemental petition for writ of habeas corpus in the United States District Court, Southern District of New York, to include those claims brought in his writ of error coram nobis. That court denied defendant's petition in its entirety (original and supplemental) on September 30, 2004. Appealing from that denial, the United States Court of Appeals for the Second Circuit dismissed it defendant's appeal on September 16, 2005.
Now, by motion initially submitted December 1, 2008, defendant moves to vacate his judgment of conviction pursuant to CPL 440.10 asserting that this Justice's judicial status at the time of his trial as a Judge of the Civil Court of the City of New York, assigned to serve as an Acting Supreme Court Justice, violated article VI, § 26 (I), of the New York Constitution and the Fourteenth Amendment of the United States Constitution. Defendant further asserts that this claim presents an inherent conflict of interest thereby requiring this court to recuse itself from considering defendant's motion.
By letter dated January 31, 2009, defendant sought leave to amend this CPL 440.10 motion to include an additional claim: that the jurors were not sworn as required pursuant to CPL 270.15 (1) (2). Since the District Attorney did not oppose defendant's request, this court granted his application to amend and on March 9, 2009, this court marked defendant's motion as resubmitted. This court then received another letter from the defendant seeking permission to withdraw his request to amend. Having submitted and resubmitted defendant's motion pursuant to CPL 440.10, permitting such withdrawl would necessitate yet another resubmission resulting in an unnecessary delay. Accordingly, defendant's application to withdraw his request to amend is denied.
Discussion:
Pursuant to CPL 440.10 (2) (c), a court must deny a motion to vacate a judgment of conviction when "although sufficient facts appear on the record of the proceedings to have permitted, upon appeal from such judgment, adequate review . . . no such appellate review or determination occurred owing to the defendant's . . . unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him." Here, defendant's first claim, that this Justice's judicial status at the time of his trial as a Judge of the Civil Court of the City of New York, violated article VI, § 26 (I), of the New York Constitution and the Fourteenth Amendment of the United States Constitution, is predicated on the false impression that such status precludes serving as an acting Supreme Court Justice.
Defendant's claims must be denied as procedurally defective. Defendant failed to raise a challenges to either this court's authority or the jury's swearing on direct appeal. Such failure mandates summary denial of the motion (See People v Cuadrado , 9 NY3d 362 , defendant, who waived indictment and pleaded guilty to a charge contained in a superior court information, and who then appealed from that conviction without asserting that the waiver and plea were invalid, was barred pursuant to CPL 440.10 from later raising it in a motion to vacate his conviction under CPL 440.10). Additionally, defendant abjectly fails to provide any justification for this failure, notwithstanding that this justice first assumed office as a Judge of the Civil Court of the City of New York on January 1, 1980 and began serving as an acting supreme court justice. Moreover, attached to defendant's motion as Exhibit 2 is a copy of this justice's Oath of Office as Judge of the Civil Court of the City of New York, which was filed on December 31, 1990 and has since been a matter of public record. Indeed, that defendant obtained a copy of this document in preparation of this motion clearly indicates that he certainly could have, and should have, raised this challenge in his direct appeal.
Moreover, the temporary assignment of a Judge of the Civil Court of the City of New York to the Supreme Court in Bronx County is legally sanctioned. Article VI of the New York State Constitution provides "a judge of a court for the city of New York . . . may be temporarily assigned to the supreme court in the judicial department of his or her residence" (NY Const., art. VI § 26 [g]). "Temporary assignments of such judges shall be made by the chief administrator of the courts in accordance with standards and administrative polices established" ( Id at § 26 [I]; ( See also, People v Hale, 173 Misc 2d 140 [the chief administrative judge had clear authority to prescribe the method of random selection of judges]). The New York Codes, Rules and Regulations also provide established standards and policies regarding the temporary assignments of judges (See 22 NYCRR 33). Consequently, there can be no question that Judge Price's assignment to Bronx Supreme Court as an acting Supreme Court Justice was entirely proper ( People v Burgos, 103 AD2d 751 [defendant's challenge to a judge of the New York City Criminal Court who was temporarily assigned to the supreme court was without merit).
Finally, even if this court were to agree with the defendant, which it clearly does not, his motion must be denied because "under a long and unbroken line of authority, the official acts of a de facto judge are valid and binding on the public and interested third persons, including defendant, and the issue of the propriety of that Judge's appointment cannot be raised collaterally" ( People ex rel Devine v Scully, 110 AD2d 733, 734; See also, Sylvia Lake Co v Northern Ore Co., 242 NY 144 [affirmed judgment of a de facto judge]).
In their opposition to defendant's motion, the People ask this court to enjoin the defendant from filing any further pro se motions without first seeking the permission of this court by specifically identifying and stating the basis upon which he believes he is entitled to legal relief. This court is certainly cognizant that granting such a request is extreme and should be reserved for those rare instances where such a measure is absolutely necessary. However, while the right to defend oneself pro se is both constitutionally protected and statutorily granted in New York, such right "is not absolute but subject to certain restrictions" ( People v McIntyre, 36 NY2d 10, 17). Indeed, courts must not be "without authority to curtail the waste of resources resulting from these motions" ( People v Rivera, 159 Misc 2d 556, 561; See People v Brown, 14 Misc 3d 1237 (A), 2007 NY Slip Op 50401(U), 4 [2007] [enjoining a defendant from making future motions is "well within the Court's discretion").
Here, the defendant has filed three pro se CPL § 440 motions. In so doing, he has repeatedly raised similar issues, only to be struck down by this court as well as the Appellate Division, First Department, the United States District Court for the Southern District of New York, and the United States Court of Appeals for the Second Circuit. Moreover, the New York State Court of Appeals denied his petition for further appellate review. Under such circumstances, this court finds it appropriate to enjoin this defendant from filing any further pro se CPL 440 motions without first obtaining permission from this court to do so ( See In re Moore 17 Misc 3d 228 [Kings Co Supreme Ct 2007, J. Leventhal] [enjoining defendant from filing further CPL 440.10 motions without court's permission after defendant had moved five times in three years raising the same issues each time that were previously found to be without merit]). Accordingly, in light of the defendant's litigious behavior and previous failures, the People's request to enjoin him from filing future CPL 440 motions without first seeking permission of the court is granted.
This constitutes the decision and order of the court.