Opinion
No. 2023-51187 Ind. No. 2016-2
11-03-2023
The People of the State of New York v. Jeffrey A. Forney, Defendant.
For the People: District Attorney Joseph G. Fazzary. For Defendant: Charles E. Anderson, Esq.
Unpublished Opinion
For the People: District Attorney Joseph G. Fazzary.
For Defendant: Charles E. Anderson, Esq.
Scott A. Miller, J.
Hon Scott A. Miller Acting Schuyler County Court Judge.
By motion submitted March 3, 2023, defendant Jeffrey A. Forney, by and through counsel (Charles E. Anderson, Esq.) moves to set aside his sentence and vacate his conviction pursuant to Criminal Procedure Law § 440.10, asserting that it was illegally obtained or otherwise invalid as a matter of law, and contending that he received ineffective assistance of counsel in violation of the Sixth Amendment of the United States Constitution and Article I, § 6 of the New York State Constitution. The People filed opposition to defendant's motion on July 31, 2023 (District Attorney Joseph G. Fazzary, Esq). After review of the motion papers, papers on file with court, the record on appeal, and prior court proceedings, as more fully set forth below, defendant's motion is denied, in part, and the Court reserves, in part.
Background and Procedural History
On January 27, 2016, defendant was indicted by a Schuyler County Grand Jury on three counts of Predatory Sexual Assault in the First Degree [Penal Law §130.95(3)] and one count of Unlawfully Dealing with a Child in the First Degree [Penal Law §260.20(2)]. On August 25, 2015, Defendant and a co-defendant Aaron Bowen were alleged to have engaged in oral and anal sexual conduct with and vaginally raped an 18-year-old female who was incapable of consenting as a result of being physically helpless due to extreme alcohol intoxication. The young woman had only known the two men for less than four hours. Defendant admitted he had a prior Penal Law Article 130 conviction for attempted sexual abuse in the third degree as required by Penal Law §130.95(3).
Defendant's first jury, a joint jury trial with co-defendant Bowen, in January 2017, ended in a mistrial before verdict as a result of what was later determined to be perjurious misconduct by a single juror. After the initial mistrial, defendant, at all times still represented by trial counsel, Terrence Baxter, Esq., lawfully waived his right to a jury trial and proceeded with a bench trial before Schuyler County Court Judge Dennis J. Morris. The parties stipulated that the testimony and exhibits from the first jury trial would be evidence considered by the trial judge in the second trial, excluding the statements of co-defendant, Aaron Bowen.
The People, in their July 31,2023 opposition papers accurately and succinctly summarized the evidence considered by the trial court. In the late evening hours of August 24, 2015, the victim, an 18-year-old female, met defendant and co-defendant Bowen in online site, "MeetMe." The victim accepted Bowen's offer to hang out, play pool, and drink alcohol that evening. A third male, one Lyle Beebe, drove to the victim's home in Horseheads and brought her back to defendant Forney's home in Schuyler County. The underage victim and three men (Forney, Bowen, and Beebe) began playing pool and consuming alcohol, including vodka. The victim testified she drank four vodkas and then blacked out. According to Beebe, when he left the victim around August 25th at 2:30 a.m. at defendant's home, she was incoherent, barely able to speak, hardly able to stand, and like a "rag doll." Once Beebe left, defendant and Bowen subjected the victim to anal and oral conduct and also vaginally raped her. Defendant and Bowen then dumped and discarded her limp and unconscious body in a field by the side of a road near the victim's home. Fortunately, two passers-by discovered her around 6:30 a.m. She was incoherent, could barely speak, and could not move of her own volition when she was found. Her pants were down to her ankles. The next thing the victim remembered was waking up in the hospital on the morning of August 25, 2105, where her blood alcohol content was between.22% and.23%. Shortly after the victim's discharge from the hospital, she began to experience significant vaginal and anal pain and she realized she must have been raped. Defendant's girlfriend, G.N., testified about her recorded jailhouse calls and unrecorded in-person visits with defendant at the county jail. Defendant admitted that he had oral, anal, and vaginal sex with the victim without her knowledge and consent. He stated, "Obviously she don't know," and claimed he was "pretty sure she doesn't know what happened" because the victim was unconscious as a result of extreme alcohol intoxication. The People offered expert testimony of a forensic toxicologist, Mark Waruch, who opined, based upon "reverse extrapolation," that the victim's blood alcohol content was likely between.28% and.38% when Beebe left her at defendant's home at about 2:30 a.m.
On June 1, 2017, defendant was convicted of two counts of Predatory Sexual Assault in the First Degree (vaginal rape and anal conduct) and one count of Unlawfully Dealing with a Child in the First Degree (supplying alcohol to a person under 21). On July 20, 2017, defendant was sentenced to two terms of 21 years to life on the Predatory Sexual Assault in the First Degree counts and a term of one year local incarceration on the Unlawfully Dealing with a Child in the First Degree count, such terms to run concurrently. Defendant appealed his conviction and by unanimous Memorandum and Order, dated May 21, 2020, the Appellate Division, Third Department, denied defendant's appeal and affirmed his convictions. People v. Forney, 183 A.D.3d 1113 (3rd Dept. 2020). On August 27, 2020, the Court of Appeals denied defendant's application for leave to appeal. 35 N.Y.3d 1065 (2020).
On his direct appeal, the Third Department held that defendant's convictions were not against the weight of the evidence and defendant's trial counsel was not ineffective. The Appellate Division highlighted:
i) defendant's girlfriend's testimony in that defendant admitted to her that he engaged in vaginal intercourse and anal sexual conduct with the victim;
ii) Beebe's testimony that the victim was "incoherent" and like a "rag doll," and the testimony of the two witnesses who discovered the victim unconscious by the side of a road;
iii) the toxicologist's opinion that employing "reverse extrapolation the victim's BAC would have been between.28% and.38% at 2:40 a.m., reflecting "dramatic impairment";
iv) And, the victim's testimony, found credible by the trial court, that she consumed excessive amounts of alcohol, that she did not want to have sex that evening, and that she never consented to any sex acts between herself and defendant and Bowen.
The Third Department unanimously determined that all three of the guilty verdicts were "supported by the weight of the evidence." Id., quoting, People v. Stover, 178 A.D.3d 1138, 1139 (3rd Dept. 2019). The Third Department also noted that "[c]ounsel was successful in obtaining a hung jury in the first trial and acquittal of one felony count in the second trial. Considering counsel's overall performance, we cannot conclude that defendant was deprived of meaningful representation." Forney at 1113.
Defendant's CPL Article 440 Motion
CPL § 440.10(2) provides in relevant part that the trial court "must deny a motion to vacate a judgment" when:
(a) The ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment, unless since the time of such appellate determination there has been a retroactively effective change in the law controlling such issue; or
(c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his or her unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him or her unless the issue raised upon such motion is ineffective assistance of counsel;
The Court of Appeals has explained that the purpose of CPL § 440.10(2)(c) is to prevent post- judgment motions from being utilized as substitutes for direct appeal. Where sufficient facts appear in the record to permit adequate appellate review, the defendant must raise the issue on direct appeal or that issue is procedurally barred from collateral Article 440 review. People v. Cuadrado, 9 N.Y.3d 362 (2007 ); People v. Cooks, 67 N.Y.2d 100 (1986).
Counsel for defendant purports to raise numerous grounds in support of defendant's 440 motion. Counsel has not. Initially, the court notes that defense counsel has confusingly broken down his arguments into "Counts." The proper terminology to be employed when arguing an appeal or collateral attack is i) points; ii) arguments; or iii) grounds, certainly not "Counts."
Defendant presents the following points:
I. Defendant's trial counsel was ineffective during voir dire in failing to object to the prosecutor's comments about sentencing.
II. Defendant's trial counsel was ineffective during jury selection in failing to object the prosecutor's statements about testimonial evidence.
III. Defendant's trial counsel was ineffective during jury selection in failing to object the prosecutor's voir dire of one juror (J.K.).
IV. Defendant's trial counsel was ineffective during jury selection in failing to object the prosecutor's voir dire before the entire panel during which defendant's bad character was raised.
V. Defendant's trial counsel was ineffective during jury selection when counsel failed to have defendant present at side bars and during chambers conference.
VI. "Stipulation during jury selection discussion in chamber (sic) regarding medical records" (of victim).
VII. G. Defendant's trial counsel was ineffective in failing to voir dire juror M.W.
II. Defendant's trial counsel was ineffective in failing to move to sever defendant's trial from co-defendant.
III. Defendant's trial counsel was ineffective in failing to procure expert testimony on alcohol blackout memory loss.
IV. Defendant's trial counsel was ineffective in failing to object to the testimony of defendant's parole officer.
V. Defendant's trial counsel was ineffective in failing to object to the testimony of defendant's parole officer since no CPL 710.30 notice was provided,
VI. Defendant's trial counsel was ineffective in failing to object to portions of Lyle Beebe's testimony.
VII. Defendant's trial counsel was ineffective in failing to object to the forensic toxicologist's testimony.
VIII. Defendant's trial counsel was ineffective in failing to cross-examine the victim concerning prior inconsistent statements.
VIV (sic), properly IX. Defendant's trial counsel was ineffective in failing to object portions of G.N.'s testimony.
X. Defendant's trial counsel was ineffective in failing to move to exclude G.N.'s jail conversations with defendant.
XI. Defendant's retrial was barred by double jeopardy.
XII. Defendant was not adequately counseled on his waiver of trial by jury.
XIII. Defendant's trial counsel was ineffective during the bench retrial when counsel stipulated to the admissibility of all of the evidence received by the court during the first jury trial.
XIV. Defendant's counsel was ineffective in waiving a Huntley hearing and agreeing to consolidate the trials of Jeffrey and Aaron at the second trial following a mistrial."
XV. Defendant's counsel was ineffective at the time of sentencing.
XVI. Defendant's appellate counsel was ineffective.
XVII. Defendant's conviction must be reversed based upon "after acquired evidence."
The defendant has failed to raise any proper ground which would require a vacatur of defendant's conviction. Defendant has also failed to raise any issue (at this time) which would require the holding of an evidentiary hearing. As discussed more fully below, while this Court can resolve almost all of the issues inelegantly raised by defense counsel in his 440 moving papers, the Court must reserve on a single issue until it receives further submissions from both counsel.
Defendant's points I (A,B,C,D,E, and G) pertain exclusively to matters relevant only to jury selection at defendant's first trial. Defendant's conviction was the result of a subsequent non-jury bench retrial, not the first jury trial, which properly ended in a mistrial. As such, defendant's first jury trial was a legal nullity and defendant's points I (A,B,C,D,E, and G) are wholly irrelevant to the subsequent non-jury bench trial at the conclusion of which the trial court entered three guilty verdicts. Consequently, defendant's points I (A,B,C,D,E, and G), being based upon a legal nullity, do not provide any proper ground upon which this trial court could grant, or even consider, a 440 motion to vacate.
Defendant's point I.F. ("Stipulation during jury selection discussion in chamber (sic) regarding medical records" (of victim)) was part of the trial court record and could have been raised on direct appeal. Defendant failed to raise such issue upon direct appeal and consequently defendant is procedurally barred from raising this issue on a 440 motion. CPL § 440.10(2)(c).
Defendant's point II. (Defendant's trial counsel was ineffective in failing to move to sever defendant's trial from co-defendant), again, is relevant only to the jury trial which is a legal nullity. Defendant's trial counsel was in fact granted severance at his second trial. The Court cannot refrain from noting that 440 motion counsel appears not to have understood that defendant's trial counsel was in fact granted severance from the co-defendant after the mistrial.
Defendant, under point III. (Defendant's trial counsel was ineffective in failing to procure expert testimony on alcohol blackout memory loss), argues that trial counsel was ineffective for failing to call its own expert witness to testify that the victim was so drunk it is possible she cannot remember consenting. Defendant's argument fails upon numerous grounds. First, defendant has not provided a sworn affidavit from any expert (emails do not suffice). Second, the trial record reflects, as the Third Department noted, that the defendant at trial called his own expert to challenge the People's reverse extrapolation expert. Third, the trial court record reflects that the defendant did not hire any alcohol/intoxication memory loss expert, and as such the issue could have been raised upon direct appeal. Fourth, defendant's argument is nonsensical. Defendant suggests that defendant's trial counsel should have called an expert who would have testified that the victim was so intoxicated that she would not have remembered consenting to sex. In short, defendant's expert would have corroborated the essential element that the victim was incapable of consenting because she was "physically helpless" as a result of her extreme intoxication. Defendant has failed to demonstrate by sworn affidavit even the remotest possibility that an intoxication memory loss expert would have in any way affected the outcome of the case. Finally, the Third Department found that trial counsel was not ineffective and defendant could have raised this issue upon direct appeal. CPL § 440.10(2)(a) and § 440.10(2)(c).
The Court agrees with the People that Defendant's points IV., V., VI., VII., and VIV (sic, properly IX), arguing that trial counsel was ineffective for failing to make objections to testimony, failing to move to preclude certain statements, and failing to adequately cross- examine certain witnesses are issues that either have already been raised upon direct appeal or could have easily been raised upon direct appeal, as such issues are part of the record of the trial proceedings. The Third Department, on defendant's direct appeal, clearly held that trial "[c]ounsel made pretrial motions to dismiss the charges and preclude evidence, raised numerous objections, presented a cogent defense, meaningfully cross-examined the People's witnesses, presented an expert who challenged the People's expert testimony and delivered a strong summation. Counsel was successful in obtaining a hung jury in the first trial and acquittal of one felony count in the second trial. Considering counsel's overall performance, we cannot conclude that defendant was deprived of meaningful representation." Forney at 1118. CPL § 440.10(2)(a) and § 440.10(2)(c).
However, the Court disagrees with the People that defendant's point VIII. (defense counsel was ineffective in failing to cross-examine (the victim) with prior inconsistent statements regarding the rape and prior complaint's (sic)), could have been raised upon direct appeal. Defendant now argues that trial counsel was ineffective for failing to cross- examine the victim (K.C) concerning text messages (Defendant's Exhibit L, two text messages from K.C.) which motion counsel characterizes as "several evidentiary bombshells." Motion counsel argues that trial counsel was ineffective in failing to cross- examine the victim about these two text messages, as such text messages, counsel argues, reveal that the victim "was conscious at the time of the rape and knows who did it" and that "the person who actually raped her was the prosecutions (sic) star witness." (Anderson at 48). The Court has been directed to K.C.'s August 26, 2015 text message to defendant Forney in which she states:
Alright well I'm talking to an investigator for this case now I've told them you and your brother wernt involved that it was just Lyle. (Defendant's Exhibit L)
Defendant further argues that a January 14, 2016 text message from the victim to (unknown) describes either a second and separate incident of rape where she also blacked out and awoke in the hospital, or it offers a version of the charged offenses, but a version inconsistent with the victim's trial testimony. In the January 14, 2016 text message, K.C., messaged:
[ ] I was at my friends house and we were drinking and she had like a few people over and they were at her house two but I didn't know them and her mom came home and kicked everyone out it was like 2 in the morning so I was bout to just walk home and I was mad drunk and those guys asked me if I wanted a ride home and I thought it would be okay to go with them cause my friend knew them and they raped me and I blacked out and woke up in the hospital. (Defendant's Exhibit L).
Defendant's motion counsel argues, apparently, as well as this court can attempt to discern from motion counsel's chaotic argument, that trial counsel was ineffective in failing to cross- examine the victim concerning the purported prior inconsistent statements which counsel argues were suggestive of Lyle Beebe being the sole perpetrator, suggestive that the victim wasn't suffering from memory loss and did in fact recall the events alleged in the indictment and further were suggestive that the victim had a pattern of fabricating alcohol memory blackout rape allegations. The victim's text messages (Defendant's Exhibit L) were not in fact used by trial counsel during cross-examination. Defendant's Exhibit L was not part of the trial record and not part of the appellate record on appeal. Consequently, defendant is not procedurally barred from raising the claim of counsel's ineffectiveness for failing to impeach the victim with prior inconsistent statements. See, People v. Taylor, 156 A.D.3d 86 (3rd Dept. 2017). In People v. Wright, 25 N.Y.3d 769, 779 (2015), the Court of Appeals has explained:
Every defendant is constitutionally entitled to effective assistance of counsel, meaning under our state standards that "[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met" (People v. Baldi, 54 N.Y.2d 137, 147 [1981], citing People v. Droz, 39 N.Y.2d 457 [1976]). Where a defendant claims that counsel's performance is deficient the defendant must" 'demonstrate the absence of strategic or other legitimate explanations' for counsel's alleged shortcomings" (People v. Benevento, 91 N.Y.2d 708, 712, [1998]. (emphasis added)
So far, Defendant has wholly failed to articulate or demonstrate in his motion papers how counsel's failure to impeach the victim with the text messages (Exhibit L) demonstrates the absence of a strategy by trial counsel. Defendant has failed to provide any affidavit from trial counsel. From this court's review of the entire record, it is readily apparent there does in fact exist a strategic and legitimate explanation with respect to why trial counsel may have chosen to refrain from utilizing the victim's text messages (Exhibit L) on cross-examination. Confronted with the fact that the defendant made admissions on jail recordings as well as to his girlfriend, G.N., that he had in fact had vaginal, anal, and oral sexual contact with the victim and "obviously she don't know," trial counsel made a prudent and reasonable strategic trial decision that it would not benefit his client to cross-examine the victim and suggest that defendant had not in fact engaged in sexual conduct with her when defendant himself had admitted to such conduct. Further, it was a prudent trial strategy not to attack the 18-year-old victim as a fabricator of false rape allegations and risk alienating the jury against his client. Instead, it appears trial counsel pursued a sound and reasoned trial strategy to vigorously attack the People's forensic toxicologist on cross-examination combined with counsel's thorough cross-examination of the victim in order to suggest to the jury (and later to the trial judge as trier of fact) that the victim simply could not recall that she had in fact consented to sexual relations with the defendant and at the time she so consented she was not physically helpless, as her physically helpless state from her voluntary intoxication only manifested itself well after she had completed consensual sexual contact with the defendant. As the Third Department notes, trial counsel "delivered a strong summation [and] was successful in obtaining a hung jury in the first trial and acquittal of one felony count in the second trial." Forney at 1118.
To prevail upon a claim of ineffective assistance, "it is incumbent upon the defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings." People v. Arnold, 85 A.D.3d 1330, 1332 (3rd Dept. 2011). Defendant's motion counsel, in his papers, failed to 1) provide any affidavit from trial counsel (who is still alive and lives locally) and 2) wholly failed to articulate and engage in the proper legal analysis which requires a defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings. People v. Stewart, 295 A.D.2d 249, 250 (1st Dept. 2002) (summary denial was appropriate where "defendant's papers were deficient in that they lacked an affirmation from trial counsel explaining his strategic decisions, or any explanation for the absence of such an affirmation"); People v. Robert, 214 A.D.3d 1085, 1087 (3rd Dept. 2023), leave to appeal denied, 39 N.Y.3d 1156 (2023) (Defendant's failure to provide any affirmation/affidavit from trial counsel [regarding counsel's performance], or an explanation for the failure to do so, would, by itself, warrant summary denial of the 440 motion).
However, as noted, the People have failed to address this alleged nonrecord deficiency raised by defendant in this motion. Cognizant of the fact that defendant is serving a long sentence, there are no limitations on 440 motions, and defendant as a matter of right may appeal the denial of a 440 motion to the Third Department, it is incumbent upon this motion Court that the most complete record possible be made before defendant appeals a CPL 440 denial.
Consequently, defendant is permitted to supplement this 440 motion in regard to trial counsel's alleged ineffectiveness for failure to impeach the victim with her prior text messages. Defense counsel shall file any relevant affidavit(s) and supplemental brief no later than December 15, 2023. The People shall respond to this issue by January 15, 2024. The Court requests that both counsel address 1) Whether the court must summarily grant or deny the motion? and 2) Whether the court is required to grant an evidentiary hearing before determining this issue? The Court hereby RESERVES on this branch of defendant's 440 motion.
Defendant's point X. (Defendant's trial counsel was ineffective in failing to move to exclude G.N.'s jail conversation with defendant), could have been raised upon direct appeal. In any case, defendant's recorded conversations with G.N. were properly received into evidence and most certainly admissible. Defendant and G.N. were made well aware that the jail recorded all conversations (per phone message at the beginning of every jail phone call). The recordings were not obtained as a result of a search warrant and were relevant as they contained admissions by defendant that he had engaged in vaginal and anal sexual contact with the victim. Defendant could have raised this record issue on direct appeal to the Third Department and as such defendant is precluded from raising this issue by way of 440 collateral attack. CPL § 440.10(2)(c).
Defendant's point XI. (Defendant's retrial was barred by double jeopardy), could have been raised upon direct appeal and consequently cannot be raised upon collateral attack. In any case, where, as here, a mistrial was declared as a result of manifest necessity due to the jury being "irretrievable deadlocked," not the result of any prosecutorial misconduct, but rather the result of a perjurious juror who refused to deliberate, defendant's retrial was proper and not barred by double jeopardy. It should also be noted that defendant's trial counsel consented to the trial court's declaration of a mistrial. Even had defendant objected, retrial would not have been barred. People v. Ferguson, 67 N.Y.2d 383 (1986); U.S.C.A. Const. Amend. 5; NY Const. Art. 1, § 6; CPL § 440.10(2)(c).
Defendant's point XII. (Defendant was not adequately counseled on his waiver of trial by jury) is unsupported by any affirmation (or affidavit) from defendant's trial counsel (Baxter, Esq.). Notwithstanding movant's failure to produce an affidavit from defendant's trial counsel, the People, in their opposition papers, affirm, based upon a telephone conversation with Attorney Baxter, that he is willing to provide the Court with an affidavit that defendant's claim that Baxter had assured him that an "acquittal was a sure thing, he couldn't lose the case in front of the Judge," is "utter bullshit." As the movant has the burden on a CPL 440 motion to come forward with verified information on the issue of ineffective assistance of counsel, the People are not required to provide such in the absence of any sworn facts from defendant. Defendant unequivocally, knowingly, voluntarily, intelligently, and freely acknowledged the waiver of his right to a trial by jury on the record. (People's Exhibits A and Q.) Additionally, defendant could have raised the issue of his waiver of a jury trial on direct appeal and failed to do so and a collateral attack is procedurally barred. This Court notes that considering the first jury was 11-1 in favor of guilty, defense counsel and defendant made a reasoned and prudent decision to waive a jury and proceed with a retrial before a single trial judge. CPL § 440.10(2)(c).
The District Attorney asserts that motion counsel's personal attack (Anderson at pp.63- 64) against the trial judge Hon. Dennis Morris is the most frivolous claim the prosecutor has ever seen in his 31 years of practice. Attorney Anderson, attacks the trial judge for alleged impartiality, and makes the following accusations against Hon. Dennis Morris:
Judge Morris is a former assistant district attorney and county attorney, His history shows involvement in family oriented causes as well asright (sic) wing groups such as the national rifle association.
Former President, Schuyler County Bar Association
Board Member, Squires and Pages Junior Drum and Bugle Corps
Coach, Dundee, Trumansburg, and Horseheads Marching Bands and Colorguard Member, Royce-Haight Scholarship Committee
Chairman, Watkins Glen High School Alumni Association, Scholarship Committee Member, First Presbyterian Church of Watkins Glen
Member, Farm Bureau
Member, National Rifle Associate (Anderson at 63-64).
Attorney Anderson adds, "it is clear that an individual with the background and affiliations of Judge Morris would have no qualms about finding the defendant guilty and handing out a hefty sentence. That's what Judge Morris (sic) career has been about, prosecuting and punishing the guilty, deep concern for family values and the protection of the law abiding." (Anderson at 64).
Motion counsel doesn't limit himself to ad hominem attacks against the trial judge. Counsel's brief is also filled with aspersions against A.D.A Hayden, at one point arguing that Mr. Hayden didn't understand New York law and "[p]erhaps Mr. Hayden came all the way up from Alabama to try this case." (Anderson at 21).
This Court has never encountered a more outrageous, unprofessional, frivolous, and ad hominem attack in a filing from a New York State licensed attorney. At this juncture, this Court would be remiss if it failed to note the obvious, as well, with respect to motion counsel's 440 brief. Counsel's affirmation has too many typographical errors to count, is permeated by obvious cut and paste from either Google searches or Westlaw, contains such a variety of font styles, sizes and colors that the Court wondered whether counsel had attempted to create some hidden stereogram image. Counsel's brief is replete with incoherent arguments and inapplicable foreign state jurisdiction case law (including military case law) and is suggestive more of a disjointed pro se filing rather than a submission to a court from a member of the bar. Counsel's papers are riddled with so many typographical errors that make it nearly unreadable. Sentence fragments abound throughout the brief, creating a lingering befuddlement which has placed both the People and this motion Court in the position of having to piece together defense counsel's intended meaning. The lack of coherence and structure is evident, as defense counsel's "argument" jumps haphazardly from one point to another without any logical progression. Attorney Anderson's misstatement of facts, misstatement of fundamental legal principals, disregard for basic grammar and punctuation rules, and complete lack of attention to detail severely undermined the credibility of the entire brief.
In an especially egregious and unprofessional passage, motion counsel, apparently quoting some trial testimony from defendant's girlfriend, G.N., during direct examination from A.D.A Hayden, parenthetically, and offensively, notes his stream of consciousness reaction to such examination. Attorney Anderson (p.61) writes:
[G.N.]. Incoherent.
[Hayden]. Would that cover unconscious? (Note this is a leading question on direct examination. Any competent defense lawyer would have been on this like a fly on shit). (emphasis added)
The Court must consider whether 440 defendant's motion counsel may have violated any of the New York Rules of Professional Conduct, and whether this trial court must take any further action, including whether sanctions are warranted. 22 N.Y.C.R.R. Part 1200. See, NY RPC Rule 1.1; RPC Rule 1.3; RPC Rule 3.1; RPC Rule 3.3; Rule 8.4. See also, In re Kover, 134 A.D.3d 64 (1st Dept. 2015) (sanctions and cost appropriate for ad hominem attacks against the trial judge and opposing party). The Court will schedule a hearing on this matter after the conclusion of defendant's 440 motion proceedings.
Defendant's point XIII. (Defendant's trial counsel was ineffective during the bench retrial counsel stipulated to the admissibility of all of the evidence received by the court during the first jury trial trial), is part of the trial court record and could have been raised upon direct appeal and a collateral attack is procedurally barred. CPL § 440.10(c).
Defendant's point XV. (Defendant's counsel was ineffective at the time of sentencing) is part of the trial court record and could have been raised upon direct appeal. CPL § 440.10(c).
Defendant's point XVI. (Defendant's appellate counsel was ineffective) cannot be raised on a CPL 440 motion to the trial court. People v. Bachert, 69 N.Y.2d 593 (1987); People v. Stultz, 2 N.Y.3d 277 (2004); CPL § 450.90.
Defendant's point XVII. (Defendant's conviction must be reversed based upon "after acquired evidence.") is also without merit, does not warrant an evidentiary hearing, and must be summarily denied. The undated text message from G.N. to T.F. is not newly acquired evidence which warrants a vacatur of the convictions or an evidentiary hearing. (Defendant's Exhibit N). CPL 440.10 (1)(g) provides that a motion for a new trial may be based upon "evidence [that] 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." This provision requires that a motion based on this ground be made with due diligence after the discovery of such alleged new evidence. CPL § 440.10(1) (g). It is difficult to discern from G.N.'s text message whether it was sent before the conclusion of the bench trial which resulted in defendant being found guilty of most counts. Nonetheless, the burden was on the defendant to establish the time frame of this text message. In any case, this Court need not resolve the issue of timing in order to summarily deny this branch of defendant's motion. CPL § 440.10(1)(g) requires that the new evidence be of such a character that it probably would change the result if a new trial were granted. Newly discovered evidence must be material, not cumulative, and not "merely impeaching" or contradictory to former evidence. In People v. Shaw, 174 A.D.3d 1036, 1037 (3rd Dept. 2019), the Third Department explained:
The court may vacate a defendant's judgment if the defendant shows that the newly discovered evidence fulfills all the following requirements: "(1) [i]t must be such as will probably change the result if a new trial is granted; (2) it must have been discovered since the trial; (3) it must be such as could have not been discovered before the trial by the exercise of due diligence; (4) it must be material to the issue; (5) it must not be cumulative to the former issue; and, (6) it must not be merely impeaching or contradicting the former evidence," quoting, People v. Tucker, 40 A.D.3d 1213, 1214 (3rd Dept. 2007). (emphasis added)
The G.N. to Forney text message (defendant's Exhibit N) fails to satisfy all of the six requirements. Defendant has failed to articulate how such message would probably result in a different verdict. If a new trial were granted, the text message would most certainly not change the verdict result. The text message is not material to the issues of whether the victim was physically helpless, or whether she consented to sexual acts with defendant. At best, the text message, when viewed in the light most favorable to the defendant, is possibly merely impeaching, and only to a very limited extent. A more reasonable view of the text message is that G.N. was attempting to save face with defendant's mother. G.N.'s text message conveys that she felt under pressure to testify, and while she "didn't want to testify," she told D.A. Fazzary she was "going to be out of state in TN during the trial," she was "naive and terrified," she was warned defense counsel would "make me out to be a monster," and "what they did to me was scary it mentally destroyed me and it most definitely took a toll on my pregnancy." (Defendant's Exhibit N). G.N.'s undated text is simply not material to the issues of the victim's physical helplessness and defendant's theory that the victim simply did not remember consenting to a consensual sexual encounter between her and defendant (and the co-defendant). Nowhere in the text message does G.N. even remotely suggest she lied under oath at trial. Furthermore, the People have provided a sworn affidavit of the lead prosecuting attorney, former A.D.A. Matthew C. Hayden, which contradicts the assertion by motion counsel that the People engaged in any prosecutorial misconduct in the form of improperly pressuring a witness. (People's Exhibit O). Defendant's motion for a new trial or an evidentiary hearing based upon the claim of newly discovered evidence is denied.
After this Court fully and finally determines defendant's point VIII (i.e., Exhibit L), this Court will issue a Supplemental Decision & Order incorporating this Preliminary Decision and Order, from which defendant may appeal in full to the Third Department. It is hereby
ORDERED, Defendant's CPL 440 motion is summarily DENIED, in part, and the Court RESERVES, in part, with respect to the nonrecord issue raised in point VIII., alleging defendant was deprived ineffective assistance of counsel due to trial counsel's failure to impeach the victim with several text messages (Exhibit L); and it is further, ORDERED, Defense counsel shall file any relevant affidavit(s) and supplemental brief no later than December 15, 2023 and the People shall file a response to this issue by January 15, 2024; and it is further, ORDERED, defendant's 30 day period in which to file an appeal from this Court's initial CPL 440 decision and order is tolled until this Court's issuance of a Supplemental Decision and Order.