Opinion
0004166/1987.
February 29, 2008.
DECISION ORDER
Following two separate incidents of rape reported to the police, defendant was charged under a single indictment with Rape in the first degree (PL § 130.35[1]), Sodomy and Attempted Sodomy in the first degree (PL §§ 130.50[1]/110.00), Sexual Abuse in the first degree (PL § 130.65[1]) and Endangering the Welfare of Child (PL § 260.10[1]). The Supreme Court granted defendant's motion to sever the counts in the indictment as to the two complainants, Stephanie Stevenson and Camille Moreno. The first case resulted in a mistrial and on July 28, 1988 defendant pleaded guilty to one count of Sexual Abuse in the first degree relating to Camille, in full satisfaction of all the counts in the indictment relating to both complainants. On September 13, 1988, defendant was sentenced to the agreed-upon term of one day in jail and five years probation. Defendant's first CPL § 440.10 motion was denied on February 19, 1997.Defendant now moves again, pro se, pursuant to CPL § 440.10 for an order vacating his judgment of conviction on various grounds. He claims that: 1) the court altered the minutes to conceal that defendant had insisted on being retried on the charges pertaining to Camille; 2) he was convicted of raping Stephanie and he should not have been indicted for crimes against her because he was never arrested on charges relating to her, 3) at trial, Camille's allegation of rape was uncorroborated; 4) Camille testified that she had not been sodomized; 5) the police lacked probable cause to arrest defendant; and 6) defense counsel failed to file a motion to sever the counts pertaining to the two complainants. For the following reasons, the motion is denied.
Background
Defendant's conviction arises from two separate incidents, two months apart, in which defendant forced Stephanie Stevenson, then fourteen years old, and Camille Moreno, age fifteen, upstairs to his room above his family's store in Brooklyn. In both instances, defendant restrained the complainant while committing various forcible sex acts against her. The first complainant, Stephanie, did not report the incident to police right away but was later able to identify defendant from a photographic array shown to her by police because she had seen defendant at her school prior to the crime. Camille's immediate report to the police resulted in defendant's arrest.
Pursuant to his arrest defendant made a videotaped statement to an assistant district attorney in which he admitted having sex with Camille but claimed that she had consented. While defendant's arrest was directly related to the incident with Camille, police gathered enough evidence about Stephanie's rape to ultimately indict and arraign defendant on charges pertaining to both complainants. Following the arraignment, defense counsel's motion to sever the counts as to each complainant was granted.
Defendant's subsequent guilty plea satisfied all of the charges in the indictment, including those pertaining to Stephanie, but led only to conviction for sexual abuse as to Camille. As part of the plea allocution defendant waived his right to appeal.
Discussion
When sufficient facts appear on the record for an appeal to be perfected, a court must deny a motion to vacate a judgment if the defendant has unjustifiably failed to raise them on appeal (CPL § 440.10[c]; ( People v Cooks, 67 NY2d 100; People v Sadness, 300 NY 69). Such a motion must be denied even if the right to appeal has been voluntarily waived ( Cooks, 67 NY2d at 103, n1); ( People v Donovon, 107 AD2d 433, 440-444 [2nd Dept. 1983]). Thus, a defendant who has waived his right to appeal may not use a motion to vacate the judgement as a substitute for a direct appeal ( People v Alexander, 256 AD2d 349 [2nd Dept. 1998]).
CPL § 440.10[c] mandates denial of each of defendant's claims. The facts underlying each argument appear on the record and may not form the basis of a CPL § 440.10 motion because no appeal was ever perfected, owing to defendant's waiver of appeal.
Furthermore, the court denies several of defendant's claims on the grounds that they were raised and rejected in a prior CPL § 440.10 motion. In his previous motion, defendant alleged that he had never pleaded guilty to raping Stephanie, that he was convicted without corroboration of the complainant's testimony, that police lacked probable cause to arrest him, and that counsel failed to file a motion to sever the counts in the indictment. As these claims were either belied by the record or misplaced, the court denied defendant's motion. Thus, the same claims appearing in the instant motion are barred from this court's review now (CPL § 440.10[b]).
In addition to the two procedural bars foreclosing vacatur of the conviction, CPL § 440.10[b] permits denial of a motion to vacate the judgment if the moving papers lack sworn allegations to support the essential facts. In this case, the court finds no support for defendant's unsubstantiated allegation that the court somehow conspired to alter the minutes of his trial to conceal defendant's alleged request to be tried again after the mistrial. There is no reasonable possibility that this allegation is true (CPL § 440.30[b], [d]; People v Lawson, 191 AD2d 514, 594 [2nd Dept. 1993]; People v Session, 34 NY2d 254; People v LaPella, 185 AD2d 861 [2nd Dept. 1992]).
Defendant's contentions are also belied by the record. The trial minutes established that defendant did sodomize Camille, thus contradicting defendant's claim that Camille had testified to the contrary. Documentary evidence and court records also prove that defense counsel did in fact file a motion to sever the counts in the indictment as to each complainant and that the Supreme Court granted that request ( see CPL § 440.30[d]; People v White, 309 NY 636, 640-641; People v Vellucci, 13 NY2d 665, 666 (trial minutes constitute both court records and unquestionable documentary proof for the purposes of the Criminal Procedure Law).
Finally, in an apparent attempt to substantiate his allegations, defendant claims that the court and District Attorney's office have prevented him from obtaining copies of the trial minutes. This claim does not bear on defendant's conviction and thus cannot be addressed in a motion to vacate the judgment pursuant to CPL § 440.10; nor is it substantiated by the requisite documentary evidence.
Accordingly, defendant's motion is denied both procedurally and on the merits. This decision shall constitute the order of the court.