Opinion
142/91.
September 16, 2008.
On June 17, 1992, the defendant was convicted, after a jury trial, of murder in the second degree. On July 12, 1993, the defendant was sentenced, as a second felony offender, to a prison term of twenty-five years to life. On direct appeal the defendant's conviction was unanimously affirmed. People v. Hamilton, 272 A.D.2d 553 (2d Dept.), lv. denied, 95 N.Y.2d 935 (2000). The defendant has also filed numerous post-conviction motions and petitions, all of which have been denied.
The defendant has now filed a pro se motion in which he argues, under both Criminal Procedure Law § 440.10 and Judiciary Law § 2-b(3), that his conviction should be vacated on the ground that a memo book entry made by a Detective involved in the case, Frank DeLouisa, shows that the People's sole eyewitness to the shooting, Jewel Smith, was not present at the time of the murder. The People oppose the defendant's motion. The defendant has filed reply papers. For the reasons that follow, the defendant's motion to vacate the judgment of conviction under C.P.L. § 440.10 and for judicial review under Judiciary Law § 2-b(3) is denied in its entirety without a hearing.
The defendant's motion papers appear seek relief from this Court under both C.P.L. § 440.10 and Judiciary Law § 2-b(3). As such, this Court has construed the defendant's motion as seeking relief under each of these statutory provisions.
The defendant's request for the assignment of counsel in connection with this collateral motion is denied. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); People v. Leonard Ramsey, 2001 N.Y. Slip. Op. 50142(U), 2001 WL 1875965 (Sup.Ct. Bronx Co. Feb. 9, 2001) (Hunter, J.);People v. Richardson, 159 Misc.2d 167, 168 (Sup.Ct. Kings Co. 1993).
A. Procedural History
On January 4, 1991, the defendant shot and killed Nathaniel Cash inside the lobby of 215 Monroe Place in Kings County. Jewel Smith, who was Cash's girlfriend and the only eyewitness to the murder, testified at trial that she saw the defendant, with whom she was well-acquainted, shoot Cash. For shooting Nathaniel Cash and causing his death, the defendant was convicted, after a jury trial, of murder in the second degree.
C.P.L. § 330.30 Motion
Prior to the imposition of sentence, the defendant moved before the trial court to set aside the verdict pursuant to C.P.L. § 330.30. At the heart of the defendant's C.P.L. § 330.30 motion was his claim that Jewel Smith, the sole eyewitness who testified at trial, did not in fact witness the shooting. Rather, he contended that Smith was at "the store" and not at 215 Monroe Place at the time Cash was murdered. To support this claim the defendant relied upon a memo book entry made by Detective Frank DeLouisa. The memo book entry noted in sum and substance that "Karen Smith" stated that she had stayed the night with "Nat," that at some point later she went to the "store" and that when she returned from the "store," she saw "Nat" on the floor with two people beside him who told her to "get an ambulance." The memo book entry also contained the word "Jewel" in quotation marks.
This is the same memo book entry upon which the defendant's current motion is premised.
In his C.P.L. § 330.30 motion the defendant claimed, inter alia, that: (1) defense counsel was ineffective for failing to cross-examine Jewel Smith regarding the memo book entry; and, (2) the prosecutor committed a Brady violation by falsely telling defense counsel, in response to defense counsel's question, that Karen Smith and Jewel Smith were not the same person. These claims were rejected by the trial court in a decision and order dated July 8, 1993. The Court ruled that the defendant was provided with effective representation. See People v. Derrick Hamilton, Ind. No. 142/91 at 13 (Sup.Ct. Kings Co. July 8, 1993) (Rappaport, J). In addition, the Court rejected the defendant'sBrady claim holding that: (1) a copy of the memo book entry had been provided to defense counsel prior to trial; (2) "the defendant knew that Karen and Jewel were the same person and told this to his attorney;" and, (3) "it is obvious from the statement to Detective DeLouisa that `Karen' Smith was `Jewel' Smith." Id. at 10, 11.
The defendant also claimed in his C.P.L. § 330.30 motion that Jewel Smith's alleged presence at the store at the time of the shooting, which was documented in DeLouisa's memo book entry, constituted newly discovered evidence that warranted a new trial. The defendant was given extensive leeway by the trial court to explore this claim fully at a hearing conducted in connection with the C.P.L. § 330.30 motion. During the hearing, which took place between October 1992 and June 1993, several witnesses testified with respect to the defendant's claim that he was entitled to a new trial because Smith was at the store at the time of the shooting. Among these witnesses were: (1) Jewel Smith, who recanted her trial testimony and stated she was at the store at the time of the shooting; (2) Felicia Shuler, who testified that she was at the store with Smith at the time of the shooting; and, (3) Detective DeLouisa, the author of the memo book entry.
The trial court, in a July 8, 1993 decision and order, rejected the defendant's newly discovered evidence claim as it found "all the evidence and facts surrounding and supporting the recantation by Jewel Smith to be suspect and unreliable." Id. at 15. The Court further held that the alleged newly discovered evidence that Smith was at the store at the time of the shooting, a claim premised upon the memo-book entry and the hearing testimony from Smith, Shuler and others, was "contrived and not believable." Id. at 16.
First C.P.L. § 440.10 Motion
On January 5, 1994, the defendant filed a pro se motion to vacate the judgment of conviction under C.P.L. § 440.10 on the grounds that: (1) the People committed Brady and Rosario violations; (2) trial counsel provided him with ineffective representation; and, (3) newly discovered evidence showed that the defendant was not present at the time of the shooting. On April 2, 1996, the trial court, after holding a hearing with respect to the defendant's claims, denied the defendant's motion to vacate the judgment of conviction.
First Federal Habeas Corpus Petition
On April 8, 1997, the defendant filed a pro se petition for a writ of habeas corpus with the United States District Court for the Eastern District of New York. On December 9, 1997, the petition was dismissed on the ground that the defendant had failed to exhaust his available state court remedies. Hamilton v. Irvin, 1997 WL 1068710 at *1(E.D.N.Y. Dec. 9, 1997) (Gleeson, J). The United States Court of Appeals for the Second Circuit denied the defendant's motion for a certificate of appealability on February 8, 1999.
Second C.P.L. § 440.10 Motion
On September 3, 1998, the defendant filed a pro se motion to vacate the judgment under C.P.L. § 440.10 on the grounds that: (1) the People committed additional alleged Brady violations; and, (2) newly discovered evidence showed that a third party confessed to Cash's murder. The defendant also moved to set aside the sentence. In a decision and order dated July 20, 1999, the Court ordered a hearing with respect to the defendant's Brady claim. The additional claims that the defendant raised in his second C.P.L. § 440.10 motion were summarily denied.
The Direct Appeal
While the hearing with respect to the defendant's second C.P.L. § 440.10 motion was pending, the defendant, through counsel, filed a direct appeal of his conviction with the Appellate Division, Second Department. The defendant also filed a supplemental pro se brief in which he alleged, inter alia, that the trial court erred in denying his motion to set aside the verdict under C.P.L.§ 330.30. Specifically, the defendant argued in Point II of his supplemental pro se brief that the statement in DeLouisa's memo book entry indicating that Smith was at the store at the time of the shooting along with the witness testimony corroborating that statement required the trial court to grant his motion to set aside the verdict. See Defendant's Supplemental pro se Brief, 1999 WL 3468752 at *9 (1999).
On May 8, 2007, the Appellate Division, Second Department, unanimously affirmed the defendant's conviction. People v. Hamilton, 272 A.D.2d 553 (2d Dept. 2000). The Court ruled that the defendant's Brady, Rosario and ineffective assistance of counsel claims were without merit. Id. at 553-54. In addition, the Court ruled that the defendant was not prejudiced by the failure to disclose sealed transcripts of ex parte discussions. Id. at 553. Finally, the Court ruled that "[t]he defendant's remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or are without merit."Id. at 554. Leave to appeal to the New York Court of Appeals was denied on November 20, 2000. People v. Hamilton, 95 N.Y.2d 935 (2000) (Ciparick, J.).
The Third C.P.L. § 440.10 Motion
On November 22, 2000, the trial court, after conducting an evidentiary hearing with respect to the defendant's second C.P.L. § 440.10 motion and considering additional Rosario, ineffective assistance of counsel and newly discovered evidence claims that were raised by the defendant in his third C.P.L. § 440.10 motion, which was filed on June 2, 2000, denied the defendant's motions to vacate the judgment of conviction in its entirety.
The Second Federal Habeas Corpus Petition
On March 16, 2001, the defendant filed a petition for a federal writ of habeas corpus in the United States District Court for the Eastern District of New York. In the petition, the defendant claimed, inter alia, that the trial court erred by denying his claim that the memo book entry and Jewel Smith's recantation constituted newly discovered evidence and that the People, at trial, knowingly elicited perjured testimony from Smith. On January 16, 2004, the petition for a writ of federal habeas corpus was denied. Hamilton v. Herbert, 2004 WL 86413 (E.D.N.Y. January 16, 2004) (Gleeson, J.). On December 2, 2004, the United States Court of Appeals for the Second Circuit affirmed the dismissal of the petition by Mandate. Hamilton v. Herbert, No. 04-1758-PR (2d Cir. December 2, 2004).
Fourth C.P.L. § 440.10 Motion
On April 19, 2005, the defendant filed another pro se motion to vacate the judgment under C.P.L. § 440.10. In this motion, the defendant claimed that the records generated as a result of the C.P.L. § 330.30 and C.P.L. § 440.10 hearings in this case proved that he was innocent. In an order dated May 17, 2006, the defendant's motion to vacate the judgment of conviction on this ground was denied in its entirety. The defendant's motion for leave to reargue this decision was denied on January 10, 2007.
The Motion to Renew
The defendant next filed a pro se motion to renew his C.P.L. § 330.30 motion and his first three C.P.L. § 440.10 motions. On April 3, 2007, the defendant's motion to renew was denied.
Motion To Set Aside The Sentence
On January 19, 2007, the defendant filed a pro se motion to set aside his sentence pursuant to C.P.L. § 440.20. On October 9, 2007, the defendant's motion to set aside the sentence was denied.
Petition For A Writ of Error Coram Nobis
On April 10, 2008, the defendant filed a pro se petition for a writ of error coram nobis in the Appellate Division, Second Department, on the ground that appellate counsel was ineffective for failing to claim on appeal that the memo book entry showed that Smith's trial testimony was false. On September 9, 2008, the petition for a writ of error coram nobis was denied.
B. The Motion Before this Court
The defendant now claims, under both C.P.L. § 440.10 and Judiciary Law § 2-b(3), that his conviction should be vacated as DeLouisa's memo book entry shows that Jewel Smith was not in fact present at the time of this shooting. This claim, however, was fully explored after an extensive hearing before the trial court in connection with the defendant's C.P.L. § 330.30 hearing and found to be without merit. In rendering its decision rejecting the defendant's claim that Smith was at the store at the time of the shooting the trial court not only considered the substance of DeLouisa's memo book entry but also testimony from Smith, DeLouisa and several other witnesses regarding Smith's whereabouts at the time of the murder. The trial court also rejected the Brady and ineffective assistance of counsel claims the defendant raised in connection with the DeLouisa memo book entry. In addition, on direct appeal, the Appellate Division, Second Department, rejected the claim set forth in the defendant's supplemental pro se brief that the trial court erred by failing to set aside the verdict on the ground that Smith was at the store at the time of the shooting.
Thus, to the extent the defendant is now claiming under C.P.L. § 440.10 that DeLouisa's memo book entry requires the judgment of conviction be vacated, such claim is barred from this Court's consideration by C.P.L. § 440.10 (3)(b). C.P.L. § 440.10(3)(b) provides in pertinent part that a motion to vacate the judgment of conviction may be denied when "[t]he ground or issue raised upon the motion was previously determined on the merits upon a prior motion or proceeding in a court of this state[.]" In this case, the defendant's claim that the memo book entry shows that Smith was at the store at the time of the shooting was specifically rejected, after a fully evidentiary hearing, by the trial court. As the issue raised in the defendant's current motion — that Smith was at the store at the time of the shooting — was previously rejected on the merits by the trial court, his motion is barred by C.P.L. § 440.10(3)(b). Moreover, no good cause has been shown for this Court to review the defendant's claim in the interest of justice as it is based on the same evidence that was rejected by the trial court in 1993 when it considered and rejected the defendant's C.P.L. § 330.30 motion. Id.
Nor does Judiciary Law § 2-b(3) entitle the defendant to any relief. Judiciary Law § 2-b(3) provides that a court of record has the power "to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it." In this case, there is no basis for this Court to exercise any power that it might have under Judiciary Law § 2-b(3) to devise "any new process and forms of proceedings" as the record shows that the defendant has been granted numerous opportunities to litigate his current claim fully. Not only was an extensive evidentiary conducted by the trial court in connection with the defendant's C.P.L. § 330.30 motion, but the Appellate Division, Second Department, on direct appeal, rejected, inter alia, the challenge the defendant raised in his supplemental pro se brief to the trial court's C.P.L. § 330.30 decision with respect to the memo book entry and the claim that Smith was at the store at the time of the shooting. People v. Hamilton, 272 A.D.2d at 554. Moreover, the defendant's challenge to the propriety of the trial court's decision with respect to the memo book entry and the recantation of Smith's trial testimony was also raised by the defendant in connection with his petition for a federal writ of habeas corpus filed in the United States District of the Eastern District of New York. The Court considered the defendant's claims and found them to be without merit. See Hamilton v. Herbert, 2004 WL 86413 (E.D.N.Y. January 16, 2004) (Gleeson, J.).
As the defendant has been provided with a full and fair opportunity to raise claims with respect to the memo book entry in both state and federal court and those claims have been rejected, his motion for judicial review under Judiciary Law § 2-b(3) is denied without a hearing.
Conclusion
The motion to vacate the judgment of conviction pursuant to C.P.L. § 440.10 and for judicial review under Judiciary Law § 2-b(3) is denied without a hearing.
This constitutes the Decision and Order of the Court. The Clerk of the Court is directed to mail copies of this Decision and Order to the defendant at his place of incarceration and to the Kings County District Attorney.