Opinion
9332/96.
November 13, 2008.
On May 28, 1997, the defendant was convicted, after a jury trial, of two counts of murder in the second degree and robbery in the first degree. On June 24, 1997, he was sentenced to an indeterminate prison term of eight years to life. On direct appeal, the defendant's conviction was unanimously affirmed. People v. Muhammad, 282 A.D.2d 761 (2d Dept.), lv. denied, 96 N.Y.2d 922 (2001).
The defendant received an indeterminate prison term of three to nine years for the robbery conviction and that sentence initially ran consecutively to the sentences imposed for the murder convictions. On October 17, 2005, the sentencing court granted the defendant's C.P.L. § 440.20 and re-sentenced the defendant to concurrent terms of imprisonment.
The defendant has filed a motion to vacate the judgment of conviction under Criminal Procedure Law. § 440.10 on the ground that a certificate of conviction is not on file at his place of incarceration in contravention of C.P.L. § 380.60. The People oppose the defendant's motion. For the reasons that follow, the motion to vacate the judgment of conviction is denied without a hearing.
C.P.L. § 380.60 provides: "Except where a sentence of death is pronounced, a certificate of conviction showing the sentence pronounced by the court, or a certified copy thereof, constitutes the authority for execution of the sentence and serves as the order of commitment, and no other warrant, order of commitment or authority is necessary to justify or to require execution of the sentence."
Procedural History
The Direct Appeal.
The defendant, through appellate counsel, filed a direct appeal of his conviction with the Appellate Division, Second Department, in which he alleged that: (1) his Sixth Amendment right to confrontation had been violated; and, (2) trial counsel provided him with ineffective assistance. On April 30, 2001, the Appellate Division, Second Department, rejected the defendant's claims and unanimously affirmed his conviction. People v. Muhammad, 282 A.D.2d 761 (2d Dept. 2001). Leave to appeal to the New York Court of Appeals was denied on August 20, 2001.People v. Muhammad, 96 N.Y.2d 922 (2001 (Wesley, J.).
The Defendant's First Pro Se Motion Under C.P.L. § 440.10.
The defendant's first pro se motion to vacate the judgment of conviction under C.P.L. § 440.10, on the ground that his trial counsel provided him with ineffective representation, was denied on October 30, 2003. See People v. Malik Muhammad, Slip Op No. 9332/96 (Sup.Ct. Kings Co. October 30, 2003) (Jones, J.).
The Defendant's Pro Se Petition for a Federal Writ of Habeas Corpus.
The Defendant's pro se petition for a federal writ of habeas corpus, in which he alleged that his sixth amendment right to confrontation was denied and that trial counsel provided him with ineffective representation, was denied on September 7, 2004. See Muhammad v. Zon, ___ F. Supp.2d ___, 2004 WL 1962095 (E.D.N.Y. Sept. 7, 2004) (Gleeson, J.). On January 6, 2006, the defendant's request for a Certificate of Appealability from the United States Court of Appeals for the Second Circuit was denied. The Defendant's Second Pro Se Motion Under C.P.L. § 440.10.
The defendant's second pro se motion to vacate the judgment of conviction under C.P.L. § 440.10, on the ground that the verdict was inconsistent and that the felony murder and depraved indifference murder statutes are unconstitutionally vague, was denied on July 25, 2006. See People v. Malik Muhammad, Slip Op No. 9332/96 (Sup.Ct. Kings Co. July 25, 2006) (Sullivan, J.).
The Defendant's Pro Se Application for a Writ of Error Coram Nobis .
The defendant's pro se application for a writ of error coram nobis, in which he alleged that his appellate counsel provided him with ineffective representation, was denied by the Appellate Division, Second Department, on June 19, 2007. People v. Muhammad, 41 A.D.3d 738 (2d Dept. 2007). Leave to appeal this decision to the New York Court of Appeals was denied on March 7, 2008. People v. Muhammad, 10 N.Y.3d 814 (2008) (Kaye, J.).
The Defendant's Third Pro Se Motion Under C.P.L. § 440.10.
The defendant's third pro se motion to vacate the judgment of conviction under C.P.L. § 440.10, in which he requested that the court inspect and dismiss the grand jury minutes, was denied on April 4, 2008.See People v. Malik Muhammad, Slip Op No. 9332/96 (Sup.Ct. Kings Co. July 25, 2006) (Del Giudice, J.).
The Motion Before the Court
The defendant, in his fourth pro se motion to vacate the judgment of conviction pursuant to C.P.L. § 440.10, claims that the judgment should be vacated as a certificate of conviction is not on file at his place of incarceration in contravention of C.P.L. § 380.60. The defendant's motion papers show that he learned of the absence of the certificate of conviction in March or April of 2008 as a result of a request he made to the New York State Department of Corrections under the Freedom of Information Law ("FOIL"). See New York Public Officers Law Art. 6.
As a threshold matter, the defendant's claim is barred from this Court's consideration by C.P.L. § 440.10(3)(c). C.P.L. § 440.10(3)(c) provides that a court may deny a motion to vacate the judgment when the defendant has filed a previous motion to vacate the judgment pursuant to C.P.L. § 440.10 and "was in a position adequately to raise the ground or issue underlying the present motion but did not do so." In this case, the defendant could have made the FOIL request that led to his discovery of the information upon which his current claim is premised before he filed his earlier pro se motions to vacate the judgment of conviction. Instead, he did not make a FOIL request until several years after his first motion to vacate the judgment of conviction was filed. As such, the defendant's current claim is barred by C.P.L. § 440.10(3(c) as the defendant was in a position adequately to raise it in his prior motions to vacate the judgment of conviction. See People v. Wilson Rodriguez, 4 Misc.3d 1003(A), 2004 WL1469371 at *3 (Sup.Ct. Bronx Co. June 11, 2004) (Massaro, J.) (Defendant's motion to vacate judgment procedurally barred by C.P.L. § 440.10(3)(c) as he did not make the FOIL request that led to the discovery of the information upon which his claim was based until several years after his conviction and "over two and one-half years after he filed his first CPL § 440.10 motion"); see also People v. Dover, 294 A.D.2d 592, 596 (2d Dept.), lv. denied, 98 N.Y.2d 767 (2002); People v. Mario Perez, 11 Misc.3d 1093(A), 2006 WL 1295858 at *2 (Sup.Ct. Kings Co. Mar. 24, 2006) (Carroll, J.).
In any event, the defendant's claim is without merit. The statutory requirements of C.P.L. § 380.60 are satisfied by a "sentence and order of commitment." See People ex. rel. Haynes v. Artus, 51 A.D.3d 1075 (3d Dept. 2008). The People have conclusively demonstrated that a sentence and order of commitment was on file at the defendant's place of incarceration. See People's Affirmation in Opposition at 8-11 Exhibit 2. Indeed, the defendant acknowledges in his own motion papers that in response to his FOIL request, the correctional facility in which he resides provided him with a copy of the sentence and order of commitment that was generated in this case. See Defendant's Motion, Exhibit D. As a sentence and order of commitment is on file at the correctional facility in which the defendant resides, his claim that the judgment should be vacated based upon a violation C.P.L. § 380.60 is without merit. Moreover, as the sentencing minutes in this case show "that a valid judgment of conviction was entered," the defendant's challenge "to the denomination of the documentation authorizing his incarceration is unavailing." People ex. rel. Haynes v. Artus, 51 A.D.3d at 1075; see People ex rel. Reed v. Travis, 12 A.D.3d 1102 (4th Dept. 2004), lv. denied, 4 N.Y.3d 704 (2005); People ex. rel. Harris v. Lindsay, 21 A.D.2d 102, 106 (1st Dept. 1964), aff'd 15 N.Y.2d 751 (1965).
Conclusion
The motion to vacate the judgment of conviction pursuant to C.P.L. § 440.10 is denied in its entirety 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.