Opinion
Ind. No. 11910/93
07-17-2014
THE PEOPLE OF THE STATE OF NEW YORK v. LORENZO RAMSEY
:
Defendant, pro se, moves pursuant to CPLR §2221(d) to reargue his motion, dated July 18, 2010, to vacate his judgment of conviction and to set aside his sentence pursuant to CPL §440.10 and §440.20, which was summarily denied by decision, dated March 14, 2011 (Green, J).
Since the filing of defendant's motion, Judge Green has been reassigned to another county. Accordingly, this motion was randomly assigned to this part for decision
On June 7, 1994, defendant was convicted, after a jury trial, of murder in second degree, attempted murder in the second degree and criminal possession of a weapon in the third degree. (Affirmation in Opposition at ¶5). At the time of sentencing, defendant was adjudicated a persistent violent felony offender and sentenced as such on the attempted murder charge. (Id.). Defendant has made several prior motions to vacate his conviction and to set aside his sentence pursuant to CPL §440.10 and §440.20, including motions before Judge Silverman in 2003 and Judge Green in 2010, which assert that his sentence in 1994, as a persistent violent felony offender, was illegally imposed in violation of the ex post facto clause of the Constitution. Specifically, defendant alleged that because his convictions in 1976 and 1981 were not classified as violent felony offenses at the time of conviction his adjudications as a persistent violent felony offender in 1994 based upon those convictions is unlawful. This claim was specifically rejected in the opinions of the court, dated January 6, 2003 and March 14, 2011.
Pursuant to CPLR §2221(d), a motion to reargue is addressed to the sound discretion of the trial court and may be granted upon showing that the court overlooked or misapprehended the facts or law or mistakenly arrived at its earlier decision. ( CPLR 2221 (d) (2); Viola v. City of New York, 13 AD3d 439, 440, 786 N.Y.S.2d 556 [2d Dept. 2004], lv denied 5 NY3d 706, 834 N.E.2d 1262, 801 N.Y.S.2d 252 [2005]; see Carrillo v. PM Realty Group, 16 AD3d 611, 611, 793 N.Y.S.2d 69 [2d Dept. 2005]; Loris v. S & W Realty Corp., 16 AD3d 729, 730, 790 N.Y.S.2d 579 [3d Dept. 2005]). CPLR §2221 (d) provides that motions to reargue shall not include any matters of fact not offered on the prior motion. Id.
To the extent that defendant asserts once again his claim that his sentence as a persistent violent felony offender was illegally imposed because his convictions in 1976 and 1981 were not classified as violent felonies at that time, this claim was raised in prior CPL §440.10 motions and decided on the merits and is thus, procedurally barred pursuant to CPL 440.10(3)(b). (People v. Graves, 2009 NY Slip Op 4083 [2d Dept 2009], Iv denied 13 NY 3d 939 (2010) (finding that defendant's claim was either raised, or could have been raised, in the context of a first, unsuccessful motion pursuant to CPL §440.10 thus it was within the court's discretion to deny, without a hearing, defendant's current motion"); People v. Muhammad, 2009 NY Slip Op 31474U [Sup Ct, Kings County 2009] (holding that defendant's claim was barred under CPL 440.10[2][c], because he failed to raise it on direct appeal, or in any of his previous CPL 440.10 motions, pursuant to CPL 440.10[3][c])).
In his motion to reargue, defendant alleges for the first time that he was improperly adjudicated a persistent violent felony offender on the grounds that one of his prior convictions in 1985 that formed the basis of his persistent violent felony offender status was not, in fact, for a violent felony offense. Relying on both his rap sheet and the Article 400 Statement submitted by the People at his 1994 sentencing, defendant claims that in 1985 he was convicted for a non-violent felony offense, criminal possession of a weapon the third degree, the subdivision for a "defaced weapon."
To the extent that defendant raises new claims in his motion, such claims may be denied pursuant to CPL §440.10(3)(c) because defendant could have, but failed to, raise these claims in his prior motions and on appeal. Nevertheless, the court addresses defendant's new claim on the merits.
The People concede that the Article 400 Statement submitted at sentencing in 1994 after his conviction for murder incorrectly indicates that defendant's 1985 conviction was for criminal possession of a weapon (deface/conceal) which is not a violent felony offense. However, the People have provided sufficient evidence to establish that in 1985 defendant was convicted, under Kings Count Indictment 5607/84, of P.L. §265.02(4) (possessing a loaded firearm outside of one's home or place of business), a violent felony offense. (Affirmation in Opposition, Exhibit 4, Indictment and Verdict Sheet). The court has confirmed that conviction by also independently reviewing the court file containing the indictment and verdict sheet. Defendant points to Judge Silverman's January 2003 opinion which asserts that defendant had been found guilty of criminal possession of a weapon in the second degree. However, this was not a mistake of fact as the defendant asserts because the former P.L. §265.02(4) is now presently, and was at the time of the decision, criminal possession of a weapon in the second degree.
Moreover, to the extent that defendant is now raising a claim regarding the propriety of his adjudication as a persistent violent felony offender due to the incorrect entry on the Article 400 Statement, he is untimely as the time to controvert the persistent violent felony adjudication was at the time of sentencing. (People v. Smith, 73 N.Y2d 961, 540 N.Y.S.2d 987 [1989](defendant failed to timely raise the issue of whether he was properly sentenced as a second felony offender by not controverting the allegations in the predicate felony statement); People v. Moshier, 110 A.D. 3d 832, 972 N.Y.S.2d 675 [2d Dep't. 2013] (defendant's contention regarding propriety of adjudication as a predicate felon is unpreserved for review since he did not contest or controvert his status at sentencing); People v. Ochs, 16 A.D.3d 971, 792 N.Y.S.2d 248 [3rd Dept 2005] (there was adequate notice and substantial compliance with CPL§ 400.21 where defendant acknowledged during plea hearing and defense counsel consented that second felony offender statement was valid)).
Finally, as the People argue, even if defendant's 1985 conviction had been for a non-violent felony offense, defendant would still have been accurately adjudicated a persistent violent felony offender at his 1994 sentence because, excluding time during which defendant was incarcerated (twelve years, four months and sixteen days) he still committed two violent felony offenses in the ten years prior to his 1994 conviction (See P.L. § 70.08(1); CPL §§ 400.15, 400.16), namely the conviction for attempted robbery in the first degree under Indictment No. 3757/75 on April 28, 1976 and the conviction for criminal possession of a weapon in the third degree (P.L. §265.02(4), "outside one's home or place of business") under Indictment No. 2429/80 from September 18, 1981. The court has reviewed the official court files of these two indictments and takes judicial notice of defendant's convictions as such.
Therefore, defendant's motion pursuant to CPLR § 2221 to reargue is denied in its entirety.
This constitutes the Decision and Order of the Court. July 17, 2014
Date
/s/_________
J. S. C.