Opinion
S3 00 Cr. 314 (RLC)
April 30, 2003
JAMES B. COMEY, United States Attorney for the Southern District of New York, Attorney for the United States of America, ROBERT B. BUEHLER, Assistant United States Attorney Of Counsel.
LAW OFFICES OF MARTIN J. SIEGEL, Attorney for Defendant Alexander Nosov, New York, New York, MARTIN J. SIEGEL, Of Counsel.
OPINION
Alexander Nosov, defendant, brings this motion for a new trial pursuant to Rule 33, F.R.Crim.P., asserting ineffectiveness of counsel.
BACKGROUND
On December 5, 2001, Nosov was convicted of kidnapping and murdering Sergei Kobozev in aid of racketeering and conspiracy to kidnap Kobozev. Immediately after the verdict was rendered, the court extended the time to file post-trial motions until March 4, 2002. Defendants Vasily Ermichine and Nosov's timely filed motions for a new trial were denied by this court in United States v. Nosov, 221 F. Supp.2d 445 (S.D.N.Y. 2002) (Carter, J.).
The motion currently under consideration was filed on February 28, 2003. It alleges that the ineffective assistance of Nosov's counsel, Alexei Schacht, unfairly prejudiced defendant's trial. Specifically, Nosov claims that Schacht failed to investigate or present Nosov's alibi defense and had he done so there is a reasonable probability the outcome of Nosov's trial would have been different.
DISCUSSION
Rule 33, F.R.Crim.P., provides that motions for a new trial based on newly discovered evidence may be brought within two years of the entry of judgment. Motions for a new trial based on any other grounds however must be made within seven days of the verdict unless an extension is granted within that seven-day period. See Rule 33, F.R.Crim.P.
Since Nosov's motion falls well outside of the time period established by the court to file post-trial motions, Nosov's motion is timely only if it is based on newly discovered evidence. Yet Nosov cannot claim to present newly discovered evidence for two reasons. First, this Circuit does not consider allegations of ineffective assistance of counsel to be newly discovered evidence. See United States v. Mayo, 14 F.3d 128, 132 (2d Cir. 1994) (newly discovered evidence is limited to that which addresses the issues raised by the criminal charges) Second, defendant's alleged alibi defense cannot be considered `new evidence' either. It is inconceivable defendant was unaware until after the trial that he was in a different location while the kidnapping and murder of Sergei Kobozev unfolded. Furthermore, he does not present any previously unknown witnesses or evidence that could have supported his alibi defense.
In summary, defendant's motion does not assert a colorable claim of newly discovered evidence and in light of this the motion is untimely and must be denied. See United States v. Lussier, 219 F.3d 217, 220 (2d Cir. 2000) (dismissing an untimely motion due to lack of jurisdiction); Mayo, 14 F.3d at 132 (Rule 33 time limits are jurisdictional in nature)