| People v Stevens |
| 2012 NY Slip Op 03686 [95 AD3d 1451] |
| May 10, 2012 |
| Appellate Division, Third Department |
| 2—The People of the State of New York, Respondent, vAndrea Stevens, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
Egan Jr., J. Appeal, by permission, from an order of the County Court of Cortland County(Campbell, J.), entered June 24, 2011, which denied defendant's motion pursuant to CPL 440.10to vacate the judgment convicting her of the crime of arson in the third degree, without a hearing.
The relevant facts are more fully set forth in our prior decision in this matter. Briefly,defendant rented space for her retail establishment—Smooches—on the first floor ofa three-story building located at 51-53 Main Street in the City of Cortland, Cortland County.Another business—Shangri-La—occupied the retail space next door (55 MainStreet), and the two entities shared a common hallway. In October 2005, a fire broke out in thathallway, causing substantial damage to Smooches, the upper two floors and Shangri-La.Following a jury trial, defendant was convicted of arson in the third degree, sentenced to a prisonterm of 1 to 3 years and ordered to pay restitution. Upon defendant's direct appeal, we affirmed(People v Stevens, 84 AD3d1424 [2011], lv denied 17 NY3d 822 [2011]). Defendant thereafter moved pursuantto CPL 440.10 to vacate the judgment of conviction, contending that she was denied the effectiveassistance of counsel and asserting a claim of actual innocence. County Court denied defendant'smotion without a hearing and, with permission, defendant now appeals.
We affirm. The bulk of defendant's present claims involve matters that could have been, butwere not, raised upon her direct appeal from the judgment of conviction and, as such, [*2]are not the proper subject of a CPL 440.10 motion (see CPL440.10 [2] [c]; People v Pecararo,83 AD3d 1284, 1286 [2011], lv denied 17 NY3d 820 [2011]; People v Rolle, 72 AD3d 1393,1397 [2010], lv denied 16 NY3d 745 [2011]; People v Polanco, 52 AD3d 947 [2008], lv denied 11 NY3d793 [2008]). Contrary to defendant's assertion, issues regarding the cause and origin of theunderlying fire—including the possibility that the fire was occasioned by an accumulationof trash/flammable materials in the common hallway and/or an electrical problem—werefully explored at trial, as was the nature of the lawsuit brought by the owners of Shangri-Laagainst their landlord and their subsequent receipt of settlement proceeds in connectiontherewith. To the extent that defendant's motion is premised upon trial counsel's purported failureto obtain related documentary evidence—namely, the complaint in the underlying civil suitor certain fire code inspection reports—this asserted deficiency is insufficient to warrant ahearing on defendant's motion and, more to the point, falls far short of establishing ineffectiveassistance of counsel.[FN1]
We reach a similar conclusion regarding trial counsel's stated failure to move to dismiss theindictment based upon preindictment delay. To be sure, "[a]n untimely prosecution may besubject to dismissal even though, in the interim, the defendant was not formally accused,restrained or incarcerated for the offense" (People v Singer, 44 NY2d 241, 253 [1978]). Itis equally true, however, that "a determination made in good faith to defer commencement of theprosecution for further investigation or for other sufficient reasons, will not deprive the defendantof due process of law even though the delay may cause some prejudice to the defense"(id. at 254; accord People vDecker, 13 NY3d 12, 14 [2009]; People v Morris, 25 AD3d 915, 916 [2006], lv denied 6NY3d 851 [2006]).
In opposition to defendant's motion, the People delineated the reasons for the three-year gapbetween the fire and defendant's subsequent indictment citing, among other things, the ongoinginvestigations and examinations conducted by local police and fire agencies, the relevantinsurance companies and various experts, as well as the lack of direct evidence tying defendant tothe crime. Although defendant now faults County Court for accepting the People's explanationfor the delay without conducting a hearing, we discern no error in this regard. County Courtpresided over defendant's trial, as well as the various pre- and posttrial hearings and proceedingsheld in connection therewith; as such, the court was well versed with respect to both the proofadduced in the context of those proceedings and the evolution of the underlying prosecution.Further, defendant does not assert that there were sufficient grounds to arrest or indict her at anearlier point in time (compare People v Edwards, 278 AD2d 659, 660 [2000]), contendthat the [*3]delay in prosecution was designed to gain a tacticaladvantage (see People v Finkelstein,25 AD3d 456, 457 [2006], lv denied 6 NY3d 833 [2006]) or otherwise contest thePeople's factual assertions in this regard (see People v Lopez, 15 AD3d 232, 232-233 [2005], lvdenied 4 NY3d 888 [2005]), nor has she offered anything other than a "routine-like claim ofprejudice" (People v Russin, 277 AD2d 880, 880 [2000] [internal quotation marks andcitation omitted]). Under these circumstances, County Court properly denied defendant'sapplication without a hearing (seePeople v Ruise, 86 AD3d 722, 723 [2011], lv denied 17 NY3d 861 [2011];compare People v Johnson, 288 AD2d 501, 502-503 [2001]).
In any event, we are satisfied that defendant received the effective assistance of counsel. Asthis Court recently reiterated, "[t]he right to effective assistance of counsel will be met so long asthe evidence, the law, and the circumstances of a particular case, viewed in totality and as of thetime of the representation, reveal that the attorney provided meaningful representation"(People v Pecararo, 83 AD3d at 1286 [internal quotation marks and citations omitted]).Viewing trial counsel's representation as a whole, that standard was met here. Defendant'sremaining contentions, including her assertion that her motion should be granted based upon aclaim of actual innocence,[FN2]have been examined and found to be lacking in merit.
Mercure, J.P., Spain, Stein and Garry, JJ., concur. Ordered that the order is affirmed.
Footnote 1: The inspection reports inquestion show that the electrical wiring and fire protection systems at 51 and 55 Main Streetneeded some unspecified form of attention as of July 2001—more than four years beforethe subject fire. Those same reports also indicate that follow-up inspections were conducted andsuggest that, as of early 2002, at least some of the identified concerns had been remedied. ThePeople assert, and County Court found, that trial counsel was provided with the inspectionreports prior to trial and may well have made a tactical decision not to enter them into evidence.Defendant does not directly dispute this, stating only that "[t]he record does not reflect that trialcounsel received such documents."
Footnote 2: Although defendant's argumentin this regard is premised upon the results of a private polygraph examination conducted in May2011 (three weeks after this Court affirmed the underlying judgment of conviction), "[i]t is wellestablished that the reliability of the polygraph has not been demonstrated with sufficientcertainty for the results of such tests to be admissible in evidence" (People v DeLorenzo, 45 AD3d1402, 1402 [2007], lv denied 10 NY3d 763 [2008] [internal quotation marks,citation and brackets omitted]; seePeople v Weber, 40 AD3d 1267, 1267 [2007], lv denied 9 NY3d 927 [2007]).