| People v Carter |
| 2013 NY Slip Op 02428 [105 AD3d 1149] |
| April 11, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JayCarter, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (John R. Healy of counsel), forrespondent.
Stein, J. Appeal, by permission, from an order of the County Court of SchenectadyCounty (Drago, J.), entered April 20, 2012, which denied defendant's motion pursuant toCPL 440.10 to vacate the judgment convicting him of the crime of burglary in the seconddegree, without a hearing.
In June 2005, defendant was convicted, after a jury trial, of burglary in the seconddegree and was sentenced, as a second felony offender, to a prison term of 15 yearsfollowed by five years of postrelease supervision. Upon defendant's appeal, this Courtaffirmed the judgment of conviction (50 AD3d 1318 [2008]), and the Court of Appealsdenied leave to appeal (10 NY3d 957 [2008]).[FN*]In July 2008, defendant moved to vacate the judgment and/or set aside the sentence and,in an October 2008 order, County Court summarily denied the motion. This Court thendenied defendant's application for permission to appeal from that order. Defendant filedanother CPL article 440 motion in December 2011, seeking to vacate the judgment ofconviction, which County Court also denied in an April 2012 order, without a hearing.Upon permission of this Court, defendant now appeals from such order.[*2]
We affirm. A court must deny a motion to vacatea judgment of conviction where "[t]he ground or issue raised . . . waspreviously determined on the merits upon an appeal from the judgment, unless since thetime of such appellate determination there has been a retroactively effective change in thelaw controlling such issue" (CPL 440.10 [2] [a]; see People v Sayles, 17 AD3d 924, 924 [2005], lvdenied 5 NY3d 794 [2005]; People v Lindsey, 302 AD2d 128, 130 n 1[2003], lv denied 100 NY2d 583 [2003]). The majority of defendant's claims onthis appeal involve matters that were raised and decided upon his direct appeal from thejudgment of conviction. Specifically, defendant raises multiple instances of allegedprosecutorial misconduct during the trial—which he categorizes as improperdenigration, improper burden shifting, improper appeals to juror sympathy and otherimproper comments—all of which were raised in the direct appeal from hisconviction and found to be without merit (50 AD3d at 1323). Defendant's assertions thathe was not afforded the effective assistance of counsel and that he was denied a fair trialby limitations placed on his testimony by County Court were also raised in his directappeal and rejected by this Court (id.). While defendant claims that these issueswere not "adequately developed" in the prior appeal, we note that a CPL article 440motion "cannot be used as a vehicle for an additional appeal" (People v Bruno, 97 AD3d986, 986-987 [2012], lv denied 20 NY3d 931 [2012] [internal quotationmarks and citations omitted]; see People v Saunders, 301 AD2d 869, 870 [2003],lv denied 100 NY2d 542 [2003]). Given that these issues have been determinedon the merits and there has been no retroactive change in the controlling law, CountyCourt properly denied defendant's motion as it related to these claims (see People v Strawbridge, 76AD3d 115, 118-119 [2010], lv denied 15 NY3d 895 [2010]; People v Thompson, 48 AD3d883, 885 [2008], lv denied 10 NY3d 965 [2008]).
A motion to vacate a judgment of conviction must also be denied when the trialrecord contains sufficient facts that would have allowed for "adequate review of theground or issue raised . . . [but] no such appellate review or determinationoccurred owing to the defendant's . . . unjustifiable failure to raise suchground or issue upon an appeal actually perfected" (CPL 440.10 [2] [c]; see People v Cuadrado, 9NY3d 362, 364-365 [2007]). Inasmuch as defendant's remaining claims of allegedprosecutorial misconduct and ineffective assistance of counsel could have been raised onthe direct appeal, but were not, and defendant does not present any justifiable basis forhis failure to raise them (seePeople v Hillriegel, 78 AD3d 1381, 1382 [2010]; compare People v Hoffler, 74AD3d 1632, 1634 [2010], lv denied 17 NY3d 859 [2011]), County Courtproperly denied defendant's motion as to such claims without a hearing (see CPL440.10 [2] [c]; People vPolanco, 52 AD3d 947, 947 [2008], lv denied 11 NY3d 793 [2008];People v Lindsey, 302 AD2d at 130; People v Hickey, 277 AD2d 511,511 [2000], lv denied 95 NY2d 964 [2000]).
Nor do we discern any error in County Court's summary denial of that part ofdefendant's motion that was based upon his claim of newly discovered evidence. Asrelevant here, "[t]o justify vacatur under CPL 440.10 (1) (g), the newly discoveredevidence 'must . . . be such as will probably change the result if a new trialis granted . . . [and] be material to the issue' " (People v Lackey, 48 AD3d982, 983 [2008], lv denied 10 NY3d 936 [2008], quoting People vPriori, 164 NY 459, 472 [1900]). A hearing is not necessary when the court can"adequately review the matter based upon the contents of the record and the motionpapers" (People v Loomis, 256 AD2d 808, 808 [1998], lv denied 93NY2d 854 [1999]; see CPL 440.30 [1] [a]).
Here, defendant retained a private investigator who, in June 2010, attempted to speakwith two of the jurors from his trial. The private investigator submitted an affidavitmemorializing her conversation with one of the jurors, in which she alleged that thisjuror made [*3]various disparaging comments aboutdefendant, such as calling him a "bad guy" who had been a "bad egg for his whole life."Defendant suggests that these statements contradict the juror's responses during voir dire,which indicated that she was not familiar with defendant and demonstrate that she was abiased juror (see generally People v Pugh, 107 AD2d 521, 532-533 [1985], lvdenied 65 NY2d 985 [1985], 67 NY2d 764 [1986]). However, in our view,defendant's purely speculative interpretation of these statements is insufficient to warranta hearing. The statements do nothing more than indicate that, five years after she hearddefendant's trial testimony—which included some development of his criminalhistory—this juror has formed the opinion that defendant had a criminal history.Given that defendant's motion papers and the trial record failed to demonstrate that thisevidence was material to any issue at trial or that a hearing would have produced materialnonrecord facts that would have entitled defendant to relief (see People vSatterfield, 66 NY2d 796, 799 [1985]; People v Terry, 44 AD3d 1157, 1159 [2007], lvdenied 10 NY3d 772 [2008]; People v Saunders, 301 AD2d at 872), weconclude that County Court properly denied the motion on this basis without a hearing.
To the extent not specifically addressed herein, defendant's remaining claims havebeen reviewed and found to be without merit.
Rose, J.P., Lahtinen and Egan Jr., JJ., concur. Ordered that the order is affirmed.
Footnote *: Defendant's petition forfederal habeas corpus relief was also denied in January 2011.