| People v Stacchini |
| 2013 NY Slip Op 05241 [108 AD3d 866] |
| July 11, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MarioJ. Stacchini, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), forrespondent.
Garry, J. Appeals (1) from a judgment of the County Court of Albany County(Breslin, J.), rendered April 24, 2008, upon a verdict convicting defendant of the crimesof criminal possession of a weapon in the third degree and menacing in the seconddegree, and (2) by permission, from an order of said court, entered May 31, 2011, whichdenied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction,without a hearing.
Defendant was charged by indictment with criminal possession of a weapon in thethird degree and menacing in the second degree after he allegedly attacked anacquaintance on Quail Street in the City of Albany and held a knife to the man's throat.Following a jury trial, he was convicted as charged and sentenced as a second felonyoffender to an aggregate prison term of 3½ to 7 years. Acting pro se, defendantthereafter moved pursuant to CPL 440.10 to vacate the judgment of conviction, allegingthat he had received the ineffective assistance of counsel. County Court denied themotion without a hearing, and subsequently denied defendant's motion for reargument orrenewal. Defendant appeals from the judgment of conviction and, by permission, fromthe denial of his CPL article 440 motion.
Defendant first contends that County Court erred in permitting the People to add aname to their witness list on the day that this witness testified at trial. Upon being advisedof the facts [*2]to which the witness would testify,defense counsel objected that the testimony was unfairly surprising and would underminehis theory of defense. However, the People had discovered this new witness just beforethe commencement of trial, as he had been included—albeit under a partiallyincorrect name—in defendant's own witness list. Noting that the People are notstatutorily required to disclose the identities of witnesses, we find no abuse of the court'sdiscretion (see People v Lynch, 23 NY2d 262, 271-272 [1968]; People vColeman, 178 AD2d 842, 844 [1991], revd on other grounds 81 NY2d 826[1993]; People v Miller, 106 AD2d 787, 788 [1984]).
Defendant challenges both the judgment of conviction and the denial of his CPL440.10 motion on several grounds related to the presentence investigation report(hereinafter PSI). However, his claim that the PSI contained inaccurate informationregarding his criminal, social and family history is unpreserved (see People v Williams, 89AD3d 1222, 1224 [2011], lv denied 18 NY3d 887 [2012]; People v Swartz, 23 AD3d917, 918 [2005], lv denied 6 NY3d 818 [2006]), and his contention that histrial counsel provided ineffective assistance by failing to conduct an adequate review ofthe PSI with him is unsupported by the record or by any evidentiary submission otherthan defendant's affidavit. At sentencing, defendant's trial counsel stated that he wasgiven adequate time to review the PSI, and he raised several objections to its contents.Defendant was given an opportunity to speak, and could have expressed dissatisfactionwith his counsel or with his opportunity to review the PSI, but declined to do so. Finally,we reject defendant's claim that the inclusion of a police officer's statements in the PSIviolated his 6th Amendment right of confrontation as set forth in Crawford vWashington (541 US 36 [2004]). This protection pertains to the admissibility oftestimonial statements at trial and does not extend to sentencing (see People v Leon, 10 NY3d122, 124-126 [2008], cert denied 554 US 926 [2008]).
Defendant next contends that his trial counsel provided him with ineffectiveassistance by failing to inform him of favorable plea offers. The record reveals that thePeople extended a plea offer to defendant shortly after his arraignment, which he rejectedin open court after consultation with his trial counsel. In his postconviction motionpursuant to CPL 440.10, defendant asserted that his counsel informed him during thetrial that the People had recently extended another offer that would have allowed him toplead guilty to a misdemeanor, but that trial counsel had rejected this offer withoutconsulting him. This claim was supported only by defendant's affidavit and wasunsubstantiated by "any other proof that a plea offer was made" (People v Gunney, 13 AD3d980, 983 [2004], lv denied 5 NY3d 789 [2005]). In denying the motion,County Court noted that, in any event, in light of defendant's significant criminal history,a misdemeanor plea would not have been approved. Given the court's familiarity with thematter and the inadequacy of defendant's submissions, we find no error in the denial ofthe motion without a hearing (see People v Ellis, 53 AD3d 776, 777 [2008]; People v Robetoy, 48 AD3d881, 883 [2008]).
Approximately six months after the denial of defendant's motion pursuant to CPL440.10 in May 2011, he submitted a pro se motion seeking reargument or renewal basedupon newly discovered evidence consisting of a November 2011 letter from the specialprosecutor who tried his case.[FN*]Defendant argues that this letter proves that his trial counsel failed to advise him [*3]of favorable preindictment plea offers. The CriminalProcedure Law permits a court to vacate a judgment of conviction based upon newevidence discovered after the judgment was entered which the defendant could notpreviously have produced with due diligence and "which is of such character as to createa probability that had such evidence been received at the trial the verdict would havebeen more favorable" (CPL 440.10 [1] [g]; see CPL 440.10 [3] [b], [c]). Evenassuming that defendant based his motion upon this provision, he did not meet thisshowing, nor demonstrate the requisite due diligence. The letter fails to supportdefendant's claim that the People made a misdemeanor plea offer shortly before his trial,but indicates instead that such offers were made before defendant wasindicted—and that defendant himself, appearing pro se or while represented byother counsel, "rejected any and all plea bargain offers" during this time. Notably,defendant conceded in his CPL article 440 motion that he had received and "flatlyrejected" one favorable preindictment plea offer. The letter further clearly states that thespecial prosecutor "never, once" received correspondence from defendant on this issuebefore November 2011. Accordingly, defendant did not meet his burden to establish"every essential fact" needed to justify vacatur of the judgment (People v Lackey, 48 AD3d982, 982 [2008], lv denied 10 NY3d 936 [2008]; see People v Tucker, 40 AD3d1213, 1214 [2007], lv denied 9 NY3d 882 [2007]).
Defendant's remaining contentions have been reviewed and found to be withoutmerit.
Peters, P.J., Rose and Stein, JJ., concur. Ordered that the judgment and order areaffirmed.
Footnote *: Although not addressedby the People, we note that this application was made "pursuant to CPLR Rule 2221 andCPLR Rule 5015." We find no authority allowing application of these provisions in thiscriminal action (see CPL 1.10 [1] [a]; CPLR 101, 105 [d]; see also People vCrisp, 268 AD2d 247, 247 [2000], lv denied 94 NY2d 946 [2000]). Further,the Criminal Procedure Law does not provide for reargument following denial of amotion pursuant to CPL 440.10, nor is there a right to appeal from the denial ofreargument under CPLR 2221 (see Matter of Linney v City of Plattsburgh, 49 AD3d 1020,1022 [2008]).