The following papers numbered 1 to 3 were read and considered on the defendant’s motion to vacate the judgment pursuant to CPL §440.10, and application to proceed as a poor person. Papers Numbered Notice of Motion and Affidavits Annexed 1-2 Affirmation in Opposition 3 On September 18, 2016, the defendant was discovered by police asleep in the driveway of 130 Huntsbridge Road in Yonkers New York. The responding officer arrested the defendant and allegedly observed a tan-strapped Elgin watch fall from the defendant’s wrist. Said watch matched the description of a watch missing from a residential burglary three days prior. Police also observed defendant’s clothing, a black fanny pack and grey New Balance sneakers, matched those worn by the individual seen in security footage of several burglaries in the area. The defendant was arraigned on charges of Trespass in violation of Penal Law §140.05 and Criminal Possession of Stolen Property in the Fifth Degree in violation of Penal Law §165.40. On September 19, 2016, the defendant entered a plea of not guilty. Thereafter, following several disagreements with his assigned counsel, the defendant, on October 17, 2016, informed the court that he was unsatisfied with his attorney and wished to proceed pro-se. Following an inquiry, the court found the defendant was able to represent himself and his attorney was reassigned as his legal advisor. The Court directed the People to turn over all Rosario material to the defendant no later than November 28, 2016. The People alleged the defendant had already been provided with a copy of the misdemeanor information, three owners depositions and a supporting deposition from the arresting officer. On November 9, 2016, the defendant filed a pro se motion to dismiss the misdemeanor information on the grounds that the evidence against him was “manufactured.” The defendant asserted that the allegedly stolen watch was widely available for sale online, thereby making it “highly unlikely” that this watch belonged to the alleged owner. The People opposed the motion. On December 14, 2016 the defendant appeared in court with his legal advisor, withdrew the pending motion and pled guilty to Criminal Possession of Stolen Property in the Fifth Degree (PL §165.40). The defendant signed a misdemeanor waiver of rights form which memorialized his plea and included a statement that the defendant was satisfied with the representation given by his attorney and further that he was withdrawing all motions. The defendant was sentenced that day. The defendant now moves, in a single spaced 35-page motion, to vacate the judgment of conviction. The defendant’s claims center primarily upon the defendant’s belief that he was “framed” by law enforcement for the underlying offense. The People opposed the defendant’s application. The People alleged that as the defendant’s motion is based only upon his self-serving allegations as support, they should be rejected. CPL §440.10 provides that the court may deny a motion to vacate the judgment when: “(a) Although facts in support of the ground or issue raised upon the motion could with due diligence by the defendant have readily been made to appear on the record in a manner providing adequate basis for review of such ground or issue upon appeal from the judgment, the defendant unjustifiably failed to adduce such matter prior to sentence and the ground or issue in question was not subsequently determined upon appeal.” CPL §440.10(3)(a). The defendant bears the burden of presenting allegations that raise a triable issue of fact sufficient to warrant a hearing. People v. Clemmons, 177 AD3d 899,900 [2d Dept, 2019]. “Mere conclusory allegations of ultimate facts are insufficient to warrant a hearing.” People v. Waymon, 65 AD3d 708, 709 [2d Dept, 2009]; CPL §440.30[1][a]. The court may deny the defendant’s motion without holding a hearing when the motion “is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts.” CPL §440.30[4][b], [d]. Here, the allegations are made exclusively by the defendant and unsupported by any other affidavits or evidence. CPL §440.30[4][d]. The defendant claimed in his affidavit that the police “planted” a box cutter on his person which was claimed by “another witness.” He alleged that the owner of the home at 130 Huntsbridge Road in Yonkers New York where he was found asleep in the driveway refused to come to court to testify. He also alleged that the owner of the allegedly stolen watch was “coerced” to provide an owner’s deposition and that the defendant lawfully purchased the allegedly stolen watch and can produce a receipt. (November 29, 2021, Affidavit of Alberto Carrion). The motion is unsupported by any evidence other than the defendant’s conclusory assertions. CPL §440.30[4][b], CPL §440.30[4][c]. “The statute is plain that the initial failure by a defendant to carry his or her burden of coming forward with sworn allegations substantiating the essential facts in the 440 motion does not shift the burden to the People in their responsive pleadings.” People v. Wright, 27 NY3d 516, 522 [2016]. With respect to the defendant’s allegations of innocence, the Court of Appeals has held “where the defendant has been convicted by a guilty plea, there is no actual innocence claim cognizable under CPL 440.10(1)(h).” People v. Tiger, 32 NY3d 91 (2018). Further, while the defendant argued the allegedly stolen watch was a lawful purchase, the defendant failed to present such evidence and failed to offer any reason or excuse for his failure to provide such information. People v. Guaman, 51 Misc 3d 792 [Crim. Ct, New York County, 2016]; CPL §440.30[4][b] and CPL §440[4][c]. The defendant’s remaining claims, based on an alleged violation of his constitutional rights (People v. Fox, 172 AD2d 218 [1st Dept 1991]and prosecutorial misconduct (People v. Brown, 56 NY2d 242 [1982]) are similarly denied without a hearing as the defendant failed to support the allegations with evidence supporting same. Turning then to the defendant’s claims of ineffective assistance of counsel, same were waived as the defendant chose to act as his own attorney on October 17, 2016. The Court permitted the defendant to proceed pro se and the defendant’s attorney was reassigned as the defendant’s legal advisor. “Once the defendant has refused the assistance of counsel, ‘he may not be heard to complain later that the court failed to protect him from his own ineptitude.’ ” People v. Woolnough, 180 AD2d 837,838 [3d Dept, 1992] quoting U.S. v. Flewitt, 874 F.2d 699, 675 [9th Cir, 1989]. Even assuming arguendo that an ineffective assistance claim could be brought, the defendant unambiguously represented on the misdemeanor waiver of rights form that he was “satisfied with the representation given to me by my attorney” (People’s Exhibit A, par. 6). Moreover, “a claim of ineffective assistance of counsel will be sustained only when it is shown that counsel partook ‘an inexplicably prejudicial course’” (see, People v. Benevento, 91 NY2d 708,712 [1998] citing People v. Zarborski, 59 NY2d 863, 865 [1983]) and counsel will not be deemed “ineffective for failing to pursue an argument that had little or no chance of success.” People v. Witherspoon, 147 AD3d 985 [2nd Dept, 2017] citing People v. Ennis, 11 NY3d 403, 415 [2008]. By exercising his right to proceed pro se, defendant waived any ineffective assistance claim he might have had in connection with his guilty plea. People v. Clark, 42 AD3d 957 [4th Dept 2007] citing People v. Peterkin, 12 AD3d 1026, 1028 [4th Dept 2004]; People v. Smith, 831 N.Y.S.2d 361 [Queens Co., 2006] That branch of defendant’s motion which sought to vacate his conviction as the People failed to turn over discovery and that the court failed to decide his motion to dismiss is denied. The defendant waived any pretrial discovery and motion practice claims by pleading guilty. People v. Berezansky, 229 AD2d 768 [3d Dept, 1996]; People v. Passero, 222 AD2d 858 [3d Dept, 1995]. The defendant failed to offer any explanation or justification for his failure to raise these pretrial issues prior to entering his plea. Berezansky, 229 AD2d at 771. Further, as the defendant pled with full awareness of the allegedly outstanding discovery, the defendant cannot demonstrate prejudice resulted from this non-disclosure. People v. Giuca, 33 NY3d 462, 473 [2019]. The defendant further failed to substantiate his allegations and withdrew his pending motion to dismiss prior to the entry of his plea of guilty. This branch of the defendant’s motion is denied. For all the foregoing reasons, the defendant’s motion to vacate his guilty plea is denied without a hearing. Dated: May 10, 2022
