This case is not published in a printed volume and its disposition appears in a table in the reporter.
Abraham G. Gerges, J.
On May 19, 1993, following a trial over which this court presided, the defendant was found guilty by jury verdict of criminal sale of a controlled substance in the third degree (PL 220.39), and not guilty of criminal possession of a controlled substance in the third degree (PL 220.16) and seventh degree (PL 220.03). On June 9, 1993, this court adjudicated the defendant a "second felony offender," and sentenced him to an indeterminate prison term of 12-1/2 to 25 years. The defendant was subsequently convicted of crimes committed in prison while serving this sentence, and currently remains incarcerated.
The defendant's conviction in the captioned case was upheld on his direct appeal from judgment ( People v Velez, 254 A.D.2d 379 [2d Dept. 1998], lv. den. 92 N.Y.2d 1055 ), and his petition for a federal writ of habeas corpus was denied by the United States District Court for the Eastern District of New York (Velez v McGinnis, 99-CV-6978 [FB] [E.D.NY May 16, 2001] [Block, J.]).
In papers sworn on February 2, 2006, the defendant now moves pro se, under CPL 440.10[b] and [h], to vacate the judgment of conviction in the captioned case. The defendant's motion rests in large part on his allegation that the undercover officer who conducted the "drug buy" in which the defendant was found guilty of participating, was not the same undercover who testified against the defendant at trial eleven months later. In addition, the defendant claims that trial counsel rendered ineffective assistance, and that this court violated CPL 310.40, by "intercepting" the jury's verdict. The defendant has submitted a number of documents as exhibits to his motion papers, including copies of the Appellate Division decision and the federal District Court Memorandum and Order, referenced supra, and several NYPD and District Attorney's Office records.
On June 30, 2006, the People filed an affirmation and memorandum of law opposing the defendant's vacatur motion on both procedural grounds and on the merits. The defendant responded with an affidavit and memorandum of law dated July 13, 2006.
This court has reviewed the papers filed by both parties, including the exhibits appended thereto, and the transcribed minutes of the defendant's pre-trial suppression hearing, trial and sentence proceeding, and for the reasons set forth below, summarily denies the defendant's motion to vacate the judgment of conviction entered against him in the captioned case.
The Motion to Vacate Judgment under CPL 440.10
At any time after a judgment of conviction is rendered, the defendant may move to vacate such judgment on a variety of grounds, including the claim that it was obtained by fraud on the part of the prosecutor or a person acting on behalf of the prosecutor (CPL 440.10[b]), and/or that it was obtained in violation of the defendant's rights under the New York State and/or United States Constitution (CPL 440.10[h]); one such right under both constitutions is a criminal defendant's right to effective assistance of trial counsel ( see Strickland v Washington, 466 U.S. 668 ; People v Linares, 2 N.Y.3d 507).
However, the legislature did not intend the vacatur motion to be used as a substitute for appeal, and therefore specified that grounds claimed under CPL 440.10 must be based on facts not included on the record (see People v Cooks, 67 N.Y.2d 100 ). Accordingly, CPL 440.10 provides that a motion to vacate judgment must be denied when, although sufficient facts appear on the record underlying the judgment to have permitted adequate appellate review of the issue(s) raised, no such appellate review occurred due to the defendant's unjustifiable failure to raise such issue(s) upon his direct appeal (CPL 440.10[c]). In addition, a motion to vacate judgment may be summarily denied when inter alia, it fails to allege a ground constituting a legal basis for the motion (CPL 440.30[a]); 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[b]); and/or when an allegation of fact essential to support the motion is contradicted by a court record or is made solely by the defendant and is unsupported by any other affidavit or evidence, and under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true (CPL 440.30[d]).
The Defendant's Claims
Prosecutorial Fraud. As noted, the defendant asserts that the undercover police officer who testified against him at trial was not the same undercover officer who conducted the drug buy which led to his arrest on June 29, 1992; the defendant bases a number of claims on this allegation, including the claim that the People knew the undercover witness at trial was lying when he testified that he had conducted the subject drug buy. In asserting the underlying factual allegation, the defendant relies entirely on the fact that the undercover officer who testified at trial identified himself as undercover #2307, whereas two police witnesses at trial, Detective Esposito (T at 172) , and Sergeant Antomez (T at 319), and several NYPD and DA records, refer to the undercover involved in the subject drug buy as #21919.
The People argue that all claims premised on the factual allegation that the "wrong" undercover testified at trial should be barred on procedural grounds under CPL 440.10[c], because the allegation is based on facts appearing on the record, including trial testimony and documents turned over to the defendant's counsel by the People pursuant to ...