The opinion of the court was delivered by: Patrick J. McGrath, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
The Defendant seeks to vacate his judgment of conviction pursuant to CPL § 440.10(1)(h). The People have opposed the motion.
At trial, eyewitness accounts established that the defendant retrieved a gun from his residence and fired 4 to 5 times at close range at the decedent who sat alone in his car. The forensic examiner testified that the victim had been hit with four bullets and that one killed him. Defendant's statement was received as evidence, in which he admitted the shooting, but claimed that he acted in self defense because the victim attempted to stab him with a butcher knife in an earlier occurrence. The defendant testified in his own defense, denying that he was the shooter and that he had made the aforementioned statement.
By judgment rendered on September 14, 1999, defendant was convicted after a jury trial of "depraved indifference" Murder in the Second Degree, under Penal Law § 125.25(2), as well as Criminal Possession of a Weapon in the Second Degree. He was acquitted of intentional Murder in the Second Degree under Penal Law § 125.25(1). On October 6, 1999, he was sentenced to 25 years to life incarceration.
On direct appeal, defendant asserted that this Court erred in denying his suppression motion regarding his admissions, as well as allowing the prosecutor to use the defendant's juvenile adjudication to impeach him. The conviction was affirmed on January 3, 2002 (People v. Pitts, 290 AD2d 580 [3d Dept 2002]). Defendant's request for leave to appeal was denied on March 21, 2002 (People v. Pitts, 97 NY2d 759 ). Defendant's conviction therefore became final on June 19, 2002. See Policano v. Herbert, 7 NY3d 588, citing Clay v. United States, 537 U.S. 522  and Supreme Court Rule 13 (noting that a conviction becomes final when a defendant fails to file a petition for writ of certiorari in the U.S. Supreme Court within 90 days of the New York Court of Appeals' denial of leave to appeal).
By pro se motion dated October 17, 2002, defendant moved this Court to vacate his conviction pursuant to CPL § 440.10(1)(h), claiming that he was denied his right to a fair trial and an impartial jury because 1) the jury was exposed to inflammatory publicity about his case and 2) members of his race were excluded from the jury panel. On February 11, 2003, this Court denied the motion without a hearing.
In a second pro se motion pursuant to CPL § 440.10, the defendant moved this Court to vacate his conviction, claiming a violation of his right to counsel, ineffective assistance of counsel, and an illegal delay in his arraignment. On October 17, 2003, this Court denied the motion without a hearing.
In papers dated May 7, 2007, the defendant moved this Court for a third time to vacate his conviction pursuant to CPL § 440.10 based on two separate claims: 1) that the evidence presented during his trial reflected an intent to kill, and he was thus convicted of a crime that he did not commit, and 2)that his conviction must be re-examined in light of recent Court of Appeals cases, as well as pre-existing law pertaining to reckless conduct. In the same vein, defendant also claims that his trial attorney's failure to object to the inclusion of the depraved indifference count constituted ineffective assistance of counsel. This court denied the motion without a hearing on May 18, 2007, finding that these issues were unjustifiably absent from his appeal.
Defendant now brings the instant motion to vacate his conviction, stating that this court incorrectly decided his last CPL § 440.10 motion. Defendant is attempting to renew and/or reargue his previous application, as he claims this court misapprehended matters of law on the prior motion, and that there has been a change in the law that would alter the prior determination. CPLR § 2221(d),(e).
Defendant relies on a line of Court of Appeals cases, wherein the law concerning depraved indifference evolved from the standard announced in 1983 in People v. Register, 60 NY2d 270. In order to understand the evolving law one must consider the two separate elements of depraved indifference murder - recklessness and depraved indifference to human life. There has been no change in the law on recklessness. "It has never been permissible in New York for a jury to convict a defendant of depraved indifference murder where the evidence produced at trial indicated that if the defendant committed the homicide at all, he committed it with the conscious objective of killing the victim" (Policano v Herbert, supra at 600). A person cannot act both intentionally and recklessly with respect to the same result and therefore depraved indifference murder is not and never has been considered a substitute for an intentional homicide (People v Register, supra, at 278-279). The act is either intended or not intended; it cannot simultaneously be both (People v Gallagher, 69 NY2d 525, 529 ). Under the rule ...