People v. Alexander

• Decision Date: 12 November 1998
• Citation: People v. Alexander, 681 N.Y.S.2d 109, 255 A.D.2d 708 (N.Y. App. Div. 1998)
• Parties: 1998 N.Y. Slip Op. 10,068 The PEOPLE of the State of New York, Respondent, v. Gerald ALEXANDER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 109

681 N.Y.S.2d 109

1998 N.Y. Slip Op. 10,068

The PEOPLE of the State of New York, Respondent, v. Gerald ALEXANDER, Appellant.

Supreme Court, Appellate Division Third Department.

Nov. 12, 1998.

Wiggins & Masson LLP (Matthew Van Houten of counsel), Ithaca, for appellant.

George M. Dentes, District Attorney (Jevon L. Garrett of counsel), Ithaca, for respondent.

Before MERCURE, J.P., WHITE, PETERS, SPAIN and GRAFFEO, JJ.

MERCURE, Justice Presiding.

Appeals (1) from a judgment of the County Court of Tompkins County (Sherman, J.), rendered March 11, 1996, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the third degree, and (2) by permission, from an order of said court, entered January 14, 1997, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

On September 13, 1995, an undercover State Police Investigator approached defendant, Aalia De Sarno and two other individuals who had congregated in front of a residence in the City of Ithaca, Tompkins County. The Investigator asked one of the unidentified men for cocaine but was refused because the man did not know him. The second unidentified individual, however, indicated that he knew the Investigator and removed what appeared to be several packets of cocaine from his pocket. Defendant interrupted this transaction, telling the man not to sell to the Investigator but that he should let De Sarno do it. The Investigator then approached De Sarno, who engaged in a brief conversation with defendant and then sold the Investigator a bag of cocaine for $20. As a result defendant and De Sarno were each indicted, defendant charged with criminal sale of a controlled substance in the third degree.

During the ensuing proceedings, defendant was represented by Benjamin Darden. Although De Sarno was initially represented by another attorney, she ultimately applied for permission to substitute Darden as her trial counsel. Despite pointed warnings issued by De Sarno's initial counsel, by the District Attorney and by County Court in connection with its in camera Gomberg hearing (People v. Gomberg, 38 N.Y.2d 307, 379 N.Y.S.2d 769, 342 N.E.2d 550), and the potential for conflict, defendant and De Sarno expressed their desire to be represented by Darden (see, People v. De Sarno, 239 A.D.2d 74, 77, 670 N.Y.S.2d 254). The action proceeded to trial, the jury rendered a guilty verdict and defendant was sentenced to a prison term of 3 1/3 to 10 years. Defendant subsequently moved pursuant to CPL 440.10 to vacate the judgment of conviction on the basis of claimed ineffective assistance of counsel. County Court denied the motion without a hearing. Defendant now appeals the judgment of conviction and, by permission of a Justice of this court, the order denying his CPL 440.10 motion.

We affirm. Initially, we reject the contention that County Court erred in denying defendant's CPL 440.10 motion without a hearing. Fundamentally, the trial court may deny a motion to vacate the judgment of conviction without a hearing if "[t]he moving papers do not allege any ground constituting legal basis for the motion" (CPL 440.30[4][a]; see, People v. Smith, 227 A.D.2d 655, 641 N.Y.S.2d 905, lv. denied 88 N.Y.2d 994, 649 N.Y.S.2d 401, 672 N.E.2d 627). In this case, the sole basis for the motion was defendant's claim that he received ineffective assistance of counsel by virtue of his trial counsel's action in stipulating to receipt of the laboratory report identifying the substance sold to the Investigator as cocaine. We agree with County Court, first, that the alleged "inconsistencies" in the State Police laboratory paperwork pointed to by defendant are easily reconciled and raise no genuine issue as to the accuracy of the analysis or the integrity of the chain of custody of the evidence and, second, that defendant's stipulation was entirely consistent with the theory of his defense, i.e., that he took no part in the sale of the substance. Defendant having failed to come forward with competent evidence supporting a genuine ground for vacatur of the judgment, County Court did not err in...