People v. Alexander

• Decision Date: 19 June 1987
• Citation: 518 N.Y.S.2d 872,136 Misc.2d 573
• Parties: The PEOPLE of the State of New York v. Charles ALEXANDER, Defendant.
• Court: New York Supreme Court

Page 872

518 N.Y.S.2d 872

136 Misc.2d 573

The PEOPLE of the State of New York v. Charles ALEXANDER, Defendant.

Supreme Court, Bronx County,

Part 39.

June 19, 1987.

Mario Merola, Dist. Atty., (Peter Grishman, Executive Asst. Dist. Atty., of counsel), Lisa Rubin, Asst. Dist. Atty., for the people.

Patrick M. Wall, New York City (Oren Root, of counsel), for defendant.

DECISION

ROBERT L. COHEN, Justice:

The defendant, Charles Alexander, was convicted on April 12, 1976, after a one week jury trial of the crime of criminal sale of a controlled substance in the first degree under indictment 810/74, and was sentenced on May 18, 1976, to an indeterminate term of imprisonment of twenty-five years to life (William J. Drohan, J. at trial and sentence).

On June 6, 1986, the defendant, represented by new counsel, moved to vacate the judgment of conviction, pursuant to CPL 440.10[1](f) and (h), arguing that he was denied the effective assistance of counsel in the trial court and on appeal.

The defendant contends that his trial counsel was constitutionally ineffective because a plea bargain offer was made by the prosecution before trial, but his attorney failed to communicate it to him. Defendant also argues that he was deprived of the effective assistance of appellate counsel by counsel's failure to argue effectively that the trial judge improperly considered a pending indictment at the time sentence was imposed, and by counsel's failure to argue that defendant's sentence was excessive.

Defendant's conviction after trial was affirmed by the Appellate Division without opinion, 56 A.D.2d 740, 391 N.Y.S.2d 936 (1st Dept.1977), and leave to appeal to the Court of Appeals was denied, 42 N.Y.2d 826, 396 N.Y.S.2d 1029, 364 N.E.2d 1346 (1977). The United States Supreme Court denied certiorari, Alexander v. New York, 434 U.S. 836, 98 S.Ct. 125, 54 L.Ed.2d 98 (1977). Thereafter, defendant filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which was dismissed in an unreported opinion by United States District Judge Gerard L. Goettel (73 Civ. 572), on March 7, 1978. The United States Court of Appeals affirmed. Alexander v. Harris, 595 F.2d 87 (2d Cir.1979).

In the trial court and throughout the appellate process and collateral challenge in the Federal Court, defendant was represented by the same retained counsel, Herbert S. Siegal, Esq.

A CPL 440.10 motion is procedurally the appropriate vehicle to raise in this Court a claim of ineffective assistance of trial counsel (see, People v. Bachert, 69 N.Y.2d 593, 516 N.Y.S.2d 623, 509 N.E.2d 318) but may no longer be used to raise a claim of ineffective assistance of appellate counsel (see, People v. Bachert, supra, revg. 121 A.D.2d 802, 504 N.Y.S.2d 252). Accordingly, defendant's request to vacate the judgment of conviction on the ground that he was denied the effective assistance of appellate counsel, is denied without prejudice to renew in the proper forum ¹. People v. Bachert, supra.

The People opposed the granting of a hearing, arguing, in substance, that the failure to convey a plea bargain does not constitute the ineffective assistance of counsel; that defendant received a fair trial and guilt was overwhelmingly proven; that the People have been prejudiced by the delay in bringing the 440 motion since Mr. Siegal died in March 1983; that the People cannot locate their files to refute defendant's claim; that public policy requires denying the motion without a hearing to deter convicted inmates from making specious claims after their attorneys have died, and finally, that defendant's obvious self-interest in overturning a twenty-five year to life sentence, warrants summary denial of his motion.

A hearing was granted because defendant's motion papers articulately and persuasively presented a viable claim that he had been denied the effective assistance of counsel in the trial court. See CPL 440.30(5). Once the defendant establishes through a sworn affidavit that is not incredible on its face and is not shown to be false by unquestionable documentary proof, that he was denied a constitutional right, a full hearing is required to explore the issue raised. People v. Chait, 7 A.D.2d 399, 401, 183 N.Y.S.2d 494 (1st Dept.1959). See also, People v. Satterfield, 66 N.Y.2d 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834; People v. Oddo, 283 App.Div. 497, 499, 128 N.Y.S.2d 394 (1st Dept.1954).

Inasmuch as the People were not able to conclusively refute with any documentary proof defendant's claim that a plea bargain was offered but not conveyed to him, a hearing was held to resolve issues of fact, viz., whether the prosecution made a plea offer to defense counsel and whether the plea offer was communicated to defendant.

I. BACKGROUND

The defendant was convicted of selling three ounces of cocaine to an undercover policewoman for the sum of three thousand dollars. The sale took place on January 29, 1974, in the defendant's apartment and no one was present except defendant, the undercover officer, and a confidential informant named Oscar Wilson who was deceased at the time of defendant's trial.

The defendant was arrested for the January 29th sale on March 16th; an indictment had been filed on March 7th charging him with the Class A-1 felony of criminal sale of a controlled substance in the first degree.

The arrest on March 16th took place at defendant's apartment, and pursuant to a search of the apartment, the police seized $5,039 in cash from a locked metal container found in defendant's bedroom. It was determined that a one hundred dollar bill which was part of the $5,039 in cash found in the locked metal container, had the same serial number as a one hundred dollar bill given to defendant by the undercover officer on January 29.

The March 16th search of defendant's apartment resulted in another indictment (854/74), returned on March 28th, 1974, charging defendant with the crimes of criminal possession of a weapon as a misdemeanor, and criminal possession of a controlled substance in the seventh (cocaine) and sixth (marijuana) degrees.

At the time of trial on indictment 810/74, the defendant had pending indictment 854/74, as mentioned previously, and indictments 1403/74, charging him with murder and 2460/74 ² charging him with conspiracy in the first degree. Herbert Siegal represented him on all four indictments.

Shortly after defendant's March 16th arrest, on April 9, 1974, a notice of appearance was filed in the Supreme Court Bronx County, by the law firm of Siegal & Randolph, by James W. Randolph ³.

Prior to trial, defendant moved to controvert a wiretap order, dated January 11th, 1974, (Lawrence H. Bernstein J.) and "to suppress any evidence and leads obtained therefrom relating to my arrest and indictment" ⁴.

Justice Bernstein's order for the interception of defendant's telephonic communications over his home telephone emanated from a New Jersey interception order and two extensions thereof of the home telephone of one Geraldine Shore. Miss Shore's conversations with defendant led the New Jersey authorities to believe that the defendant was Shore's supplier and they turned that information over to the New York authorities.

It was defendant's contention in the trial court and throughout the appellate process that the New Jersey wiretap order was illegally issued and that the disclosure of information by New Jersey authorities to the New York police tainted all evidence thereafter acquired. In a decision dated January, 1976, then Justice Mary Johnson Lowe rejected defendant's contentions and denied defendant's motion to controvert and suppress the evidence.

II. THE CPL 440.10 HEARING

The defense case consisted of the testimony of defendant's wife, Rosetta Alexander, and the defendant. Defendant's Exhibits A through U were also received into evidence.

The People's witnesses were former Assistant District Attorney Edward Rothman who prosecuted defendant; James W. Randolph, Mr. Siegal's former law partner, and Alex P. Siegal, Mr. Siegal's son. The People also introduced into evidence Exhibits 1 through 25.

Rosetta Alexander, defendant's wife, testified that she attended all court appearances and drove her husband to see his attorney during the time he was out on bail and preparing for trial. She and Dorothy Caputo ⁵, Mr. Siegal's secretary, would sit in on all meetings with the defendant and Mr. Siegal.

Mrs. Alexander testified that her husband met with his attorney at the latter's office approximately four or five times before trial; these meetings lasted between twenty to thirty minutes and they were mostly for the purpose of paying the attorney. According to Rosetta Alexander, Mr. Siegal always insisted that Charles would "beat the case" because of an illegal wiretap. She never heard anything about a plea bargain and to her knowledge it was never discussed.

Rosetta Alexander maintained that Mr. Siegal never stated during those meetings that if the defendant were convicted he faced a minimum sentence of fifteen years to life. She testified that Mr. Siegal never spoke about the facts of the case, about the sale to the undercover police officer or the confidential informant. She never saw a lab report or heard mention of the one hundred dollar bill that was discovered in the defendant's apartment, until the trial.

After all appeals were exhausted, upon defendant's request, Mrs. Alexander picked up a box of papers from Mr. Siegal and brought them to Mr. Alexander at Greenhaven Prison.

The defendant testified that he was arrested on March 16, 1974, and retained Herbert Siegal approximately one month later after he was recommended by some other prisoners incarcerated with him in the Bronx House of Detention. Defendant maintained that although he met with Herbert Siegal while incarcerated, and also spoke with him at Court appearances, plea bargaining was never discussed. Mr. Siegal stated to him that they would win the case because of an...