People v. Carter

• Decision Date: 11 April 2013
• Citation: 105 A.D.3d 1149,963 N.Y.S.2d 419,2013 N.Y. Slip Op. 02428
• Parties: The PEOPLE of the State of New York, Respondent, v. Jay CARTER, Appellant.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 1149
963 N.Y.S.2d 419
2013 N.Y. Slip Op. 02428

The PEOPLE of the State of New York, Respondent,
v.
Jay CARTER, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

April 11, 2013.

[963 N.Y.S.2d 420]

Kindlon, Shanks & Associates, Albany (Lee Kindlon of counsel), for appellant.

Robert M. Carney, District Attorney, Schenectady (John R. Healy of counsel), for respondent.

Before: ROSE, J.P., LAHTINEN, STEIN and EGAN JR., JJ.

STEIN, J.

[105 A.D.3d 1149]Appeal, by permission, from an order of the County Court of Schenectady County (Drago, J.), entered April 20, 2012, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crime of burglary in the second degree, without a hearing.

In June 2005, defendant was convicted, after a jury trial, of burglary in the second degree and was sentenced, as a second felony offender, to a prison term of 15 years followed by five years of postrelease supervision. Upon defendant's appeal, this Court affirmed the judgment of conviction (50 A.D.3d 1318, 856 N.Y.S.2d 270 [2008] ), and the Court of Appeals denied

[963 N.Y.S.2d 421]

leave to appeal (10 N.Y.3d 957, 863 N.Y.S.2d 141, 893 N.E.2d 447 [2008] ).¹ In July 2008, defendant moved to vacate the judgment and/or set aside the sentence and, in an October 2008 order, County Court summarily denied the motion. This Court then denied defendant's application for permission to appeal from that order. Defendant filed another CPL article 440 motion in December 2011, seeking to vacate the judgment of conviction, which County Court also denied in an April 2012 order, without a hearing. Upon permission of this Court, defendant now appeals from such order.

We affirm. A court must deny a motion to vacate a judgment of conviction where “[t]he ground or issue raised ... was previously determined on the merits upon an appeal from the judgment, unless since the time of such appellate determination there has been a retroactively effective change in the law controlling such issue” (CPL 440.10[2][a]; see People v. Sayles, 17 A.D.3d 924, 924, 794 N.Y.S.2d 160 [2005],lv. denied5 N.Y.3d 794, 801 N.Y.S.2d 815, 835 N.E.2d 675 [2005];People v. Lindsey, 302 A.D.2d 128, 130 n. 1, 755 N.Y.S.2d 118 [2003],lv. denied100 N.Y.2d 583, 764 N.Y.S.2d 394, 796 N.E.2d 486 [2003] ). The majority of defendant's claims on this appeal involve matters that were raised and decided upon his direct appeal from the judgment of conviction. Specifically, defendant raises multiple instances of alleged prosecutorial misconduct [105 A.D.3d 1150]during the trial—which he categorizes as improper denigration, improper burden shifting, improper appeals to juror sympathy and other improper comments-all of which were raised in the direct appeal from his conviction and found to be without merit (50 A.D.3d at 1323, 856 N.Y.S.2d 270). Defendant's assertions that he was not afforded the effective assistance of counsel and that he was denied a fair trial by limitations placed on his testimony by County Court were also raised in his direct appeal and rejected by this Court ( id.). While defendant claims that these issues were not “adequately developed” in the prior appeal, we note that a CPL article 440 motion “cannot be used as a vehicle for an additional appeal” ( People v. Bruno, 97 A.D.3d 986, 986–987, 947 N.Y.S.2d 920 [2012],lv. denied20 N.Y.3d 931, 957 N.Y.S.2d 691, 981 N.E.2d 288 [2012] [internal quotation marks and citations omitted]; see People v. Saunders, 301 A.D.2d 869, 870, 753 N.Y.S.2d 620 [2003],lv. denied100 N.Y.2d 542, 763 N.Y.S.2d 8, 793 N.E.2d 422 [2003] ). Given that these issues have been determined on the merits and there has been no retroactive change in the controlling law, County Court properly denied defendant's motion as it related to these claims ( see People v. Strawbridge, 76 A.D.3d 115, 118–119, 905 N.Y.S.2d...