People v. Cruz
| Citation | 2013 NY Slip Op 30823 |
| Decision Date | 06 March 2013 |
| Docket Number | Indictment No: 8312/2010 |
| Parties | PEOPLE OF THE STATE OF NEW YORK v. MIGUEL CRUZ, Defendant |
| Court | New York Supreme Court |
DECISION AND ORDER
Defendant moves for various forms of relief by multiple motions. The People oppose, addressing each of his applications in one comprehensive Affirmation in Opposition. In determining this motion, the court reviewed the following motions by defendant: Motion for Sentence Change, dated October 24, 2011; Motion for Re-sentencing, dated January 7, 2012; Motion to seal 1997 conviction, date July 19, 2012; Motion to Seal 1997 Conviction, undated; Motion for Deferment of Surcharge, dated January 19, 2012; Motion for Dismissal, dated April 3, 2012; and Motion for Dismissal and Discovery, dated May 12, 2012. The court also reviewed the People's comprehensive Affirmation in Opposition, dated December 21, 2012 and the People's Affirmation in Opposition, dated November 1, 2012, opposing defendant's Motion to Seal 1997 Conviction, dated July 19, 2012.
On March 11, 2011, defendant pled guilty to Conspiracy in the Second Degree and Criminal Sale of a Controlled Substance in the Second Degree in full satisfaction of this indictment. At that time, defendant waived his right to appeal and signed a waiver reflecting his decision to do so.
Defendant was sentenced on March 21, 2011, as a second felony offender, to a term of imprisonment of 7 to 14 years on the conspiracy charge, to run concurrently with a term of imprisonment of 8 years, with 5 years post-release supervision, on the criminal sale charge.
On March 24, 2011, defendant moved, pro se, for deferment of the mandatory surcharge. Defendant's motion was denied by this court's order, dated May 20, 2011, holding that the application should be made at the conclusion of his prison sentence.
On April 6, 2011, defendant moved, pro se, pursuant to CPL §440.20, to set aside his sentence, claiming that the indictment contained duplicitous counts, in violation of CPL §200.30 (1), and that the police entrapped him by not arresting him immediately following the first offense he committed during their investigation. By its Decision and Order, dated October 21, 2011, this court denied defendant's April 6, 2011 motion, holding that defendant's sentence was lawful and that defendant forfeited his right to raise the issues in his motion by pleading guilty.
On September 22, 2011, defendant moved, pro se, for a second time, for an order setting aside his sentence, pursuant to CPL §440.20. By its order, dated November 15, 2012, this court denied defendant's motion, relying upon its previous ruling that defendant's sentence was lawful and holding that defendant's additional claims were meritless and procedurally barred.
By pro se motion, dated October 27,2011, defendant again sought deferral of the mandatory surcharge. This court denied defendant's motion as premature by its Decision and Order, dated November 9, 2011.
The court will address defendant's instant motions in the order in which they are attached to the People's Affirmation in Opposition.1
With respect to defendant's: Motion for Sentence Change, dated October 24, 2011; Motionfor Re-sentencing, dated January 7, 2012; and Motion to Seal 1997 Conviction, undated (attached to the People's Affirmation in Opposition as Exhibits "1", "2" and "3", respectively) and Motion to Seal 1997 Conviction, dated July 19, 2012, the court relies upon and incorporates the holdings of its orders, dated October 21, 2011 and November 15, 2012, which deemed defendant's sentence lawful and precluded defendant from raising objections to his conviction as a result of his voluntary guilty plea. Defendant's instant motion raises no challenge to these holdings, and no new evidence or change in circumstance has been offered to justify renewal of argument on these issues.
However, even if the court were to hold differently on the issues of defendant's sentence and plea, defendant's instant motions are without merit, as they fail to address the legality of his sentence. Instead, defendant raises issues that well preceded his sentence and have nothing to do with its lawfulness. Since such issues are more appropriately addressed in the framework of a motion to vacate the judgment of conviction, the court will address them accordingly.
The issues raised in defendant's instant motions were previously determined by this court. By motions, dated April 6, 2011 and September 22, 2011, defendant moved to set aside his sentence. Those motions were denied on the merits by this court's orders, dated October 21, 2011 andNovember 15, 2012, respectively. Therefore, pursuant to CPL §440.10(3)(b), defendant's instant motions to set aside his sentence are procedurally barred.
CPL §440.10 (3) (c) states:
By his pro se motions, dated April 6, 2011 and September 22, 2011, defendant sought to set aside his sentence, arguing, inter alia, that the indictment contained duplicitous counts, in violation of CPL §200.30 (1), and that the police entrapped him by not arresting him immediately following the first offense he committed during their investigation.2 On October 21, 2011 and November 15, 2012, this court rendered its decisions denying defendant's motions to vacate in their entirety.
In his April 2011 and September 2011 motions, defendant made extensive arguments in support of his bid to set aside his sentence. However, although the information upon which he bases the instant motions was readily available to him in April and September 2011, defendant failed to include these issues and arguments when he made those motions. Additionally, defendant now offers no reason for the omission of his present arguments from his previous motions.
It is well settled that a court may summarily deny a motion to vacate, pursuant to CPL §440.10 (3) (c), where defendant presents arguments that could have been raised on a previous motion to vacate (see People v. Cochrane, 27 AD3d 650 [2d Dept 2006], lv denied 7 NY3d 787 [2006]; People v. Brown, 24 AD3d 271 [1st Dept 2005], lv denied 6 NY3d 846 [2006]; People v.Dover, 294 AD2d 594 [2d Dept 2002], lv denied 98 NY2d 767 [2002]; People v. Thomas, 147 AD2d 510 [2d Dept 1989], lv denied 74 NY2d 669 [1989]). Defendant's failure to raise the grounds and issues presented in the instant motions when he made his previous motions to set aside his sentence, despite being in a position to do so, is a procedural bar pursuant to CPL §440.10 (3) (c).
MERIT AND ARE BARRED PURSUANT TO CPL §440.30 (4) (d).
Criminal Procedure Law 440.30 (4) (d) states:
In the instant motions to set aside his sentence, defendant's various claims are substantively without merit. In support of his claims, defendant offers nothing more than his own recollection of events and strained interpretations of police documents and court records, unsupported by any other affidavit or evidence. In contrast, the People's Affirmation in Opposition is supported by court records and official documents that clearly contradict defendant's claims, leaving no reasonable possibility that they are true. Thus, the defendant's instant motions are procedurally barred under CPL 440.30 (4) (d).
With respect to defendant's Motion for Deferment of Surcharge, dated January 19, 2012(attached to the People's Affirmation in Opposition as Exhibit "4"), the court relies upon and incorporates its previous orders, dated May 20, 2011 and November 9, 2011, by which defendant's pro se motions, dated March 24, 2011 and October 27, 2011, respectively, were denied as premature.
Like defendant's previous motions to set aside his sentence discussed supra, defendant's instant motion to defer the mandatory surcharge was previously decided on the merits and is therefore procedurally barred, pursuant to CPL §440.10(3)(b).
Defendant's Motion for Dismissal, dated April 3, 2012 (attached to the People's Affirmation in Opposition as Exhibit "5"), claims the indictment should be dismissed, based upon ineffective assistance of defense counsel. As pointed out supra, defendant has made at least two previous CPL Article 440 motions, making various arguments to vacate his judgement of conviction. Defendant was in an adequate position to raise his instant claim of ineffective assistance of counsel in either or both of those motions, but he failed to do so. Therefore, defendant is procedurally barred from raising this claim, pursuant to CPL §440.10(3)(c).
Finally, ...
To continue reading
Request your trial