People v. Diaz, 2006 NY Slip Op 52489(U) (N.Y. Sup. Ct. 10/26/2006)
| Decision Date | 26 October 2006 |
| Docket Number | 5501/94. |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK v. PEDRO DIAZ, Defendant. |
| Court | New York Supreme Court |
Defendant moves pro se to vacate his conviction pursuant to CPL § 440.10. The People submitted a response in opposition and the defendant thereafter filed a reply.
On January 6, 1996, defendant was convicted after jury trial of conspiracy in the first degree, murder in the second degree, two counts of attempted murder in the second degree, assault in the first degree, criminal possession of a weapon in the second degree, assault in the second degree and criminal sale of a controlled substance in the third degree. On January 30, 1996, he was sentenced to consecutive terms of imprisonment of 25 years to life on the conspiracy and murder counts and 8 1/3 to 25 years on each of the attempted murder counts. Concurrent terms of imprisonment were imposed on all the other counts. (5 to 15 years on the assault first degree and criminal possession of a weapon in the second degree, 2 1/3 to 7 years on the assault in the second degree and 8 1/3 to 25 years on the sale count). (Snyder, J., at jury trial and at sentence).1 The convictions were affirmed on appeal. See, People v. Ayala, et. al., 275 AD2d 679 (1st Dept. 2000), and the Court of Appeals denied leave to appeal. See, People v. Diaz, 95 NY2d 962 (2000).Defendant has filed three prior CPL 440.10 motions, one of which was based, in part, on the claim that his trial attorney was ineffective. All three motions to vacate were denied by the trial justice. Defendant has also claimed that he was denied the effective assistance of appellate counsel through two writs of error corum nobis. According to the People's response, the first writ was premised on appellate counsel's failure to raise on appeal the issue of the sufficiency of the trial evidence to support the convictions, and the second on the failure to assert on appeal that defendant's trial attorney was ineffective. The Appellate Division, First Department, denied defendant's applications. See, People v. Diaz, 308 AD2d 681 (1st Dept 2003), leave denied, 1 NY3d 571 (2003), and order dated April 28, 2005 which is contained in Exhibit B of the People's response. The People additionally state that there is a pending habeas corpus petition which defendant filed in federal court in which defendant claims that his convictions were not supported by legally sufficient evidence and that his trial attorney was ineffective.2
In the instant motion to vacate judgment, defendant claims that he was denied the effective assistance of counsel in violation of his state and federal constitutional rights because his attorney did not bring certain information to the jury's attention and because the attorney failed to move to dismiss the twin count murder indictment, which charged defendant with both intentional and depraved indifference murder with respect to Lamont Williams. Defendant further contends that the trial evidence was insufficient to establish that he was guilty of intentional murder and instead only supported a verdict of manslaughter in the first degree or depraved indifference murder. According to the defendant it was per se error and a denial of his right to due process of law for the trial court to have submitted both the intentional and depraved indifference murder counts to the jury and since his conviction for intentional murder lacks evidentiary support, he is entitled to the relief he seeks. In support of this contention, defendant relies on several Court of Appeals decisions3, in which the differences between depraved indifference and intentional murder were addressed and clarified. (See, e.g., People v. Payne 3 NY3d 266 [2004], People v. Gonzalez, 1 NY3d 464 [2004], People v. Sanchez, 98 NY2d 373 [2002].)
In their response in opposition, the People argue that the defendant's motion must be denied pursuant to CPL § 440.10(2) (c) because defendant unjustifiably failed to raise the issues of the sufficiency of the trial evidence and the ineffective assistance of counsel claims on his direct appeal when sufficient facts appeared on the record to have allowed him to do so. The People also argue that the Court should summarily deny defendant's motion pursuant to CPL § 440.10(3)(c) based on defendant's inexplicable failure to raise his current complaints in any of his three previous motions to vacate his conviction. In addition to these procedural bars, the People assert that defendant's motion is meritless since there was ample evidence, which is described in their response, to support defendant's conviction for intentional murder and that defendant has overlooked the doctrine of transferred intent in claiming otherwise. The People further argue that the Court of Appeals decisions on which defendant relies do not support his insufficiency claim since the cited cases concerned the sufficiency of evidence underlying convictions after trial for depraved indifference murder, a charge on which defendant in this case was properly found not guilty. The People also maintain that defendant has failed to establish that he was denied the effective assistance of counsel under either the Federal or the State constitutional standards.
In his reply affirmation, defendant asserts that his claims should not be procedurally barred since the case law upon which he relies came after his prior 440 motions were decided. He additionally argues, inter alia, that he was not prosecuted for a transferred intent murder and reiterates the assertion that the evidence was insufficient to establish that he intended to cause the death of Lamont Williams under any circumstances or that he was even at the scene of the crime. Defendant's complaints about his trial attorney's representation are also reiterated in his reply affirmation. Defendant also asserts a belief that the People have conceded the due process violation by failing to address what the defendant characterizes as the erroneous submission of both the intentional and depraved indifference murder counts to the jury.
The sufficiency of the evidence to support the convictions in this case is clearly an issue that could have been raised on defendant's direct appeal and defendant's claims to the contrary are rejected. It also appears that defendant's complaints about his trial attorney involve matters that were of record and therefore could also have been raised on appeal. In light of this it appears that, as claimed by the People, defendant's motion for CPL 440 relief must be denied pursuant to CPL 440.10 (2)(c). However, even assuming that summary denial of defendant's motion is not required, I find that all of defendant's contentions lack merit and accordingly defendant's motion is denied in all respects.
In order to establish a violation of the Federal constitutional right to the effective assistance of counsel, a defendant must establish both that the attorney's performance was deficient, and, but for counsel's unprofessional errors, there is a "reasonable probability" that the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). The Court defined a "reasonable probability" as "a probability sufficient to undermine confidence in the outcome." Id. at 694.A more flexible standard is applied to determine whether defendant has been denied his right to the effective assistance of counsel under Article I §6 of the New York State Constitution. See, People v. Benevento, 91 NY2d 708(1998). Under the State Constitution the focus is on the fairness of the proceeding as a whole. Id. at 714. The core inquiry is whether the defendant has received "meaningful representation." See, People v. Baldi, 54 NY2d 137 (1981). "So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met." Id. at 146-147. While prejudice to the defendant is a significant factor in the meaningful representation analysis, it is not an essential element. See, People v. Stultz, 2 NY3d 277, 283-284 (2004). Unsuccessful trial tactics do not automatically indicate ineffectiveness. People v. Baldi, supra, at 146-147. Thus, in order to establish that he or she did not receive "meaningful representation" under the Baldi standard, a defendant must show that there was no "strategic or other legitimate explanation" for defense counsel's allegedly deficient conduct. Id.
Defendant argues that his attorney was ineffective for failing to bring to the attention of the jury Brandon Baez' testimony that, (See, Defendant's affidavit at 9.)According to the defendant, this portion of Baez' testimony "would have negated the level of conscious intent which is required to support intentional murder in the second degree." Id. He additionally faults the attorney for failing to remind the jury that the prosecutor, in his opening and/or closing argument4 stated that . Id. He further recounts that it was the prosecutor's contention that See, defendant's affidavit at 10. In his reply, defend...
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