People v. Harrison, 2009 NY Slip Op 31477(U) (N.Y. Sup. Ct. 4/21/2009)
Decision Date | 21 April 2009 |
Docket Number | 12017/1995. |
Citation | 2009 NY Slip Op 31477 |
Parties | THE PEOPLE OF THE STATE OF NEW YORK v. TONY HARRISON, Defendant. |
Court | New York Supreme Court |
The defendant has moved, pro se, for an order pursuant to CPLR § 2221, for reconsideration of the order of the Supreme Court, Kings County, dated May 17, 2006, denying defendant's motion to vacate his judgment of conviction pursuant to section 440.10 of the Criminal Procedure Law. Further, defendant moves pursuant to section 440.20 of the Criminal Procedure law setting aside his sentence. In a motion dated, June 10, 2008, the defendant claims, as he did in his 2003 motion, that the trial court improperly ordered his sentences to run consecutively. Thus, as to this issue, defendant's motion can also be considered as a motion for reconsideration pursuant to CPLR § 2221. The defendant now adds further claims that he was improperly sentenced as a mandatory persistent violent felony offender. On November 20, 2008, the People filed an answer in opposition. Defendant filed a further response on January 2, 2009. On March 4, 2009, the People filed an additional answer in opposition. For the reasons stated below, the motion is denied.
For the acts of June 23, 1995, involving Shirley Carel, the defendant was charged, under Indictment Number 12017/95, with rape in the first degree; sodomy in the first degree; three counts of sexual abuse in the first degree; menacing in the second degree; and unlawful imprisonment in the second degree. The indictment also charged harassment in the first degree; and resisting arrest arising out of the aborted incident on September 16, with Sonia Rodriguez. For the acts of March 4, 1995, involving Sonia Allin, the defendant was charged, under Indictment number 7629/96 with rape in the first degree; two counts of sodomy in the first degree; three counts of sexual abuse in the first degree; burglary in the first degree; and menacing in the second degree. The above two indictments were consolidated under Indictment Number 1201/95 by order of the trial court, dated July 23, 1996.
On January 27, 1997, the defendant was convicted, after a jury trial, of two counts of rape in the first degree, two counts of sodomy in the first degree, and harassment in the first degree. On February 7, 1997, the defendant was adjudicated a mandatory persistent violent felony offender. A predicate statement was filed pursuant to C.P.L. § 400.16 and is part of the Supreme Court record. On that date, the defendant was sentenced, as a mandatory persistent violent offender, to four consecutive terms of twenty-five years to life imprisonment for the rape and sodomy counts, and one
year on the harassment count (Feldman, J. at hearings, trial and sentence).
The defendant appealed from his judgment of conviction to the New York State Supreme Court, Appellate Division, Second Department, claiming, in addition to his other claims, that his sentence was excessive. The Appellate Division unanimously affirmed defendant's conviction on November 2, 1998. People v. Harrison, 255 A.D.2d 335 (2d Dep't 1998). Leave to appeal to the Court of Appeals was denied on February 17, 1999. People v. Harrison, 93 N.Y.2d 853 (1999) (Wesley, J.).
On January 8, 2001, the defendant filed a motion pursuant to C.P.L. § 440.10 to vacate the judgment of conviction, alleging that it was obtained by misrepresentation, introduction of false evidence, and prosecutorial misconduct. The defendant further claimed that his trial counsel was ineffective. On March 13, 2000, the defendant's motion was denied. The defendant's motion for ineffective assistance of counsel was denied on the merits, with the court finding that "counsel exhibited ingenuity, a high level of competence and the appropriate degree of zealousness." (Feldman, J.). On or about August 23, 2000, leave to appeal from the denial of defendant's C.P.L. § 440.10 motion was denied (McGinity, J.S.C.).
On October 30, 2000, the defendant filed a pro se petition for a writ of habeas corpus before the United States District Court, Eastern District of New York. Defendant raised all claims raised in his direct appeal as well as ineffective assistance of trial counsel. On May 10, 2001, the District Court denied defendant petition and denied a certificate of appealability. On January 28, 2003, the United States Court of Appeals for the Second Circuit denied defendant's pro se motion for a certificate of appealability. The Circuit Court, on November 15, 2006, denied defendant's application to file successive habeas petitions based on purported newly-discovered DNA evidence. Defendant's further motion of June 29, 2007, was denied by the District Court, on January 22, 2008, as meritless (Weinstein, J.). On November 9, 2007, the DNA report, People's Exhibit 8 at defendant's trial, was forwarded to defense counsel during federal post-conviction proceedings ( Weinstein, J.) To the extent that the defendant's claim of factual innocense was deemed to be yet another successive habeas petition, the District Court found that it did not have jurisdiction, and that the case was transferred to the Second Circuit. On February 18, 2009, the defendant's papers were dismissed because defendant failed to file an application requesting the Second Circuit to authorize a second or successive petition within the time limits required.
On May 16, 2003, defendant filed a motion to set aside his sentence pursuant to C.P.L. § 440.20 alleging among other claims, that defendant's consecutive sentences were improperly imposed. On July 17, 2003, the defendant's motion was denied (Feldman, J.).
Defendant next filed an application for coram nobis, alleging that his appellate counsel was ineffective for failing to raise the ineffectiveness of his trial counsel, and various other claims. This application was denied on April 9, 2004. Leave to appeal the denial of defendant's coram nobis application was denied by the Court of Appeals on July 14, 2004 ( Smith, J.).
In defendant's second motion pursuant to C.P.L. § 440.10, dated March 7, 2006, the defendant again claimed that the forensic evidence was flawed and that the prosecutor had misrepresented who had analyzed the rape kit during his trial. On May 17, 2006, the defendant's motion was denied (Feldman, J.S.C.). In a decision and order dated August 9, 2006, the Appellate Division denied defendant's application for a certificate for leave to appeal further (Prudenti, J., Presiding Justice).
Defendant now moves to renew and reargue his prior motions to vacate the judgment of conviction on grounds that 1) his trial attorney rendered ineffective assistance of counsel; and 2) his conviction was procured by prosecutorial misconduct and by the introduction of evidence known to the prosecutor and trial counsel to be false. The defendant further moves to vacate his sentence pursuant to C.P.L. § 440.20 on the grounds that 1) the court sentenced him to an excessive term of imprisonment; and 2) that he was improperly sentenced as a mandatory persistent violent felony offender.
To the extent that defendant's current motions are deemed a motion to renew, they should be denied. First, defendant's claims are not based upon new facts that would change the prior motion. See, CPLR § 221 (3) (e) (2). Additionally, the defendant provides new legal claims that cannot be raised in a motion to renew. A motion to renew should be utilized only to alert the court to facts which were not known by the moving party at the time of the original motion, but which support the grounds raised in the original motion. Brooklyn Welding Corp. V. Chin, 236 A.D.2d 392 (2d Dep't 1997); Foley v. Roche, 68 A.D.2d 558, 568 (1st Dep't 1979). Renewal is not available where the facts upon which the motion is based were known to the moving party at the time of the original motion. LaRosa v. Trapani, 271 A.D.2d 506 (2d Dep't 2000); Palmer v. Toledo, 266 A.D.2d 268, 269 (2d Dep't 1999); Chin, 236 A.D.2d at 392; Roche, 68 A.D.2d at 568. Moreover, defendant has not offered additional material facts in his present motion, nor has he provided any reasonable justification for his failure to present such facts in his prior motion. See, CPLR § 2221 (3) (e) (3); Roche, 68 A.D.2d at 568.
The defendant's motions should also be denied as a motion to reargue. CPLR § 2221 (d) (3) provides that a motion for leave to reargue "shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry." The order denying defendant's second motion pursuant to C.P.L. § 440.10 was dated May 17, 2006, and entered by the court clerk on May 26, 2006. To the extent that defendant argues that the court improperly imposed consecutive sentences in his motion to set aside his sentence, his motion must be considered as a motion to reargue his previous motion. In this case, the order denying defendant's motion pursuant to C.P.L. § 440.20 was denied on July 17, 2003, and was stamped entered on July 23, 2003. Thus the filings of these motions to reargue are untimely.
Additionally, "motions for re-argument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or
misapprehended the facts or law or for some other reason mistakenly arrived at its earlier decision." Loland v. City of New York, 212 A.D.2d 674 (2d Dep't 1995); accord, Perez v. Linshar Realty Corp., 259 A.D.2d 532 (2d Dep't 1995). Re-argument is not designed to afford the unsuccessful party an opportunity to present arguments different from those originally asserted. See, People v. Lopez, 235 A.D.2d 496, 497 (2d Dep't 1997). Further, the defendant has made no valid showing that the order of Justice Feldman, denying defendant's motion to vacate...
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