In this Criminal case, a Pro Se motion was filed by defendant, an inmate at the Correctional Facility, moves pursuant to CPL § 440.10(h) to vacate his judgment of conviction, following a jury trial, convicting him of Criminal Sale of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Third Degree, respectively, and sentencing him, as a second violent felony offender, to concurrent terms often years incarceration and three years post release supervision.
A Kings County Drug Crime lawyer said that this case stems from a buy and bust operation wherein one undercover, who was being observed by a ghost undercover, gave the undercover buy money. They then walked to meet • defendant, whereupon the undercover gave him the money in return for the vial which he gave to the undercover officer. Defendant was arrested shortly thereafter with thirty-four matching vials and $619, including the $10 in buy money. A chemist for the New York City Police Department tested the vial purchased by the undercover officer. It was determined that the substance in the vial was cocaine. A second chemist weighed one of the thirty-four vials recovered from defendant, and based upon the weight of that vial, projected the total weight of all the vials to be 41.6 grams. He also re-tested the substance found in the vial purchased by the undercover, and tested one of the thirty-four vials recovered from the defendant and concluded that the substance in both vials was cocaine.
On appeal, defendant argued that he had been denied his right to a fair trial because the court (1) closed the courtroom without a showing that an open courtroom would present a particularized risk to the undercover officers or their investigations; and (2) improperly responded to the jury’s request for a readback of the testimony.
Thereafter, the Appellate Division affirmed defendant’s conviction, rejecting his claims as both unpreserved and without merit. Thus, as to the jury claim, it held that “the Supreme Court providently exercised its discretion in seeking clarification of the jury’s request for a readback…” and “moreover, the court did not pressure the jury to abandon its initial request”
Defendant filed a petition for a writ of error coram nobis claiming, inter alia, that his appellate counsel was ineffective for failing to argue that (1) defendant was denied his right to a public trial due to the court’s decision to close the courtroom during the testimony of the undercover officers’ testimony, and (2) was deprived of a fair trial due to the court’s response to the request, by the deliberating jury, for a readback of certain testimony.
Defendant also decried appellate counsel’s failure (1) to challenge the classification of cocaine was as a narcotic drug; (2) to employ a pharmacological expert, and (3) to attack trial counsel’s generally deficient performance. The Appellate Division denied his petition.
Relying on CPL § 440.10(h), defendant now moves to vacate his conviction due to the ineffective assistance of counsel, essentially reiterating the claims that he made in his coram nobis application, instead now focusing directly on the failures of trial counsel.
The People argue that pursuant to CPL § 440.10 (2)(a) and (c), defendant’s motion should be denied as procedurally barred, because all of the claims are based upon facts that appear on the record. They contend further that defendant’s claim concerning the improper closure of the courtroom was specifically rejected on appeal.
The Court agrees.
CPL § 440.10 (2)(c) provides that: 2. Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate judgment when: (c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant’s unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him.
In supporting his contentions, defendant cites repeatedly to the record. On his direct appeal, defendant unjustifiably failed to raise these claims, “although sufficient facts appear on the record to have permitted adequate appellate review”. Accordingly pursuant to CPL § 440.10 (2)(a) and (c), defendant’s motion vacate his conviction is denied.
Furthermore, CPL § 440.10 (2)(a) provides that: 2. Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate judgment when: (a) The ground or issue raised upon the motion 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;
Defendant’s aforementioned claims, regarding the trial court’s closure of the courtroom during the testimony of the undercover officers, and its response to the request by the jury for a readback of testimony, was previously argued and decided on the merits on appeal.
Accordingly, pursuant to CPL §440.10 (2)(a), these claim is barred.
Based upon the foregoing reasons, the Court denies defendant’s motion in its entirety.
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