People v. CarterPeople v. Carter
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 AD3d 1318 [2008]), and the Court of Appeals denied leave to appeal (10 NY3d 957 [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
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” (
A motion to vacate a judgment of conviction must also be denied when the trial record contains sufficient facts that would have allowed for “adequate review of the ground or issue raised . . . [but] no such appellate review or determination occurred owing to the defendant‘s . . . unjustifiable failure to raise such ground or issue upon an appeal actually perfected” (
Nor do we discern any error in County Court‘s summary denial of that part of defendant‘s motion that was based upon his claim of newly discovered evidence. As relevant here, “[t]o justify vacatur under
Here, defendant retained a private investigator who, in June 2010, attempted to speak with two of the jurors from his trial. The private investigator submitted an affidavit memorializing her conversation with one of the jurors, in which she alleged that this juror made various disparaging comments about defendant, such as calling him a “bad guy” who had been a “bad egg for his whole life.” Defendant suggests that these statements contradict the juror‘s responses during voir dire, which indicated that she was not familiar with defendant and demonstrate that she was a biased juror (see generally People v Pugh, 107 AD2d 521, 532-533 [1985], lv denied 65 NY2d 985 [1985], 67 NY2d 764 [1986]). However, in our view, defendant‘s purely speculative interpretation of these statements is insufficient to warrant a hearing. The statements do nothing more than indicate that, five years after she heard defendant‘s trial testimony—which included some development of his criminal history—this juror has formed the opinion that defendant had a criminal history. Given that defendant‘s motion papers and the trial record failed to demonstrate that this evidence was material to any issue at trial or that a hearing would have produced material nonrecord facts that would have entitled defendant to relief (see People v Satterfield, 66 NY2d 796, 799 [1985]; People v Terry, 44 AD3d 1157, 1159 [2007], lv denied 10 NY3d 772 [2008]; People v Saunders, 301 AD2d at 872), we conclude that County Court properly denied the motion on this basis without a hearing.
To the extent not specifically addressed herein, defendant‘s remaining claims have been reviewed and found to be without merit.
Rose, J.P., Lahtinen and Egan Jr., JJ., concur. Ordered that the order is affirmed.