People v. Sean Hawkins; People v. Giles


Issues before the Court that it granted leave on: (1) Whether a motion to set aside the verdict under CPL § 330.30 (sub. 1), may properly raise a claim arising from the facts that occurred pre-verdict but, for good reason, were not put into the record by trial counsel (i.e., IAC of trial counsel) or, instead, whether such a claim must be raised via a post-sentence 440.10 motion. Also, (2) whether, in such circumstance, a sentencing judge has the power to deem the 330.30 (subd. 1) motion a 440.10 and consider it once sentence is imposed.

Held: Such claims are not cognizable on a 330.30 (subd. 1) motion which, unlike claims brought under subdivisions 2 (juror misconduct) and 3 (newly discovered evidence), must be based upon a "ground appearing in the record." CPL § 330.30 (subd. 1) does "not permit defendants to expand the record to include matters that did not ‘appear[ ] in the record’ prior to the filing of the motions." The court expressed no opinion (that is, punted) on the secondary question of whether the sentencing judge has the power to convert a pre-judgment motion pursuant 330.30 (subd. 1) into a post-judgment motion pursuant to 440.10, since that did not purport to occur in either Giles or Hawkins. All judges agreed with the primary holding. Judge Smith (in a concurrence) and Judge Pigott (in a dissent) expressly endorsed the idea that a sentencing judge has the power to do the conversion. CAL believes that, ultimately, a full Court would agree with this latter proposition.

CAL Observes: All judges had no problem interpreting 330.30 (subd. 1) to exclude such claims as IAC of trial counsel, which are not going to be raised by trial counsel on the trial record and which are elusive of review on appeal as opposed to a post-verdict motion--presumably filed pro se or by successor trial counsel. Nonetheless, this interpretation is unfortunate for defendants with viable IAC claims, as defendants face almost unsurmountable obstacles in raising these claims on a 440 motion. There is a right to counsel up to and including the time of sentence. Once sentence is imposed, the only right to counsel is for an appeal, which typically cannot effectively raise IAC issues. There is no absolute right to counsel on a 440 motion under the County Law unless a judge orders a "hearing." Almost all such petitions are thus pro se, and judges rarely grant a hearing or assign counsel because (a) the pro se motions are inartfully done and do not clearly present the right claim, and (b) judges just don’t want to, for any number of good and bad reasons. Since a factor in many exonerations is IAC, to one degree or another, this decision will hinder the cause of effectively addressing claims of wrongful conviction. Presumably the Court was aware of this and still ruled as it did.

Issue before the Court that it did not grant leave on: Piggybacking on the above leaveworthy issues was an additional issue raised in Hawkins, i.e., the constitutionality of New York’s discretionary persistent felony offender statute in light of Apprendi. Hawkins argued that, in light of the more-recently decided Supreme Court case of Southern Union Co. v United States, 132 S.Ct. 2344 (2012), the Court of Appeals should reconsider its concededly bizarre interpretation of its statute, set out in Rosen and later cases, geared to save it from unconstitutionality.

Held: Go away already. To drive the point home, Judge Smith separately concurred to point out that the Court is sticking with its bizarre interpretation and that’s that. He "respectfully suggest[ed] that, at this late date, the question should be considered settled." Judge Abdus-Salaam, writing for herself and Judge Lippman, dissented on the Apprendi issue. Essentially, she wrote, Rosen et al are too bizarre to stick with, and Southern Union should have given the Court a graceful exit.

CAL Observes: Is the matter now "settled," as Judge Smith hoped? No. For whatever reason, the United States Supreme Court has not yet considered this question cert-worthy, but defendants doing life sentences for petty crimes will not give up until the Supreme Court finally does rule. And, of course, defendants must continue to raise the issue at sentence and on their direct appeals (including those which make it to the Court of Appeals) in order to avoid procedural-bypass and exhaustion problems in federal court. So must the Court of Appeals continue to be tortured by this issue and the wreckage of Rosen? Yes.