DECISION & ORDER The defendant, WINDSOR COLEMAN, moves by Notice of Motion filed on February 1, 2021, to vacate his judgment of conviction pursuant to CPL §440.10 on the grounds that he was deprived of due process of law under New York State and U.S. Constitutions. The defendant’s motion is supported, inter alia, by signed affidavits from the defendant and his father, trial and hearing transcripts, F.O.I.L. requests, and letters of appellate and trial counsel. The defendant also requests that an evidentiary hearing be held to determine whether vacatur is warranted. The People filed an Affirmation and Supporting Memorandum of Law in Opposition, dated May 14, 2021. The People filed a letter dated June 8, 2021, correcting an error of fact submitted in the Opposition. The defendant then filed a Reply on June 11, 2021. For the reasons stated herein, the defendant’s motion to vacate his judgment of conviction is denied, without a hearing. On April 1, 2016, the defendant was arrested following multiple sales of heroin, to a confidential informant. During the police investigation, Detective William Casey, applied for a search warrant by means of a sealed affidavit. The Honorable Helene Gugerty determined there was sufficient probable cause and signed a search warrant order for the defendant’s home. Upon the execution of the search warrant, the police recovered heroin, cocaine, and miscellaneous drug paraphernalia. The defendant was then indicted by a Grand Jury on charges of Criminal Sale, of a Controlled Substance in the First Degree (Penal Law §220.43[1]) et al. On July 6, 2016, the defendant filed a pro se Omnibus Motion to dismiss the indictment based on insufficient evidence in the Grand Jury, The defendant also requested a Frye hearing and requested an examination of “the entire chain of custody” for all seized physical evidence. The Court declined to entertain defendant’s pro se omnibus motion, noting that defendant’s attorney had already obtained much of the relief defendant requested. (See People v. Coleman, Ind. 983N/16, Donnino, J., Decision [Sup Ct. Nassau County, October 20, 2016]). The Court (Donnino, J.) granted the People’s application for a protective order on October 17, 2016. The protective order allowed the People to delay disclosure of any evidence pertaining to the confidential informant, including a sealed search warrant affidavit of Detective Casey. On November 22, 2016, a Wade hearing was conducted by the Court. The Court held that the identification procedure was not unduly suggestive and denied defendant’s motion for suppression. (See People v. Coleman, Ind. 983N/16, Donnino, J. Decision [Sup Ct. Nassau County, December 14, 2016]). The Court also denied the defendant’s motion to controvert the search warrant since it contained sufficient reasonable cause and the legal requirements were satisfied. Id. After trial, on April 3,2017 a jury convicted the defendant of Criminal Sale of a Controlled Substance in the First Degree (Penal Law §220.43 [1]), Criminal Sale of a Controlled Substance in the Second Degree (Penal Law §220.41 [1]), two counts of Criminal Possession of a Controlled Substance in the Second Degree (Penal Law §220.18[1]), and one count of Criminal Sale of a Controlled Substance in the Third Degree (Penal Law §220.39[1]). On June 9, 2017, the defendant moved pro se to set aside the verdict pursuant to CPL §330.30, before the Honorable William C. Donnino. The defendant’s first claim alleges the prosecutor provided Brady material on the third day of trial, depriving him of adequate time to prepare his cross-examination. The second claim alleges that the prosecutor committed misconduct by purportedly neglecting to turn over logbook entries from the Evidence Management Unit (“EMU”) and certain field test reports and that this purported failure prevented him from challenging the chain of custody for seized narcotics and foreclosed cross-examination about field testing. The third claim alleges that the Court sealed the search warrant affidavit and as a result, purportedly perjurious statements contained in the affidavit were concealed by the prosecution since the informant did not testify. Lastly, the defendant alleges that he was entitled to an Alfinito hearing and that the sealing of the search warrant affidavit impaired his ability to challenge the warrant’s validity. The People opposed defendant’s motion. The Court summarily denied the defendant’s motion and noted that the defendant was not entitled to an Alfinito hearing. (See People v. Coleman, Ind. 983N/16, Donnino, J., Decision [Sup Ct. Nassau County, August 16, 2017]). Thereafter, on June 30, 2017, the defendant was sentenced to an aggregate determinate prison term of twelve years followed by five years of post-release supervision. The defendant moved on February 14, 2018, to vacate his conviction pursuant to C.P.L. §440.10. The defendant argued vacatur should be granted, first and foremost, because an Alfinito hearing should have been granted. Second, he alleged that the People’s failure to produce the confidential informant deprived him of a fair trial and that there were deficiencies in the proof at trial. Lastly, defendant alleged his trial counsel was ineffective because he failed to move to re-open the suppression hearing, retrieve the EMU logbooks and prepare the best available defense. The People opposed the motion. The Court summarily denied defendant’s motion. (See People v. Coleman, Ind. 983N/16, Gugerty, J. Decision [Sup Ct. Nassau County, July 2nd, 2018]). The Court held that Judge Donnino’s decision on defendant’s C.P.L. §330.30 motion, constituted an independent, permissive bar to defendant’s claims regarding the People’s failure to call the confidential informant and the Court’s denial of an Alfinito hearing. id. The Court refused to review defendant’s claims of ineffective assistance of counsel, which were on-record claims that could be reviewed on direct appeal. (id.; CPL 440.30 [2][b]). On July 5, 2016, the defendant filed a notice of appeal arguing that his conviction warranted reversal on several grounds. The first ground alleged that the photographic array was unduly suggestive. The second ground alleged that a motion to controvert the search warrant should have been granted. The final ground raised was that the evidence was legally insufficient to support his conviction and that the verdict was against the weight of the evidence. The People opposed defendant’s appeal. On October 9, 2019, the Appellate Division affirmed defendant’s conviction. (People v. Coleman, 176 AD3d 851, 851 [2d Dept 2019]). The court held that denial of defendant’s motion to controvert the search warrant was proper because the police affidavit submitted in support of the search warrant application, contained ample factual allegations of criminal conduct and it demonstrated the confidential informant’s reliability. Id. The court upheld the defendant’s conviction finding the verdict was not against the weight of evidence and that it was legally sufficient, id. Thereafter, the defendant’s application to appeal his conviction to the Court of Appeals was denied. (People v. Coleman, 34 NY3d 1076 [2019]). The defendant now moves this Court to vacate his conviction pursuant to C.P.L. §440.10, in a second vacatur motion filed on February 10, 2021. The defendant claims that errors by the prosecutor, the court, and his attorney deprived him of due process of law under both New York State and U.S Constitutions. DECISION This Court is procedurally barred from granting defendant’s present motion to vacate his conviction since the defendant has either raised these issues on direct appeal or failed to do so without a justifiable reason. Therefore, this Court hereby denies defendant’s motion in its entirety, without a hearing. The defendant alleges his due process rights were violated by the prosecution’s failure to turn over field tests and logbook entries. The defendant submits that this is a Brady/Rosario violation and that it purportedly impeded his ability to challenge the chain of custody. The defendant submits this claim under the proposition, that on April 22, 2020, the People responded to defendant’s F.O.I.L request with newly discovered evidence. The letter indicated that the People could not locate the EMU logbooks and therefore could not provide them to the defendant in response to his F.O.I.L. request. The defendant is asking this Court to consider the information provided in the letter, specifically, the missing logbooks as newly discovered evidence warranting vacatur pursuant to CPL 440.10[l][g]. It should be noted, that on April 13, 2021, the People located the logbooks and provided them to defendant, after the defendant filed this vacatur motion. This Court finds that the information provided regarding the missing logbooks is not newly discovered evidence. (CPL §440.10[1][g]). The fact the People were unable to locate the logbooks to respond to the defendant’s F.O.I.L request is irrelevant. Most importantly, there is an actual trial record of the defendant’s attorney acknowledging receipt of the logbooks. Therefore, the defendant has failed to support his argument that this evidence is newly discovered, and it is not enough to make conclusory allegations of ultimate facts. (See CPL §440.30 [4] [d]; People v. Session, 34 NY2d 254, 256 [1974]). Even if this Court determined that missing logbooks were newly discovered evidence, the evidence or lack thereof, would not “create a probability of a more favorable verdict.” (People v. Hargrove, 162 AD3d 25, 70 [2d Dept 2018]). The defendant also raised a similar claim in his CPL §330.30 motion, stating prosecutorial misconduct violated his due process rights when the People allegedly withheld “Rosario, specifically logbook and Brady.” The Court (Donnino, J.) denied defendant’s motion to set aside the verdict, and indicated defendant’s claims were “unpreserved” and “defendant failed to establish error.” This Court recognizes that the claim here is new only to the extent that it is related specifically to the People’s F.O.I.L response. However, the underlying argument of the contested missing logbooks violating defendant’s due process was in fact already decided by the Court (Donnino J.). As a result, this Court is permissively barred from reviewing this claim. (See CPL §440.10 [3] [b]; CPL §330.30[1]). However, this Court finds it is statutorily barred here, since the defendant failed to raise this claim in his first vacatur motion or on his direct appeal without a justifiable reason. (See CPL §440.10 [2] [c]; CPL §440.10 [3] [c]; Coleman, 176 AD3d at 852; People v. Graves, 62 AD3d 900, 901 [2d Dept 2009]; People v. Cochrane, 27 AD3d 659, 660 [2d Dept 2006]). Most significantly, the defendant’s argument that due process was violated because the missing material impeded his ability to challenge the chain of custody lacks merit. The Appellate Division reviewed the evidence for legal sufficiency and affirmed the defendant’s conviction. (Coleman, 176 AD3d at 852). Based on the charges of drug possession and sale, a legal sufficiency review would inherently explore any chain of custody issues. Therefore, this Court concludes it is procedurally barred from reviewing any chain of custody claims as it directly relates to legal sufficiency of the conviction. (CPL §440.10 [2] [a]; Coleman, 176 AD3d at 852; see People v. Carter, 105 AD3d 1149, 1149 [3d Dept 2013]; People v. Thomas, 131 AD3d 551, 551 [2d Dept 2015]). The defendant also contends that vacatur is warranted on the basis that his due process rights were allegedly violated by the ineffective assistance of his trial counsel. The defendant alleges that his trial attorney was ineffective, based on his failure to inquire into the allegedly missing logbook entries and field test reports; failure to adequately challenge the chain of custody of the seized narcotics; failure to move to reopen the pretrial hearings after testimony revealed errors in the search warrant application and failure to request a Frye hearing. This Court is permissively barred from reviewing all claims previously raised in defendant’s first vacatur motion. (CPL §440.10 [3] [b]). It was determined by the Court (Gugerty. J.) that it was procedurally barred from reviewing ineffective assistance of counsel claims pursuant CPL §440.10 [2] [b]. The Court held that the arguments made by the defendant were “matters that occurred on the record and, therefore can be reviewed on direct appeal.” (See People v. Coleman, Ind. 983N/16, Gugerty, J. Decision [Sup Ct. Nassau County, July 2, 2018]). The defendant failed to raise any ineffective assistance of counsel claims on his direct appeal. (Coleman, 176 AD3d at 851-852). In the defendant’s current vacatur motion he fails to explain why the ineffective assistance claim was not taken or perfected properly. As a result, this Court is procedurally barred from reviewing the ineffective assistance of counsel claims previously raised. (CPL §440.10 [2] [c]; Carter, 105 AD3d at 1150). The only new ineffective assistance claim submitted by the defendant, in the present vacatur motion is that defense counsel should have requested a Frye hearing. However, this Court is also permissively barred from reviewing this on-record claim since defendant should have submitted it prior to the defendant’s sentence (CPL §330.30) and therefore it subsequently was not brought on direct appeal. (CPL §440.10 [3] [a]; Carter, 105 AD3d at 1150). In the present motion, the defendant has failed to provide a justifiable reason explaining his failure to take or perfect this claim. (CPL §440.10 [3] [c]). This Court finds it is permissively barred from reviewing whether a Frye hearing should have been granted since the defendant first requested this Frye hearing, in his Pro Se Omnibus motion, where his request was denied. (CPL §440.10 [3] [b]; See People v. Coleman, Ind. 983N/16, Donnino, J., Decision [Sup Ct. Nassau County, August 16, 2017]). In any event, this Court finds it is unnecessary to conduct a hearing to determine if the trial attorney was ineffective for his failure to request a Frye hearing. People v. Perez, 185 AD3d 1156, 1159 [3d Dept 2020]. The defendant cannot meet his burden that counsel acted objectively unreasonable by failing to request a Frye hearing and that the defendant was, therefore, prejudiced. (Strickland v. Washington, 466 US 668, 692 [1984]). The Appellate Division’s determination of legal sufficiency affirms that the scientific tests were recognized and accepted by the courts, which diminishes any necessity of determining whether it was ineffective assistance to fail to request a Frye hearing. While this Court is procedurally barred from reviewing any legal sufficiency claim pursuant to CPL §440.10 [2] [b], this Court concludes that the scientific tests performed are not new procedures requiring recognition of an acceptance by the Court, resolved at a Frye hearing. (Coleman, 176 AD3d at 852; Frye v. United States, 293 F 1013, 1014 [DC Cir 1923]). The defendant contends that his due process rights were also violated by the Court (Donnino, J.). The defendant faults the Court on several grounds, including, allowing the prosecutor to withhold the search warrant affidavit at the suppression hearing, denying defendant’s request for an Alfinito hearing, denying his motion to set aside the verdict, and sentencing him without having first issued a written decision on defendant’s CPL §330.30 motion. This Court finds that it is procedurally barred from reviewing defendant’s claim that the search warrant affidavit was improperly withheld at the suppression hearing, based on defendant’s unjustifiable failure to raise this claim on direct appeal. (CPL §440.10 [2] [c]; Coleman, 176 A.D.3d at 851-852). The defendant’s claim that his due process rights were violated by the Court’s (Donnino, J.) decision denying an Alfinito hearing is procedurally barred from review by this Court. (CPL §440.10 [2] [a]). The Appellate Division affirmed the lower court’s decision to deny defendant’s motion to controvert the search warrant, confirming that an Alfinito hearing was not warranted. (Coleman, 176 A.D.3d at 851). Additionally, the Appellate Division determined the search warrant application contained sufficient allegations justifying its issuance and that the confidential informant appeared reliable based on the police affidavit. (Coleman, 176 AD3d at 851). The Court’s (Donnino, J.) decision denying defendant an Alfinito hearing served as permissive bar preventing Judge Gugerty from reviewing the claim in defendant’s first vacatur motion. (CPL §440.10 [3] [b]; People v. Coleman, Ind. 983N/16, Gugerty, J. Decision [Sup Ct. Nassau County, July 2, 2018]). This Court hereby finds, it is also constrained by the exact same permissive bar, since Judge Donnino determined this issue on the merits. (CPL §440.10 [3] [b]; People v. Coleman, Ind. 983N/16, Donnino, J., Decision [Sup Ct. Nassau County, August 16, 2017]). The defendant’s claim that vacatur is warranted based on the Court’s (Donnino, J.) denial of his motion to set aside a verdict pursuant to CPL §330.30 is procedurally barred from review by this Court due to the defendant’s unjustifiable failure to raise this claim on direct appeal. (CPL §440.10 [2] [c]; Coleman, 176 A.D.3d at 851-852). Accordingly, this Court concludes that it is barred from reviewing defendant’s claims pursuant to CPL §440.10, and his motion to vacate his conviction is hereby denied in its entirety, without a hearing. All applications not specifically addressed herein are denied. The foregoing constitutes the decision and order of the Court. SO ORDERED. Dated: October 7, 2021
