Petition for Writ of Certiorari — Peter Corines, Petitioner v. New York
Supreme Court briefNov 30, 2022
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PETER CORINES
Appellant/Petitioner, pro se
v.
SUPREME COURT OFTHE STATE OF NEW YORK
APPELLATE DIVISION, SECOND DEPARTMENT
Respondent
On Petition for a Writ of Certiorari
PETITION
Peter J. Corines
Petitioner, pro se
249 Park Avenue
Eastchester, New York 10709
Tel: 914 652 7386
E-mail: petericmd@netscape.net
RECEIVED
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DEC - 5 2022
MgSSSSSt
I. Questions Presented
1. Was Petitioner denied due process and equal protection of the law in
violation of Constitutional Amendments V and XTV when the State used
known false and material testimony to obtain an Indictment?
2.
Was Petitioner denied due process and equal protection of the law in
violation of Constitutional Amendments V and XTV when the State
knowingly used an Indictment obtained with false testimony to secure a
conviction by plea?
3. Was Petitioner denied effective assistance of counsel in violation of
Constitutional Amendments VI and XIV when his Attorneys withheld
knowledge of false grand jury testimony?
II. TABLE OF CONTENTS
Application for status in forma pauperis
1
I.
Questions Presented....................
n
II.
Table of Contents
in
III.
Table of Authorities
IV.
Petition for Writ
2
V.
Opinions below
2,4
VI.
Basis for Jurisdiction
1V-V1
2
VII. Constitutional Provisions Involved
,3
VIII. Statement of the Case
5
IX. Reasons for Granting the Writ
20
X. Conclusion
39
XI. Appendix A.l -A.12
XII. Supplemental Appendix SA1 through SA4
iii
H. TABLE OF AUTHORITIES
Supreme Court and Federal Cases
1. Alcorta v. Texas, 355 U.S. 28 (1957)
2. Brady v Maryland, 373 U.S. 83 (1962)
3. Communist Party v. Control Board, 351 U.S. 115, 124-125 (1956)
4. Giles v Maryland 386 U.S. 66 (1967)
5. Giglio v. U.S. 405 U.S. 150 (1972)
6. Herbert v. Louisiana, 272 U. S. 312, 316-317 (1926)
7. Menna v. New York 423 U.S. 61 (1975)
8. Mesarosh v U.S. 352 U.S. 1 (1956)
9. Mooney v. Holohan 294 U.S. 103
10. Niemotko v. Maryland 340 U.S. 268 (1951)
1 l.Napue v. Illinois, 360 U.S. 264 (1959)
12. Pyle v. Kansas 317 U.S. 213 (1942)
13. United States v. Agurs, 427 U.S. 97,111 (1976)
14. United States v. Basurto, 497 F.2d 781(1974)
15. United States v. Bagley 473 US, 667 (1985)
iv
State Cases
1. People v Batashure 75NY2d 306 (1990)
2. People v. Blauvelt 156 AD3d 1333 T2017^
3. People v Calbud, Inc., 49 NY2d, 389 (1980)
4. People v Cunningham, 88 Misc.2d 1065
5. People v Cameron, 71 AD3d 533 (2010)
6. People v Caracciola, 78 N.Y. 2d 1021 (1991)
7. People v DiFalco, 44 ny2d. 482, 487 (1978)
8. People v Hansen, 95 N.Y. 2d 227,231 (2000)
9. People v Hill 5 NY3d, 772, 773 (2005)
10. People v Huston, 88 NY2d, 400 (1996)
11. People v Lancaster, 69 N.Y.2d, 20 (N.Y. 1986)
12. People v Mackey 82 Misc. 2d. 766 (1975)
13. People v. Monroe, 174 A.D.3d 649 (2019)
14. People v. Pelchat, 62 N.Y.2d 97, 104-5 (1984)
15. People v Sawides, 1 N.Y.2d 554 (1956)
16. People v. Sayavong, 83 N.Y.2d 702 (N.Y. 1994)
17. People v Thompson 985 NYS2d 428, 434 (2014)
18. People v. Valles, 464 N.E.2d 418;62 NY2d, 36 (1984)
19. People v. Wilkins 68 NY2d 269,277 (1986)
Statutes
1. New York General Obligations Law: Sections 5-1502A through 5-1502N
2. N.Y. General Obligations Law 5-1511 - Termination or Revocation of
Power of Attorney; Notice
3. CPL 210.35
4. CPL, Article 190
Misc:
Pattern Jury Instructions: Grand Larceny
2. Pattern Jury Instructions: Identity Theft
vi
IV. PETITION FOR WRIT of CERTIORARI
Peter J. Corines, petitioner pro se respectfully petitions this court for a Writ
of Certiorari to review the judgment of the N.Y.S Supreme Court, Appellate
Division, Second Department affirming his conviction rendered in Supreme Court,
County of Westchester, New York April 13, 2022 for Grand Larceny, Attempted
Grand Larceny and Identity Theft. The New York State Court of Appeals by Order
dated July 11, 2022, denied leave to appeal.
V. OPINIONS BELOW (see Page 4, infra)
A1 Decision and Order affirming Judgment of Conviction was rendered by New
York State Supreme Court, Appellate Division, Second Department on April 13,
2022; Docket No. 2019-03642
A2 The New York State Court of Appeals Order dated July 11, 2022 denying le ave
to appeal
VI. Basis for Jurisdiction
1 • 28 U.S.C. sec. 1257: A state court of last resort has decided an important
question of federal law in a way that conflicts with relevant decisions of this Court.
2. Petition is timely as enlargement of the time for submission was extended by
Associate Justice Sotomayor until December 9, 2022 A3
3. There are no other Parties.
VII. Constitutional Provisions Involved
(Emphasis on relevant text)
Amendment V:
No person shaU be held to answer for a capital, or otherwise infamy
unless on a presentment or indictment of a grand inrv. except in cases arising in the
land or naval forces, or in the militia, when in actual service in time of war or public
danger; nor shall any person be subject for the same offense to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal rase to he a
against himself, nor be deprived of life, liberty, or property, without due process nf
lawi nor shall private property be taken for public use, without just compensation
Amendment VI:
Ip all criminal prosecutions, the accused shall eniov the right m a speedy and
public trial, by an impartial jury of the state and district wherein the crime shall have
been committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his favor, and to have
the assistance of counsel for his defence
---------
Amendment XIV, Section 1 Due Process of Law
No State shall make or enforce any law which shall abridge the nrivilepes nr
immunities of citizens of the United States; nor shall any State denrive anv person nf
3
life, liberty, or property, without due process of law; nor deny to anv person within
its jurisdiction the equal protection of the laws.
OPINIONS BELOW
Al. Decision and Order affirming Judgment of Conviction was rendered by New
York State Supreme Court, Appellate Division, Second Department, April 13,
2022; Docket No. 2019-03642
A2. The New York State Court of Appeals Order dated July 11, 2022 denying
leave to appeal
A3. Letter from Clerk of the Court extending time to file to December 8, 2022
4
A1
Decision and Order 2219-03642, Supreme Court of the State
ofNew York,
Appellate Division, Second Judicial Department April 13 , 2022
VIII. Statement of the Case:
This case involves use by the State of New York of false, material grand jury
testimony that was known to the prosecution, to obtain an indictment against
petitioner for Grand Larceny, Attempted Grand Larceny and Identity Theft. The
Indictment so obtained was used to obtain conviction by plea of guilty. Petitioner
was denied due process of law in violation of the Fifth and Fourteenth
Amendments by the knowing use of perjured testimony and by the suppression of
favorable and exculpatory evidence.
Throughout the appeal proceedings, petitioner repeatedly presented the false
grand jury testimony and the related issues of prosecutorial misconduct and
ineffective assistance of counsel. A10, All The prosecution never controverted
any of these issues but argued that they were, inter alia: A12. SA2
1) Unsubstantiated
2) Not part of the record or “dehors” the record
3) Not raised in omnibus motion (although the Court stated that it did review the
grand jury minutes “in camera”)1
4) Not included in the Record and the Court should not expand the record to include
any portion of the grand jury minutes.
5) Precluded from consideration by defendant’s plea
1 This specious argument was raised in response to petitioner's Motion for Release of Grand Jury Minutes, which
was denied by the Court.
5
6) Barred from review by the waiver of his right to appeal
And that:
7) Although reviewed, grand jury minutes were “Never specifically reviewed to
adjudicate a perjured testimony claim”. See SA2
In affirming petitioner’s conviction, the Appellate Division, Second
Department focused on the plea proceedings and gave little consideration to the
arguments raised with respect to the false grand jury testimony, holding:
Al, at page 2
“Here, the record as a whole and the circumstances
surrounding the entry of the plea reveal that the defendant’s
plea was knowingly, voluntarily and intelligently made...the
defendant understood the charges and made an intelligent
decision to enter a plea of guilty...
... “Finally, as regards the plea, by entering his plea of
guilty, the defendant forfeited the contention raised in his pro
se supplemental brief that the indictment was defective on the
ground that allegedly perjured testimony impaired the
integrity of the grand jury proceeding (see People v Monroe
174 AD3d (649)...
By waving his right to appeal, the defendant gave up his
right to challenge the adequacy of his attorney’s representation
... thus constitutes a mixed claim of ineffective assistance... .a
CPL 440.10 proceeding is the appropriate forum...and we
decline to review the claim on this direct appeal.”
Background
The complainant in this case, Bernice Judd Porter (“Porter”) was a ninetyeight year old childless widow. She is now 102 years old. Porter was known to
6
petitioner for over 40 years having been the wife of petitioner’s personal attorney.
On April 17, 2014 Porter executed a broad power of attorney (henceforth “POA”)
appointing petitioner as her agent and giving him broad powers2A4
At that time she was 93years old and her estate was valued in excess often
million dollars ($10,000,000.00), with assets that included stock, bonds, numerous
bank accounts, money market funds and a safe deposit box. Her assets were
located in numerous local banks and in money market funds, some of which were
not in New York State, but accessible on line.
On November 14, 2017 Porter became ill and was hospitalized3. Petitioner
then proceeded to attempt to consolidate her accounts into a joint POA account
which he opened at Chase Bank in the name of Porter and himself. Using the POA
executed by Porter, Petitioner was able to withdraw funds from several banks and
deposit checks which were payable to Porter and/or himself into the joint account.
All of the transactions occurred between November 14, 2018 and November
22, 2018. Petitioner soon discovered that almost all of the checks were stopped and
the deposits reversed and that the Chase Bank POA account had been closed4.
2 Porter also executed a living will, health care proxy naming petitioner as her agent, and
provided him with keys to her apartment and mail box.
3 Prior to this hospitalization, Porter had sustained a head injury and cervical fracture
(“Hangman’s fracture” of vertebral body C-2) from which she had “recovered”.
Apparently, the Westchester DA office had been informed of the alleged crime and aided
in blocking transactions performed by petitioner.
Without informing petitioner, Porter revoked petitioner’s POA on November
20, 2017. (AS) and executed a new POA naming a cousin, Charles Margolis5,
(“Margolis”), as agent. Margolis retained as attorney for Porter’s estate, his son-in
-law, Steven Seiden, Esq. Margolis and his attorneys failed to serve petitioner with
the notice of revocation.6
On November 30, 2017 Margolis with his new POA was accompanied by
his attorneys7 and filed a false statement with the Yonkers Police stating that
petitioner was removing moneys from Porter’s accounts “without any
authorization”. They did not reveal to the police that petitioner had been authorized
for several years to be her agent by POA8. A6
On April 23, 2018, the Yonkers, N. Y. police executed a search warrant and
Felony Complaint, the affidavit of which contained the false statement:
...Corines, fraudulently acting as a valid agent on a power of
attorney repeatedly tried to transfer money to himself without permission,
authority or consent”
5 Margolis also testified at the Grand Jury. See A8, p.44
Although executed on November 20,2017, petitioner was in fact never personally served
with the notice of revocation as required by NY General Obligations Law 5-1511. His
attorney, received notice by e-mail on December 4,2017.
A second attorney, Peter Cooke was also present and was later disbarred from practice
for unrelated reasons, by the Disciplinary Committee of the NY Appellate Division, Second
Department.
* The existence of the POA was not mentioned either in the Felony Complaint or in the
indictment handed down by the Westchester County Grand Jury. A7, A9
Petitioner was arrested after a three- hour interrogation 9and subsequently
arraigned on the Yonkers Felony Complaint, to which his attorney entered a plea
of “not guilty”A7. The matter was then transferred to New York Supreme Court,
County of White Plains10.
Porter’s False Grand Jury Testimony A8
On or about June 15, 2018 Porter, the alleged “victim” in this matter
testified at the Grand Jury in Westchester Supreme Court. Her testimony was
replete with false statements. Although she did acknowledge that she had executed
petitioner’s POA on April 17, 2014 and that she had reviewed the document prior
to testifying, she proceeded to deny seventeen times that she had authorized any of
the financial or related transactions performed by petitioner. The complete litany
of false responses is herewith appended. A8 She stated that she had “forgotten”:
A8, Page 7. lines 14-20
Q
Did Peter Corines have a Power of Attorney for you?
A
Yes, I had forgotten about that and I thought that was only
effective if one were not able to handle ones own affairs and I thought at that
point that I was able to handle my own affairs.
Page 9. lines 4-20
Q
I’m going to hand you what’s previously marked as Grand
Jury Exhibit 1 for identification. I ask that you look at it?
Yonkers detective Pollick interviewed petitioner for three hours in the absence of his attorney.
At that time Petitioner was perplexed because he believed that he had acted legally as authorized by POA
and believed he was being guided by competent defense counsel.
9
A
Yes.
Q
Do you recognize it?
A
Yes, I do.
Q
What is it?
A
It’s my signature.
Q
What is the document?
A
The document is - it’s a power of attorney.
Q
Did you have an opportunity to review this power of attorney
prior to coming into the Grand Jury chambers today, before
you came here?
A
Yes, I did.
Porter then testified: page 7 Lines 21-24
Q
Did you during this event or after this event revoke the power
of attorney that you had given to Peter Corines?
A
Yes, I did.
The prosecution essentially led the grand jury to infer that the POA was not
in effect at the times the alleged crimes were committed. Hence, without referring
to the effective dates, Porter was queried:
Transcript, Page 10:
Q:.....do you recognize that document?
A: Yes, I do
Q: And what is it?
A: It’s a revoking of the power of attorney
10
Porter was not asked when the POA was revoked until sometime later in the
proceeding when she was asked by a grand juror. She then responded evasively:
A8, page 43. linell:
BY A JUROR:
revoked?
When was the power of attorney
MS. ROWE-SMITH: When was your power of
attorney to Peter Corines revoked?
THE WITNESS:
Where?
MS. ROWE-SMITH: When did you evoke (sic) the
power of attorney that you had given to Peter Corines?
THE WITNESS:
I guess as soon as I realized that he
was taking advantage of this period, this brief period, a matter
of hours I think that caused me to be taken to the hospital11.
The prosecutor failed to advise the grand jurors of the date of the revocation
of the POA leaving it open to speculation. According to the record, the prosecutors
also failed to explain that although the revocation was executed by Porter on
November 20, 2017, the POA was in effect during the time from its execution
(April 17, 2014) until the date of revocation. By this uncorrected testimony, the
grand jurors were misled into believing that the November 20, 2017 revocation
voided the entire POA and that petitioner was not authorized as her agent even
during the time period beginning April 17, 2014.
11 Porter was hospitalized from November 17, 2017 until November 20,2017 and then transferred to a
Nursing Home where she remained for 30 days.
11
The potential for confusion is obvious and there is no evidence on this
transcript that the jurors were made cognizant of the inclusive dates of petitioner’s
authority pursuant to the POA. The jurors were therefore led to believe that the
POA was not in effect during the time period November 17 through 20, 2017; that
petitioner was not authorized; and that there was cause to believe that he performed
illegal transactions12. Whether or not the matter was later clarified cannot be
discerned from this record, and is unlikely. But it is clear that the manner in which
the question was posed and responded to by their main witness left open that
possibility. The Grand Jury was deceived.
Petitioner was therefore prejudiced by the repeated false statements of this
witness who knew, or should have known the truth- that her statements were belied
by her sworn POA. The false statements were not corrected by the prosecutor.
Porter was not asked and did not provide any detail of the dates of execution
of the POA or its revocation.13 ADA Smith did not query Porter as to the date of
revocation of the POA. There was in fact no mention of that date until later in the
proceeding.
12
•
The issue of whether petitioner was served with the revocation was not discussed; nor
was the date when he was made aware of its existence divulged to the j urors.
13 Petitioner was never served with the Notice of Revocation and actually became aware of
it through his attorney who was notified by e-mail on December 4,2017.
12
The balance of Porter’s testimony is replete with false statements. Beyond
her opening statements confirming the validity of the POA, she shockingly
thereafter repeatedly denied that she gave consent, permission or authorization for
any of the transactions performed by petitioner. Although she knew, or should
have known that petitioner was legally authorized to execute all of transactions
including banking, mail, phone calls, she in fact made simple, yes or no answers to
the prosecutor’s leading questions. On seventeen occasions, she falsely testified
that the transactions were not authorized. A8, pages 17-22
Subsequently Porter was asked and also falsely denied authorizing petitioner
to change her mailing address, make phone calls on her behalf or take money out
of her accounts, to which she repeatedly responded:
“No, I did not.” A8. page 28
Fair dealing on the part of the prosecutors would have required that the New
York General Obligations law and its relation to the facts would have been
explained to the jurors, as all of the banking transactions were authorized by law
pursuant to the POA. Therefore essentially all of Porter’s responses to the
questions subsequently posed to her were false, to wit: ibid.
“....did you give Peter Corines permission, consent or
authorization to (perform these transactions)...
13
And to which Porter responded multiple times: |d
“No, I did not”.
Following this (false) testimony, the ADA and Porter were confronted by “a
juror” who apparently was a physician and apparently perturbed by her testimony.
He persistently challenged her credibility, memory and cognition and was rebuffed
by the prosecution seven times. A8. pages 28-40
The false material testimony was not revealed to the grand jurors, the Court
or defense counsel, and was subject to secrecy. The failure of the prosecution to
tell the grand jurors that the answers given to the prosecutor’s leading questions
were in fact false was prejudicial to petitioner. The spectacle of this 98 year old
“victim” must have had a chilling effect upon the jurors and influenced their vote
to indict. The false testimony was believed by the grand jurors and led to a false,
“empty” indictment. 14CPL 210.35 (5)
Defense counsel, Peter Tilem (“Tilem”) had received a copy of transcript of
Porter’s testimony in preparation for the court ordered “conditional examination”,
scheduled for October 3, 2018. He failed to discuss the grand jury testimony with
petitioner. Surprisingly, he did not tell petitioner of the perjured testimony and
14 The juror(s) questioning her memory and credibility were prevented from pursuing the
issue even though persisting, and were rebuffed seven times. See A8 at pages 35 through 42
14
never raised the issue to the Court. Similarly, it did not appear in any of his court
filings. Indeed, he failed to even mention it during the plea proceedings. As an
experienced defense attorney, he knew or should have known the significance of
the false testimony. Nevertheless, he failed to apprise his client of its existence
and, more importantly of its significance. 15The perjured testimony was therefore
never raised in defense of the indicted crimes.
Westchester Supreme Court Proceedings
Before he was aware of the grand jury testimony, defense counsel submitted
an omnibus motion arguing inter alia: that the POA was a defense to the
allegations; that the grand jury minutes should be released; and that the indictment
should be modified or dismissed. In its decision September 21, 2018 the Court
deleted Count One of the Indictment and agreed to review the grand jury minutes
“in camera”.16 SA2
The Court, (Minihan, j) ultimately decided:
“...the court has conducted ...an in camera inspection of the
stenographic transcript of the grand jury minutes. Upon such review, the
court finds no basis upon which to grant defendant’s application to dismiss
or reduce the indictment.” SA2
15 Petitioner received a copy of the grand jury transcript by email from a newly- hired
junior associate of the Tilem law firm. She did not contact petitioner or offer any comment.
A8, e-mail message
16 Count One of the Indictment alleged a scheme with intent to defraud “more than one
person”. A9
15
The prosecution then moved by Order to Show Cause for a “Conditional
Examination” of the alleged “victim”. The motion was not opposed by defense
counsel and was scheduled for October 3, 2018.
In anticipation of this examination, Defense counsel received a copy of the
court reporter transcript of Porter’s grand jury testimony. The transcript was sent to
petitioner on September 21, 2018. A8. IE-main Neither Defense Counsel nor any
of his associates discussed or reviewed the transcript with petitioner17.
On the scheduled date for conditional examination, Porter had appeared in
court. For unclear reasons, the prosecution argued that the examination should be
postponed despite the fact that defense counsel was prepared to go forward and
cross examination by the defense would have to be adjourned.18
The proceedings were perplexing to petitioner because the conditional exam
was ordered over concern about Porter’s age, yet the ADA was anxious to
postpone this conditional exam despite the alleged difficulties involved in:
obtaining her “preferred” videographer; scheduling with the Court; and arranging
Throughout the entire proceedings in this matter, petitioner's attorneys acknowledged receipt of the grand
jury testimony but never implied there were irregularities in the testimony. The transcript that was received by
Tilem was included in the large carton of discovery materials that passed from Tilem to assigned Attorney
Kennedy and then was passed on to the second retained Attorney, Chartier.
18 The ADA had considerable difficulty in arranging this conditional examination. There were numerous
difficulties in obtaining her preferred videographer, arranging transportation for Porter and coordinating
date for this proceeding with defense counsel and the court In the face of these difficulties, the prosecution
surprisingly argued that they could not proceed because their direct examination “could not be completed in
one day”. This was apparently intentional, as they anticipated appearing in front of Judge Warhit the next
day.
16
transportation for the 98 year old complainant. Porter’s “cousin” Margolis
appeared in court with Porter.19
On the next day, October 4, 2018, petitioner and defense counsel appeared in
Westchester County Court “TAP „20 . The Court was familiar with this case as ADA
Smith and defense counsel had previously appeared there for SCI conference prior
to indictment. However, on this day the Court had an unusually long conference in
chambers with the ADA and defense counsel, which petitioner was not permitted
to attend. After forty minutes Defense counsel appeared and told petitioner that the
Court offered a sentence of one year in Westchester County Jail.
The Court gave defendant-petitioner only one day to decide. SA3
Plea Proceedings
Plea proceedings took place on the next day, October 4, 2018 and continued
on October 16, 2018.Throughout these proceedings, petitioner repeatedly raised
the POA as a defense to the charges of Grand Larceny and Identity Theft, but was
repeatedly silenced by the Court.21 SA3 At the conclusion of the proceeding,
petitioner insisted that defense counsel move to withdraw his plea. Defense
19 Charles Margolis, a purported cousin of Porter, was appointed Power of Attorney a few
days after Porter executed the revocation of petitioner’s POA. They were represented by
Steven Seiden, Esq., Margolis’s son-in-law.
20“Trial Assignment Part”
21 Defense counsel, Tilem had, surprisingly, advised him not to mention the POA during his
appearances. SA3. SA4
17
counsel then moved to be relieved, and was relieved by the Court on October 23,
2018.
Petitioner then retained new counsel, Jeffrey Chartier, Esq. who moved to
withdraw the plea22. SA3 Although the POA was included in his Motion to
Withdraw Plea. Chartier shockingly failed to inform the Court of the false grand
jury testimony. Nevertheless, his motion was denied and sentencing followed. At
sentencing, petitioner again asserted his innocence based upon the valid POA.
Petitioner, was prematurely remanded to Westchester County Jail on December 12,
2018 and ultimately sentenced to one year imprisonment on March 28, 2019.
Notice of Appeal was filed on April 1, 2019.
The Appeal Proceedings
While incarcerated, petitioner became aware of the perjured grand jury
testimony and that it was material and obviously prejudicial. Petitioner cannot to
this day understand why it was never brought to his attention by his attorneys.
On or about June 1, 2019, while incarcerated, petitioner submitted a Motion
to Dismiss Indictment and Application for Bail, both of which were denied bv the
Court. SA1
22
•
Kevin Kennedy, Esq., a recently retired, former ADA was assigned as defense counsel in the
interim after Tilem moved to be relieved by the Court.
18
Petitioner was thereafter granted in forma pauperis and assigned counsel.
The assigned appellate counsel adamantly refused to include in her brief the
arguments included herein. Assigned appellate counsel prepared and submitted a
brief which argued inter alia: that the petitioner’s motion to withdraw his plea
should have been granted, and that his waiver of appeal was invalid23. Petitioner
moved, as she also suggested, for substitution of counsel. The motion was denied
by the Court, but petitioner was granted leave to submit a pro se supplemental
brief.
After the Decision and Order Affirming Conviction (Al) was issued,
Petitioner submitted Application for Leave to New York Court of Appeals. (All)
The application was denied July 11, 2022. A2
Conclusions
As further discussed in Reasons for Granting the Writ, infra, the Grand Jury
Transcript of Porter’s testimony is primae facie evidence of false and material
testimony. The known false testimony was used to obtain a tainted indictment
which was then used to procure petitioner’s conviction by plea. The conduct of the
prosecution was contrary to federal law and multiple holdings of this Court. The
23
Despite pleading from defendant-petitioner, assigned counsel refused to consent to his demand that she include
the arguments of perjured grand jury testimony and the related arguments included in the instant Petition to this
Court for Writ of Certiorari.
19
tainted grand jury proceedings and prosecutorial misconduct render the indictment
subject to dismissal pursuant to CPL 190.65, Article 210.20, and section 210.35(5).
IX. Reasons for Granting the Writ
Contents
I. The State used known false, material testimony to obtain a “tainted indictment”
II. The Writ should be Granted to Discourage Future Abuses
A. Prosecutorial Misconduct Permeated this Proceeding
B. The State Failed in its Responsibility to Oversee
C. The Indictment Should be Dismissed
III. Petitioner was Denied Effective Assistance of Counsel
IV. Conclusions and Request for Relief
20
IX. REASONS FOR GRANTING THE WRIT
I. The State of New York used known false, material testimony to obtain a “tainted
indictment” in violation of petitioner’s right to due process
“The State’s pursuit is justice, not a victim.”
Giles v Maryland. 386 US 66 (19671
The use by the State of false, material testimony to obtain an indictment
violates petitioner’s right to due process under Amendments V and XIV. This was
an unjust conviction, contrary to both New York, and well-established Federal law
in conflict with numerous holdings of this Court.
The lower court errors are plain and are repugnant to the U.S. Constitution.
The Writ of Certiorari should therefore be granted because the constitutional due
process rights of petitioner were violated.
Petitioner, never having been so apprised by his attorneys, first realized that
the grand jury testimony was perjured when he was incarcerated in the Westchester
County Jail.1. The arguments were first presented as an Emergency Application to
the Presiding Justice of the Appellate Division, Second Department. Petitioner
therein sought Dismissal of Indictment and Granting of Bail SA1 The application
was opposed by the People and denied by the Court.
Petitioner was remanded to Westchester County Jail on December 12,2018. He was
sentenced to one year incarceration on March 28,2019
21
The arguments were again presented in his pro se Supplemental Rrief as
well as in his Application for Leave to the New York Court of Appeals2 A10, All
To wit, Petitioner argued:
“As held by the US Supreme Court in Napue v. Illinois. 360 U.S. 264
(1959); cited in Giles v. Maryland. 386 U.S. 66(1967):
A conviction obtained by the use of false evidence, know to be false by
representatives of the State, falls under the Fourteenth Amendment, Mooney
v. Holohan, 294 U. S. 103; Pyle v. Kansas, 317 U. S. 213: Curran v.
Delaware, 259 F.2d 707. See New York ex reL Whitman v. Wilson, 318 U. S.
688, and White v. Ragen, 324 U. S. 760. Compare Jones v. Kentucky, 97 F.2d
335,338, with In re Sawyer’s Petition, 229 F.2d 805, 809. Cf Mesarosh v.
United States, 352 U. S. 1. The same result obtains when the State, although
not soliciting false evidence, allows it to go uncorrected when it
appears. Alcorta v. Texas, 355 U, S. 28; United States ex reL Thompson v.
Dye, 221 F.2d 763; United States ex reL Almeida v. Baldi, 195 F.2d 815; United
States ex reL Montgomery v. Ragen, 86 F. Sudd. 382. See generally annotation,
2 L. Ed. 2d 1575”
The principle that a State may not knowingly use false evidence,
including false testimony, to obtain a tainted conviction, implicit in any
concept of ordered liberty, does not cease to apply merely because the false
testimony goes only to the credibility of the witness. The jury's estimate of
the truthfulness and reliability of a given witness may well be determinative
of guilt or innocence, and it is upon such subtle factors as the possible
interest of the witness in testifying falsely that a defendant's life or liberty
may depend. As stated by the New York Court of Appeals in a case very
similar to this one, People v. Sawides, 1 N.Y.2d 554,557,154 N.Y.S.2d 885,
887,136 N.E.2d 853,854-855:
"It is of no consequence that the falsehood bore upon the witness' credibility,
rather than directly upon defendant's guilt. A lie is a lie, no matter
Page 360 U. S. 270
2
• •
•
Petitioner’s assigned appellate counsel, despite urging, refused to include petitioner’s
arguments in the Appellate Brief.
22
what its subject, and, if it is in any way relevant to the case, the district
attorney has the responsibility and duty to correct what he knows to be false
and elicit the truth.... That the district attorney’s silence was not the result
of guile or a desire to prejudice matters little, for its impact was the same,
preventing, as it did, a trial that could in any real sense be termed fair."
A lie is a lie
The egregious failure of Prosecution to correct Porter’s false
testimony was a violation of its duty to avoid a needless prosecution as well as
a violation of basic ethics and responsibilities. The grand jury cannot protect
against malicious prosecution if it is not given information which is material to
its determination. The prosecution has a duty of good faith with respect to the
court, the grand jury and the defendant. US v Basurto 497 F.2d 781, 785-86
(9th Cir. 1974). Therein it was clearly stated:
“Permitting a defendant to stand trial on an indictment
which the government knows is based on perjured testimony
cannot comport with the “fastidious regard for the honor of the
administration of justice.”
The New York courts have in this case rejected the clear command of this
Court, subjecting an innocent person to incarceration3. Despite the obvious
possibility that petitioner was prejudiced by the corruption of the Grand Jury
proceedings, the intermediate court failed to even reference his rights under the
3 At best, it appears that there is a conflict, confusion or uncertainty between the New York
State Courts and the Federal Courts which should be resolved by this Court.
23
New York and U.S. Constitutions, or Supreme Court Law. The obviously perjured
testimony was the basis for an unjust conviction and incarceration.
Petitioner prays that this Court will grant certiorari in this matter and upon
review order that the indictment in this case be dismissed and judgment reversed. It
is likely that other defendants have been, or will be prejudiced by such “Napue
violations”. This court should therefore take action to prevent future abuse by
prosecutors as it is mandated by Title 28. U.S.C. sect: f 257faU
Final judgments or decrees rendered by the highest court of a State in which a decision
could be had, may be reviewed by the Supreme Court by writ of certiorari where the
validity of a statute of any State is drawn in question on the ground of its being repugnant
to the Constitution, treaties, or laws of the United States, or where any title, right, privilege,
or immunity is specially set up or claimed under the Constitution or the treaties or statutes
of, or any commission held or authority exercised under, the United States.
There appears to be a conflict between the New York State law and Federal
law. The conflict is implicit and should be resolved because it is applicable to all
courts below, as the decisions in Giles v. Maryland, id and Naoue v. Illinois, id.,
were of national importance. This conflict will affect other citizens who are not a
party to this case, and petitioner believes that the benefit of granting the Writ and
hearing this matter outweighs the risk of not so doing.
The principle was well stated in Niemotko v. Maryland 340 US 268.
27(1951):
24
“...the false testimony used by the state had an effect on the outcome
of the trial. Accordingly the judgment below must be reversed”.
Certiorari should therefore be granted to correct the conflicting positions of
the New York State Courts and this Court, that by pleading guilty, defendantpetitioner waived his right to challenge the indictment or that a guilty plea
somehow negates constitutional violations. A guilty plea does not extinguish a
constitutional challenge to indictment. People v. Pelchat. 62 N.Y. 2d 97. 104-5.
108-109 (1984); Menna v. New York. 423 US 61 (197SV US v Basurto. id
The People repeatedly and incorrectly argued in their answering papers:
“...rather than showing an infirmity to his conviction, defendant has
only confirmed what was apparent from his sworn plea allocution, that he
knowingly, intelligently and voluntarily pleaded guilty...defendant’s...claims
are largely not reviewable. As discussed more fully in the Supplemental Brief
for Respondent, defendant’s claims are unpreserved for appellate review,
forfeited by his guilty plea, barred from review by the waiver of his right to
appeal, or based upon matters dehors the record...To be certain, none of
defendant’s varied claims is deserved of further review”. A12
The Appellate Division confirmed conviction without regard to the
multitude of New York cases holding a contrary opinion. People v. Pelchat. id:
People v Cameron, 71 AD3d 533 (2010); People v Huston. 88 NY2d. 400 (1996):
People v Hansen, 95 N.Y, 2d 227 (2000) It also neglected the same Federal case
law, i-e. U. S. v. Basurto. id. which holds that a defendant must not be forced "to
stand trial on an indictment which the government knows is based partially on
perjured testimony" and that:
25
#
“ Whenever the prosecutor learns of any perjury committed before the
grand jury, he is under a duty to immediately inform the court and opposing
counsel — and, if the perjury may be material, also the grand jury — in
order that appropriate action may be taken. See Mooney v. Holohan, 294
U.S. 103, 55 S.Ct. 340,79 L.Ed. 791 (1935); Giles v. Maryland, 386 U.S.
66, 87 S.Ct. 793,17 L.Ed.2d 737 (1967); Napue v. Illinois, 360 U.S. 264, 79
S.Ct. 1173,3 L.Ed.2d 1217 (1959); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct.
103,2 L.Ed.2d 9 (1957); Hysler v. Florida, 315 U.S. 411,62 S.Ct. 688,86
L.Ed. 392 (1942); Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed.
214 (1942).”
In Napue, id, the court held that the prosecutor’s use of known false
testimony at trial requires a reversal of the petitioner’s conviction. The same result
must obtain when the government allows a defendant to stand trial on an
indictment which it knows to be based even in part, upon perjured testimony.
Therefore, contrary to the Decision and Order in this case, claims of a
constitutional nature can be raised on appeal of a plea; petitioner may raise the
issue of dismissal of indictment after a plea; and notwithstanding a guilty plea,
defendant may not forfeit a claim of a constitutional defect implicating the
integrity of the process People v. Hansen 95 N.Y. 2d 227. 231 Claims implicating
the “constitutional function of the grand jury to indict” or “the prosecutors’ duty of
fair dealing” survive a guilty plea. People v Pelchat. id
This Court should grant the Writ of Certiorari in this matter to re-affirm the
holding in the numerous cases above cited and thereby confirm that the State may
not use false material testimony whether known or unknown to be false, to obtain a
26
conviction. Petitioner believes that the benefits of hearing this case outweigh risk
of not so doing.
II. Writ of Certiorari Should Be Granted to Discourage Future Prosecutorial
Abuses in violation of Constitutional Amendments V. XIV.
A. Prosecutorial Misconduct Permeated This Proceeding.
Society’s interest injustice is great especially when a citizen faces loss of
liberties. The Grand Jury performs the essential function of investigating criminal
activity to determine whether sufficient evidence exists to accuse a citizen of a
crime. People v Lancaster 69 N.Y. 2d 20. 26 cert, denied 480 US 922: People v.
Calbud, Inc., ibid Society wins not only when the guilty are convicted but when
criminal trials are fair; our system of the administration ofjustice suffers when any
accused is treated unfairly. Bradv v Maryland. 373 U.S. 83. 87
“The prosecutors are charged with the duty not only to secure
indictment but also to see that justice is done”. People v Lancaster, id. People
v Pelchat. ibid
The state prosecutors abused their discretion in this case and knowingly
violated their responsibility and duty of “fair dealing”. In this case, the lack of
completely impartial judgment and discretion was evaded. People v DiFalco 44
NY 2d. 482. 487I1978I
27
The recorded grand jury testimony of Porter is primae facie evidence
of perjury as it contained numerous false and material4 statements and was
intended to deceive those who were burdened with the obligation to find the truth,
i.e. the grand jurors. Porter’s obvious contradictions make it clear that the
prosecutors knew or should have known that she presented false testimony. They
took advantage of her willingness to lie for their own personal reasons. Their
desire to obtain a conviction at any cost in this case is despicable and appears to
have been an intentional violation of the ABA code of Professional Responsibility.
The ability of the grand jury to uncover the facts accurately was thwarted by
permitting false testimony to go uncorrected. As a result, the integrity of the
Grand Jury proceedings was substantially undermined, (see People v Caracciola.
78 N.Y. 2d, 1021 (1991), citing People v Batashure. People v Calbud. Inc..
People v, Valles, and CPL 210.35(5), wherein misleading and incomplete legal
instructions impaired the integrity of the grand jury and mandated dismissal of the
indictment).
As held in People v Huston. 88 NY2d. 400. where irregularities in
presenting the case to the Grand Jury rise to the level of impairing those
proceedings and creating the risk of prejudice, “the indictment cannot be permitted
Giglio v U.S., 405 U.S. 150.153 articulated the standard of materiality for a prosecutors
use of false testimony i.e. any reasonable likelihood that it affected the judgment of the
jury, quoting Bradv v Maryland 373 U.S. 83.87(1962i
28
to stand even though it is supported by legally sufficient evidence”. Indictments are
presumed to be valid and should be based upon competent evidence People v
Bergerson 17 N.Y. 2d 398, 402 Perjured testimony cannot be considered
competent evidence and is grounds for dismissal of the indictment. US v Basurto.
id It is also unlikely in this case that legally sufficient evidence otherwise existed,
for then, the perjured testimony would likely not have been sought by the
prosecution.
The conviction in this case should be reversed and the indictment dismissed
because the evidence, i.e. the main witness testimony was perjured and known to
be so by the prosecution when it permitted the court to accept defendant’s plea to
the indictment. Under New York Law, dismissal of indictment under CPL
210.35(5) was appropriate in this case where prosecutorial wrongdoing and
possible fraudulent conduct, bias and errors may have prejudiced the ultimate
decision reached by the Grand Jury.
Porter s statements were material and not corrected, nor were the Court or
grand jurors told of their falsity. Defense counsel was not notified until several
months later, but defendant and the Court were never notified. Petitioner was
therefore denied due process under Amendments V and XIV because the material
that was withheld was capable of clearing him of guilt; i.e. “tending to clear the
accused of guilt or of substantially affecting the punishment to be imposed in
29
addition to being such as could reasonably be considered admissible and useful to
the defense”. Alcorta v. Texas 355 U.S. 28 0957). Napue. ibid. Moonev v
Holohan , 294 U.S.. 103 The many decisions of this Court confirm that petitioner
in this case, was denied due process.
Certiorari should be granted so that this Court may consider reiterating the
principle that: “a state may not knowingly use false evidence including false
testimony to obtain tainted conviction, implicit I any concept of ordered liberty...”
Giles v. Maryland, at 74
B.
The State of New York Failed In Its Responsibility to Adequately Oversee
Its Prosecutors
The Court should take judicial notice of the New York law that would have
created the (Nation’s first) State Commission on Prosecutorial Conduct signed into
law on August 18, 2018 by then Governor Andrew Cuomo:
Center for the Advancement of Public Integrity, The New York State
Commission on Prosecutorial Conduct, (2018).
Available at: https://scholarship.law.columbia.edu/public_integrity/25
Supporters claim that the law is an invaluable tool in the fight against
unethical prosecutorial conduct, while opponents such as the District
Attorneys Association of the State of New York (“DAASNY”) claim that the
law violates both the New York State and U.S. Constitution. On October 17,
2018, DAASNY was joined by David Soares, president of DAASNY
representing all district attorneys, and Robert J. Masters, an assistant
district attorney in Queens County representing all assistant district
attorneys in the state of New York, in filing a legal challenge to the law. The
complaint, filed in the Albany County Supreme Court, seeks declaratory as
well as injunctive relief.
BO
The bill was signed into law by Governor Cuomo and Chief Judge, DiFiore5.
Chief Judge Janet DiFiore today announced the appointments of Hon.
Michael J. Obus, Hon. Randall T. Eng and Professor Michael A. Simons,
Dean of St. John’s University School of Law, to the New York State
Commission on Prosecutorial Conduct. Recent state legislation created the
Commission as an independent entity dedicated to investigating
prosecutorial conduct in New York State, serving to strengthen oversight of
New York’s prosecutors and holding them to the highest ethical standards in
the exercise of their duties. The New York State Commission on
Prosecutorial Conduct will receive, initiate, investigate and hear complaints
related to qualifications, conduct, fitness to perform and performance of
official duties of any prosecutor in New York State. In carrying out its
responsibilities, the Commission may conduct hearings, administer oaths,
subpoena and examine witnesses, and require the production of records or
other evidence deemed relevant to the investigation. The Commission will
produce a factual record, along with recommendations, that will be
transmitted to the relevant Appellate Division attorney grievance committee
in charge of overseeing the prosecutor charged with misconduct. The
attorney grievance committee may then accept or reject the recommended
sanction or impose a different sanction. Additionally, the Commission is
authorized to make a recommendation to the Governor that a prosecutor be
removed from office for cause-including misconduct as evidenced by
departure from obligations under appropriate statute, case law and/or New
York Rules of Professional Conduct-and must report annually to the
Governor, Legislature and Chief Judge with respect to proceedings in which
there has been a final determination. New York State Contact: Unified Court
System, press release:
~~
Subsequently, the law was challenged by representatives of the N.Y.
prosecutors and declared unconstitutional:
In a 63-page decision, Justice David A. Weinstein of Albany held Tuesday
that statute was “inconsistent with the provisions of the New York State
Constitution.”
Critics of the commission had voiced concerns that its broad investigatory
power could interfere with the decision making of prosecutors—who are
independently elected—and put a chill on their investigative work.
5 Chief Justice, Janet DiFiore recently resigned from the New York Court of Appeals
31
“The court eloquently explained what we and our clients have been arguing
for over a year: the Commission on Prosecutorial Conduct and its enabling
statute are unconstitutional,” attorney Jim Walden, a member of the legal
team representing the District Attorneys Association of the State of New
York said. Prosecutors statewide “will be able to do their jobs without the
constant threat of unconstitutional oversight,” he added. The Wall Street
Journal. January 28. 2020
Certainly, “two wrongs do not making a right” and unconstitutional
oversight to correct unconstitutional indictment may not be proper. Nevertheless,
this court may consider reinforcing the proposition that prosecutorial misconduct
should not be tolerated6. Petitioner believes that granting the Writ in this matter
would go a long way towards prevention of further abuses.
C. The Indictment should be dismissed
Pursuant to NY CPL 210.35 (5) A grand jury proceeding is defective within the
meaning of paragraph(c) of subdivision one of section 210.20 when:
5. The proceeding otherwise fails to conform to the requirements of article one
hundred ninety to such degree that the integrity thereof is impaired and prejudice to
the defendant may result.
Petitioner argued to the courts below that the Indictment should be dismissed
and that the Grand Jury minutes should be made public. A10. All The New York
courts have consistently held that the statute: CPL 210.35
provides for
The current crises in law enforcement, police funding and “criminal justice reform”
including eliminating bail and other such “reforms” reinforce the need to police the
prosecutorial profession.
32
dismissal upon the mere possibility of prejudice, and defects in Grand Jury
proceedings (as opposed to claims of insufficiency of evidence to support the
indictment), may be raised even after a plea of guilty. People v Wilkins, 68 N.Y.
2d 269, 277(1986)
The administration ofjustice must not only be above reproach, it must also
be beyond the suspicion of reproach. The constitutional issues of due process and
equal protection have been ignored:
The New York State Constitution guarantees that “no person shall be held to
answer for a capital or otherwise infamous crime...unless on indictment of a
grand jury.” (NY Cont. art 1, sect 61; CPL art 190 By acting as a buffer
between the state and its citizens, the Grand Jury serves to shield individuals
from excesses of prosecution and protects one from unfounded prosecutions
People v Calbud, Inc 49 NY 2d 389,394,396, People v Pelchat, 62 N.Y. 2d 97,
108
Due process imposes upon the prosecutor a “duty of fair dealing to the
accused and candor to the courts,” thus requiring the prosecutor “not only to seek
convictions but also to see that justice is done” Pelchatid: Huston, id This duty
extends to the prosecutors’ instructions to the grand jury and the submission of
evidence (Lancaster) The prosecutor also cannot provide “an inaccurate and
misleading answer to the grand jury’s legitimate inquiry” (People v Hill NY 3d
^-’ 773)> nor can the prosecutor accept an indictment that he or she knows to be
33
based on false, misleading or legally insufficient evidence IPelchat. id at
107)..People v Thompson. 985 NYS2d 428. 434
In affirming petitioner’s conviction The Appellate Division held: A1
as regards the plea, by entering his plea of guilty, the defendant
forfeited-the contention raised in his pro se supplemental brief that the
indictment was defective on the ground that allegedly perjured testimony
impaired the integrity ofthegrand jury7 proceeding (see People v
Monroe, 174 A.D.3d 649).”
This is contrary to New York Court of Appeals decisions in People v.
Pelchat, id;. People v Sawides; People v Cameron, where it has been repeatedly
held that the issue of CPL 210.35 (5) may be raised on appeal of a plea. People v
Huston. 88 NY2d. 400
The exceptional remedy of dismissal of indictment is warranted when
defects in the indictment, and the integrity thereof, created a possibility of
prejudice to the defendant. People vs Difalco: People v Savavong 83 N.Y.2d 702
(N.Y. 1994): People v. Wilkins id
The requirement of due process, or lack thereof, in depriving a defendant of
liberty by the deliberate deception of the court and in this case the grand jury,
appears to have been a contrivance to procure conviction and imprisonment of
appellant. It is as inconsistent with the rudimentary demands ofjustice as would be
34
the obtaining of a like result by intimidation7. Moonev v Holohan 1
ibid, citing
Hebert v. Louisiana 272 U.S. 312. 316. 317
The state prosecutors’ failure to respond directly to Petitioner’s allegations is
also notable. Although repeatedly raised by defendant/petitioner, the allegations of
perjured grand jury testimony were never denied, argued or disputed. Indeed, The
State did not raise any direct defense or denial to petitioner’s allegations of perjury
and prosecutorial misconduct, raising only technical arguments and justifications.
See supra, Statement of the Case at page 5: A12
Similarly the prosecution opposed petitioner’s motions for Bail Pendinp
Appeal and Release of Grand Jury Minutes which were submitted while he was
incarcerated. SA1 The people responded:
1. There is no compelling or particularized need.
2. The trial court upheld the integrity of the proceedings
3. Disclosure is not required because defendant pled guilty.
See Pyle v. Kansas, 317 US 213,216 in reversing the Supreme Court
of Kansas
Petitioner's papers are inexpertly drawn, but they do set forth allegations
that his imprisonment resulted from perjured testimony, knowingly used by
the State authorities to obtain his conviction, and from the deliberate
suppression by those same authorities of evidence favorable to him. These
allegations sufficiently charge a deprivation of rights guaranteed by the
Petitioner also alleged that he was coerced and intimidated to plead guilty.
35
Federal Constitution, and, if proven, would entitle petitioner to release from
his present custody. Mooney v. Holohan, 294 U.S. 103. they are supported by
the exhibits referred to above, and nowhere are they refuted or denied. The
record of petitioner's conviction, while regular on its face, manifestly does
not controvert the charges that perjured evidence was used, and that
favorable evidence was suppressed with the knowledge of the Kansas
authorities. No determination of the verity of these allegations appears to
have beep made. The case is therefore remanded for further
proceedings. Cochran Kansas, supra; Smith v. O'Gradv, 312 U S 329cf. Waley v. Johnston, 316 U.S. 101.104. In view of petitioner's inexpert
draftsmanship, we of course do not foreclose any procedure designed to
achieve more particularity in petitioner's allegations and assertions.317 U.S.
213 (1942).
All persons, young or old, black or white, liberal or conservative, democratic
or republican, citizen or alien should be held to the unequivocal high standard of
truthful testimony under oath. There should be no excuse. The obvious false
statements at the Grand Jury are consistent with the crime of perjury. The lack of
compunction to lie and the apparent lack of fear of prosecution for that crime
should not be tolerated by this Court and the Court should send a clear and loud
message that such conduct cannot not be tolerated.
“The true administration of Justice is the firmest pillar of good
government” (George Washington)8
The untainted administration ofjustice is certainly one of the most cherished
aspects of our institutions. .. .fastidious regard for the honor of the administration
of justice requires the Court to make certain that the doing of justice be made so
This inscription appears on the New York County Courthouse, 60 Centre Street, NYC
36
manifest that only irrational or perverse claims of its disregard can be asserted.
Communist Party v. Control Board. 351 U.S. 115. 124-125 tl 956\ citing McTShhh
v. US 318 U.S. .3.12
Permitting a defendant to stand trial on an indictment which the government
knows is based upon perjured testimony cannot comport with this “fastidious
regard for the honor of the administration ofjustice... Because of the prosecuting
attorney did not take appropriate action to cure the indictment upon discovery of
the perjured grand jury testimony, we reverse appellant’ convictions”. Basurto. id
III.
Petitioner was denied Effective Assistance of Counsel guaranteed by the
Sixth Amendment.
The Writ should be granted because petitioner was prejudiced by ineffective
assistance of counsel. Except for attorney failure to raise the constitutional issues
raised herein, he would not have pleaded guilty and been unjustly convicted and
incarcerated.
Petitioner was shocked when while incarcerated he discovered the fact of
Porter’s perjury and the prosecutors’ knowledge of it. The denial of Petitioner’s
right to Effective Assistance of Counsel is evident from the record and should have
37
been decided by the New York Courts. A warning from this Court will go a long
way in discouraging less than effective practice of criminal defense.
Throughout these proceedings petitioner’s first counsel was deficient in his
representation of petitioner in failing to acknowledge Porter’s perjured grand jury
testimony and m neglecting to apprise his client of its existence. Nowhere in the
proceedings prior to plea did defense counsel argue that it was a defense to the
indictment. In fact, it never appeared in the record. When Petitioner insisted that
he move to withdraw the plea, counsel moved to be relieved as counsel by the
Court.
Despite the fact that both retained counsels had access to the files which
contained Porter’s grand jury testimony, and despite the fact that they did
communicate with each other, neither raised the issue of Porter’s false testimony to
the Court. Neither attorney attempted to proclaim to the Court even possibility of
prejudice. And even if they were unsure whether prejudice could have possibly
occurred, they had an obligation to raise the issue to the Court.9
Petitioner’s second retained counsel also failed to raise the issue in his
Motion to Withdraw Plea. Both defense counsels had access to the files which
Similarly, Kevin Kennedy, Esq., a recent retiree of the Office of the DA of Westchester
County who was appointed by the Court after relieving Tilem, also failed to raise the issue
either to the Court, ADA or to petitioner.
38
contained Porter’s grand jury transcript but remained silent as to any of her false
statements.
Petitioner believes that it is evident from the record that petitioner was
prejudiced by ineffective assistance of counsel.
IV. Conclusions
I. Petitioner’s constitutional rights pursuant to Amendments V and XTV were
violated by the knowing use of perjured testimony to obtain an indictment.
II. The State prosecutors continued to deny petitioner due process when they
used the tainted indictment to obtain a conviction by plea.
III. Petitioner was denied effective assistance of counsel pursuant to
Amendments V and XIV when his attorneys withheld knowledge of the perjured
testimony and permitted his conviction by plea.
IV. This case is of significance to many citizens of this country and the Writ
of Certiorari to review this case should be granted:
A. to eliminate any conflict between Federal Court and State Court
B. to correct any State court confusion or uncertainty
C. to reverse this unjust conviction
D. to prevent future prosecutorial abuses
39
Respectfully submitted: Dated: November 29, 2022
Peter J. Corines
Notary
Petitioner, pro se
PATRICE PORTANOVA
NOTARY PUBLIC, STATE OF NEW YORK
Registration Number# 01P05166025
Qnnlilicd in Westchester County
Commission Expires May 14,2023
249 Park Avenue
Eastchester, New York 10709
Tel: 914 652 7386
To:
The Supreme Court of the State of New York
Appellate Division, Second Department
45 Monroe Place
Brooklyn, New York 11201
40
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.