People v. Alsaifullah ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 23, 2015 106239
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
TALIB F. ALSAIFULLAH, Also
Known as VICTOR DENNIS
GOREE, Also Known as SALAAM
GOREE,
Appellant.
________________________________
Calendar Date: June 4, 2015
Before: Garry, J.P., Rose, Devine and Clark, JJ.
__________
Henry C. Meier, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark
of counsel), for respondent.
__________
Garry, J.P.
Appeal from an order of the Supreme Court (Breslin, J.),
entered June 27, 2013 in Albany County, which, among other
things, denied defendant's motion pursuant to CPL 440.30 (1-a)
for the performance of forensic DNA testing on specified
evidence.
In 1986, defendant was charged by indictment with one count
of rape in the first degree alleging that he had sexual
intercourse with a child under age 11. Defendant pleaded guilty
to attempted rape in the first degree and was sentenced to 5 to
15 years in prison. Thereafter, this Court affirmed his
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conviction on appeal (136 AD2d 774 [1988], lvs denied 71 NY2d
892, 896 [1988]). From 2001 to 2012, defendant made three
separate motions pursuant to CPL article 440 seeking to vacate
the judgment of conviction, and each was denied. In this fourth
such application, defendant seeks appointment of counsel and DNA
testing of certain evidence pursuant to CPL 440.30 (1-a).
Supreme Court denied the motion. Defendant appeals.
A criminal defendant does not have an unqualified right to
the appointment of counsel in collateral proceedings (see County
Law § 722 [4]; Pennsylvania v Finley, 481 U.S. 551, 555 [1987];
People ex rel. Williams v La Vallee, 19 NY2d 238, 241 [1967]).
Here, no hearing was required, and defendant had previously
sought DNA testing of the same evidence on two of his prior
applications. We find no abuse of discretion in Supreme Court's
denial of his request for appointed counsel (see People ex rel.
Williams v LaVallee, 19 NY2d at 241; People ex rel. Sanchez v
Hoke, 132 AD2d 861, 862 [1987]; People v Richardson, 159 Misc. 2d
167, 172 [Sup Ct, Kings County 1993]). As it does not appear
that defendant provided notice to the County Attorney, as
required, we further find no error in the court's denial of
defendant's request for poor person status (see CPLR 1101 [c];
Sebastiano v State of New York, 92 AD2d 966, 966 [1983]).
Defendant's challenge to the constitutionality of CPL
440.30 (1-a) is unpreserved, as this argument was not asserted
before Supreme Court (see People v Mays, 54 AD3d 778, 778 [2008],
lv denied 11 NY3d 927 [2009]; People v Schaurer, 32 AD3d 1241,
1241 [2006]). Further, the record lacks any indication that
defendant provided the Attorney General with notice of his
challenge to the constitutionality of the statute (see Executive
Law § 71 [1], [3]; People v Perez, 93 AD3d 1032, 1038-1039
[2012], lvs denied 19 NY3d 1000 [2012]). Accordingly, this
argument is not properly before us.
Rose, Devine and Clark, JJ., concur.
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ORDERED that the order is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court