Defendant appeals from a decision and order entered on September 28, 2007 in the Town of Pittsford Justice Court (Michel, J.) dismissing the defendant's motion under CPL sec. 440.10.

On his motion brought in the justice court, the defendant sought to "nullify" his conviction from 1995 for aggravated harassment in the second degree (Penal Law sec. 240.30). The defendant's motion maintained that the accusatory instrument forming the basis of his conviction was defective in that it did not state sufficient facts to establish the element of "intent" [*2]called for in the statute. Insofar as the gravamen of the defendant's motion was to vacate his judgement of conviction from 1995, the justice court correctly converted the defendant's motion to one brought under CPL sec. 440.10. See, People v. Toland, 2 AD3d 1053 (Third Dept., 2003); People v. Thompson, 177 Misc 2d 803 (Sup. Ct., Kings Co., 1998); and NY Jud. Law § 2-b (3) (McKinneys, 2008) ("A court of record has power . . . to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it.").

In its written decision, the justice court denied the defendant's motion to vacate the judgement, finding that by his failure to raise these issues by motion twelve years earlier the defendant was "deemed to have waived any objections to the sufficiency of the information." More specifically, the court found that a determination whether the accusatory instrument was legally sufficient on its face was a matter fully developed previously on the record and could have been raised on a direct appeal. As such, the justice court held that CPL sec. 440.10, subd. 2 mandated that the court deny the defendant's motion.

In his filing of January 6, 2008 in connection with this appeal("Motion to Vacate by Default") the defendant challenges the decision entered by the justice court relative to the sufficiency of the accusatory instrument, stating, among other things, that "the Pittsford accusatory establishes a politicized criminal prosecution that could not, and thus did not, prove every requisite element beyond a reasonable doubt . . . ." In essence, the defendant maintains that the trial court erred in its decision to deny the defendant's motion to "nullify" his conviction. The defendant reiterated these arguments in a supplemental filing on April 28, 2008.

The People argue that the instant appeal must be treated as an application by the defendant seeking permission to appeal from the denial of a CPL 440 motion. They maintain that the failure by the defendant to present any questions of law or fact mandating review by this Court should require denial of the defendant's appeal and application in all respects. Alternatively, the People posit that if the issues raised by the defendant are properly before this Court on a direct appeal, the defendant has nonetheless failed to comply with the applicable procedures set forth in CPL sec. 460.70 and 22 N.Y.C.R.R. sec. 200.33.

In addressing first the defendant's ability to bring this particular appeal some twelve years after his conviction, this Court finds, based upon the decision and order entered by Justice Michel, that the issues raised by the defendant in this appeal pertaining to the sufficiency of the accusatory instrument were matters of record available for direct appeal immediately after the defendant's conviction in 1995.

As noted in Justice Michel's decision, a court must deny a motion to vacate a judgement of conviction where sufficient facts appear in the record to permit adequate appellate review of the issue. CPL sec. 440.10 (2)(c) . The purpose of this provision was to prevent CPL 440.10 from being employed as a substitute for a direct appeal when a defendant was in a position to raise a particular issue on appeal. People v. Cooks, 67 NY2d 100 (1986). In this case there can be no question that the defendant's claim that his 1995 conviction was based upon an accusatory [*3]instrument legally insufficient on its face, was an argument available to him for direct appeal immediately after his conviction.

Moreover, in their alternative argument, the People are correct that the form of this appeal, as taken by this defendant, has failed to comply in any substantial manner with statutory requirements. Perfecting an appeal requires the settling of the transcript, compiling and filing the record on appeal, and preparation and filing of the appellant's brief. C.P.L. §460.70; See also, Preiser, Practice Commentaries, C.P.L. § 460.70 (McKinney's 2005)("[T]he record must be settled so as to provide the appellate court with an accurate version of the proceedings below"). Here, there has been no settlement of the record; no transcripts submitted; and the defendant's "brief" lacks any of the form or substance mandated by the rules governing criminal appeals. McKinney's 2008 New York Rules of Court § 1004.4 (f) ("Briefs").

Based on the defendant's failure to comply with rules pertaining to the perfecting of appeals, this Court may, upon its own motion or motion of the People, dismiss the appeal. McKinney's 2008 New York Rules of Court § 200.33 ("Perfection of Criminal Appeals"). However, this Court finds that it would not serve the ends of justice to dismiss the appeal on purely procedural grounds. The Court recognizes that a strong public policy interest exists in deciding cases on their merits.

In all candor, this Court finds the defendant's pleadings and filings (both in regards to these appeals as well as to materials submitted to the trial court) to be confusing, disjointed and, at times, incoherent. Their content oftentimes deal with matters and issues extraneous to the legal proceedings at hand. The defendant has consistently commingled his arguments pertaining to his conviction and motions in Pittsford Town Court with his conviction and sentence in Rochester City Court for an aggravated harassment prosecution in 2007.

Therefore, for the reasons set forth above, it cannot be said that the trial court erred in its decision and order of September 28, 2007 denying the defendant's motion to vacate his conviction from 1995 for aggravated harassment.

Accordingly, the Decision and Order of Pittsford Town Court denying the defendant's motion to vacate his conviction is hereby affirmed.

This constitutes the Decision and Order of this Court

Dated:May 29, 2008

Rochester, New York [*4]

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HON. ALEX R. RENZI

Monroe County Court Judge