Opinion
2009KN034941.
Decided on August 20, 2009.
For the People, Charles J. Hynes, District Attorney, Kings County, by Josh Charlton, Esq., Assistant District Attorney.
For the Defendant, Colin A. Liverpool, Esq.
On or about May 3, 2009, Defendant was charged with Criminal Possession of a Controlled Substance in the Seventh Degree (PL Sec. 220.03), a Class A misdemeanor. Subsequently, on May 4, 2009, Defendant entered a plea of guilty to one count of Disorderly Conduct (PL Sec. 240.20) a violation, and received a sentence of a Conditional Discharge, with the condition being Defendant would attend the Treatment Readiness Program. A surcharge in the amount of $120.00 was imposed.
The Court file indicates that Defendant has completed the Treatment Readiness Program, however, there is no indication that the surcharge has been paid.
To date, Defendant has not appealed his conviction.
By motion dated July 1, 2009, Defendant seeks to vacate his conviction pursuant to CPL Sec. 440.10 (1) (h), claiming ineffective assistance of counsel, on the grounds that at the time he entered his guilty plea, he was not informed of the collateral consequences of his conviction. Defendant states that he is a "Certified Substance Abuse Counselor," and that his attorney never explained to him the" consequences the charges would have" on Defendant's employment. Defendant also asserts that he did not enter his plea knowingly and intelligently, and that his plea allocution was inadequate.
The Court has also reviewed an Affirmation dated June 5, 2009, from the attorney who appeared for Defendant at the time of his plea and sentence. To date, the People have not provided a response to Defendant's motion.
For the following reasons Defendant's motion is hereby denied.
Before addressing the merits of Defendant's motion, this Court finds that a formal hearing in this matter is unnecessary. This Court presided over Defendant's plea and sentence. As such, this Court may be "presumed to be fully familiar with all aspects of the case.'" See, People v. Demetsenare , 14 AD3d 792 , 793 (3d Dept., 2005) citing People v. Loomis, 256 AD2d 808, 808-809 (3d Dept., 1998), lv. den. 93 NY2d 854 (1999). This Court has also reviewed the record of the underlying proceedings, as well as the statements of the relevant parties. Therefore, no formal hearing is necessary. See, also, People v. Robetoy , 48 AD3d 881 , 883, 851 NYS2d 297 (3d Dept., 2008).
A review of the sufficiency of a Defendant's allegations of insufficient representation of counsel rests within the discretion of the judge to whom the motion is made. See, People v. Tinsley, 35 NY2d 926, 927, 365 NYS2d 926 (1974). To resolve a claim of ineffective assistance of counsel, the Court must review the totality of the circumstances of the case, and a defendant must demonstrate that he suffered actual prejudice as a result of counsel's deficiency. People v. McDonald, 296 AD2d 13, 17, 745 NYS2d 276 (3d Dept, 2002), aff., 1 NY3d 109, 769 NYS2d 781 (2003); Strickland v. Washington, 466 US 668, 104 S. Ct. 2052 (1984); People v. Baldi, 54 NY2d 137, 444 NYS2d 893 (1981).
In the instant case, Defendant does not pass the first prong of the Strickland test, in that, there is no credible evidence that Defendant's counsel was ineffective.
The Court is inclined to find persuasive the Affirmation of counsel dated June 5, 2009, in which counsel provides detailed statements of fact, as opposed to the nonspecific, self-serving allegations made by the Defendant in his Affidavit, also dated June 5, 2009. Counsel details a 15 minutes conversation he had with the Defendant prior to the plea and sentence, during which counsel discussed the Defendant's options with him. Counsel informed the defendant that while he "could not guarantee it," he believed that the Defendant "would probably be released" from custody whether he entered a plea of guilty or not. See, Affirmation of Counsel, paragraph 5.
Further, counsel states that Defendant decided to enter a plea of guilty to Disorderly Conduct and participate in the Treatment Readiness Program, "a standard offer for defendants similar in position" to the movant. Counsel gave the Defendant an opportunity to ask questions, and was never told that the Defendant was a substance abuse counselor. In fact, counsel states that "even if the defendant had so advised me, I would not have advised him whether or not he would be terminated from his position." See, Affirmation of Counsel, paragraph 5.
In light of these facts, it is clear that counsel was in no way ineffective. The Defendant gained the benefit of a negotiated plea bargain, in which he pled guilty to a reduced charge, and received a sentence which avoided a possible term of incarceration. See, People v. Bankowski, 134 AD2d 768, 521 NYS2d 809 (3d Dept, 1987). "The mere fact that defendant is unhappy with the results of his trial is not a sufficient basis to establish such a lack of meaningful representation." People v. Malve, NYLJ, 9/20/02, p. 22, col. 2.
Further, in People v. Ford, 86 NY2d 397, 633 NYS2d 270 (1995), the New York State Court of Appeals held that the loss of a job is a collateral consequence of a conviction, that is, a personal circumstance outside the control of the court system. As such, there is no requirement to advise a defendant of said collateral consequences, and such collateral consequences do not affect the voluntariness of the plea. See, also, People v. Yu, 8 Misc 3d 128 (A), 801 NYS2d 780 (App. Term, 2d and 11th Dist, 2005).
It is important to note that Defendant does not specifically state that he has lost his job, or suffered any repercussions to his employment as a result of his plea. All Defendant states is that he was not advised "of the consequences a guilty plea would have on (Defendant's) employment." See, Defendant's motion dated June 22, 2009, paragraph 6.
Defendant also asserts that his allocution did not meet the minimum constitutional standards, in that Defendant was never advised of his right to confront the People's witnesses at a trial, or of his right to assert his privilege against self-incrimination.
"It is well settled that (t)here is no requirement for a uniform mandatory catechism of pleading defendants.'" See, People v. Smith, 22 Misc 3d 140 (A), 2009 WL 596550 (App. Term, 2d Dist., 2009), citing People v. Seeber , 4 NY3d 780 , 781, 793 NYS2d 826 (2005). All that is necessary is that "the record establishes that the defendant's . . . plea was knowingly and voluntarily made upon the advise of counsel whose efforts on the defendant's behalf resulted in a favorable plea bargain from which the defendant derived a substantial benefit." Smith, supra, citing People v. Doceti, 175 AD2d 256, 256, 572 NYS2d 720 (2d Dept.,1991). See, also, People v. Williams, 2003 WL 22290039 (App. Term, 1st Dept., 2003) (" . . . no indication that the guilty plea assented to by the defendant in the presence of counsel was improvident or baseless."); People v. Keizer, 2002 WL 88981 (App. Term, 1st Dept., 2002) ("A bargained guilty plea to a lesser crime makes unnecessary a factual basis for the particular crime confessed."), citing People v. Claiborne, 29 NY2d 950, 951, 329 NYS2d 580 (1972).
The minutes of Defendant's arraignment show that Defendant entered his plea in a knowing and voluntary fashion. The Court instructed the Defendant that his "attorney entered a plea of guilty on your behalf of (sic) a disorderly conduct, violation it is not a crime." Defendant was then asked if this was what he wanted to do. Defendant stated yes. See, Minutes of May 4, 2009 plea and sentence at 2. Defendant was then asked if he was pleading guilty "voluntarily, your own free will." Defendant again answered yes. See, Minutes of May 4, 2009 plea and sentence at 3.
Defendant was then asked if he was pleading guilty "because you are guilty of disorderly conduct." Once more, the Defendant answered yes. See, Minutes of May 4, 2009 plea and sentence at 3.
Prior to sentence, the Court gave the Defendant the opportunity to make a statement. Defendant declined. See, Minutes of May 4, 2009 plea and sentence at 3.
"The foregoing sufficiently establishes that defendant's plea was voluntary and knowing." People v. Brown, 126 AD2d 898, 901, 510 NYS2d 923 (3d Dept., 1987), app. den., 70 NY2d 703, 519 NYS2d 1037 (1987). There is no evidence on the record presented that Defendant did not understand the terms of his plea bargain. There are no deficiencies in the plea allocution or inconsistencies in Defendant's responses. His answers were clear and unequivocal.
Further, this Defendant is no stranger to the criminal justice system. On March 5, 2001, in Criminal Court, Bronx County, he was convicted upon his plea of guilty to Harassment in the Second Degree (PL Sec. 24.26), a violation, and received a sentence of a Conditional Discharge. Then, in County Court, Nassau County, on August 22, 2003, he was convicted, again upon his plea of guilty, to Assault in the Third Degree (PL Sec. 120.00), a Class A misdemeanor, and was sentenced to three years of probation.
Therefore, under the totality of the circumstances of the instant case, this Defendant's motion must be denied.
All other arguments advanced by Defendant have been reviewed and rejected by this court as being without merit.
This shall constitute the opinion, decision, and order of the Court.