Opinion
A008526.
03-27-2017
The PEOPLE of the State of New York, v. Harold JOHNSTON, Defendant.
Queens County District Attorney's Office by ADA Danielle Fenn, Esq., for the People. Legal Aid Society by Diana Salierno, Esq., for the defendant.
Queens County District Attorney's Office by ADA Danielle Fenn, Esq., for the People.
Legal Aid Society by Diana Salierno, Esq., for the defendant.
ALTHEA E. DRYSDALE, J.
The defendant, Harold Johnston, has filed a motion, pursuant to Criminal Procedure Law §§ 440.10(1)(a), (b), and (h), to vacate his 1971 conviction for possession of a firearm (former Penal Law § 265.05[2] ) on the grounds that the criminal court did not have jurisdiction of the action or of the person, and that the judgment was procured by misrepresentation or fraud, as well as obtained in violation of the defendant's constitutional right. The People oppose.
The court takes judicial notice of its own records. While there are no longer any transcripts or records of the defendant's proceedings, the court is possession of clerical ledgers that indicate the defendant was arraigned on the felony, Penal Law § 265.05(2), and pleaded to the reduced charge of Penal Law § 265.05.
The defendant was arrested on September 19, 1970, and charged with the class D felony of possession of a firearm (Penal Law § 265.05[2] ), and the class A misdemeanors of assault in the third degree (Penal Law § 120.00[1] ) and reckless endangerment in the third degree (Penal Law § 120.20 ). On March 1, 1971, in Queens County Criminal Court, Part 1B, the defendant pleaded guilty to possession of a firearm, while assault in the third degree and reckless endangerment were dismissed. Pleading guilty to this charge resulted in a fine of $100 or thirty days in jail. The defendant paid this fine the same day.
After the defendant pleaded guilty to possession of a loaded firearm in 1971, he was employed in the United States Navy, the United States Naval Reserve, as well as a civilian employee of the United States Military Sealift Command. By 2014, the defendant retired, and sought part-time employment at a security firm. The security firm ran a background check and informed the defendant that he could not obtain a carry-permit in Virginia, where he lives, due to a felony gun conviction in New York. The defendant, admittedly, believes that he pleaded guilty to a misdemeanor. He did not appeal this conviction and the time to do so expired long ago. The defendant and his attorney contacted the Office of the Queens County District Attorney in hopes of a resolution. Inasmuch as the defendant argues that his record should reflect a misdemeanor conviction for possession of a firearm, as opposed to the felony conviction possession of a firearm, the People have offered to join in the defendant's application, if any, to correct the defendant's record. This offer was rejected by the defendant.
Based on the parties' submissions, and my review of the record, the defendant's motion to vacate judgement is granted to the extent that the record will be corrected, nunc pro tunc, and the New York State Division of Criminal Justice will be ordered to modify the defendant's criminal record to reflect that he pleaded guilty to the class A misdemeanor of possession of a firearm, pursuant to Penal Law § 265.05(2).
Motion to Vacate Pursuant to CPL §§ 440.10(1)(a), (b), and (h)
The defendant has not submitted any affidavits from himself or prior counsel to explain why he is entitled to the extraordinary relief he seeks. The defendant has provided no factual allegations or evidence, which demonstrates that his plea conviction was procured by duress, misrepresentation or fraud on the part of the court, prosecutor, or a person acting on behalf of the court or a prosecutor. And, the defendant has also failed to provide any factual allegation or evidence that the plea was obtained in violation of his federal or state constitutional right. For that reason alone, his application must be denied (People v. Simon, 32 Misc.3d 142[A] [App Term, 1st Dept 2011] ).
In addition, a "judgment of conviction is presumed valid and the party challenging its validity has a burden of coming forward with allegations sufficient to create an issue of fact" (People v. Sessions, 34 N.Y.2d 254, 255–56 [1974] ). "In a [motion to vacate] application, it is not enough to make conclusory allegations of ultimate facts; supporting evidentiary facts must be provided" (id. at 256 ).
To the extent that the defendant argues that his guilty plea was not made voluntarily, knowingly, and intelligently (CPL 440.10[1) ][h]; see People v. Harris, 61 N.Y.2d 9, 19 [1983] ; see also Boykin v. Alabama, 395 U.S. 238 [1969] ) because he was unaware that he would not be able to obtain a gun license, the court finds this argument unavailing.
"A trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences. Although the court is not required to engage in any particular litany when allocuting the defendant, due process requires that the record must be clear that the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant" (People v. Catu, 4 NY3d 242, 244–245 [2005] [citations and internal quotation marks omitted] ).
For a guilty plea to be voluntary, the court must advise the defendant of all direct consequences of the plea (see People v.. Ford, 86 N.Y.2d 397 [1995] ). But, the court does not have to advise the defendant of the possibility of collateral consequences that may attach after their criminal conviction (People v. Catu, 4 NY3d 242, 244 [2005] ). A direct consequence "is one which has a definite, immediate and largely automatic effect on defendant's punishment," whereas collateral consequences "are peculiar to the individual and generally result from the actions taken by agencies the court does not control" (People v. Ford, 86 N.Y.2d 397, 403 [1995] ). The loss of one's right to possess a firearm, or even obtain a permit to possess a firearm is a collateral consequence (Penal Law § 400.00[1][b] ; id. at 403 ). The following are also considered collateral consequences that emanate from a criminal conviction: the loss of the right to vote or travel abroad, the loss of civil service employment, the loss of a driver's license, the loss of professional licenses, and the loss of public housing (id. ).
In addition, the right to effective assistance of counsel is guaranteed by the Federal and State Constitutions (U.S. Const., 6th Amend; NY Const., art 1, § 6 ). To determine whether a defendant has been denied effective assistance of counsel under the Federal standard, a court "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct" (Strickland v. Washington, 466 U.S. 668, 690 [1984] ). In order to be successful on a motion to vacate a guilty plea on the ground of ineffective assistance of counsel, a defendant must satisfy the two-prong test set forth in Strickland: that (1) defense counsel's performance was deficient in that his or her representation fell below an objective standard of reasonableness, and (2) defense counsel's deficient performance prejudiced defendant such that there is a reasonable probability that, but for counsel's errors, defendant would not have pleaded guilty and would have insisted on going to trial (Strickland, 466 U.S. at 688, 694 ).
In New York, the constitutional requirement of effective assistance of counsel will be met "so long as the evidence, the law, and the circumstances of a particular case, viewed in the totality and as of the time of the representation, reveal that the attorney provided meaningful representation" (People v. Caban, 5 NY3d 143, 155 [2005] ; People v. Benevento, 91 N.Y.2d 708, 712 [1998] ). In the context of a guilty plea, a defendant has been afforded meaningful representation when he receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel (People v. Townsley, 20 NY3d 294, 304 [2013] ).
Here, the defendant took a plea, whether to a felony or a misdemeanor possession of a firearm, and received no jail time. Instead, the defendant's sentence was a $100 fine. There is no record to support a claim that the defendant would have attempted to secure a different bargain, or that he would have gone to trial instead (see Hill v. Lockhart, 474 U.S. 52, 59, 62 [1985] ). And, the defendant's papers are devoid of any factual allegations or documentary evidence that the defendant was affirmatively misinformed about the consequences of his guilty plea with respect to his ability to obtain or possess a firearm (see People v. Mourad, 13 AD3d 558 [2d Dept 2004] [the defendant was affirmatively misinformed about the criminal conviction and its effect on his license to practice dentistry] ).
The defendant also seeks vacatur of his conviction based on the belief that the court was without jurisdiction to take and enter a plea to possession of a firearm under former Penal Law § 265.05(2). Both parties have provided the court with a copy of the relevant statute from 1971. Under former Penal Law § 265.05(2),
"Any person who has in his possession any firearm which is loaded with ammunition, or who has in his possession any firearm and, at the same time, has in his possession a quantity of ammunition which may be used to discharge such firearm is guilty of a class D felony. Such possession shall not, except as provided in subdivision three of this section [previous conviction], constitute a felony if such possession takes place in such person's home or place of business."
Under this statute, if the possession of a loaded firearm was in one's home or place of business, then the defendant would be charged with the class A misdemeanor (see People v. Anderson, 74 Misc.2d 415 [Crim Ct, Bronx County 1973] [the exception cited [in Penal Law § 265.05[2] ) mandates that the charge against the defendant be reduced to an A misdemeanor] ).
Here, the defendant was arrested in public, on a train, with a loaded firearm. And, as the records of the proceedings are no longer available after 46 years, the court will take judicial notice of its clerical ledgers from 1971. The ledger indicates that the defendant was charged with the D felony, possession of a firearm (former Penal Law § 265.05[2] ). Then, the defendant pleaded to a "reduced charge". The reduced charge, as indicated in the ledger, was "265.05 PL". There was no subsection. The defendant was sentenced to pay a $100 fine, to which he paid on the same day. This was and is a legal sentence under Penal Law § 80.05. The plea was taken in Part 1B, which is presently AP2. And, the defendant concedes that he pleaded to a misdemeanor charge of possession of a loaded firearm. Accordingly, the court was not without jurisdiction to take the defendant's plea because the defendant did not take a plea to a felony, as far as the available record indicates.
The fact that the clerk of the court made a clerical error and failed to note the subsection to which the defendant pleaded guilty neither renders the plea defective, nor removes from this court jurisdiction to take the plea (see generally People v. Francis, 38 N.Y.2d 150 [1975] [a defendant may plea to a hypothetical crime or to a crime which the facts alleged would not be appropriate] ). And, "a plea to a [hypothetical crime] does not render the plea taken by [the] defendant inoperative, illogical or repugnant, and, therefore, invalid when a defendant knowingly accepts the plea [ ] in satisfaction of an indictment charging a crime carrying a heavier penalty" (People v. Foster, 19 N.Y.2d 150, 153 [1967] ). There is no reason to disturb the plea that was bargained for unless there is reason to believe that it was unfair or inappropriate (Francis, supra at 155). The defendant's motion papers do not argue that the bargained for plea was unfair or inappropriate.
For these reasons, defendant's motion is granted to the extent that the record will to be corrected, nunc pro tunc, and the New York State Division of Criminal Justice will be ordered and notified to change the defendant's criminal record to reflect that the defendant pleaded guilty to the class A misdemeanor of possession of a loaded firearm, pursuant to Penal Law § 265.05(2).
Clayton Motion
Finally, in the alternative, the defendant moves pursuant to Criminal Procedure Law ("CPL") §§ 170.30(1)(g), 170.40(1), and People v. Clayton (41 A.D.2d 204 [2d Dept 1973] ), for an order dismissing this prosecution in the furtherance of justice.
The defendant's motion to dismiss this prosecution in the furtherance of justice is denied. Pursuant to CPL §§ 170.30(2) and 250.20, a motion to dismiss an information, simplified information, prosecutor's information, or a misdemeanor complaint "shall be served or filed within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment." Thus, a motion to dismiss in the furtherance of justice is not a remedy that is applicable to the defendant as he has already been prosecuted, and a plea conviction has been entered.
Accordingly, it is ORDERED that
(1) the record will be corrected, nunc pro tunc, to reflect that the defendant pleaded guilty to the class A misdemeanor of possession of a firearm, pursuant to Penal Law § 265.05(2) ; and
(2) the New York State Division of Criminal Justice is to modify the defendant's criminal record to reflect that he pleaded guilty to the class A misdemeanor of possession of a firearm, pursuant to Penal Law § 265.05(2) ; and
(3) the defendant's motions to dismiss in the furtherance of justice is DENIED.
The foregoing constitutes the decision and order of the Court.