Opinion
844N-06.
Decided June 20, 2008.
Tammy J. Smiley, Of Counsel to Hon. Kathleen M. Rice, District Attorney Nassau County, Hempstead, New York, Attorney for Plaintiff.
Samuel Jones, Attica, New York, Defendant pro se.
The defendant, pro se moves this Court for an order, pursuant to CPL § 440.10, vacating the judgment of conviction against him on the ground that he was denied effective assistance of counsel. In the alternative, he requests that counsel be appointed and a hearing held to determine this issue. In addition, the defendant contends that the New York State Department of Correctional Services (D.o C.S.) has failed to properly recognize a court order by which his sentence would allegedly run concurrently with a previous undischarged sentence. The People oppose every aspect of the defendant's motion.
The defendant was charged under SCI No. 844N-06 with one count of Burglary in the Third Degree (PL § 140.20) and one count of Possession of Burglar's Tools (PL § 140.35), both stemming from an incident which occurred on November 25, 2005. The defendant was accused of entering his place of employment prior to the time he was authorized to be at work and stealing eleven laptop computers. At the time of this occurrence, the defendant was on parole. Thereafter, in January of 2006, the New York State Board of Parole filed a parole violation against him. On January 26, 2006, after a hearing, the Parole Board made a finding of probable cause that the defendant had violated his parole. Subsequently, on April 13, 2006, the defendant pled guilty of Attempted Burglary in the Third Degree in full satisfaction of the charges. In May of 2006, the defendant moved to withdraw his guilty plea based upon ineffective assistance of counsel, citing in large part the same grounds on which he now moves to vacate judgment. This Court denied the motion on July 25, 2006, and sentenced the defendant, as a second felony offender, to an indeterminate term of imprisonment of two-to-four years. The defendant is currently incarcerated pursuant to that sentence and the parole violation. On January 15, 2008, the Appellate Division, Second Department issued an order, agreeing with the defendant's assigned appellate counsel that there were no non-frivolous issues which could be raised on appeal of the defendant's case. People v Jones ,47 AD3d 731 (2d Dept. 2008).
The defendant's instant motion claims that he was denied effective assistance of counsel. Once again, he alleges that his counsel failed to fully investigate his case and that as a result, he was coerced into pleading guilty. In addition to that claim, which was previously raised in his earlier application to withdraw his guilty plea, the defendant now contends that his counsel failed to procure his employment timecard, which would, he alleges, exonerate him of the crime.
Initially, it must be noted that when a defendant pleads guilty, he forfeits review of those claims of ineffective assistance of counsel which do not directly involve the plea-bargaining process. People v Scalercio , 10 AD3d 697 (2d Dept. 2004). The defendant's claim that his attorney failed to fully investigate his case does not directly involve the plea bargaining process and as such did not affect the voluntariness of his plea. Moreover, this contention is based solely on assertions made by the defendant, himself, and are not supported by any other evidence. See CPL § 440.30(4)(d)(i).
Notwithstanding the above, the defendant's claim of ineffectiveness of counsel, based on his attorney's failure to obtain the defendant's timecard is denied as meritless. The defendant contends that his timecard proves that he was authorized to be in the building on the date and time of the offense and that this exonerates him of the crimes charged.
This is not the case. The defendant's timecard for November 25, 2005 reads, "no punch," indicating that the defendant failed to clock in. It in no way validates the defendant's contention that he was authorized to be in the building at approximately 6:00 a.m. on that date. In addition, testimony was elicited at the defendant's preliminary parole revocation hearing that he was not authorized to be in the building where he worked, prior to 7:00 a.m. Moreover, the defendant admitted during his plea allocution that he did attempt to burglarize the premises where he was employed. In light of all these factors, the defendant's claim is without merit.
In any event, the defendant did receive effective assistance of counsel. "In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel." People v Ford, 86 NY2d 397, 404 (1995); People v Boodhoo, 191 AD2d 448, 449 (2d Dept. 1993). Here, the defendant was originally charged with a D felony, Burglary in the Third Degree for which he could have received a maximum term of seven years in prison. Defense counsel successfully negotiated a plea to the less serious crime of Attempted Burglary in the Third Degree, an E felony and a promise of an indeterminate sentence of two-to-four years. Furthermore, during the defendant's plea allocution, he admitted that he was satisfied with his attorney's representation.
The branch of the defendant's motion which claims his conviction should be vacated because the D.o.C.S. failed to properly recognize a court order which allegedly ran his sentence concurrently with his undischarged sentence of imprisonment is denied. This claim relates to the validity of the defendant's sentence, and not to the validity of his conviction. See CPL § 440.10(2)(d). Moreover, this Court did not order the defendant's sentence to run concurrently with his prior, undischarged sentence. Although the issue of running the sentence concurrently with the prior undischarged time was raised by defense counsel, the Court did not agree to do so and in fact, was silent as to this issue. Where the court is silent on the manner in which the defendant's sentence is to run with respect to any prior undischarged time, the sentences are deemed to run consecutively. See Gray v Goord , 37 AD3d 904 (3d Dept. 2007); Jackson v Smith , 36 AD3d 1067 (3d Dept. 2007); Moore v Goord , 34 AD3d 909 (3d Dept. 2006).
Consequently, based upon the foregoing, the defendant's motion to vacate his judgment of conviction is denied.
The foregoing constitutes the opinion and decision of the Court.
SO ORDERED.