Opinion
No. 2008QN012451.
05-31-2017
The PEOPLE of the State of New York, v. Nigel ROBERTSON, Defendant.
Queens County District Attorney's Office by ADA Josette Simmons, Esq., for the People. Queens Legal Aid Society by Joel Schmidt, Esq., for the defendant.
Queens County District Attorney's Office by ADA Josette Simmons, Esq., for the People.
Queens Legal Aid Society by Joel Schmidt, Esq., for the defendant.
ALTHEA E. DRYSDALE, J.
The defendant, Nigel Robertson, by his attorney, Joel Schmidt, has filed a motion pursuant to Criminal Procedure Law § 440.10(1)(h) to vacate his plea of guilty to driving while intoxicated; per se ( VTL § 1192[2] ) (C. Lopresto, J., at plea and sentence).
On March 5, 2008, the defendant, Nigel Robertson, was observed by Police Officer Demetrio Starling to be behind the wheel of a vehicle that was involved in a motor vehicle accident with a construction truck. Officer Starling approached the defendant who appeared intoxicated, with the presence of the common indicia of intoxication, specifically red watery eyes, slurred speech, unsteady feet, and an odor of alcohol on his breath. Officer Starling placed the defendant under arrest and took him to the 112th Precinct's Intoxicated Driver Testing Unit. A breathalyzer test administered to the defendant showed that his blood alcohol level was .10%. The defendant was charged, by Queens County docket number 2008QN012451, with two counts of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs ( VTL §§ 1192[2], 1192[3] ). On October 9, 2008, the defendant was offered a plea to the 1192[2] charge with a conditional discharge, plus the Drinking and Driving Program, a $500 fine, and six-month license revocation, which he, with counsel, accepted.
The defendant's current attorney has submitted an affirmation asserting that the attorney who represented the defendant at his plea and sentence provided ineffective assistance of counsel in that the defendant was not aware that he was pleading guilty to a misdemeanor, and "he was unaware of the severity of a misdemeanor conviction, as well as the law[,] that a second VTL § 1192[2] arrest would result in a felony charge, which he is now facing." Essentially, the defendant argues that his attorney's representation was deficient in that she misadvised him about the severity of his conviction, that she never pursued a better offer-driving while impaired ( VTL § 1192[1] ), and that she failed to file an appeal on, what he believes, to be an improper plea allocution.
Under New York State law, a defendant's right to effective assistance of counsel is satisfied when "meaningful representation" was provided (People v. Caban, 5 N.Y.2d 143, 152 [2005]; People v. Benevento, 91 N.Y.2d 708, 712 [1998] ; People v.. Baldi, 54 N.Y.2d 137, 146–47 [1981] ). "Meaningful representation" includes the conveyance of accurate information regarding plea negotiations, including relaying all plea offers made by the prosecution ( People v. Rogers, 8 AD3d 888, 890 [3d Dept 2004] ). The defendant bears the burden to show that a plea offer was made, and that counsel failed to inform him of that offer (id. ).
To prevail on his claim of ineffective assistance under the federal Constitution, the defendant must demonstrate that his counsel's performance was deficient and that he consequently suffered prejudice ( Hill v. Lockhart, 474 U.S. 52 [1985] ; Strickland v. Washington, 466 U.S. 668, 687 [1984] ). 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 ).
Both standards give a strong presumption to effective assistance rendered by counsel. CPL 440.30(4)(b) provides that a court may deny a motion to vacate a judgment without a hearing if "[t]he motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts as required by subdivision one."
The defendant provides no evidence to substantiate his claims of deficient performance of counsel, therefore his motion may be summarily denied for this reason alone ( People v. Simon, 32 Misc.3d 142[A] [App Term, 1st Dept 2011] ). There is nothing in the plea minutes or motion papers that substantiates his claims ( People v. Leftenant, 121 AD3d 1019 [2d Dept 2014] [allegations of misinformation by trial counsel made solely by the defendant without other affidavit or evidence in the record is insufficient to vacate his plea]; People v. Smiley, 67 AD3d 713 [2d Dept 2009] [same] ).
Nonetheless, even if the court were to accept as true the conclusory assertions that the defendant's lawyer misadvised him as to the nature and consequences of his plea, the court would still find that the defendant does not adequately substantiate his claim for relief here. The defendant fails the second prong of the ineffective assistance test, which requires him to show that his lawyer's alleged misadvice prejudiced him.
To demonstrate prejudice, defendant must allege a "reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial" ( Hill v.. Lockhart, 474 U.S. at 59 ). The defendant's submission fails to allege sufficient credible facts to raise an issue that would warrant a hearing on whether he pleaded guilty because of alleged misadvice.
First, his suspect, self-serving assertion of innocence is contradicted by his plea. The plea minutes show the court asked the defendant "sir, you're pleading guilty to violating VTL 1192(2), driving your motor vehicle while in an intoxicated condition, is that what you wish to do?" The defendant answered "yes." And, the court then asked the defendant "on March 5, 2008, in the county of Queens, at the intersection of South Conduit and the Southern State Parkway, were you operating your motor vehicle while intoxicated by alcohol?" The defendant answered "yes." The defendant admitted his guilt in clear and unequivocal language, admitting every element of the offense of intoxicated driving. In his motion, the defendant argues that the court's plea allocution was deficient and thus, constitutionally defective. The court disagrees.
The defendant argues that the court's plea allocution failed the minimum standards required by the United States Supreme Court in Boykin v. Alabama, 395 U.S. 238 (1969). But, the "failure to recite the Boykin rights does not automatically invalidate an otherwise voluntary and intelligent plea" ( People v. Conceicao, 26 NY3d 375, 379 [2015] ). "Where the record as a whole affirmatively shows that the defendant intentionally relinquished those rights, the plea will be upheld (id. )."
In Moore, the court held that the single query by a judge of whether the defendant knew he was giving up the right to a trial, by itself, was insufficient to show that the plea was "knowing, intelligent, and voluntary" ( Moore, 48 Misc.3d 143[A] [App Term, 2d, 11th, & 13th Jud Dists 2015] ; People v. Tyrell, 22 NY3d 359 [2013] ). The defendant concedes that while the court does not have to follow a uniform and mandatory script, there must be some indication on the record that the defendant consulted with his attorney about the constitutional consequences of a guilty plea ( Tyrell, 22 NY3d at 365 ). While the court does not have to engage in any particular litany, the court should consider and evaluate "the seriousness of the crime, the competency, experience and actual participation of counsel, the rationality of the plea bargain, ... the pace of the proceedings in the criminal court" ( People v. Conceicao, 26 NY3d 375, 383 [2015] quoting People v.. Harris, 61 N.Y.2d 9, 16 [1983] ), and whether the defendant consulted with his attorney about the constitutional consequences of the plea (Conceicao, supra at 383).
Here, the record is clear, the defendant authorized his attorney to enter a plea to driving while intoxicated; per se ( VTL § 1192[2] ), a misdemeanor, and that the defendant wished to enter such a plea. The defendant's attorney also placed on the record that she spoke to the defendant and he understood that he was entering a plea to a misdemeanor. The court also asked the defendant if he was forced to enter the plea, and whether he understood that by pleading guilty to driving while intoxicated; per se he would be giving up his right to a trial and the right to remain silent. The defendant, on the record, indicated that he was not forced to enter the plea, and that he knew he was giving up his constitutional right to a trial and the right against self-incrimination. At no time did the defendant profess his innocence or object to the plea allocution or plea proceedings.
Second, the defendant's agreed upon sentence involved a minimum fine at a time when he faced the possibility of one year in jail and a much higher fine. The defendant made a favorable deal, from which the court infers that he pleaded guilty to avoid the possibility of jail, rather than because he was misadvised about the consequences of a plea (People v. Brooks, 26 AD3D 929 [2d Dept 2007] [the defendant's claim that he was denied effective assistance of counsel is belied by his favorable plea, which limited his exposure to imprisonment]; People v. Grimes, 35 AD3d 882 [2d Dept 2006] [same]; People v. Dallas, 31 AD3d 573 [2d Dept 2006] ).
Thus, there is nothing in the record that credibly discounts the legal and factual significance of the defendant's plea, which is that the defendant pleaded guilty because he was guilty and offered a favorable deal, not because he received alleged misadvice about the possible consequences of his plea, and based on that alleged misadvice, decided to forgo a trial.
The court rejects the defendant's claim of prejudice as not credible (see CPL 440.30[4][d] ) and finds that he has failed to adequately allege ineffectiveness under the federal standard.
For the same reasons I reject the defendant's state constitutional claim of ineffective assistance. The defendant has not offered specific and credible allegations tending to establish that he was innocent or that he had a viable defense. Under the circumstances, he received "meaningful representation" (see, e.g ., People v. Feliciano, 17 NY3d 14 [2011] ; People v. McDonald, 1 NY3d at 114, n2 ).
For the foregoing reasons, defendant's motion to vacate his plea is denied without a hearing.
The foregoing constitutes the decision and order of the Court.