Opinion
2007-0404
04-27-2015
People of the State of New York v. Stephen Frank, Defendant.
On March 30, 2007, the defendant, Stephen Frank, was stopped while driving on Bay Street in the City of Glens Falls by the New York State Police for a noisy muffler. The officer found that the defendant had an odor of alcoholic beverages, glassy eyes, impaired speech and impaired motor coordination. The defendant then failed the standardized field sobriety tests of the horizontal gaze nystagmus, walk and turn and one-leg stand. The defendant was charged with Driving While Intoxicated [Vehicle and Traffic Law § 1192(2)and(3)] and Inadequate Muffler [Vehicle and Traffic Law § 375(31)]. Upon a search of the defendant subsequent to his arrest, the defendant was found to be in possession of a substance that tested positive for cocaine. The defendant was also charged with Criminal Possession of a Controlled Substance 7th [Penal Law § 220.03].
On April 24, 2007, as a result of plea negotiations between the District Attorney's Office and the defendant's retained counsel, the defendant entered a plea of guilty to reduced charges of Driving While Ability Impaired [Vehicle and Traffic Law § 1192(1)] and Loitering in the First Degree [Penal Law § 240.36] , a Class B Misdemeanor. The defendant was sentenced to a one-year conditional discharge and was issued fines and surcharges totaling $735.00. The defendant's driving privileges were also suspended for a period of 90 days.
Penal Law § 240.36 provides that a "person is guilty of loitering in the first degree when he loiters or remains in any place with one or more persons for the purpose of unlawfully using or possessing a controlled substance, as defined in section 220.00 of this chapter."
By coram nobis motion, dated April 17, 2015, the defendant moved this Court for an order allowing the defendant to withdraw his plea of guilty to the charge of Loitering in the 1st Degree, and allowing the defendant to enter a plea guilty to the charge of Disorderly Conduct. In support of his motion, the defendant asserts that, although he was represented by counsel at the time of his 2007 plea, his attorney failed to advise him that the Loitering in the 1st Degree charge constituted a drug conviction. The defendant further asserts that he "did not fully understand the consequences of the plea to what is, in essence, a drug offense." The defendant affirms that he has recently applied to become a corrections officer and, while his conviction to the crime of Loitering in the 1st Degree is not a per se bar to his employment as a corrections officer, his conviction does have significant negative consequences that could be alleviated if the Loitering conviction could be vacated and replaced with a conviction to a non-drug offense of Disorderly Conduct.
The People have not appeared in response or in opposition to the defendant's motion, however, the defendant's present counsel represents that the People have or will consent to the defendant's present motion.
A judgment of conviction is presumed valid, and a defendant moving to vacate his conviction bears the "burden of coming forward with sufficient allegations to create an issue of fact." People v. Session, 34 NY2d 254, 255—256 (1974); People v. Braun, 167 AD2d 164, 165 (1st Dept 1990); see also CPL § 440.30[4][b], [d][i], [ii] ). CPL § 440.30(4) provides that a court may, upon considering the merits of such a motion, deny it without a hearing if: the motion is based upon essential facts without sworn allegations substantiating or tending to substantiate them. CPL § 440.30[4][b]. An allegation of fact essential to support the motion is either contradicted by a court record or other official document; or, an allegation of fact made solely by the defendant is unsupported by any other affidavit or evidence, and there is no reasonable possibility that such allegation is true. CPL § 440.30[4][d][i], [ii]).
In the present case, the defendant has failed to provide an affidavit from his former attorney, nor has the defendant explained his efforts to obtain an affidavit from his former attorney. Instead, the defendant's motion is supported by the defendant's affidavit asserting that his former counsel failed to advise him that the Loitering 1st Degree charge constituted a drug offense, and that the defendant did not understand the consequences of his plea [i.e.; that in the future, the conviction might affect his ability to become a corrections officer]. The Defendant's affidavit also fails to assert that he would not have entered a plea of guilty to the Loitering charge, if he had been advised that this charge constituted a drug offense.
Generally, where the defendant's moving papers allege an ineffective assistance of counsel, but fail to provide an affidavit from the defendant's former counsel, the motion must be summarily denied, because absent any other evidence that defense counsel failed to inform him of the potential impact or consequences of his plea, he is unable to "substantiate all the essential facts". See: CPL § 440.30[4][b]; People v. Morales, 58 NY2d 1008 (1983), citing, People v. Scott, 10 NY2d 380 (1961)(failure to supply affidavit from trial or plea counsel who is living and available warranted summary denial of motion collaterally attacking conviction based on attorney's alleged conduct); People v. Stewart, 295 AD2d 249, 250 (1st Dept. 2002) [summary denial was appropriate where "defendant's papers were deficient in that they lacked an affirmation from trial counsel explaining his strategic decisions, or any explanation for the absence of such an affirmation"]; People v. Ozuna, 7 NY3d 913, 915 (2006)(defendant "neither submitted an affidavit from his father to show that he would have corroborated his son's testimony, nor explained his failure to do).
Certain courts have held that the absence of an affidavit from prior counsel, by itself, should not warrant summary denial of a motion to vacate a prior plea. See: People v. Brito, 47 Misc 3d 1206 (Sup. Ct., Bronx County, 2015), citing, People v. Morales, 58 NY2d 1008 (1983); People v. Radcliffe, 298 AD2d 533, 534(2d Dept. 2002). These courts hold that an affidavit of counsel is not required where the defendant raises an ineffective assistance claim based on alleged error or omission of trial counsel, because to "require the defendant to secure an affidavit, or explain his failure to do so, is wasteful and unnecessary." People v. Radcliffe, 298 AD2d 533, 534(2d Dept. 2002). However, the better practice is to obtain the affidavit from the former counsel or to explain the attempts made by the defendant to obtain that affidavit in the motion to vacate the defendant's prior plea.
In the present case, the defendant's motion must be summarily denied. Even if the defendant's prior counsel had supplied an affidavit confirming that the attorney had failed to advise the defendant that a plea of guilty to the charge of Loitering in the 1st Degree constituted a drug offense and/or that such a conviction could have a negative effect on the defendant's ability to obtain some civil service jobs, the defendant's motion would still be facially insufficient to warrant a vacatur of the defendant's plea.
It is well settled that the failure to advise a defendant of all possible or potential future consequences of a plea does not render a guilty plea invalid. People v. Peque, 22 NY3d 168 (2013); People v. Ramos, 43 Misc 3d 1201, 986 N.Y.S.2d 867 (Sup. Ct., Bronx County, 2014), citing, People v. Pierre, 80 AD3d 441 (1st Dept. 2011); People v. Watkins, 244 AD2d 269, 270 (1st Dept 1997).
A defendant does need not be advised all possible or potential consequences of his or her guilty plea. See: People v. Peque, 22 NY3d 168 (2013). Instead, the defendant only needs to be advised of the "direct consequences" of the plea. People v. Peque, 22 NY3d 168 (2013), citing, People v. Catu, 4 NY3d 242, 244, 792 N.Y.S.2d 887, 825 N.E.2d 1081 (2005); People v. Ford, 86 NY2d 397, 403, 633 N.Y.S.2d 270, 657 N.E.2d 265; Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). There is absolutely "no obligation to apprise the defendant of the collateral consequences of the plea." People v. Peque, 22 NY3d 168, 184 (2013), citing, People v. Gravino, 14 NY3d 546, 553, 902 N.Y.S.2d 851, 928 N.E.2d 1048; People v. People v. Ford, 86 NY2d 397, 403, 633 N.Y.S.2d 270, 657 N.E.2d 265.
A "direct consequence" of a guilty plea is defined as a consequence "which has a definite, immediate and largely automatic effect on [the] defendant's punishment" while a "collateral consequence" is one "peculiar to the individual's personal circumstances and one not within the control of the court system." Peque, supra at 184.
Examples of direct consequences include the forfeiture of trial rights; the imposition of a mandatory term of imprisonment that results from an unconditional guilty plea; the imposition of mandatory post-release supervision; and possible deportation. See: People v. Peque, 22 NY3d 168, 184-185 (2013), citing, Boykin v. Alabama, 395 U.S. 238, 243—244, 89 S.Ct. 1709 (1969); Jamison v. Klem, 544 F.3d 266, 277 (3d Cir. 2008); People v. Harnett, 16 NY3d 200, 205, 920 N.Y.S.2d 246, 945 N.E.2d 439 (2011); People v. Catu, 4 NY3d 242, 244—245, 792 N.Y.S.2d 887, 825 N.E.2d 1081 (2005).
Examples of collateral consequences include the loss of the right to vote or travel abroad; loss of civil service employment ; loss of a driver's license; loss of the right to possess firearms; an undesirable discharge from the Armed Services; the imposition of a prison term upon revocation of post-release supervision; sex offender registration under the Sex Offender Registration Act (SORA); or the possibility of civil confinement under the Sex Offender Management and Treatment Act (SOMTA). See: People v. Peque, 22 NY3d 168, 184-185 (2013)(emphasis added), citing, People v. Monk, 21 NY3d 27, 33, 966 N.Y.S.2d 739, 989 N.E.2d 1 (2013); People v. Gravino, 14 NY3d 546, 559, 902 N.Y.S.2d 851, 928 N.E.2d 1048 (2010); People v. Harnett, 16 NY3d 200, 206, 920 N.Y.S.2d 246, 945 N.E.2d 439 (2011).
In the present case, the failure of defendant's former counsel to advise the defendant that a plea to Loitering in the 1st Degree constituted a drug conviction or that this plea could possibly affect his ability to obtain civil service work as a corrections officer, even if true, would not constitute grounds to invalidate the defendant's guilty plea and, as a result, these facts do not constitute an ineffective assistance of counsel.
The defendant's motion to vacate his prior plea of guilty to the charge of Loitering in the 1st Degree is denied.
Dated: April 27, 2015
at Glens Falls, New York
____________________
Hon. Gary C. Hobbs