Opinion
02923-08.
Decided June 28, 2010.
Diego Hernandez, Esq., Bronx County District Attorney's Office, Bronx, New York.
Michael Torres, Esq., Attorney for Defendant, Bronx, New York.
Defendant Mark Jurgins was charged in a twelve count indictment with Robbery in the First Degree, PL 160.15(3), Robbery in the Second Degree, PL 160.15(1), Robbery in the Second Degree, PL 160.10(2)(a), Robbery in the Third Degree, PL 160.05, Grand Larceny in the Fourth Degree, PL 155.30(5), Assault in the First Degree, PL 120.10(1), Assault in the Second Degree, PL 120.05(1), Assault in the Second Degree, PL 120.05(2), Assault in the Second Degree, PL 120.05(6), and several misdemeanors.
The People contend that, on or about May 1, 2008, Defendant assaulted a livery cab driver in his vehicle, wielded a knife, and robbed the cabdriver.
Defendant was arraigned on September 23, 2008, on this indictment and entered a plea of not guilty on all counts. On April 15, 2010, while the jury selection process for Defendant's trial was underway, Defendant pleaded guilty to one count of Robbery in the First Degree, a class B felony, in exchange for a sentence promise of a determinate sentence of eleven years in state prison, and five years of post-release supervision, a permanent order of protection and certain mandatory surcharges. The promised sentence of eleven years included an eight year sentence plus three additional years because the victim was operating a "for hire" vehicle at the time of the crime. Sentencing originally was scheduled for June 17, 2010, and was thereafter adjourned to July 2, 2010, by agreement of the parties.
On April 29, 2010, Defendant moved to have the Bronx Defenders relieved as counsel and sought to have new counsel appointed. The Court granted Defendant's request; defense counsel was relieved and a new attorney, Michael Torres, Esq., was appointed to represent Defendant.
On June 14, 2010, Defendant filed a motion seeking to withdraw his guilty plea. Defendant contends that he is innocent of the charges and that his guilty plea was involuntary in that, at the time of the plea, he was under duress, had significant psychological stress due to his wife's ongoing cancer treatment, and had ineffective assistance of counsel. Defendant also urges the Court to consider his mental capacity in deciding whether to permit him to withdraw the plea. On June 17, 2010, the People filed an Affirmation in Opposition to Defendant's motion. The People contend that Defendant's plea was voluntarily and knowingly given and that there is no support in the record for Defendant's claim that he was coerced into entering a guilty plea, or that Defendant's mental state precluded him from knowingly and voluntarily entering his plea.
For the reasons set forth, Defendant's motion to withdraw his plea is denied in its entirety.
Although it is wholly within this Court's discretion to permit a defendant to withdraw his or her plea of guilty, this is not a case where such an action is warranted. CPL 220.60(3); see People v. Alexander, 97 NY2d 482, 483 (2002) (motion to withdraw properly denied; after-the-fact protestations of incompetence, confusion and innocence unavailing). Defendant's unsubstantiated claims of coercion and his protestations of innocence at sentencing do not render his plea procedurally or substantively defective. People v. Billingsley, 54 NY2d 960, 961 (1981); People v. Latimer, 176 AD2d 350, 351 (2nd Dept. 1991). Furthermore, where, as here, Defendant's grounds to withdraw the plea are without merit, no evidentiary hearing is necessary. People v. D'Adamo, 281 AD2d 751, 712 NYS2d 706 (3rd Dept. 2001); People v. Ortiz, 221 AD2d 176, 177 (1st Dept. 1995); see also, People v. Haywood, 97 AD2d 446, 467 NYS2d 413 (2nd Dept. 1983).
In this case, the Court conducted the allocution of Defendant when he pleaded guilty and was able to observe Defendant's demeanor during his plea. At that allocution, upon observing Defendant and listening to Defendant's answers to the questions put to him by the Court, the Court expressly found that Defendant had knowingly, intelligently and voluntarily pleaded guilty to one count of Robbery in the First Degree. Defendant had the opportunity to consult with counsel on several occasions regarding the offers made as well as his decision to plead guilty. Transcript, April 15, 2010, pp. 5, 6, 11, 12, 15. During his plea allocution, the Court specifically asked Defendant, more than ten times, whether Defendant understood the rights that he was waiving and the proceedings and Defendant answered "Yes" each time. Tr. pp. 6, 7, 8, 9, 15. The Court also informed Defendant that he was giving up his right to appeal the conviction; Defendant said that he understood. Tr. pp. 9-10.
With respect to the issue of medication, the Court asked Defendant if he was prescribed any medication and, if so, whether he had taken it. Tr. p. 5. Defendant responded that he took his prescribed medication the night before. Tr. p. 5. The Court asked if such medication in any way affected Defendant's ability to understand what was going on in court. Tr. p. 5. Defendant affirmed that such medication did not affect his ability to understand what was going on in court. Tr. p. 5.
With respect to Defendant's contentions about his counsel, the Court expressly asked Defendant if he had an opportunity to discuss the plea with his attorney, if Defendant understood everything his attorney had explained to him, and whether he was satisfied with his attorney's representation of him. Tr. pp. 5-6. Defendant answered "yes" to each of those questions. Tr. pp. 5-6. Defendant did not voice any problems with his attorney, either during the proceedings or during his allocution.
Further, the Court expressly noted at least three times during the allocution the terms of the sentence promise that was offered to Defendant as part of the plea agreement — that, upon meeting certain conditions, Defendant would receive a determinate sentence of eleven years in state prison, which included an eight year sentence plus three additional years because the victim was operating a "for hire" vehicle at the time of the crime, and that there would be five years of post-release supervision for the charge of Robbery in the First Degree. Tr. pp. 4, 6, 12. Defendant stated during his allocution that he understood all of the terms of his guilty plea and the terms of the sentence that would be imposed. Tr. pp. 9-14.
Defendant's request that the Court consider a finding by a psychologist that Defendant has "Borderline Intellectual Functioning" in determining whether Defendant be permitted to withdraw his guilty plea also is unavailing. No such finding is in the record. Although Defendant points to an evaluation conducted by a psychologist retained by Defendant's previous counsel, which report apparently was submitted to the District Attorney's office in September 2009, as well as to the Court, the report provides no support for Defendant's contention that he was mentally incompetent to enter a guilty plea. The report does not indicate that Defendant is unable to understand what is said to him or to comprehend the consequences of his actions. Notably, no application ever was made, during the 22 months that the matter was pending, pursuant to CPL 730.10, for a determination that Defendant be considered an "incapacitated person." Indeed, Defendant does not even claim, in his affidavit in support of his on this motion, that he did not understand the nature of his plea. Defendant's level of intellectual functioning is not so low as to render him incapable of understanding the nature of his plea or its consequences. People v. Young, 257 AD2d 764, 764 (3rd Dept. 1999). Indeed, the Court's observation of Defendant during the plea lead to its conclusion that Defendant's plea was made knowingly, intelligently and voluntarily.
Defendant's assertion that he was under significant stress at the time of the plea, due to his wife's medical problems, and the stress of the trial, also is not a basis to allow Defendant to withdraw his plea. People v. Alexander, 97 NY2d at 486 (that defendant is "emotionally distraught" when pleading guilty affords no basis to withdraw plea), citing, People v. Green, 75 NY2d 902, 904 (1990).
Accordingly, Defendant's motion to withdraw his guilty plea is without merit and is denied in its entirety.
The following papers were considered by the Court in deciding this motion: Notice of Motion, filed on June 14, 2010, and Attorney's Affirmation in Support of Motion by Michael Torres, Esq., and Affidavit in Support by Mark Jurgins; Affidavit in Opposition by Assistant District Attorney Diego Hernandez, filed on June 17, 2010.
The foregoing constitutes the decision and order of the Court.