Opinion
2007-938
03-30-2015
The People of the State of New York, v. Milton Ortega, Defendant.
Matthew Mazzamurro, Esq. Attorney for the Defendant 1011 Park Street Peekskill, New York 10566 Janet DiFiore Celia M. Curtis, A.D.A., Of Counsel Westchester County District Attorney 111 Dr. Martin Luther King Jr. Blvd. White Plains, New York 10601 Parties The People are represented by Assistant District Attorney Celia M. Curtis, Esq. The Defendant, Milton Ortega, is represented by Matthew R. Mazzamurrow, Esq.
Matthew Mazzamurro, Esq.
Attorney for the Defendant
1011 Park Street
Peekskill, New York 10566
Janet DiFiore
Celia M. Curtis, A.D.A., Of Counsel
Westchester County District Attorney
111 Dr. Martin Luther King Jr. Blvd.
White Plains, New York 10601
Parties
The People are represented by Assistant District Attorney Celia M. Curtis, Esq. The Defendant, Milton Ortega, is represented by Matthew R. Mazzamurrow, Esq.
Reginald J. Johnson, J.
Charges
The Defendant was charged with the following Vehicle and Traffic Law (V & T) Violations: 1192.2 (Operating a Motor Vehicle with a BAC of .08 of 1% Alcohol [BAC of .16%]) (Unclassified Misdemeanor); 1192.3 (Operating a Motor Vehicle While Intoxicated) (Unclassified Misdemeanor); V & T 1180-D (Speeding Violation: Posted Limit) (Infraction); and V & T 1227.1 (Drinking Alcohol in Motor Vehicle on a Highway) (Infraction).
As part of a negotiated plea, the Defendant pled guilty to V & T 1192.2 in satisfaction of the other charges, together with a one year conditional discharge to TASC , DDP , VIP , $500.00 fine, $185.00 surcharge, and a six month license revocation.
TASC is the acronym for Treatment Alternatives for a Safer Communities.
DDP is the acronym for Drinking Drivers Program.
VIP is the acronym for Victim Impact Program sponsored by Mothers Against Drunk Driving (MADD).
Procedural History
A review of the Court file in this matter indicates that on May 10, 2007 the Defendant was arraigned without counsel in the Court and his license was suspended pending prosecution of this matter.
On May 17, 2007, the defendant was assigned 18b counsel after which he waived readings and formally entered a plea of not guilty by his counsel. The People announced ready at that time.
On June 14, 2007, the Defendant appeared and was ordered to attend TASC. The Defendant appeared on July 19, 2007, July 26, 2007, and August 16, 2007.
On August 30, 2007, the People offered the Defendant a plea offer which included a plea to V & T 1192.2 in full satisfaction of the other charges with a fine of $500.00, surcharge of $185.00, a one year conditional discharge to include attendance at VIP and DDP.
On September 20, 2007, the Defendant requested an adjournment to September 27, 2007 at which time he accepted the plea offer and pled guilty to 1192.2 in full satisfaction. The Spanish interpreter was present throughout the proceedings. As part of the Defendant's guilty plea, the Prosecutor allocated the Defendant. After the Defendant entered his guilty plea, the Court imposed a $500.00 fine, $185.00 surcharge, a one year conditional discharge to include attendance at VIP and DDP, and a license revocation of six months. The Defendant presented proof of his participation in VIP at that time.
On October 17, 2014, Matthew Mazzamurrow, Esq. requested a copy of the Court file in this proceeding.
On October 23, 2014, a copy of the Court file was retrieved by Mr. Mazzamurrow.
On January 2, 2015, the Court received a 440 motion by the Defendant.
On January 12, 2015, the Court set a motion schedule.
On March 2, 2015, the People submitted opposition papers.
On March 16, 2015, the Defendant submitted reply papers. The Court marked the motion fully submitted and set a decision date for March 30, 2015.
Defense Motion
On or about January 2, 2015, the Defendant moved this Court for an Order vacating the judgment of conviction pursuant to Criminal Procedure Law (CPL) §440.10 upon the ground that the guilty plea was not entered into knowingly and voluntarily and upon the ground that the plea and disposition were in violation of the Defendant's due process rights pursuant under the New York State Constitution and United States Constitution; for an Order dismissing the original charges of V & T 1192.2, 1192.3, V & T 1180-D, and V & T 1227.1 in the interest of justice pursuant to CPL §170.56, and for such other and further relief as this Court may deem just and proper.
The People opposed the motion principally upon the ground that the Defendant was a deportable alien at the time of his arrest and upon the ground that he has not shown that he has been prejudiced by any acts of his original counsel, which is necessary to prevail on a claim for ineffective assistance of counsel.
Facts
The relevant facts derived from the Arrest Report, Simplified Traffic Information Supporting Deposition, Simplified Traffic Information, Supporting Deposition and DWI Bill of Particulars (Mazzamurrow Reply, Exh. "2") and DWI Investigative Notes (Id., Exh. "3") are that on or about April 29, 2007 at approximately 3:30 a.m., the Defendant was operating a motor vehicle in the vicinity of Oakwood Drive and Oregon Road in the City of Peekskill when he was observed by a New York State trooper traveling in excess of the speed limit. The Defendant was stopped Oregon Road and during a preliminary investigation by the trooper, it became apparent that the Defendant was intoxicated (he failed three field sobriety tests: the Horizontal Gaze Nystagmus, the One Leg Stand, and the Romberg test). The Defendant was arrested and taken back to the police barracks where he was administered a breath test that registered a blood alcohol content (BAC) of .16%. Thereafter, the Defendant was issued several tickets charging him with 1192.2 (.16% BAC), 1192.3 (common law DWI), 1180D (speeding), and 1227.1 (consuming alcohol in a motor vehicle). The Defendant appeared in Court and subsequently pled to 1192.2 in full satisfaction with a fine, six month license revocation and other conditions.
The Court file indicates that on October 12, 2008, the Defendant was arrested in the City of Peekskill for driving with a BAC of .20% and charged with aggravated DWI [V & T 1192.2A] and aggravated unlicensed operation of a motor vehicle [V & T 511(3)(A), E Felonies (Dkt. 08-2467). On or about October 16, 2008, removal proceedings were commenced against the Defendant by the Department of Homeland Security ("DHS"), unrelated to his 2007 DWI conviction, charging him with being an alien present in the United States without being admitted or paroled (People's Opp., Exh. "2"). On or about December 9, 2008, the Defendant was ordered removed from the United States (Id., Exh. "4") and deported on January 23, 2009. At some point after being deported, the Defendant illegally re-entered the United States and was re-arrested for driving with a suspended license (his license was revoked as a result of his 2007 conviction and it was never reinstated) after he was stopped operating a motor vehicle with a rear light out (Dkt. 14-1038).
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Discussion & Legal Analysis
At any time after the entry of a judgment, the court in which the judgment was entered may, upon motion of the defendant, vacate the judgment upon constitutional or statutory grounds that could not be raised on direct appeal. See, CPL 440.10. People v. Hargrove, 138 AD2d 741 (2d Dept. 1988).
A motion to vacate a judgment pursuant to CPL §440.10 is within the sole discretion of the court and the court has the discretion to vacate the judgment or to hold a hearing on the matter. See, People v. Robinson, 211 AD2d 733 (2d Dept. 1995). The Court is also empowered to deny a defendant's CPL §440 motion without a hearing where a defendant has failed to submit sworn allegations substantiating or tending to substantiate all essential facts necessary to establish his claim. See, People v. Wells, 265 AD2d 589 (2d Dept. 1999).
Where a defendant moves pursuant to CPL§440 to vacate his judgment of conviction upon the ground of ineffective assistance of counsel under New York State law, the motion court will evaluate the evidence to determine whether "the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation." See, People v. Baldi, 54 NY2d 137, 147 (1981). If the motion court finds that the Baldi conditions were satisfied, it must find that the defendant was provided "meaning representation." See, People v. Benevento, 91 NY2d 708, 712 (1998); People v. Henry, 95 NY2d 563, 566 (2000) (Court confirms its adherence to the "meaningful representation" standard in evaluating ineffective assistance of counsel claims and states further that it contains a "prejudice" component).
The Federal standard for ineffective assistance of counsel, which New York State has not adopted, is set forth in the seminal case of Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Court held that in order for a defendant to overcome the presumption of effective assistance of counsel, the defendant must demonstrate that (1) the attorney's performance was deficient, and (2) but for counsel's unprofessional errors, there is a "reasonable probability" that the outcome of the proceedings would have been different. Id. at 687. The Court stated that the "reasonable probability" analysis is focused on whether counsel's performance rendered the proceedings fundamentally unfair or left a questionable outcome or result. See, Lockhart v. Fretwell, 506 U.S. 364. 369-370 (1993).
To show ineffective assistance of counsel in the plea context, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty but opted for a trial instead. See, People Hernandez, 22 NY3d 972, 975 (2013) (citations and quotations omitted). In Padilla v. Kentucky, 559 U.S. 356, 374 (2010), the Court held "counsel must inform her client whether his plea carries a risk of deportation." The failure to do so will result in a finding that counsel was ineffective if the defendant was prejudiced by the lack of such advice. Id.
It has been held that a defendant is not prejudiced by his counsel's failure to inform him of the deportation consequences of his guilty plea where the defendant received an advantageous plea deal. See, People v. Ford, 86 NY2d 397 (1995); People v. Soodoo, 109 AD3d 1014 (2d Dept. 2013). Lastly, it is now settled that the holding in Padilla v. Kentucky, supra, is not retroactive to support a motion to vacate a conviction that became final before Padilla became law. See, People v. Arif, 115 AD3d 972 (2d Dept. 2014); People v. Johnson, 119 AD3d 1456 (4th Dept. 2014).
Turning to the facts in this case, it is beyond cavil that the Defendant was subject to deportation due to his status in this country as an alien present in the United States without being admitted or paroled. (People's Opp., Exh. "2"). Since the Defendant was subject to deportation independent of his 2007 conviction, he was not prejudiced as a matter of law regarding his 2007 plea. See, People v. Diaz, 41 Misc 3d 351 (Sup Ct. N.Y County, 2013).
Since Padilla, supra, Strickland, supra, Baldi, supra, and Hernandez, supra, require the Defendant to prove that he was prejudiced or that, in the plea context of this case, that there was a reasonable probability that had he been advised of the immigration consequences of his plea, he would have opted for a trial, his inability to prove that he was prejudiced, as stated previously, defeats his claim of ineffective assistance of his counsel under either the New York or United States Constitutions. In this case, as argued by the People, the Defendant's plea would likely have not had any adverse immigration consequences (People's Memo, p. 2). See, Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001); National Immigration Project, Quick Reference Chart for Determining Immigration Consequences of Common New York Offenses, available online at: http://www.nationalimmigrationproject.org.
Further, it is clear to the Court that the Defendant received a favorable plea deal and that therefore his claim of ineffective assistance of counsel is defeated on that ground. See, People v. Soodoo, supra. Had the Defendant gone to trial and gotten convicted, he would have faced up to a one year period of incarceration and/or 3 years probation. See, V & T §1193(1)(b)(i)(ii). Under the plea deal arranged by his attorney, he received a one year conditional discharge among other standard conditions imposed for this type of plea (Defendant's Motion, Certificate of Disposition, Exh. "A").
It is well settled that a Defendant's CPL §440 motion to vacate his judgment of conviction will fail if there is overwhelming evidence of his guilt. See, People v. Crimmins, 38 NY2d 407 (1975); People v. Walker, 31 NY2d 970 (1973); People v. Lucas, 117 AD2d 599 (2d Dept. 1991). Here, the evidence was unrefuted that the Defendant's .16% BAC was twice the legal limit resulting in a charge under V & T §1192.2 (Defendant's Motion, Certificate of Disposition, Exh. "A"). The Defendant almost ignores this crucial item of damning evidence.
Further, the Defendant claims that he did not understand the plea offer because the Misdemeanor Conviction Waiver Form (MCWF) as well as the proceedings and his attorney's communications with him were in English, that she failed to fully explain the legal differences between intoxicated and impaired, and the immigration implications of pleading guilty, and that therefore his plea was not entered into knowingly, voluntarily and intelligently. (Defendant's Motion, Ortega Affidavit). The transcript of the proceeding on the plea and sentencing date of September 27, 2007 clearly indicated that a Spanish interpreter was present, that the Defendant reviewed and signed the MCWF and Supplemental DWI Waiver Form (SDWF), that, during voir dire, he stated that he reviewed those forms with his attorney and the interpreter and that he had no questions about them, and that he was pleading guilty because he was guilty (People's Opp., Transcript, Exh. "1").
The transcript of the proceedings belies the Defendant's claim that he did not understand the plea offer or the MCWF or SDWF. It appears from a review of the transcript that the Defendant's plea was knowingly, intelligently and voluntarily made. After the Defendant pled guilty to V & T 1192.2 and the Court sentenced him, the judgment of conviction was entitled to a presumption of validity and therefore the Defendant bears the "burden of coming forward with sufficient allegations to create an issue of fact." See, People v. Sessions, 34 NY2d 254, 255-256 (1974); People v. Braun, 167 AD2d 164, 165 (1st Dept. 1990); see CPL §440.30(4)(b), (d)(i), (ii). CPL §440.30(4)(d) states, in pertinent part, that the Court may deny the CPL §440 motion without a hearing where
An allegation of fact essential to support the motion (i) is contradicted by a court record or other official document, or is made solely by the defendant, and is unsupported by any other affidavit or evidence, and (ii) under these and all the other circumstances attending the case, there is nor reasonable probability that such allegation is true.
The transcript of the Defendant's 2007 plea conclusively, in the Court's opinion, contradicts his assertion that he did not understand the proceedings, or the forms he signed, or his guilty plea. A Spanish interpreter was present translating the proceedings from English to Spanish. He was free at any moment to ask any questions, reject the plea deal or ask for another adjournment, but he failed to do so. The Court concludes that based on the transcript of the plea and sentencing proceedings on September 27, 2007 and based on all of the other facts and circumstances attending the case (Defendant was a deportable alien prior to his 2007 plea and his BAC was .16% at the time of his stop) as well as the fact that there is no reasonable possibility that his allegation that his plea was not done knowingly, intelligently and voluntarily is true, the Defendant's CPL §440 motion is denied. CPL §440.30(4)(d).
Of critical importance is the fact that whether the Defendant's guilty plea was entered into knowingly, intelligently and voluntarily can usually be discerned from a review of the record of the proceedings. And since the sufficiency of the Defendant's guilty plea is based on the reviewable record of his plea proceeding, the Defendant's CPL §440.10 motion is procedurally barred because "[w]hen, as usually the case, sufficient facts appear on the record to permit the question to be reviewed, sufficiency of the plea allocution can be reviewed only by direct appeal. Only in the unusual situation that sufficient facts with respect to the issue do not appear on the record is a CPL 440.10 motion to vacate available as a means of review." People v. Cooks, 67 NY2d 100, 104 (1986) (internal citation omitted); People v. Angelakos, 70 NY2d 670, 672-673 (1987). Since the sufficiency of the plea allocation can be discerned from the record of the proceedings, the Defendant's CPL §440 motion is procedurally barred. See, CPL §440.10 Lastly, the Defendant's claims that his plea was entered into in violation of his due process rights under the New York State and U.S. Constitutions, or that his plea was not entered into knowingly, intelligently, and voluntarily, or that the Court lacks jurisdiction over this case because the alleged arrest took place in the Town of Cortlandt are denied because all of the aforementioned issues could have been raised in a timely appeal but the Defendant failed to take and/or perfect an appeal without justification. See, CPL§440.10(2)(c). See, People v Lovejoy, 44 Misc 3d 457 (Sup. Ct. Bronx County, 2013).
For all of the aforementioned reasons, the Defendant's CPL §440.10 motion is denied in its entirety. Further, the Court sees no basis to grant any relief under CPL 170.56 since that is a request to grant an Adjournment in Contemplation of Dismissal in a Marihuana case and the Defendant has not been charged with possession or consumption of Marihuana.
In determining this motion, the Court considered the court file under Dkt 07-938, the Defendant's Notice of Motion with exhibits filed on January 2, 2015, the Affirmation in Opposition of Celia M. Curtis, Esq., Assistant District Attorney, filed on March 2, 2015, and Reply of Matthew Mazzamurrow, Esq., filed on March 16, 2015.
Conclusion
Based on the foregoing, it is
Ordered that the CPL §440.10 motion is denied in its entirety;
Ordered that the CPL §170.56 motion is denied;
The foregoing constitutes the Decision and Order of the Court.
Enter,
Honorable Reginald J. Johnson
City Court Judge
Dated: Peekskill, NY
March 30, 2015
Order entered in accordance with the foregoing on this ______ day of _____________, 2015 __________________
Cathey Richey
Deputy Clerk
OCA e-submission: no Judge E-Mail