Opinion
2005 CN 001037.
Decided November 17, 2005.
The defendant moves to withdraw her plea of guilty to the charge of Loitering for the Purpose of Engaging in Prostitution (Penal Law § 240.37) or, in the alternative, for a hearing on the motion. For the reasons set forth below, the defendant's motion is denied in its entirety.
I. Factual Background
The information alleges that at 3:05 a.m. on February 14, 2005, at the corner of West 47th Street and Broadway in New York County, Police Officer Kevin Buehler observed the defendant "remain and wander about the above vicinity, a public place, for a period of approximately 20 minutes during which time the defendant stopped or attempted to stop approximately three passersby and engaged in conversations with approximately three passersby." The information further alleges that the defendant was in the street and was not waiting at a bus stop or taxi stand, the location is frequented by people engaged in prostitution, and the defendant was observed at the same location on other occasions engaging in the same conduct.
The defendant was arraigned on February 14, 2004, at the Midtown Community Court. Represented by the Legal Aid Society, she pled guilty to Penal Law § 240.37(2), a class B misdemeanor, in exchange for a promised sentence of one year probation and mandatory participation in the Midtown Alternative to Prostitution Program (MAPP).
Prior to the defendant's arraignment, the Resource Coordinator of the Midtown Community Court reviewed the defendant's history and recommended that she participate in MAPP, four-day education program designed to steer defendants away from prostitution. With the assistance of the Resource Coordinator, defense counsel advocated in favor of the MAPP program as an appropriate sentence for her client. Counsel reminded the court that the People had recommended only a ten-day jail sentence on a plea to the charge, that the defendant had not been arrested in almost a year and that the Midtown Community Court and the MAPP program in particular were designed to address the problems of defendants like her client. However, the court stated that it was unwilling to impose a sentence of the MAPP program alone in light of the defendant's numerous prior convictions. Instead, the court offered her a one-year probation sentence in addition to the program. The following exchange between the court, defense counsel and the defendant ensued:
DEFENSE COUNSEL: Your Honor, my client wants to dispose of the case. This disposition is absolutely against my advice. I don't want her to take it. I don't think it's a good disposition. Nevertheless, she authorizes me to enter a plea of guilty to Penal Law 240.37, loitering for prostitution. She is ready for sentencing. I am asking you to enter a civil judgment.
THE COURT: I can put it on for sentencing. The sentence has to be on another date, so the judgment issue is not before me. Ms. Ortiz, the reason I didn't give you a straight program is because of the length of your record. If you honestly believe that you want to turn a corner, you want to attend the program and you want to stay out of jail and you want to get your life back on track, this is a good disposition.
Your attorney is telling me she is concerned because in the event you do not complete or fully cooperate with the disposition, you could face a jail sentence — it will be a jail sentence and she doesn't want to see that happen. So, if you in your heart believe that you are ready to turn the corner and stay out of trouble, I am willing to accept the plea from you. Do you wish to do that? Are you sure?
THE DEFENDANT: I am positive.
THE COURT: The plea of guilty is the same thing as a conviction after trial. You give up your right to remain silent, your right to cross-examine witnesses against you, and your right to trial before a judge. Do you want —
THE DEFENDANT: Yes.
THE COURT: You're charged that on February 14, 2005, at 0305 hours at the corner of West 47th Street and Broadway in the County and State of New York that you were engaging male passersby in conversation for the purpose of exchanging sexual favors for money; is that correct?
THE DEFENDANT: Yes.
THE COURT: The promise of the Court on the date of sentence is one year probation and participation in the program that was described.
The case was adjourned to March 30, 2005, for sentencing and the defendant was directed to report to probation for a pre-sentence interview. The defendant reported to and cooperated with the Probation Department as directed. However, when she appeared on March 30, she informed the court that she wished to withdraw her plea of guilty. The court relieved the Legal Aid Society, appointed Marcos Pagan, Esq., to represent the defendant and adjourned the case for motion practice.
The gravamen of the defendant's motion is that her plea was not knowing and voluntary and was the product of ineffective assistance of counsel. More specifically, the defendant alleges that counsel advised her off the record to plead guilty, which contradicted counsel's statement on the record that she had advised the defendant against the plea. The defendant maintains that counsel represented to her that a plea of guilty with a probation sentence would be the equivalent of a conditional discharge in that after she completed the MAPP program, she would not be subject to any further supervision. The defendant further alleges that, in any event, she had informed counsel that she was innocent of the charge and did not wish to plead guilty.
II. Validity of the Defendant's Plea
Contrary to the defendant's contention, the minutes of the plea allocution establish that her plea was knowingly, voluntarily and intelligently made ( see People v. Fiumefreddo, 82 NY2d 536; People v. Harris, 61 NY2d 9; People v. Frederick, 45 NY2d 520) and that she received meaningful representation. See People v. Benevenuto, 91 NY2d 708 (1998); People v. Ford, 86 NY2d 397 (1995) [see Point III below].
This record demonstrates that the defendant consulted with counsel, an experienced defense attorney, and participated in an extended discussion of the plea agreement on the record with counsel, the Resource Coordinator and the court. The court thereafter restated the terms of the plea agreement to the defendant, including the probation component, and alerted her to her counsel's concern that a violation of probation or any failure to satisfy the obligations of the MAPP program could result in a jail sentence. The record further demonstrates that after hearing all of this, the defendant unequivocally expressed her desire to enter a plea of guilty in exchange for a sentence of one-year probation and the MAPP program. The defendant told the court that she understood that by pleading guilty she was giving up her right to a trial in this case and, with it, the right to remain silent and to cross-examine witnesses against her. The record belies the defendant's contention that she was confused about any term of the plea agreement. Moreover, the defendant's Probation Report indicates that she was 23 years old, attended two years of college and spoke English. Nor did the defendant make any statement during the plea proceeding to negate an essential element of the crime or suggest a viable defense so as to require further inquiry by the court. See People v. Toxey, 86 NY2d 725 (1995); People v. Lopez, 71 NY2d 662 (1988); People v. Christian, 287 AD2d 273 (1st Dept. 2001). For these reasons, the court finds that the defendant's plea was validly entered. See People v. Fiumefreddo, supra; People v. Harris, supra; People v. Frederick, supra.
III. Effective Assistance of Counsel
It is well settled that every defendant is entitled to the "effective assistance" of counsel, "which generally means `the reasonably competent services of an attorney devoted to the client's best interests [cites omitted].' People v. Benevento, supra at 711. While there is no precise definition of "effective assistance," the core of the inquiry where such a claim is made is whether the defendant received "meaningful representation." People v. Benevento, supra at 712. "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, supra at 404.
The instant record makes clear that counsel provided "meaningful representation" to the defendant. She zealously argued against the People's recommendation of a jail sentence and ultimately convinced the court to impose a non-jail sentence, which included a program designed to assist the defendant in leading a law-abiding life. Furthermore, counsel was able to do this notwithstanding the defendant's lengthy criminal record. The defendant had more than twenty prior convictions, many of them for Prostitution (Penal Law § 230.00) and Loitering for the Purpose of Engaging in Prostitution (Penal Law § 240.37) for which she received jail sentences. As noted above, prior to counsel's persuasive presentation, the court was unwilling to consider any non-jail sentence. Moreover, defense counsel was clearly acting in her client's best interest when she expressed her concern, on the record, with the court's addition of a one-year term of probation. Notwithstanding her attorney's advice, the defendant chose to plead guilty. The court further notes that, having been convicted upon a plea of guilty on numerous prior occasions, the defendant was not unfamiliar with the criminal justice system and, in particular, was quite experienced in plea proceedings. See People v. Frederick, supra; People v. Senghor, 248 AD2d 299 (1st Dept. 1998); People v. Maietta, 173 AD2d 17 (1st Dept. 1991).
Since the defendant received "an advantageous plea agreement and nothing in the record casts doubt on the apparent effectiveness of counsel," she cannot be heard to complain that she was not afforded meaningful representation. People v. Ford, supra at 404. Furthermore, since the record fails to support any of the defendant's factual allegations concerning off-the-record discussions with counsel, this case does not present one of "the rare instance[s]" where a defendant is entitled to an evidentiary hearing on her motion. People v. Tinsley, 35 NY2d 926, 927 (1974); see People v. Frederick, supra.
IV. Conclusion
The defendant's motion to withdraw her plea of guilty is denied in its entirety.