Opinion
10433/95.
Decided August 16, 2004.
Robert Morgenthau, Esq., District Attorney, New York County, New York City (ADA Ryan W. Brackley, of counsel) for the People.
Leonard J. Levinson, Esq., for defendant.
Defendant was convicted, upon his plea of guilty, of Murder in the Second Degree, Attempted Murder in the Second Degree, and Conspiracy in the Second Degree. On July 30, 1996, defendant was sentenced to consecutive indeterminate terms of imprisonment of from 25 to life, 8 1/3 to 25 years, and 8 1/3 to 25 years, respectively (Leslie Crocker Snyder, J.).
On his direct appeal, defendant asserted four claims: (1) that he was denied effective assistance of counsel when his attorney failed to join a pro se motion to withdraw his plea, (2) that the trial court erred by denying his motion to withdraw his plea without conducting a hearing, (3) that the trial court erred by accepting defendant's violation of the plea agreement without conducting a hearing, and (4) that his sentence was unduly harsh and excessive.
On June 20, 2000, the Appellate Division unanimously affirmed the judgment of conviction and specified that "[b]ased on the record before us, we find that the defendant was provided with meaningful representation." People v. Reyes, 273 AD2d 127 (1st Dept. 2000). The Appellate Division also concluded that defendant was not entitled to a hearing on his conclusory, unsupported assertions with respect to the plea agreement and that there was no abuse of sentencing discretion. Id.
Defendant thereafter sought leave to appeal the decision of the Appellate Division. On September 14, 2001, the Court of Appeals denied leave to appeal. People v. Reyes, 96 NY2d 941 (2001).
Now, by papers dated February 10, 2003, defendant moves pursuant to CPL 440.10 for an order vacating the judgment of his conviction. Defendant argues two grounds for his motion: (1) that he was denied effective assistance of counsel primarily because his new attorney did not move to withdraw defendant's plea and (2) that his sentence was cruel and inhuman. By papers dated June 2004, the People oppose defendant's motion.
This motion was originally filed before the Honorable Leslie Crocker Snyder. While the motion was still pending, Judge Snyder left the bench. As a result, after the People filed a response, the motion was recently reassigned to this court for decision.
Defendant also asks Judge Snyder to recuse herself from deciding this motion. This portion of the motion is denied as moot.
The right to effective assistance of counsel is in criminal proceedings is guaranteed by the New York and Federal Constitutions. The state standard for effective assistance of counsel has long been whether the defendant has been afforded meaningful representation. People v. Henry, 95 NY2d 563 (2000); People v. Baldi, 54 NY2d 137 (1981). A defendant has been afforded meaningful representation when he has received an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel. See People v. Boodhoo, 191 AD2d 448 (2nd Dept. 1993). When a claim is made that counsel failed to make a particular motion or argument, defendant must show that the motion or argument would have been successful. See People v. Mance, 269 AD2d 188 (1st Dept. 2000).
Here, defendant's new attorney provided meaningful representation despite the fact that he declined to make a motion to withdraw defendant's plea. About three months after entering a cooperation agreement and pleading guilty, defendant moved pro se for a new attorney. The court assigned a new attorney and set a motion schedule for him to file the motions requested by defendant. Having reviewed the minutes of the plea proceeding, defendant's new attorney concluded that there was no legitimate basis for making a motion to withdraw defendant's guilty plea (S: 15). Defendant's new attorney also reviewed the cooperation agreement and discovered that whether defendant had complied with or violated the cooperation agreement was completely within the determination of the District Attorney (S: 15). The record confirms that defendant's new attorney competently advised him of these facts (S: 15). Under these circumstances, defendant's counsel competently made a strategic rational decision not to adopt defendant's baseless pro se motion to withdraw his guilty plea. See People v. Garcia, 75 NY2d 973 (1990). Thus, his failure to make such a motion did not constitute ineffective assistance. See People v. Hines, 267 AD2d 17 (1st Dept. 1999); People v. Edwards, 265 AD2d 220 (1st Dept. 1999); People v. Sosa, 258 AD2d 312 (1st Dept. 1999).
Indeed, defendant's pro se motion to withdraw his plea was without merit. A review of the plea minutes by this court reveals that defendant's plea was intelligent, knowing and voluntary. See People v. Ford, 86 NY2d 397 (1995). The court had advised defendant of the charges against him, the maximum possible sentences, and the rights he gave up in pleading guilty (P: 2-9). The court specifically advised him that the District Attorney was the sole determiner of his cooperation (P: 10-11). The court also warned him of the consequences of violating the cooperation agreement that he could not withdraw his guilty plea and that he would face the maximum sentences (P: 13). Moreover, defendant fully admitted his guilt, provided factual details about this crimes, and unequivocally stated that he was pleading voluntarily of his own free will (P: 4-9). Thus, having been fully advised and warned about pleading guilty and its consequences, defendant knowingly, intelligently and voluntarily pled guilty. See People v. Blair, 246 AD2d 308 (1st Dept. 1998); People v. Garcia, 216 AD2d 36 (1st Dept. 1995).
Furthermore, defendant's current allegations of duress by the conditions of his imprisonment are merely self-serving claims unsupported by evidentiary proof and are wholly belied by the plea minutes. See CPL 440.30(4)(b); People v. Smith, 251 AD2d 226 (1st Dept. 1998). Similarly, defendant's claim of ineffectiveness based on his new attorney's own criminal matter and subsequent suspension from legal practice does not warrant a vacatur of the judgment of defendant's conviction. Speculative assertions that his attorney was "distracted" by such events do not establish that his competence was diminished or that there was any prejudicial impact on his representation of defendant. See People v. Kieser, 172 AD2d 626 (2nd Dept. 1991), aff'd 79 NY2d 936 (1992).
Likewise, defendant's complaint about his sentence must be rejected. CPL 440.10(2)(a) provides that the court must deny a motion to vacate a judgment when the ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment. In defendant's direct appeal, the Appellate Division already reviewed his sentence and concluded that there had been no abuse of sentencing discretion. Accordingly, this court is foreclosed from considering this claim. See also CPL 440.20(2).
For the above stated reasons, defendant's motion pursuant to CPL 440.10 is denied. This constitutes the decision and order of the court.