Opinion
10471-92.
March 31, 2011.
DECISION AND ORDER
Defendant Rubin Velez has submitted an October 15, 2010 pro se motion seeking vacatur of his 1993 plea and sentence in the above-captioned case on the ground that the Board of Parole (henceforth "Parole") has violated a condition of that plea by relying upon underlying facts garnered from counts which were dismissed for plea purposes. In the alternative, defendant seeks an order from the Court directing Parole to "cease" its reliance upon these underlying facts when determining defendant's application for parole.
Defendant originally sent a September 18, 2010 letter addressed to the Honorable Abraham Gerges, who accepted the plea and sentenced defendant. Defendant asked that the letter be liberally construed as an application to vacate the judgment of conviction. In the alternative, defendant sought an order directing Parole to cease using the underlying facts in question. Although the subsequent October 15, 2010 pro se motion does not seek this latter alternative relief, the Court will nevertheless now incorporate the September letter into the October motion and treat it as one motion.
Defendant states that he accepted the plea "intelligently and voluntary" based upon four conditions. See n. 6.
Defendant was charged in the above-captioned indictment with attempted murder in the second degree (Penal Law § 110.00/125.25-1); reckless endangerment in the first degree (Penal Law § 120.25); criminal possession of a weapon in the second degree (Penal Law § 265.03); criminal possession of a weapon in the third degree (Penal Law § 265.02-4) and assault in the second degree (Penal Law § 120.05-2).
Defendant wrongly claims he was only charged with "two counts of assault in the second degree and criminal possession of a weapon in the second degree." (Defendant's motion papers are not paginated).
Integrating defendant's motion papers, the People's answer and the felony complaint it would appear that on the night of August 20, 1992, one Jamie Perez was arguing about a driving incident with an unidentified male on a street corner in Brooklyn. Defendant, who was nearby, swore at Perez. Perez told defendant not to get involved and began to walk away. Defendant then said to the unidentified male, "Give me my shit" and that male handed defendant a gun. When Perez asked defendant why things had to be like this defendant fired the gun, six to sixteen times, thereby striking Perez in the foot and a two-year old girl in the leg.
On November 3, 1993 defendant pleaded guilty to attempted criminal possession of a weapon in the third degree in full satisfaction of the indictment before the Honorable Abraham Gerges, who sentenced him on November 22, 1993 to an indeterminate prison term of two years to life as a persistent violent felony offender. His sentence was ordered to run concurrent with his 12 ½ to 25 years sentence under Indictment No. 7706-92, wherein defendant had been convicted after trial of criminal sale of a controlled substance in the third degree and had been sentenced by Justice Gerges on June 9, 1993.
Justice Gerges is now retired and accordingly this motion was administratively assigned to me on February 2, 2011 when I was sitting in the Miscellaneous Motions Part.
Since his sentence in this case defendant has been convicted of numerous crimes relating to his incarceration. According to the People's answer defendant on August 5, 1997 pleaded guilty to promoting prison contraband in the first degree and was sentenced to an indeterminate prison term of two to four years. On July 7, 1999 defendant pleaded guilty to "first-degree attempted knowingly making/possessing dangerous contraband" (People's response at 2) and was sentenced to an indeterminate prison term of one and one-half to three years. On April 14, 2008 defendant pleaded guilty to assault in the third degree and criminal possession of a weapon in the fourth degree and was sentenced to time served.
Defendant has not appealed from his judgment of conviction nor has he previously sought any prior collateral relief.
ANALYSIS
Defendant now claims that his attorney advised him that the remaining charges of the indictment would be dismissed if he pleaded guilty to the attempted weapon's possession count. Further, defendant maintains that the underlying facts were in fact "dismissed" by Justice Gerges. Defendant argues that the dismissal of the underlying facts was a condition of his accepting the plea. Notwithstanding this, defendant states that the dismissed underlying facts have been incorporated into his "parole summary" and have been recently used to deny him parole. Defendant therefore seeks vacatur of his plea and sentence or in the alternative an order from this Court directing Parole not to consider the underlying facts in question when determining defendant's parole release date.
In addition to the alleged condition being raised in this motion defendant states he relied on the following three conditions discussed by trial counsel: that 1) he would plea guilty to criminal possession of a weapon in the second degree; 2) he would be sentenced as a persistent felon and 3) he would receive a sentence of two years to life.
Defendant in his motion papers refers to a June 2010 Inmate Status Report prepared by Parole which reads: "On August 20, 1992 at 11:31 pm in front of 355 Crescent a male victim was approached by a black man who started harassing him about his driving two weeks earlier. The subject walked up to the black man and joined the argument against the male victim. The subject then asked the black man for his gun and the victim ran off and the subject fired after the victim between six and sixteen shots, according to different witnesses. The male victim and a two year old girl were both hit in the leg."
Defendant has not supplied this Court with any plea minutes to support his argument that the underlying facts of the other counts in this indictment were "dismissed" by Justice Gerges. In order to make this plea and sentence bargain lawful, the District Attorney and the Court would have had to agree to a dismissal of count 1 (Penal Law 110/125.25-1), a B armed violent felony, and count 3 (Penal Law 265.03), a C armed violent felony, because defendant pled guilty to an E violent felony (Penal Law §§ 110/265.02-4) under count 4. [See plea limitations in CPL § 220.10-5(d)(i) and (ii)]. The remaining counts (count 2, Penal Law § 120.25, a D non-violent felony) and count 5 (Penal Law § 120.05-2, a D violent felony) would have been covered by the plea, if not dismissed. However, it is highly improbable that Justice Gerges would have made a promise to defendant intending to bind a separate state agency such as Parole in the future to ignore totally the charged conduct underlying the offenses in the indictment. In effect, defendant is seeking "specific performance" of an alleged plea agreement, which does not exist. See generally People v Jenkins, 11 NY3d 282 (2008); People v Hill, 9 NY3d 189 (2007); People v Selikoff, 35 NY2d 227 (1975), cert denied 419 US 1122 (1975).
The Court has ordered the plea and sentence minutes in this case but there has been a lengthy delay in obtaining them. The untranscribed minutes have been warehoused upstate due to their age and the reporters are now retired. Worse, we are told the plea minutes are lost. In the unlikely event that any of these minutes are eventually received by the Court and they reveal information supporting defendant's position in a meaningful way, this Court will notify the parties.
These dismissals were not noted in the Court file.
The Court of Appeals has consistently held that "a court's failure or inability to fulfill a sentencing promise requires either that the plea of guilty be vacated or the promise fulfilled but there is no indicated preference for one course over the other. The choice rests in the discretion of the sentencing court." People v Selikoff, 35 NY2dsupra at 239. Here, however, it has not been established that any such promise was made. At best, it seems that defendant may have unjustifiably hoped or assumed that the dismissed and covered counts would be ignored by the Parole Board.
In the instant case, however, defendant does not claim that the trial court made any promise about sentencing, but rather defendant is merely seeking specific performance of an alleged promise, which would continuously bind the trial court until defendant's release from Parole. This cannot be. Defendant's reliance upon People v Esposito, 32 NY2d 921 (1973) is misplaced. In Esposito, the trial court, during the plea proceeding, indicated the maximum sentence it would impose unless it found that after reading a pre-sentence report it could not in good conscience limit the defendant's sentence to four years. The Court of Appeals held that under the specific circumstances of the case the sentencing court had an obligation to inform defendant that the plea agreement could not be kept. In the case at bar the sentencing court was not in a position to know what Parole would do in a future collateral proceeding and defendant has failed to show any promise which the sentencing court violated.
In addition, defendant has cited to no statutory authority under which this Court may direct Parole not to consider the underlying facts of the dismissed or covered counts. Indeed the Court notes that parole release decisions are discretionary and will not be disturbed by an appropriate reviewing court as long as the statutory requirements of Executive Law § 259-i are satisfied. See Matter of Allen v Evans, ___ AD3d ___, 2011 WL 903819 (3d Dept March 17, 2011); Matter of Nicoletta v New York State Div of Parole, 74 AD3d 1609 (3d Dept 2010), lv dismissed 15 NY3d 867 (2010). The Board may consider the underlying crimes for which an inmate was convicted but must also consider the other delineated statutory factors as well. See Matter of Gelsomino v New York State Bd of Parole, AD3d ___, 2011 WL 1087935 (2d Dept March 22, 2011; Matter of Cohen v Lemons, 75 AD3d 706 (3d Dept 2010); Matter of Serrano v Alexander, 70 AD3d 1099 (3d Dept 2010). Furthermore, it has been held that Parole is permitted to consider all of the circumstances of the offenses for which an inmate is incarcerated, including conduct for which a defendant was not convicted, as long as some evidence of such conduct exists in the record and is not the sole basis of the determination by Parole. See Matter of Nunez v Dennison, 51 AD3d 1240 (3d Dept 2008) (Parole could consider fact that codefendant was convicted of murder).
A dismissed count of an indictment may be considered by the sentencing judge even over defendant's objection. See People v Felix, 58 NY2d 156, 164 (1983), appeal dismissed 464 US 802 (1983). Executive Law § 259-i requires Parole to consider the sentencing minutes.
In Matter of Oafa v Hammock, 80 AD2d 952 (3d Dept 1981), the inmate was convicted of assault and possession of a weapon but acquitted of attempted murder. The Court held: "Furthermore, it being quite clear in the record that the board was aware of what charges he was in fact convicted of, its reference to his having 'planned the cause of death of two people' did not equate to a board finding that the inmate was accountable for attempted murder . . . Indeed, had the board treated the attempted murder charges as a conviction, petitioner's offense severity score would have been higher and his MPI considerably longer." At 953.See Matter of McWhinney v Russi, 228 AD2d 980 (3d Dept 1996) (dismissal of charges by a Grand Jury does not preclude a subsequent parole revocation).
This Court will not now speculate as to what factors have been determined by the Parole Board to effect defendant's eligibility for parole release. The Court, however, cannot ignore defendant's extensive criminal history, including crimes committed during defendant's incarceration. If defendant takes issue with Parole's determination then he should seek his remedy elsewhere, but not in a CPL 440.10 proceeding before this Court.
Defendant is not challenging the legality of his sentence.See CPL 440.20
See Matter of Williams v Travis, 20 AD3d 622 (3d Dept 2005), a CPLR Article 78 proceeding ["Inasmuch as criminal history explicitly relied upon by the Board as one of the factors justifying the 48-month time assessment included charges that were dismissed, the matter must be remitted to the Board for reconsideration of the appropriate time assessment without regard for the two dismissed charges" (citation omitted)]. See also Matter of Edge v Hammock, 80 AD2d 953 (3d Dept 1981) (Parole lacks authority to predicate an inmate's "MPI" [Minimum Period of Incarceration] on crimes for which he has not been convicted and denies committing).
In sum, defendant has failed to demonstrate that the trial court promised that defendant's plea would result in a bar to the Parole Board's consideration of the underlying facts of the dismissed counts. Even assuming arguendo that such promise was made by Justice Gerges, defendant has failed to cite to any authority permitting this Court to grant either of the alternative forms of relief which he now seeks in this CPL 440 proceeding. Accordingly, defendant's motion is DENIED in its entirety.
The defendant is hereby advised of his right to apply to the Appellate Division, Second Department, 45 Monroe Place, Brooklyn, New York 11201 for a certificate granting leave to appeal the denial of defendant's CPL 440.10 motion. This application must be made within 30 days of service of this Decision and Order. Upon proof of financial inability to retain counsel and to pay the costs and expenses of the appeal, the defendant may apply to the Appellate Division for the assignment of counsel and for leave to prosecute the appeal as a poor person and to dispense with printing. Application for poor person relief will be entertained only if and when permission to appeal or a certificate granting leave to appeal is granted ( 22 NYCRR 671.5).
The Clerk is directed to mail a copy of this Decision and Order to defendant Rubin Velez, DIN # 93-A-4878, Attica Correctional Facility, Box 149, Attica, New York 14011-0149 and to Assistant District Attorney Maria Park, Kings County District Attorney's Office, 350 Jay Street, Brooklyn, New York 11201.
IT IS SO ORDERED.