Opinion
6860/02.
Decided December 3, 2004.
The defendant was initially charged in a felony complaint with criminal sale of a controlled substance in the third degree, in violation of Penal Law ("PL") § 220.39(1), criminal possession of a controlled substance in the third degree, in violation of PL § 220.16(1), two counts of criminally using drug paraphernalia in the second degree, in violation of PL §§ 220.50 (2) and (3), and tampering with physical evidence, in violation PL § 215.40(2). On November 22, 2002, the defendant pleaded guilty to attempted criminal sale of a controlled substance in the third degree, in violation of PL §§ 110/220.39(1). On February 28, 2003, the defendant signed a Drug Treatment Alternative Program ("DTAP") agreement and was subsequently placed in a drug program. Pursuant to the terms of the plea agreement, the defendant was to be considered for D-TAP. If the defendant was accepted by DTAP and successfully completed DTAP, his case would be dismissed. If the defendant was rejected by DTAP, he would be entitled to withdraw his plea of guilty, plead guilty to lesser charges, and receive a sentence of two to four years in jail. (Transcript of the defendant's guilty plea ["Tr."] at pp. 10-11) The defendant was told that if he was released "to a drug program and you leave that program without the permission and come back to us on your own, you're looking at three to six years. If you leave the program without permission and we either have to look for you or you get re-arrested you are looking at four to eight years." (Tr. at p. 11) The defendant, in violation of the agreement, voluntarily left a residential drug program without permission and was returned to court involuntarily. Pursuant to the terms of the D-TAP agreement, the defendant is to be sentenced to a term of incarceration of four years to eight years. The defendant now seeks to withdraw his plea of guilty, contending that he did not receive effective assistance of counsel.
The defendant alleges that he was not properly counseled by his attorney at the time that he pleaded guilty. The defendant asserts that his attorney did not tell him that if he were to be convicted of the highest charge in the felony complaint he would face a minimum sentence similar to the sentence he would receive if he left the program without permission. The defendant states that had he known of the minimum sentence he could have received after trial, he would have "proceeded to trial because he had nothing to lose since there was no chance he would complete the program." (Attorney's Affidavit in Support of Motion to Vacate Guilty Plea ["Affidavit"] at ¶ 6) Defendant also asserts that his plea counsel did not advise him that "he would most likely, or at least possibly, would be offered a sentence below 4 to 8 years as the case proceeded to trial." (Affidavit at ¶ 6) The defendant argues that he "was not allowed to weigh his options of going to trial as opposed to entering into a program where he had no chance of succeeding." (Affidavit at ¶ 6) The defendant claims he was bound to fail a program based upon his age, 30 year dependence on drugs, and some learning and or emotional difficulties, such as his inability to read.
The defendant failed to file an affidavit in support of his motion setting forth his allegations.
This court monitors many defendants with similar backgrounds to this defendant. Most DTAP defendants successfully complete DTAP.
At the beginning of the proceedings during which the defendant pleaded guilty, defense counsel stated in open court and with the defendant by her side that she told the defendant there was no guarantee that he would be accepted into a program. She also told the defendant that if he did not take the plea offer he would be indicted. Defense counsel then ask the court to explain to the defendant the DTAP processing procedure.
The court told the defendant that there is a lot of work involved in getting a person placed in a program. The court explained to the defendant that the reason why a guilty plea is required prior to placement into a drug program, is to avoid a lot of work and effort being expended to place a person in a program only to have the defendant ultimately decide not to plead guilty. The court also explained that if the defendant pleads guilty and is rejected from the program through no fault of his own, he would receive a shorter sentence than if he is found guilty of the charges after a trial. The defendant was told that he would be given an opportunity to think it over and he was asked if he had any questions about what he had just been told. The defendant responded, "[n]o." (Tr. at pp. 3-5)
Following a brief adjournment, the defendant decided to enter a plea of guilty. The defendant was placed under oath and waived prosecution by indictment and agreed to be prosecuted by a Superior Court Information. (Tr. pp. 7-9) The defendant was told that if he had any questions about anything that was said or anything that he was asked, he should stop the court and ask the question immediately. The defendant was asked if he understood and he responded, "[y]es." (Tr. p. 7) The defendant was then asked a series of questions to establish that his guilty plea was voluntarily, knowingly, and intelligently made. (Tr. pp. 9-11) The defendant was asked if he was satisfied with his lawyer and if he had enough time to discuss his plea and sentence with his attorney. (Tr. p. 9) He responded, "[y]es." (Tr. p. 9) The defendant was then asked if he was "under the influence of any drugs, medication or alcohol that affects your ability to understand what is happening?" (Tr. p. 10) He responded, "[n]o." (Tr. p. 10) After being informed of the rights he would be waiving by pleading guilty, the defendant was asked if he understood the rights he was giving up. (Tr. p. 10) The defendant responded "[y]es." (Tr. p. 10) When asked if he was being forced to plead guilty, the defendant said "[n]o." (Tr. p. 10) The defendant was asked if any promises were made to him other than that he would be considered for D-TAP consideration and if he successfully completed the program, his case would be dismissed. The court also explained to the defendant the sentences he would receive if he was rejected from the program, if he left the program and voluntarily returned to court, and if he left the program without permission and was returned to the court involuntarily or was re-arrested. The defendant was again asked if any other promises were made to him. The defendant responded, "[n]o, ma'am." (Tr. pp. 10-11) The court asked the defendant if he had any questions. The defendant responded "[n]o." (Tr. p. 11) Finally, the prosecutor stated, "[o]nly thing that he can reject the program, if he reject[s] the program he gets sentenced on the C felony." The defendant emphatically stated, "I want the program." (Tr. p. 12)
The defendant would be permitted to withdraw his plea, replead to lesser charges, and receive a sentence of two to four years incarceration. (Tr. pp. 10-11).
The defendant would be sentenced to three to six years incarceration. (Tr. p. 11).
The defendant would be sentenced to four to eight years incarceration. (Tr. p. 11).
The defendant was asked if it was true that he "knowingly and unlawfully attempted to sale [sic] to Melvin Hammon a narcotic drug." (Tr. p. 12) He responded, "[y]es." The defendant was asked what the drug was. (Tr. p. 12) He responded "[i]t was a bag of coke." (Tr. p. 12)
The defendant relies on Mask v. McGinnis, 233 F3d 132 (2000), cert. denied, 534 U.S. 943 (2001), People v. Ramos, 63 NY2d 640 (1984), and Pham v. U.S., 317 F3d 178 (2003) in support of his position. The defendant's reliance is misplaced.
In Mask v. McGinnis, supra, the prosecution had offered the defendant a sentence in exchange for a guilty plea. The sentence offered by the prosecution was based upon the prosecution's mistaken belief that the defendant was a violent persistent felon, pursuant to PL § 70.08, and could not legally receive a lower sentence. The defendant rejected the plea bargain, went to trial, and was convicted. Prior to sentencing, it was discovered that the defendant was not a violent persistent felon. The defendant moved to vacate the judgment on the ground that his attorney was ineffective based upon the attorney's failure to inform him of the correct minimum sentence that he could receive. The Court of Appeals agreed.
In People v. Ramos, supra, the defendant accepted the plea offer, based upon his attorney's incorrect assessment as to how much jail time the defendant would actually serve. The Appellate Division found that the misadvise constituted ineffective assistance of counsel. The Court of Appeals reversed on the ground that record did not establish that defense counsel in fact misadvised the defendant regarding the sentence.
In Pham v. U.S., supra, the defendant, convicted after trial, alleged that his attorney failed to convey a plea offer made by the prosecution. The Court stated that the failure to convey a plea offer violates the defendant's Sixth Amendment rights.
Here, the defendant does not contend that defense counsel affirmatively misadvised him with regard to the plea offer, nor that his attorney failed to convey a plea offer made by the prosecution. In fact, defendant's motion papers set forth that defense counsel accurately conveyed the plea offer made by the prosecution. Thus, these cases are inapplicable to the present case.
The transcript of the defendant's plea proceedings makes clear that the defendant was fully informed of his options. The record indicates that the defendant conferred with his attorney, that he was satisfied with his attorney's representation, and that he was given every opportunity to ask questions. It is clear the defendant understood his options, as well as the parameters of the plea. At no point during the proceedings did the defendant voice any dissatisfaction with the plea being offered. In fact, it is apparent from the record that the defendant was eager to take the plea and enter a program.
The plea was clearly beneficial to the defendant. Had the defendant succeeded in drug treatment the case would have been dismissed. Had he returned voluntarily after leaving the program he would have received a sentence of three to six years incarceration. Even the current sentence of four to eight years incarceration is substantially less than the sentence of eight and one third to twenty-five years incarceration he could have received after trial. In view of the defendant's extensive record, a sentence of four to eight years incarceration is appropriate. ( People v. Cridelle, 283 AD2d 775; People v. Bittner, 252 AD2d 738, appeal denied, 92 NY2d 922)
Having reviewed the minutes of the defendant's guilty plea and the arguments set forth by the parties, I find that the defendant's plea was voluntarily, knowingly, and intelligently entered.
For the reasons set forth above, the defendant's motion to withdraw his plea is denied.
The foregoing is the decision and order of the court.