Opinion
04611/09.
Decided May 10, 2010.
Elizabeth A. Maurer, Esquire, Assistant District Attorney, New York County District Attorney's Office, New York, NY, for the prosecution.
Mr. Bernard Fuller, Pro Se, for the Defendant.
Defendant Bernard Fuller stands convicted upon his plea of guilty of three counts of burglary in the third degree (PL § 140.20). He now moves, pro se, to vacate the judgment pursuant to Criminal Procedure Law § 440.10. The People oppose the motion.
For the reasons stated below, defendant's motion is summarily denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
In three separate incidents which occurred on July 21, 2009, August 9, 2009 and August 31, 2009, defendant stole property from three individuals located in different buildings on the campus of Columbia University. On September 12, 2009, defendant was arraigned on three felony complaints, one for each incident. After several days of negotiations between defense counsel and the assigned assistant district attorney, the parties reached agreement on a resolution of all three cases.
On September 24, 2009, pursuant to the agreement, defendant waived indictment and entered pleas of guilty to three counts of burglary in the third degree (PL § 140.20) as charged in a superior court information before another justice of this court. During the plea allocution, defendant, who had previously been convicted of eight felonies as well as numerous misdemeanors, responded affirmatively when asked by the court whether he understood that by pleading guilty he was waiving his rights to confront and cross-examine witnesses, to remain silent, to call witnesses in his defense and to a jury trial. (Affirm. of Elizabeth Maurer, Esq., dated Mar. 17, 2010 [People's Response], Exh. 3 [Tr. of Proceedings, Sept. 24, 2009], at 6). At that time, defendant also advised the court that he understood that he was waiving his right to appeal in the cases ( id., at 9), and he executed a written waiver of appeal in open court. ( Id., at 9; People's Response, Exh. 4). On October 14, 2009, defendant admitted his status as a second felony offender and the court imposed the promised sentence of an indeterminate term of three and one-half-to-seven years' imprisonment on each of the three counts, with the sentences to run concurrently. At no time during either proceeding did defendant inform the court that he had any defense to the charges.
The justice who presided at defendant's plea and sentencing proceedings has since been transferred to another court.
On January 14, 2010, defendant filed the instant pro se motion. (Affid. of Bernard Fuller in Support of Motion, sworn Jan. 7, 2010 [Def. Mot.]). On March 17, 2010, the People filed their response in opposition. On May 4, 2010, defendant filed a reply affidavit. (Affid. of Bernard Fuller, styled as an "Amendment to Motion to Vacate, Pursuant To CPL § 440.10," sworn April 28, 2010).
II. LEGAL STANDARDS A. CPL § 440.10
Criminal Procedure Law § 440.10 provides that at any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment, inter alia, on the grounds that "the judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor" or a person acting on behalf of a prosecutor (CPL § 440.10[b]); "[i]mproper and prejudicial conduct not appearing in the record occurred" which would have required reversal if done on-record (CPL § 440.10[f]); or "[t]he judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States" (CPL § 440.10[h]). A CPL § 440.10 motion is not a vehicle for a second appeal, however. ( People v. Cooks, 67 NY2d 100, 103). Rather, it is designed to inform a court of facts not appearing on the record and unknown at the time of judgment that would, as a matter of law, undermine the judgment. ( People v. Harris, 109 AD2d 351 [2d Dept. 1985], lv. denied, 66 NY2d 919).
Criminal Procedure Law § 440.10(2) sets forth the circumstances under which a court must deny a motion to vacate judgment. A motion to vacate judgment must be denied when the judgment is, inter alia, appealable at the time of the making of the motion and sufficient facts appear on the record to permit adequate appellate review (CPL § 440.10[b]) or, notwithstanding the existence of a sufficient factual record, no appellate review occurred owing to the defendant's unjustifiable failure to raise such ground on appeal (CPL § 440.10[c]). Criminal Procedure Law § 440.10(3) establishes a court's permissive authority to deny the motion. Pursuant to CPL § 440.10(3)(b), a court may deny a defendant's motion to vacate judgment where the ground or issue raised in the motion was previously decided on the merits by a court of this state or by a federal court, other than upon a direct appeal from the judgment. In addition, pursuant to CPL § 440.10(3)(c), a motion to vacate judgment may be denied if, in a previous CPL § 440.10 motion, "the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so." However, nothing in CPL § 440.10(3) prevents a court "in the interest of justice and for good cause shown" from granting a motion if it is "otherwise meritorious." (CPL § 440.10).
Where the motion to vacate is not procedurally barred by the applicable provisions of CPL § 440.10(2) or CPL § 440.10(3), the court must consider the motion on the merits. (CPL § 440.30[b]; People v. Harris, 109 AD2d 351, 354 [2d Dept.], lv. denied, 66 NY2d [1985]).
B. CPL § 440.30
In determining whether a motion is meritorious, the court must grant the motion without conducting a hearing if the moving papers allege a ground constituting a legal basis for the motion (CPL § 440.30[a]), which ground, if factually based, is supported by sworn allegations of fact (CPL § 440.30[b]), and the sworn factual allegations essential to the motion are either conceded by the People or are conclusively substantiated by unquestionable documentary proof. (CPL § 440.30[c]).
The court may, nonetheless, upon reaching the merits still deny the motion without a hearing, if the moving papers, inter alia, fail to allege a ground constituting a legal basis for the motion (CPL § 440.30[a]) or fail to allege sufficient facts to support the legal ground asserted (CPL § 440.30[b]; People v. Session, supra). The court may also deny the motion summarily if an essential factual allegation "(i) is contradicted by a court record . . ., 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 no reasonable possibility that such allegation is true." (CPL § 440.30[d]). Only in the event that the court does not determine the motion pursuant to the other provisions of CPL § 440.30 must a hearing be conducted. (CPL § 440.30).
III. DISCUSSION
Defendant advances two principal claims in support of his motion to vacate the judgment. First, he contends that his guilty pleas were not knowingly, intelligently and voluntarily entered, because the court failed to question defendant about his claim of having been fraudulently induced by police to confessing in violation of his rights to due process. And second, he claims that he did not knowingly, intelligently and voluntarily waive his right to appeal the convictions.
A. Voluntariness of the Pleas
Defendant's argument as to the invalidity of his plea is bottomed on his claim that he was coerced into confessing to the three burglaries by a police detective who falsely promised him that if he confessed, he would not be arrested and would be given a job with Columbia University security personnel. Defendant further contends that the detective also promised that anything defendant told him would be "off the record" and that this false promise violated his due process rights under the Fifth and Fourteenth Amendments to the federal constitution. (US Const., amends. V, XIV). At the outset, to the extent that defendant seeks to base the present motion on the actions of the police in obtaining an inculpatory statement from him, his claim must fail.
By deciding to plead guilty under a superior court information and admit his guilt of the crimes charged, defendant waived the litigation of claims of police misconduct at a Huntley ( People v. Huntley, 15 NY2d 72) suppression hearing. ( People v. Hansen, 95 NY2d 227, 230, citing People v. Di Raffaele, 55 NY2d 234, 240[where defendant pleads guilty, claims of impropriety in prior proceedings become irrelevant]). Cases upon which he relies, such as People v. Tarsia, 50 NY2d 1, 11 (1980), involved questions of the use of evidence at trial, not the voluntariness of a guilty plea. To the extent that defendant is relying on this argument, therefore, his motion is without legal basis and is denied. (CPL § 440.30[a]).
Moreover, even assuming the truth of defendant's allegations, police may employ guile and deception as ameans to elicit confessions, unless the deception is so fundamentally unfair as to deny due process or create the likelihood of a false confession. ( People v. Tarsia, supra[confession elicited from psychologically pressured defendant undergoing a highly suspect voice stress evaluation test after being wrongly informed that investigation was regarding lesser offense held not to have violated due process]; see discussion, infra).
Relying on People v. Lopez, 71 NY2d 662 (1988), defendant's principal allegation of error is the sentencing court's failure to inquire of defendant concerning his claims of coercion by the police. Defendant asserts that although the court had received a written statement from him prior to his sentencing raising the invalidity of his confession on grounds of fraud and deception by the police as a possible defense, the court made no inquiry of him at sentence as to whether he was aware of the defense and was knowingly and intelligently waiving it. This argument is no more successful for defendant, however.
In the first instance, there was "nothing in the plea allocution which cast significant doubt on defendant's guilt" ( People v. Krasso, ___ AD3d ___, NYLJ, Apr. 26, 2010 [1st Dept.], p. 27, c.1 [citing People v. Toxey, 86 NY2d 725 (1995)]). Neither did the defendant at the plea or at his sentencing bring to the court's attention the claims which he had made in the statement, although the court afforded him the opportunity to do so at both proceedings. ( See People's Response, Exhs. 3, 5).
Moreover, defendant's reliance on Lopez is misplaced. In Lopez, the Court of Appeals held that when the trial court in taking a plea is "confronted with statements casting significant doubt on defendant's guilt," it must conduct further inquiry as to whether plea was knowing and voluntary, whether he possessed the requisite criminal intent and whether there was any possibility of a justification defense. ( People v. Lopez, supra, 71 NY2d at 667-668). Here, the court was not confronted with any such statement during the plea colloquy or the sentencing. Although the court file reveals that defendant's written statement was received by the sentencing court one day prior to defendant's sentencing, and presumably was read by the sentencing judge, assuming that to have been the case, no violation of Lopez is present. Rather than casting significant doubt on defendant's guilt, the letter merely suggests that defendant's interrogator used a ruse of offering a consulting job to defendant in order to induce him to speak, and told him that his statements would be off the record. The court could well have concluded that this allegation, if true, is not the kind of ruse that overpowers the will of a person such as defendant, who is seasoned in the criminal justice system. ( Cf. People v. Isaacson, 44 NY2d 511, 525[police doggedly encouraged inexperienced defendant to travel from Pennsylvania across state line to New York to sell drugs, violating due process]). As in Tarsia, the deception employed here was not so fundamentally unfair as to induce a false confession. ( People v. Tarsia, supra, 50 NY2d at 14). In any case, as previously noted, the judge was not considering the use of such evidence at trial, but rather the voluntariness of defendant's guilty plea. Nothing in the statement, which acknowledged the possibility of consecutive sentences had defendant been convicted after trial, cast doubt on defendant's guilt, which had been fully admitted by defendant in his allocution before the court. Therefore, the receipt of the written statement did not create a duty on the part of the sentencing judge to make inquiry as to its contents under Lopez.
Defendant also relies on People v. Sides, 75 NY2d 822 (1990) in support of his argument that the sentencing court had a duty to inquire as to the knowing and voluntary nature of his plea. In Sides, however, the Court of Appeals held that where there is a suggestion of a serious breakdown of an attorney-client relationship, the court is obliged to make minimal inquiry. ( Id. at 824-825). Here, there was not the slightest indication of any such breakdown. ( See People's Response, Exhs. 3, 5).
Accordingly, this claim has no legal basis and is denied. (CPL §§ 440.30[a]).
B. Intelligence of the Waiver of Appeal
Defendant further complains that the court never explained to him that his right to appeal was not automatically extinguished by his guilty plea, but that he was required to sign a written waiver of that right at his plea allocution, and that therefore his waiver of that right was not knowingly, intelligently and voluntarily made. Defendant admits that he signed the written waiver, but nevertheless further claims that the waiver was invalid, because the court conflated its explanation of the waiver of the right to trial with that of the right to appeal. Although defendant's plea allocution and written waiver are matters of record sufficient for review, defendant has unjustifiably failed to raise these claim on appeal. Therefore, these claims must be denied. (CPL § 440.10[c]).
Furthermore, defendant has been convicted of eight theft-related felonies, five of them burglaries, and could have been facing a life sentence in this case as a discretionary persistent felon solely on the basis of those convictions ( Almendarez-Torres v. United States, 523 US 224; People v. Rivera , 5 NY3d 61 ; People v. Rosen, 96 NY2d 329, cert. den., 534 US 899[2001]; see Stokes v. Girdich, ___ F.3d ___, 2009 WL 579139 [2d Cir. Mar. 5, 2009]), or as he, himself noted, consecutive sentences. Instead, defendant received concurrent sentences of three and one-half-to-seven years, a highly favorable outcome compared with a sentence of fifteen years-to-life imprisonment, or even the three consecutive terms aggregating ten and one-half-to-twenty-one years he could have received. Defendant, who was not a stranger to the criminal justice system, voluntarily made a rational and advantageous choice by accepting the plea agreement, including the waiver of his appellate rights.
His claim that his waiver of appeal was not knowing, intelligent and voluntary is, thus, without factual support in the record; is, in fact, belied by the record; is made solely by him; and, under all the circumstances, cannot reasonably be true. Accordingly, it is denied on that basis, as well. (CPL §§ 440.30[d]).
IV. CONCLUSION
For the reasons stated, defendant's motion to vacate the judgment of conviction pursuant to CPL § 440.10 is denied in its entirety, without a hearing.
The foregoing constitutes the decision and order of the court.