Opinion
0567-1982.
Decided December 23, 2009.
Scott Yale Auster, Esq., Defendant's attorney.
Joyce Slevin, Esq., Assistant District Attorney.
The defendant has moved for an order pursuant to CPL § 440.10, vacating the December 13, 1982 judgment of the Supreme Court, Kings County, convicting him, upon his plea of guilty, of burglary in the second degree (in full satisfaction of Indictment No. 1373-1982); robbery in the second degree (in full satisfaction of Indictment No. 2846-1982); burglary in the second degree (in full satisfaction of Indictment No. 3277-1982); and burglary in the second degree (in full satisfaction of Indictment No. 0567-1982). Defendant further moves to set aside his sentence pursuant to C.P.L. § 440.20, and for an order adjudicating him a youthful offender pursuant to C.P.L. § 720.10. In a motion dated May 28, 2009, defendant alleges that the court failed to consider whether to sentence defendant as a youthful offender. He further claims that his trial counsel provided ineffective assistance of counsel. The People have filed an answer in opposition. The defendant then filed a response affirmation in support of his motion. For the reasons stated below, the motion is denied.
Procedural History
The charges under Indictment No. 3277-1982 arose out of a incident occurring on December 14, 1981, where the defendant, without permission or authority, entered Jean Therency's apartment, at 85 Clarkson Avenue, Kings County, New York, and took United States currency and a number of radios. The charges under Indictment No. 1373-1982 arose out of an incident committed by the defendant and a co-defendant, where they entered the home of Elvie Honer at 535 Crown Street, Kings County, NY. There, the two perpetrators damaged the outside door and doorframe, and took assorted items from the complainant's home. With respect to Indictment No. 2846-1982, this incident occurred on May 22, 1982 at 415 Troy Avenue, Kings County, NY. In that incident, the defendant, acting in concert with two other co-defendants, surrounded complainant Lanier Johnson, displayed what appeared to be a handgun, and took money from Mr. Johnson.
On October 20, 1982, the defendant, represented by an attorney employed by The Legal Aid Society, entered a guilty plea to each of the aforementioned indictments. On December 13, 1982, the defendant, represented by another attorney from The Legal Aid Society, was sentenced to the negotiated sentence of four (4) concurrent terms of imprisonment of three (3) to nine (9) years' imprisonment, respectively under the four (4) indictments. (Rigler, William, J., at plea and sentence). The defendant did not file a Notice of Appeal from the judgments of conviction.
The Current Motions
Defendant now moves to vacate his judgment of conviction pursuant to C.P.L. § 440.10 and to set aside his sentence pursuant to C.P.L. § 440.20 and Article 720. He claims that the court failed to consider whether to sentence defendant as a youthful offender. The defendant further claims that his lawyer was ineffective by failing to inform him about youthful offender treatment, and by failing to request youthful offender treatment from the court. The defendant attaches a copy of his birth certificate, indicating that his date of birth was November 19, 1965.
As to the defendant's motion to set aside the conviction based upon the claim that the court failed to consider youthful offender treatment, initially, that claim must be denied pursuant to C.P.L. § 440.10 (2) (c), because sufficient facts appear on the record to have permitted defendant to have raised the claim on direct appeal. A review of the plea and sentence minutes indicate that the defendant was in an adequate position to have raised these claims upon a direct appeal, however he unjustifiably failed to take or perfect an appeal. See, C.P.L. 440. 10 (2) (c). Therefore, this claim is procedurally barred because it could have been raised on direct appeal.
Additionally, as to this claim, the court further denies the defendant's motion to set aside his sentence pursuant to C.P.L § 440.20. First, this court may deny the defendant's claim as he fails to provide sufficient sworn allegations to support his claims. See, C.P.L § 440.30 (4) (b), (d). This claim is procedurally deficient, as the defendant makes only bare conclusory allegations. Additionally, defendant's claim that the judgment was "procured by duress, misrepresentation or fraud," is contradicted by the court record. C.P.L § 440.30 (4) (c), (d). On October 20, 1982, the defendant entered a plea of guilty to four separate indictments before Justice Rigler. During the plea allocutions, the defendant indicated that he had a full opportunity to speak with his lawyer and at the end of those discussions, he asked him to make those applications in his behalf. Defendant further stated that no one had threatened him to plead guilty, and that he pled guilty voluntarily because he was guilty of the crimes. Furthermore, the defendant indicated that his mother was present in the audience, and was in agreement with the defendant entering the plea to each indictment. Based on defendant's failure to submit sufficient sworn allegations to support his claim, the contradiction from record evidence, and all the other circumstances attending the case, the court denies the motion to vacate the judgment and set aside the sentence on this claim. See, C.P.L. 440.30 (b) (d).
With regard to Indictment No. 0567-1982, the defendant entered an Alford/ Serrano plea. See, North Carolina v. Alford, 400 U.S. 25 (1970); People v. Serrano, 15 NY2d 304 (1965).
Further, while C.P.L § 720.20 (1) mandates that the court must determine youthful offender status at the time of the sentence, a review of the record indicates that defendant waived his claim that he was entitled to be adjudicated a youthful offender. A review of the record indicates that neither defendant nor defense counsel requested that the court afford defendant youthful offender treatment at the time of the plea allocution, or sentence. Thus, this claim is waived. See, People v. McGowen, 42 NY2d 905 (1977); People v. Cox , 4 AD3d 481 (2d Dep't 2004); People v. Pagano, 253 AD2d 500 (2d Dep't 1998). Therefore, this claim is denied. C.P.L. § 440.30 (4) (a).
With respect to defendant's claim that defense counsel's failure to request youthful offender treatment constituted ineffective assistance of counsel, this claim is denied without a hearing. Defendant's further claim that counsel was ineffective on account of failing to inform the defendant about youthful offender status is also denied without a hearing. The court may deny the defendant's clams as he fails to provide sufficient sworn allegations to support his claims. See, C.P.L. § 440.30 (4) (b), (d). These claims are procedurally deficient, as the defendant makes only bare, conclusory allegations. See, People v. Session, 34 NY2d 254 (1974); People v. Montalvo, 258 AD2d 353 (1st Dep't). Further, during the plea allocution, the defendant responded "yes" to the court's question whether the defendant was informed about a conference between his counsel, the court, and the District Attorney's office regarding the possible disposition and sentence in the present case. In light of this record, the court finds that the defendant has not shown sufficient facts to entitle him to a hearing. C.P.L § 440.30 (4) (b), (d).
Furthermore, even if this court were to review the defendant's claims on the merits, his motion must be denied. CPL § 440.30 (3) (b). The right to effective assistance of counsel is guaranteed by the Federal And State Constitutions (US Const 6th Amend; NY Const, art 1 § 6; People v. McDonald , 1 NY3d 109, 113). In Strickland v. Washington, 466 U.S. 668 (1984), the U.S. Supreme Court established a two-part test for evaluating a defendant's Sixth Amendment claim of ineffective assistance of trial counsel. In order to prevail upon such a claim, a "defendant must show that counsel's performance was deficient," and "that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687; McDonald, 1 NY3d at 113. In People v. Baldi, 54 NY2d 137, 147, (1981), the New York Court of Appeals set standards for claims of ineffective assistance of counsel in this state, holding that the constitutional requirements are met whenever the defense attorney provides "meaningful representation."
The absence of Strickland's prejudice requirement is the distinguishing characteristic of Baldi. The Court of Appeals has indicated that "a defendant need not fully satisfy the prejudice test of Strickland. We continue to regard defendant's showing of prejudice as significant, but not dispositive, element in assessing meaningful representation. Our focus is on the fairness of the proceedings as a whole." People v. Stultz , 2 NY3d 277 (2004).
While the inquiry focuses on the quality of the representation provided to the accused, the claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case." People v. Benevento, 91 NY2d 708, 714 (1998). In the context of a guilty plea, a defendant has been afforded meaningful representation when he receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel. People v. Ford, 86 NY2d 397, 404 (1995).
As to the defendant's claims, a review of the record indicates that defense counsel negotiated an extremely favorable plea which substantially reduced defendant's potential exposure had he been convicted of the charges presented in the four separate indictments. Had defendant proceeded to trial on each of these four cases, three of which charged burglary in the second degree, and one of which charged robbery in the second degree, all stemming from separate offenses, he would have been exposed to maximum consecutive prison terms of five to fifteen years on each of these crimes. ( See, former Penal Law § 70.02 (3) (b). (4); § 70.25). Instead, counsel successfully negotiated four concurrent prison terms of three to nine years. Whether counsel was ineffective for failing to request youthful offender adjudication must be judged in the context of the case and not as an isolated event. See, People v. Gregory, 290 AD2d 810 (3rdt Dep't 2002). A defendant is not denied the effective assistance of counsel by counsel's failure to seek youthful offender treatment, and to negotiate a plea involving a promise of a lesser sentence in order to reduce the defendant's sentencing exposure. See, People v. Saggesse, 135 AD2d 669 (2d Dep't 1987). See also, People v. Anderson , 38 AD3d 1061 (3rd Dep't 2007). To be successful on a claim of ineffective assistance of counsel, a defendant must overcome the legal presumption that counsel's performance falls within the wide range of reasonable professional competence. Strickland v. Washington, 466 US at 688-689. Without such a demonstration, "it will be presumed that counsel acted in a competent manner and exercised professional judgment". People v. Rivera, 71 NY2d 705, 709 (1988).
Under all of the circumstances evident upon review of the record and having received the benefit of a favorable plea bargain, the court finds that the defendant received meaningful representation. Ford, 86 NY2d at 404. Accordingly, the defendant's motions are denied in their entirety.
This constitutes the decision and order of the Court.