Opinion
2499.
Decided August 24, 2007.
Julie A. Garcia, Esq., Essex County District Attorney (Michael P. Langey, Esq., of counsel), Elizabethtown, New York; Stanclift Law Firm, P.C. (R. Graham McNamara, Esq.), Glens Falls, New York for defendant).
Motion by the defendant to vacate a judgment of conviction and sentence ( CPL § 440.10 and § 440.20) arising out of his guilty plea on November 22, 2005 to driving while intoxicated and aggravated unlicensed operation of a motor vehicle in the first degree, both class E felonies, and reckless endangerment in the second degree and resisting arrest, both class A misdemeanors. He was sentenced on December 28, 2005 to an indeterminate term of one to three years to run consecutively with a previously imposed sentence of imprisonment which he was then serving. Defendant seeks to vacate the judgment of conviction and sentence on the grounds that (1) he was denied a speedy trial under CPL 30.30 and the 6th Amendment of the United States Constitution, (2) he was denied the effective representation and assistance of counsel in violation of his rights under both the New York State and Federal Constitutions, (3) he was prejudiced by a prohibited conflict of interest on the part of the district attorney, and (4) his indeterminate sentence of imprisonment was excessive as it was imposed to run consecutively rather than concurrently with the sentence he was serving at the time of his conviction.
Defendant initially filed a pro se motion under CPL § 440.10 and to proceed as a poor person by a notice of motion and affidavit dated July 13, 2006. The motion was made returnable on July 31, 2006. The original motion papers and an affidavit of service of a copy of the motion papers upon the district attorney's office were filed on July 17, 2006 with the Clerk of the court. No response to the motion was filed by the People. Subsequently, the Court inquired of the People regarding the response to the motion. The People responded by letter that it did not oppose the relief sought in the motion, namely that the motion be granted to the extent that the defendant would be re-sentenced to a term of imprisonment running concurrently with a sentence of imprisonment imposed in Clinton County in November, 2004. Due to the claim of ineffective assistance of counsel, and the defendant's eligibility not only for poor person status but assigned counsel, the Court assigned new counsel to represent the defendant on the motion. Attorney R. Graham McNamara was assigned and, after the defendant's entire file was copied, including the sentencing minutes, and a transcript of the defendant's plea on November 22, 2004 was obtained from the court reporter and furnished to counsel, a supplemental motion was filed with the Clerk on June 1, 2007. The motion papers consisted of a notice of motion dated May 31, 2007, an affidavit of the defendant sworn to on May 11, 2007, an affirmation of attorney McNamara dated May 30, 2007, numerous Exhibits designated as Exhibits A through O, and a memorandum of law. The People were granted an extension of time to reply, and an affirmation of Michael P. Langey dated June 29, 2007 and including Exhibits A through F, was filed with the Clerk on July 2, 2007. In his affirmation, attorney Langey indicated that an affirmation regarding the waivers of speedy trial time would be forthcoming from attorney Gregory D. LaDuke. As this decision and order was being finished on August 23, 2007, LaDuke submitted a fax copy of an affirmation dated August 22, 2007, and the original was filed with the Clerk on August 24, 2007. The foregoing constitute the motion papers.
I. Facts
On August 27, 2004, after leading law enforcement on a high-speed chase in an effort to avoid apprehension, and during which a police vehicle was damaged, the defendant was arrested and charged with sixteen separate crimes and traffic infractions, including two felony counts of driving while intoxicated ( Vehicle and Traffic Law § 1192[2], § 1193[1][c][ii]), aggravated unlicensed operation of a motor vehicle in the first degree, a class E felony ( Vehicle and Traffic Law § 511[3]), aggravated unlicensed operation of a motor vehicle in the third degree ( Vehicle and Traffic Law § 511[1]), an unclassified misdemeanor, reckless endangerment in the second degree, a class A misdemeanor ( Penal Law § 120.20), resisting arrest, a class A misdemeanor ( Penal Law 205.30), two counts of leaving the scene of a property damage accident ( Vehicle and Traffic Law § 600[1][a]), a class B misdemeanor, and reckless driving ( Vehicle and Traffic Law § 1212), an unclassified misdemeanor. Just four days earlier, on August 23, 2004, the defendant had pleaded guilty in Clinton County Court to driving while intoxicated as a class E felony his fourth felony DWI conviction in eight years and fifth since 1986 under a plea agreement which provided for a recommended sentence of five-years probation and participation in the Clinton County drug court treatment program. The defendant was represented in Clinton County by separate counsel, James W. Martineau, Jr. (Martineau).
Defendant was also charged with seven traffic infractions: operating an unregistered motor vehicle ( Vehicle and Traffic Law § 401[1][a]), operating a motor vehicle without insurance ( Vehicle and Traffic Law § 319[1]), improper license plates ( Vehicle and Traffic Law § 402[4]), speed not reasonable or prudent ( Vehicle and Traffic Law § 1180[a]), failure to keep right ( Vehicle and Traffic Law § 1120[a]), failing to stop at a red light ( Vehicle and Traffic Law § 1111[d]), and failing to yield the right of way at an intersection ( Vehicle and Traffic Law § 1140[a]).
The defendant qualified for assigned counsel and a panel attorney, Gregory D. LaDuke (LaDuke), was assigned to represent him. At his arraignment on August 28, 2004 the defendant entered a plea of not guilty and was committed to the county jail in lieu of bail. Amended felony complaints were filed on August 30, 2004 charging the defendant with the additional crimes of attempted assault in the second degree ( Penal Law § 110.00 and § 120.05), a class E felony, and attempted aggravated assault upon a police officer ( Penal Law § 110.00 and § 120.11), a class C violent felony. At the defendant's next appearance in local criminal court on September 28, 2004, LaDuke requested an adjournment and waived all time requirements for a felony hearing, grand jury and speedy trial until such waivers were withdrawn in writing. On October 5, 2004, the defendant and LaDuke again appeared in local criminal court the defendant waived a preliminary hearing and his speedy trial time. An order holding the defendant for grand jury action was issued on October 12, 2004.
Langey affirmation, ¶ 5; LaDuke affirmation, ¶ 1.
Langey affirmation, ¶ 6; LaDuke affirmation, ¶ 1.
The defendant remained incarcerated in the Essex County jail until November 4, 2004 when custody was transferred to the Clinton County Sheriff so that he could be sentenced on the unrelated, prior charges in Clinton County Court to which he had entered a guilty plea on August 23, 2004. The defendant was sentenced on those unrelated charges to a term of state prison and remanded to the custody of the New York State Department of Corrections on November 9, 2004. During the intervening three months, the defendant claims his attorneys were to negotiate a "global" settlement of all charges against him pending in both Clinton and Essex counties, but no such settlement occurred.
The defendant claims that he did not hear from LaDuke after October 5, 2004. Following the October 5, 2004 appearance in local criminal court, LaDuke was in plea negotiations with the Essex County District Attorney's office. In a telephone conversation on February 2, 2005, the LaDuke again waived the defendant's speedy trial time as he and the district attorney's office continued to negotiate a plea agreement which would call for the defendant to waive indictment, consent to the filing of a superior court information and plead guilty to the charge(s) in that instrument. A proposed waiver of indictment, order approving the waiver, and superior court information were forwarded to LaDuke on February 7, 2005 for review by the defendant "as soon as possible" and to advise whether the defendant would accept the proposed plea deal. No response was received by the district attorney and a follow-up letter was sent to LaDuke counsel on July 21, 2005. Meanwhile, the defendant was serving his state prison sentence imposed in Clinton County.
LaDuke affirmation, ¶ 2.
The case was scheduled for an appearance in this Court on August 23, 2005 in order for the defendant to waive indictment, consent to the filing of the superior court information and enter a plea of guilty. However, the Essex County Public Defender appeared for the defendant instead of LaDuke. While the defendant was present, the Public Defender requested an adjournment to allow him to confer with the defendant. The request was granted and the case was rescheduled for a conference on September 20, 2005.
Until January 1, 2006 the presiding judge of this court was the Hon. Andrew Halloran, now retired.
A consent to change attorneys form was executed on October 11, 2005.
The case was adjourned two more times at the request of the defendant, until November 22, 2005. On that date, the Court was advised of the defendant's claims that LaDuke had failed to timely act on his behalf, particularly in connection with negotiating a combined resolution of the pending charges with the charges in Clinton County so that the defendant would serve concurrent, rather than consecutive, sentences. After extensive colloquy with the court, in which allegations of ineffective assistance of counsel and speedy trial violations were made, the Public Defender requested that the matter be resolved by the defendant entering a plea to an E felony for which he would be sentenced concurrently with the sentence imposed in Clinton County the plea bargain which the defendant believed LaDuke was to obtain. The record discloses that the Public Defender represented that the law regarding concurrent sentencing had changed effective September 21, 2005. After the prosecutor indicated that he was willing to reduce the driving while intoxicated charge from a D to an E felony and deal with the issue of concurrent or consecutive sentence at sentencing, the Court directed a recess for the parties to work out an acceptable plea agreement.
On September 20 and October 18, 2005.
Following the recess, the record reflects that an agreement was reached calling for the defendant to waive indictment, consent to the filing of a superior court information charging him with driving while intoxicated and aggravated unlicensed operation in the first degree, both class E felonies ( Vehicle and Traffic Law § 1192[2], § 511.3[a][1]), as well as reckless endangerment in the second degree and resisting arrest, both class A misdemeanors ( Penal Law § 120.20, § 205.30 ), and enter a plea of guilty to those charges in satisfaction of the eleven crimes and seven traffic infractions pending against him. The agreement also called for the defendant to waive all trial, appeal and post-conviction remedies, pay restitution for uninsured losses, waive a restitution hearing the right to appeal the sentence as harsh or excessive, and that both sides would be free to argue for any lawful sentence, with the People agreeing not to seek persistent felony status. The following exchange then took place with the Public Defender:
"THE COURT:Is that your understanding of what has been agreed to?
MR. HATCH:Yes, sir.
THE COURT:My policy is not to make sentence commitments but there is no actual recommended sentence here anyway. But I'm just stating that for the record. So if he were to plead to that, I would be free to impose, at the time of sentencing, any legal sentence permissible by law, whatever it may be, in view of Mr. Hatch's statement earlier today that the law allegedly changed on September 21 relating to concurrency, et cetera.
Is your client prepared to enter a plea today pursuant to that?
Mr. HATCH:Yes, sir."
After a lengthy colloquy with the defendant during which the Court advised him of his rights and he acknowledged his understanding of the terms and legal ramifications of the plea agreement, the defendant waived indictment, consented to the filing of a superior court information containing the agreed-upon charges, and entered a plea of guilty to those charges. On December 28, 2005, the defendant was sentenced to an indeterminate term of imprisonment for a period of one and one-third to four years on the driving while intoxicated conviction, an indeterminate term of one to three years on the aggravated unlicensed operation conviction, and to two one-year terms in the Essex County Jail for the misdemeanor convictions, with such sentences to run concurrently with each another but consecutively to his Clinton County prison sentence.
II. Speedy Trial
Upon the entry of a guilty plea, a defendant forfeits his right to any statutory speedy trial claims under CPL § 30.30 ( People -v- O'Brien, 56 NY2d 1009, 453 NYS2d 638 439 NE2d 354; People -v- Suarez, 55 NY2d 940, 449 NYS2d 176, 434 NE2d 245; People -v- Friscia, 51 NY2d 845, 433 NYS2d 754, 413 NE2d 1168). By pleading guilty here with the advice of counsel, the defendant is thus precluded from asserting a statutory speedy trial claim as a post-conviction remedy.
Speedy trial claims of a constitutional dimension, however, survive a plea of guilty and are waived only by the explicit consent of a defendant ( People -v- Blakely, 34 NY2d 311, 357 NYS2d 459, 313 NE2d 763; People -v- Taylor, 65 NY2d 489 NYS2d 152, 478 NE2d 755; People -v- Hansen, 95 NY2d 227, 715 NYS2d 369, 738 NE2d 773). Analysis of constitutional speedy trial challenges focuses on the length of time between the commencement of the action and the commencement of the trial or plea ( see People v Taranovich, 37 NY2d 442, 445, 373 NYS2d 79, 335 NE2d 303). In addition to the extent of the delay, the court must also consider the reason(s) for the delay, the nature of the underlying charge, whether there has been an extended period of pretrial incarceration, and whether the defense may have been impaired by reason of the delay ( see People v Taranovich, supra.; see also People v. Perez, 42 NY2d 971, 398 NYS2d 269, 367 NE2d 867; People v. Staley, 41 NY2d 789, 396 NYS2d 339, 364 NE2d 1111; People v. Imbesi, 38 NY2d 629, 381 NYS2d 862, 345 NE2d 333; People v. Johnson, 38 NY2d 271, 379 NYS2d 735, 342 NE2d 525).
Here, the criminal action against the defendant was commenced on August 27, 2004, he first appeared in county court almost a year later on August 23, 2005, and ultimately entered a plea of guilty on November 22, 2005. During the intervening fourteen months, the defendant served twelve months of a state prison sentence imposed upon him in Clinton County, and his attorneys negotiated a plea agreement, waived all speedy trial time requirements and requested adjournments for the last three months of that period (August 23, 2005 to November 22, 2005). Except for the period between the defendant's arrest on August 27, 2004 and September 28, 2004, when defendant requested an adjournment of the felony hearing, the remaining period up to and including the defendant's plea on November 22, 2005 is not chargeable to the People since the defendant had waived speedy trial requirements and obtained adjournments during that time ( CPL § 30.30[4][b]). It is clear from the record that the delay in prosecution was attributable to the plea negotiations being conducted by LaDuke and the Public Defender( People v. Dougal, 266 AD2d 574, 698 NYS2d 66, leave to appeal denied 94 NY2d 879, 705 NYS2d 11, 726 NE2d 488), and the defendant's unknown sentencing status in Clinton County.
The defendant's motion papers do not contain any factual averments establishing the requisite element of prejudice under the Taranovich analysis, particularly in light of the sentencing court's clear and unchallenged policy of not making sentencing commitments. Thus, even if the plea agreement had been consummated prior to September 21, 2005 so that a concurrent sentence was possible, there is no evidence to establish that a concurrent sentence would have been imposed and any claim to the contrary is purely speculative. Moreover, the record indicates that a concurrent sentence was still possible at the time of the defendant's plea as the court would not commit one way or the other to imposing a concurrent or consecutive sentence should the defendant enter a guilty plea.
Also, the defendant explicitly waived on the record all trial, appeal and post-conviction remedies, as well as his right to make pre-trial motions challenging the charges and requesting hearings and relief "available to someone in your situation", and in so doing waived his right to assert a constitutional speedy trial violation ( see People v. Harris, 103 AD2d 891, 478 NYS2d 188).
Furthermore, this Court must deny relief to the defendant under CPL § 440.10 for any speedy trial violations since sufficient facts appear on the record of the underlying proceedings to permit adequate appellate review of the defendant's speedy trial claims and no such appellate review occurred as a result of the defendant's unjustifiable failure to take or perfect an appeal ( see CPL § 440.10[2][c]). The defendant admits in his affidavit in support of the motion that he raised the issue of speedy trial with the public defender on October 7, 2005, and thus it is clear that he could have raised that issue on appeal had he sought appellate review.
Defendant's motion to vacate the judgment of conviction upon the ground that his statutory and constitutional rights to a speedy trial were violated is therefore denied.
III. Ineffective Assistance of Counsel
A plea of guilty, entered on advice of competent counsel, constitutes a forfeiture of a claim of prior ineffective assistance of counsel on the part of a former attorney, where the full measure of the asserted derelictions of the first attorney was known to the second attorney who nonetheless counseled acceptance of the guilty plea ( People v. Petgen, 55 NY2d 529, 450 NYS2d 299, 435 NE2d 669). Thus, any claims of ineffective assistance lodged against LaDuke from the time of his arrest on August 27, 2004 until August 23, 2005, when the Public Defender took over the defense, were waived by the defendant's guilty plea on November 22, 2005.
As to the Public Defender, the defendant bears the burden of establishing that counsel's performance, when viewed in totality, failed to constitute "meaningful representation" ( see People v. Baldi, 54 NY2d 137, 444 NYS2d 893, 429 NE2d 400; People -v- Turner, 5 NY3d 476, 806 NYS2d 154, 840 NE2d 123) and resulted in prejudice ( see People v. McDonald, 1 NY3d 109, 769 NYS2d 781, 802 NE2d 131; Strickland v. Washington, 466 US 668, 104 SCt 2052, 80 LEd2d 674). The defendant was obligated to show "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial" ( People v. McDonald, supra, 1 NY3d at 114, 769 NYS2d at 784, 802 NE2d at 134, citing Hill v. Lockhart, 474 US 52, 58, 106 SCt 366, 370, 88 LEd2d 203).
Here, no such showing has been made ( CPL § 440.30[4][b]). The gravamen of defendant's ineffective assistance claims is that the prison sentences imposed run consecutively, rather than concurrently, to the sentence of imprisonment which he was serving at the time of his plea and sentencing thereon. The record unequivocally establishes that prior to the defendant's waiver of indictment, consent to the filing of the superior court information, and guilty plea, the defendant, his counsel, and the district attorney were aware that the court would not commit to a concurrent sentence and that a consecutive sentence might ultimately be imposed. The defendant has not alleged or established any facts tending to substantiate that but for the Public Defender's errors, there was a reasonable probability that he would not have pleaded guilty, he would have insisted on going to trial, and that he did not receive "meaningful representation" from the Public Defender. The defendant's assertion that he would not have pled guilty if he had known that "the concurrency of the sentences was not a sure thing" is simply contrary to and without support in the record.
Defense counsel's affidavit, ¶ 36.
Moreover, since the defendant's ineffective assistance of counsel claim against the Public Defender is premised upon an alleged failure to pursue the defendant's speedy trial rights, this Court's denial of the defendant's speedy trial claims on their own precludes a finding of ineffective assistance of counsel on such claims.
IV. Conflict of Interest
The defendant claims that a conflict of interest existed in the former Essex County District Attorney's office at the time of the prosecution of the underlying charges in that Martineau, the attorney representing him on the charges in Clinton County, was then a part-time Essex County assistant district attorney. It is unclear whether the ground here asserted is in the nature of ineffective assistance based upon a conflict of interest or is instead disqualification of the then district attorney's office to prosecute the defendant by reason of the conflict. In either case, the motion must be denied.
The present Essex County District Attorney, Julie A. Garcia, was first elected and took office on January 1, 2006, and was not the District Attorney at the time the defendant was prosecuted on these charges. The part-time assistant district attorney who represented the defendant on the charges in Clinton County, James W. Martineau, Jr., vacated that office in June, 2006.
"A conflict-based ineffective assistance of counsel claim involves two inquiries. First, the court must assess whether there was a potential conflict of interest in a defendant's representation. Second, a "defendant must show that the conduct of his defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation" ( People v. Ortiz, 76 NY2d 652, 657, 563 NYS2d 20, 564 NE2d 630 [1990] [internal quotation marks omitted])." ( People v. Abar, 99 NY2d 406, 409, 757 NYS2d 219, 221, 786 NE2d 1255, 1257).
The underlying charges here were not pending until after the defendant pled guilty on August 23, 2004 in Clinton County Court to the charges there. Martineau only represented the defendant on the Clinton County charges until November 9, 2004, when the defendant was sentenced to state prison on those charges. The two criminal actions thus overlapped for a period of only seventy-seven days, during which the defendant had three appearances in local criminal court on the charges arising out of his August 27, 2004 arrest and he was awaiting sentencing in Clinton County.
No facts have been shown establishing that the conduct of his defense here in Essex County where he was represented by LaDuke and later by the Public Defender was in fact affected by the operation of the conflict of interest. Significantly, neither the defendant's own affidavits, nor the affirmation of his attorney, on this motion contain any assertion of abuse of confidences entrusted to Martineau, or even imply that any such confidences were disclosed to the office of the Essex County District Attorney. The defendant's motion thus appears to rest upon a claim of impropriety sufficient as a matter of law to require reversal of the judgment of conviction.
The Court has considered the affidavits of the defendant sworn to July 13, 2006 and May 11, 2007.
A court may not lightly undertake to disqualify a district attorney, "a constitutional officer chosen by the electorate and whose removal by a court implicates separation of powers considerations" ( People v. Nelson, supra at 665, 647 NYS2d at 438; see also People v. Zimmer, 51 NY2d 434 NYS2d 206 414 NE2d 705; People v. Shinkle, 51 NY2d 417, 434 NYS2d 918, 415 NE2d 909).
"The courts, as a general rule, should remove a public prosecutor only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence (e.g., People v. Zimmer, 51 NY2d 390, 434 NYS2d 206, 414 NE2d 705, supra; People v. Shinkle, 51 NY2d 417, 421, 434 NYS2d 918, 415 NE2d 909) and the appearance of impropriety, standing alone, might not be grounds for disqualification" ( Schumer v. Holtzman, 60 NY2d 46, 55, 467 NYS2d 182, 186, 454 NE2d 522, 526).
In People v. Shinkle, supra, the Court of Appeals vacated, as a matter of law, the defendant's conviction because the attorney who initially represented the defendant and participated actively in the preparation of his defense while acting as executive director of the legal aid society later took the position of chief assistant in the prosecuting district attorney's office during the period of the defendant's trial on those same charges. The Court held that the circumstances there created a per se appearance of impropriety sufficient to require that the conviction be vacated.
"The inherent impropriety of the situation in Shinkle was demonstrated, we said, by the fact that the insulation of counsel from defendant's case could not be fully effective and by defendant's perception that his former counsel was personally championing' the People's case against him ( People v. Shinkle, supra, at 421, 434 NYS2d 918, 415 NE2d 909; cf., People v. Jackson, 60 NY2d 848, 470 NYS2d 136, 458 NE2d 377). Though the dissent in Shinkle contended that the majority had established a per se rule which disqualified the entire staff of the District Attorney's office notwithstanding defendant's failure to show actual prejudice, our subsequent decisions have not applied its holding that strictly. In Matter of Schumer v. Holtzman, 60 NY2d 46, 55, 467 NYS2d 182, 454 NE2d 522 a case involving removal, we held that generally a public prosecutor should not be removed unless necessary to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence' ( id.; see also, People v. Herr, 86 NY2d 638, 635 NYS2d 159, 658 NE2d 1032; People v. Jackson, supra). The rule rests upon concerns that clients must depend on the good faith of their former lawyers turned adversaries and where the risk of abuse is obvious, disqualification or reversal is necessary to protect and honor confidences shared during their earlier relationship ( see, People v. Herr, supra, at 641, 635 NYS2d 159, 658 NE2d 1032). To warrant vacatur of the conviction, however, defendant must establish actual prejudice or a substantial risk of an abused confidence even when, as here, the issue arises on direct appeal ( see, People v. Herr, supra)." ( People v. English, 88 NY2d 30, 33, 643 NYS2d 16, 18, 665 NE2d 1056, 1058-1058).
Thus, absent some minimal showing of actual prejudice or of a substantial risk of an abuse of confidences, disqualification of a district attorney has been denied ( see People v. Abar, 99 NY2d 406, 757 NYS2d 219, 786 NE2d 1255; People v. English, supra.; People v. Herr, 86 NY2d 638, 635 NYS2d 159, 658 NE2d 1032; People v. Jackson, 60 NY2d 848, 470 NYS2d 136, 458 NE2d 377).
In the instant case, Martineau did not represent him in Essex County, and the defendant was sentenced in Clinton County on November 9, 2004, more than a year prior to the defendant's plea and sentence. Martineau was a part-time assistant district attorney who worked out of his private law office and handled matters only in certain local criminal courts in Essex County ( People v. Jackson, supra). He did not appear in the local criminal court where the charges against the defendant were first lodged, and he did not prosecute cases in county court where the defendant entered his plea and was sentenced People v. Herr, supra). The consecutive sentence imposed upon the defendant was not the result of something that any of his attorneys did or failed to do ( People v. Jackson, supra at 851, 470 NYS2d 137, 458 NE2d at 378).
No claim is made by the defendant that he was unaware Martineau was a part-time assistant district attorney in Essex County, or that such relationship was not revealed to him either before or after the August 27, 2004 incident giving rise to the Essex County charges. Also, there is no assertion by the defendant or his attorney on this motion that Martineau "personally championed" the People's case in this court or that his representation of the defendant in Clinton County and his status as a part-time assistant district attorney operated to any extent on the defense of the charges in this Court, or that there was any actual prejudice or substantial risk of an abuse of confidence arising from such status. The circumstances here, including the brief period of time during which the unrelated criminal actions in this Court and in Clinton County court overlapped and the passage of more than a year from imposition of the sentence in Clinton County until his plea in this Court, together with Martineau's limited role as a part-time assistant district attorney and the lack of any evidence or claim of an abuse of confidences, are insufficient to warrant disqualification of the Essex County District Attorney's office.
The defendant has failed to show how Martineau's status as a part-time assistant district attorney in Essex County operated on the defense of this case to the defendant's detriment ( see People v. Abar, supra), and the favorable plea agreement indicates otherwise. The record discloses that the defendant accepted the plea agreement, avoiding possible conviction for a class B violent felony and lifetime incarceration, with full knowledge that sentencing was in the sole discretion of the sentencing judge and that there was no commitment by the Court to a concurrent sentence.
V. Excessive Sentence
Finally, turning to the defendant's request to be re-sentenced to a term of imprisonment running concurrently with, rather than consecutively to, the term he is serving based upon his conviction on unrelated charges in Clinton County Court, the defendant has cited neither statute nor other authority which would permit the re-sentencing of a defendant without first establishing that the sentence was unauthorized, illegally imposed or otherwise invalid as a matter of law ( see CPL § 440.20; People v. Corso, 40 NY2d 578, 388 NYS2d 886, 357 NE2d 357; People v. Strong, 93 Misc 2d 170, 402 NYS2d 508). Re-sentencing is not available just for the asking, notwithstanding that the People do not oppose the defendant's requested relief of a concurrent sentence.
It cannot be fairly argued that the sentence imposed was excessive (or that defendant's counsel failed to afford him meaningful representation) in light of the terms of the negotiated plea agreement. The defendant was facing eleven criminal charges, the most serious of which was attempted aggravated assault upon a police officer, a class C violent felony. Had the defendant been convicted of that crime he faced a mandatory determinate sentence of imprisonment for a term of between five and fifteen years plus five years of post-release supervision. Also, the sentencing court, in its discretion, chose not to sentence the defendant as a persistent felony offender, and the district attorney similarly elected not to seek persistent felony offender status for the defendant. Instead, the defendant was allowed to enter guilty pleas to two class E felonies for driving while intoxicated and aggravated unlicensed operation of a motor vehicle in the first degree, and two class A misdemeanors for reckless endangerment in the second degree and resisting arrest, which left him subject to a maximum prison sentence of one and one-third to four years. The defendant's claim that the imposition of such a sentence is excessive strains the bounds of reason.
The defendant has failed to allege or prove any facts which would support setting aside the defendant's sentence "upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law" ( CPL § 440.20[1]).
VI. Conclusion
The defendant has failed to establish actual prejudice as required for post-conviction remedies ( CPL § 440.10[1][f], [h]), and has otherwise waived his claims for post-conviction relief. This Court is without legal authority to grant the relief requested by the defendant, including re-sentencing of the defendant to a concurrent term of imprisonment (a request supported by the People in the furtherance of justice), and therefore the motion must be denied.
ORDERED that the defendant's motion to vacate the judgment of conviction and sentence pursuant to CPL § 440.10 and § 440.20 be and the same hereby is in all respects denied.
Decision and Order signed this 24th day of August, 2007, at Elizabethtown, New York.