People v Rivera

People v Rivera 2012 NY Slip Op 00043 Decided on January 5, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 5, 2012
Saxe, J.P., Sweeny, Moskowitz, Manzanet-Daniels, Román, JJ.
6489

[*1]The People of the State of New York, Docket 66074C/07 Appellant,

v

Juan Rivera, Defendant-Respondent.




Robert T. Johnson, District Attorney, Bronx (Thomas R.
Villecco of counsel), for appellant.
Anthony M. Giordano, Ossining, for respondent.

Order, Supreme Court, Bronx County (William Mogulescu, J.), entered on or about March 15, 2011, which granted defendant's CPL 440.10 motion to vacate a judgment convicting him, upon his plea of guilty, of driving while intoxicated, unanimously affirmed.

The record supports the court's conclusion, made after a thorough evidentiary hearing, that defendant did not receive meaningful representation. "In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she 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]).

Defense counsel failed to conduct any investigation, make any motions, or even view the video of defendant's breathalyzer test before negotiating a plea bargain whereby defendant would plead guilty to the top count of the accusatory instrument. There were lines of defense that were at least worthy of investigation, including matters that could have affected the accuracy of the breathalyzer results. The attorney's testimony established that there were no strategic reasons for these omissions.

The hearing evidence also established that since defendant had no prior record and no accident occurred, it was extremely unlikely that defendant would receive a jail sentence. [*2]Accordingly, defendant received little, if any benefit, by pleading guilty to the top count without ever having received even a minimally accurate assessment of the strength of the People's case.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 5, 2012

CLERK