People v Brown

[*1] People v Brown 2005 NY Slip Op 52266(U) [11 Misc 3d 1053(A)] Decided on November 28, 2005 Supreme Court, Kings County Collini, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 28, 2005
Supreme Court, Kings County

PEOPLE OF THE STATE OF NEW YORK, Plaintiff,

against

GARVIN BROWN, Defendant.



9044-2003



Attorney for the People:

Charles J. Hynes

District Attorney, Kings County

350 Jay Street

Brooklyn, NY 11201

by ADA Adam Covitt

Attorney for the defendant Gavin Brown:

Pro se

Robert J. Collini, J.

On May 4, 2005, the defendant, while represented by counsel, pled guilty to Manslaughter in the second degree (PL 125.15 [1]), over the objection of the prosecutor.[FN1] Pursuant to his plea agreement, defendant signed a waiver of his right to appeal all non-jurisdictional issues in the case (see People v Seaberg, 74 NY2d 1). On June 17, 2005, this court sentenced the defendant to the prison term that he had previously negotiated with the court.[FN2]

Despite waiving his right to appeal, the defendant has filed a motion, pro se, pursuant to CPL 440.10 (1)(b), (c) and(h), seeking to vacate the judgment entered against him.

The court notes that the defendant never moved to withdraw his plea of guilty prior to sentence. Had he made such a motion, he would have preserved his claim that his plea was not knowingly, voluntarily and intelligently made (People v Lopez, 71 NY2d 662; People v Hull, 300 AD2d 411; People v Harris, 291 AD2d 458, lv denied 98 NY2d 637; People v Nieves, 289 AD2d 342, lv denied 97 NY2d 732).

The Court of Appeals has accepted waivers of the right to appeal, so long as they are knowingly, voluntarily and intelligently made, and provided "[t]he trial court determines that [the waiver] meets those requirements" (Seaberg, 74 NY2d at 11; see also People v Calvi, 89 NY2d 868, 871).

"In accepting a defendant's waiver of the right to appeal, the trial court must at least satisfy itself on the record that the waiver complies with the procedural and integrity-of-process safeguards expressed in [judicial] precedents" (Calvi, 89 NY2d at [*2]871). "While there is no requirement that the trial court engage in any particular litany" (People v Callahan, 80 NY2d 273, 283), "some judicial examination of the waiver itself with a manifestation expressed on the record, as may be appropriate, is necessary to show satisfaction of [judicial] protocols" (Calvi, 89 NY2d at 871; People v Holman, 89 NY2d 876, 878).

This court conducted an extensive plea allocution in this case. The court not only had a conversation with the defendant concerning the length of his sentence and what he was pleading guilty to, but it also advised the defendant of his waiver of his right to appeal his sentence or any other aspect of the case. The defendant advised the court that he was entering into his plea voluntarily and under his own free will, and that no one had coerced or pressured him into pleading guilty. The defendant also stated that he was satisfied with the representation he had received from his attorney and that he was satisfied that entering into this plea was in his best interests.

"[Plea] bargains fairly made should signal an end to litigation, not a beginning" (Seaberg, 74 NY2d at 8; see also People v Prescott, 66 NY2d 216, 220, cert denied 475 US 1150; People v Taylor, 65 NY2d 1, 5; People v Lynn, 28 NY2d 196, 202). The defendant "by pleading guilty, forfeits his right to challenge the underlying conviction and loses many privileges and protections granted by courts" (Seaberg, 74 NY2d at 8).

As to each of the defendant's claims, the court notes that the defendant knowingly, voluntarily and intelligently entered into a plea agreement and the concomitant waiver of his right to appeal all aspects of the case. Thus defendant has waived all non-jurisdictional defects in the proceedings (People v Dockery, 1 AD3d 528, 528; lv denied 1 NY3d 627).

In his current motion, defendant claims, inter alia, that his judgment was procured through duress, misrepresentation and fraud (CPL 440.10 [1][b]). In his moving papers, however, the defendant does not allege any impropriety on the part of the court or the prosecutor, but focuses solely on his attorney, who he claims was ineffective in his representation.[FN3] Since CPL 440.10 (1)(b) relates solely to duress, misrepresentation or fraud "on the part of the court or a prosecutor or a person acting on behalf of a court or a prosecutor", defendant's application to vacate judgment under this subdivision is denied in the absence of any sworn allegations of fact that this court or the prosecutor acted inappropriately.

With respect to the defendant's second claim, that material evidence adduced at a trial resulting in a judgment was false and was known by the prosecutor or by the court to be false (CPL 440.10 [c]), the court notes that the defendant is foreclosed from raising this issue in a case where he has pleaded guilty (People v Dargento, 302 AD2d 924; People v White, 300 AD2d 830, lv denied 99 NY2d 586; People v Brown, 20 AD2d 570). [*3]

Defendant's final contention, pursuant to CPL 440.10 (1)(h), is that the judgment was obtained in violation of his constitutional rights, specifically his right to the effective assistance of counsel.

Under New York law, claims of ineffective assistance of counsel generally must be addressed to the trial court via a motion to vacate judgement, rather than via an ordinary motion to appeal, since the motion ordinarily relates to matters of which the trial court is aware or require knowledge and review of trial proceedings of which no record was ever made (Taylor v Kuhlmann, 36 F.Supp.2d 534). However, if sufficient facts appear on the record with respect to ground or issue raised by the defendant to permit adequate review thereof upon appeal, such motion must be denied (CPL 440.10 [2][b] and [c]).

"The contention of defendant that he was denied effective assistance of counsel does not survive his plea of guilty" (People v Williams, 305 AD2d 1023, 1023 -1024, lv denied 100 NY2d 589; People v Burke, 256 AD2d 1244,1244, lv denied 93 NY2d 851). Defendant's waiver of his right to appeal also precludes appellate review of his contention that he was denied the effective assistance of counsel except to the extent that it may have affected the voluntariness of the plea (People v Hussain, 309 AD2d 818, 819, lv denied 1 NY3d 598; People v Eaddy, 302 AD2d 473, 474, lv denied 100 NY2d 538; People v Miller, 306 AD2d 294, 294, lv denied 100 NY2d 623; People v Nicholas, 272 AD2d 629, 630, lv denied 95 NY2d 937; People v Holmes, 268 AD2d 597, 598, lv denied 95 NY2d 890).

The defendant contends his attorney was inadequate, ineffective and unprepared and that this lack of preparation affected the voluntariness of his plea. Defendant claims his attorney did not investigate the circumstances of the accident, did not interview potential witnesses, and did not employ the services of an expert witness until "the final hour". He further claimed that his attorney did not understand the applicable law and failed to communicate with his client.[FN4]

This court will only review defendant's claims that were not part of the original court record. Since this defendant's ineffective assistance of counsel claims turn on matters concerning counsel's trial preparation and his willingness to investigate possible defenses, these claims are permitted under the present motion (People v Gonzalez, 8 AD3d 210; People v Hendrix, 8 AD3d 72, lv denied 3 NY3d 675; People v Palmer, 7 AD3d 472, lv denied 3 NY3d 710).

Upon receiving the current motion, this court contacted the defendant's counsel in order to expand the record (People v Gilbert, 295 AD2d 275, lv denied 99 NY2d 558). Counsel was asked to provide sworn allegations of fact explaining his preparation for trial and the extent of his communication with the defendant prior to the taking of the plea.

Counsel submitted an affidavit sharply disputing the defendant's factual allegations. Counsel countered that he became intimately acquainted and involved in all the necessary details of this case, which included visiting the New York City Police Department impound facility, with a trained investigator, to examine the two cars [*4]involved in the accident, interviewing the passenger from the defendant's automobile, who might be expected to provide testimony favorable to the defendant, and discussing trial strategy and tactics with the defendant.

"The record does not support [the defendant's] contention that he entered the plea because of his attorney's allegedly poor performance or that the plea bargaining process was infected by any allegedly ineffective assistance'" (Williams, 305 AD2d at 1024; Eaddy, 302 AD2d at 474; People v Martin, 291 AD2d 459, 460, lv denied 98 NY2d 653; Burke, 256 AD2d at 1244; People v McAllister, 248 AD2d 641, lv denied 91 NY2d 1010; People v Lebrun, 234 AD2d 392,393, lv denied 89 NY2d 986). Defendant's moving papers fail to satisfy his burden of demonstrating how counsel's alleged ineffectiveness affected the voluntariness of his plea. This case was sent to me for trial. Defendant's counsel entered into a plea negotiations with the court, over the prosecution's strenuous objection. Counsel convinced this court that this was one of those rare situations in which a defendant was deserving of a plea which was less than that offered by the People. Counsel impressed this court with his knowledge of the strengths and weaknesses of his client's case and convinced the court that it would be in his client's best interest to accept a plea of guilty in exchange for the agreed upon sentence.

Accordingly, defendant's motion to vacate the judgment entered against him is denied (CPL 440.30 [2] and [4]).

________________________

JSC

Dated: November 28, 2005

Brooklyn, New York Footnotes

Footnote 1:The defendant was also indicted for Vehicular manslaughter in the second degree (PL 125.12), Criminally negligent homicide (PL 125.10), reckless endangerment in the second degree (PL 120.20) and numerous VTL violations.

Footnote 2:The defendant was sentenced to an indeterminate term of one to three years in prison.

Footnote 3:In his motion, defendant asserts that the prosecutor and his attorney manipulated him into pleading guilty. Since the plea was taken over the vigorous objection of the People, defendant's argument that the prosecutor procured his plea via means of duress, misrepresentation or fraud is totally without merit.

Footnote 4:Defendant's remaining claims are frivolous and incomprehensible.