People v Robinson
Annotate this CaseDecided on February 3, 2006
Supreme Court, Kings County
The People of the State of New York,
against
Rasheen Robinson, Defendant.
1518/05
Sheryl L. Parker, J.
The Court has received defendant's motion to vacate defendant's judgement pursuant to C.P.L. §440.10. Based on defendant's motion, the People's response, the court file and inspection of the minutes of the plea proceeding, defendant's motion is denied.
On August 13, 2004 defendant was arraigned on a felony complaint charging him with several counts of criminal sale of a controlled substance in the third degree (P.L. §220.39), criminal possession of a controlled substance in the third degree (P.L. §220.16) and criminal possession of a controlled substance in the seventh degree (P.L. §220.03). Defendant and his co-defendant were represented by the same attorney for arraignment purposes only and the matter was adjourned to August 18, 2004 for grand jury action and for defendant to be assigned a new attorney.
On August 18, 2004 defendant was assigned Howard Greenberg, Esq., of the 18-B panel, as his attorney. On that same date the grand jury voted indictment 5206/04 against the defendant and the matter was transferred to the Supreme Court.
On October 18, 2004 defense counsel was not present [FN1], the defendant was arraigned and the matter was adjourned.
On November 22, 2004 defense counsel was on trial on another matter [FN2] and the matter was adjourned to December 13, 2004 after the People indicated their intention to represent the matter to a new grand jury.
On December 13, 2004 defense counsel was not present.[FN3] The indictment had not yet been superceded and the matter was adjourned to January 3, 2005. [*2]
On January 3, 2005 defense counsel was present and indictment 5206/04 was dismissed as superceded by indictment 8079/04. A motion schedule was set for a motion to dismiss pursuant to C.P.L. §190.50. The matter was adjourned to January 31, 2005.
On January 7, 2005, defense counsel served and filed a motion to dismiss the indictment on behalf of defendant.
On January 31, 2005 the People conceded defendant's motion to dismiss and the matter was adjourned to March 2, 2005 for the People to represent the matter.
On March 2, 2005 the People had not yet represented and the matter was adjourned for March 17, 2005.
On March 14, 2005 the People filed 1518/05 which superceded indictments 5206/04 and 8079/04. The indictment charged defendant with two counts of criminal sale of a controlled substance in the third degree (P.L. §220.39) and other related charges.
On March 17, 2005 defendant was arraigned on indictment 1518/05. The matter was adjourned to May 3, 2005 for open file discovery and the grand jury minutes. The offer to the defendant from the People was attempted criminal sale of a controlled substance in the third degree and three to six years incarceration.
On May 3, 2005 defense counsel was not present [FN4], the grand jury minutes were provided to the court and the matter was adjourned to June 24, 2005.
On June 24, 2005 defense counsel was not present and the grand jury minutes were found to be legally sufficient. The matter was adjourned to July 21, 2005 for hearing and trial.
The People have provided the Court with a motion received by the People dated June 25, 2005 and signed by defendant. The motion was for reassignment of counsel. There is no record of the motion ever pending before the Court and the motion was not raised on the following date of July 22, 2005.
On July 22, 2005 defense counsel was present and the defendant pled guilty to attempted criminal sale of a controlled substance in the fifth degree (P.L. §110/220.31) and was to receive a sentence of one and one half to three years incarceration. The matter was adjourned for sentence on August 9, 2005.
On August 9, 2005 defendant was sentenced.
Soon after defendant was sentenced, the Court received the instant motion.
Defendant's motion to set aside his conviction relies on the assertion that his attorney put "unfortunate and undue pressure" upon him to plead guilty. C.P.L. §440.10 (1)(h) allows a judgement to be vacated if it was obtained in violation of a right of the defendant under the either the constitution of New York or of the United States. Conventionally, when a defendant has waived his right to appeal, as he has done in this matter, his waiver will preclude a review of an allegation of ineffective assistance of counsel. However, review of whether a defendant's plea of guilty was voluntary will not be waived by a waiver of appeal. (People v. Demosthene, 2 AD3d 874 [2nd Dept. 2003]). Accordingly, this Court will examine the merits of defendant's claim.
Defendant alleges that he was coerced into pleading guilty and his plea was involuntary and that he succumbed to undue pressure by his attorney. Defendant's assertions are belied by [*3]the record.
On July 22, 2005 the following exchange took place:
Mr. Greenberg:At this time the defendant authorizes me to withdraw his previously entered plea of not guilty to single (sic) count of attempted criminal sale of a controlled substance in the fifth degree in full satisfaction of the indictment. The understanding is that upon that plea on the date of sentence the defendant's sentence will be one and a half to three.
The Court: All right. The plea he's entering to a lesser included of count four 110/220.31
Court Clerk:Mr. Robinson, raise your right hand. State your name in a loud clear voice for the record.
The defendant:Rashen Robinson.
Court Clerk:Thank you.
The Court:Mr. Robinson, your attorney is standing here with you. Have you had enough time to speak with him, and are you satisfied with his representation?
The defendant:Yes.
The Court:I'm going to ask you some questions. You may stop at any time and speak with your attorney. You have been sworn to tell the truth. All of your answers are under oath. Do you understand?
The defendant:Yes.
The Court:Have you taken any alcohol, drugs or medication in the past 24 hours?
The defendant:No.
The Court:Do you feel that you are physically and mentally able to go ahead with this plea at this time?
The defendant:Yes.
The Court:Your attorney has entered a plea on your behalf to a lesser included [*4]charge under count four of this indictment. Do you understand that and is that what you wish to do?
The defendant:Yes.
The Court: By your plea, do you admit that on August 12, 2004 at approximately 1;15 p.m. at Ashford Street and Stanley Avenue in the County of Kings that you knowingly and unlawfully sold a controlled substance, specifically, cocaine, to another person?
The defendant:Yes.
The Court:Is that true?
The defendant:Yes.
The Court:Are you pleading guilty of your own free will?
The defendant:Yes.
The Court:Has anyone forced you or paid you any money in order to get you to plead guilty?
The defendant:No.
The Court:Are you pleading guilty because you are guilty?
The defendant:Yes.
The Court: By pleading guilty, do you realize that you are giving up certain rights including the right to trial by judge or jury, the right to confront witnesses or to provide witnesses on your own behalf? Do you understand?
The defendant:Yes.
The Court:Also, by pleading guilty, it is the same as if you were convicted after trial, and you are giving up your Fifth Amendment right to remain silent. Do you understand?
The defendant:Yes.
The Court:The promise that's been made to you is that you receive a sentence of one and a half to three years in prison. Do you understand that [*5]promise?
The defendant:Yes.
The Court:Has any promise other than that been made to you?
The defendant:No.
[The defendant was then adjudicated a non-violent predicate felony offender]
The Court:Mr. Robinson, you also signed a waiver of your right to appeal. What this means is that you agree to give up any appeal on this matter in return for this plea. In other words, there will be no appeal relating to this case. If you could not afford an attorney, one would have been assigned to represent you before an appellate court. By signing the waiver, by answering my questions, you are giving up your right to appeal. Do you understand?
The defendant:Yes.
The Court:Are you doing this of your own free will?
The defendant:Yes.
The Court:Have you discussed this waiver of your right to appeal with your lawyer?
The defendant:Yes.
The Court:Do you have any questions about it?
The defendant:No.
The Court:The law requires that at the time of sentence I must impose a mandatory surcharge in the amount of $250, a $20 crime victim's assistance fee and a $50 DNA data bank registration fee. Your right to drive will be suspended for six months. You are advised if you are not a citizen of this country, this plea could result in deportation proceedings being brought against you. Have you understood everything that I've said to you?
The defendant:Yes. [*6]
The Court:Do you still wish to plead guilty?
The defendant:Yes.
At no time during the plea allocution did the defendant indicate that he was dissatisfied with Mr. Greenberg's representation or was under any duress to enter the plea. The minutes reflect that the defendant's guilty plea was knowingly, voluntarily and intelligently made. (People v. Fiumefreddo, 82 NY2d 536 [1993]). Additionally, it appears from the record, including the fact that defense counsel filed a meritorious motion to dismiss the indictment for failure to allow defendant to testify before the grand jury and the fact that defendant received an advantageous plea bargain (People v. Boodhoo, 191 AD2d 448 [2nd Dept. 1993]), that defendant received meaningful representation. (People v. Benevento, 91 NY2d 708 [1998]). Defendant has not shown that defense counsel's representation was deficient, nor that the deficiency prejudiced the defendant. (Strickland v. Washington, 466 US 668 [1984]). The Court notes that defendant has seven prior convictions dating back as far as 1994. Defendant was not a new-comer to the criminal justice system when he plead guilty on the instant matter. Defendant has not made any showing that he was pressured by defense counsel or was under duress when he took the plea.
Accordingly, defendant's motion is denied.
The foregoing constitutes the decision and order of the court.
Dated: Brooklyn, New York
February 3, 2006
__________________________
J.S.C.
Footnotes
Footnote 1: Although the assigned attorney, Mr. Greenberg, was not present, another attorney from the 18-B Panel represented the defendant for this appearance.
Footnote 2: See, Footnote 1
Footnote 3: See, Footnote 1
Footnote 4: See, Footnote 1
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