People v Rivera

[*1] People v Rivera 2006 NY Slip Op 51621(U) [12 Misc 3d 1198(A)] Decided on June 8, 2006 Supreme Court, Bronx County Massaro, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 8, 2006
Supreme Court, Bronx County

The People of the State of New York, Plaintiff,

against

Isabelle Rivera, Defendant.



2487/2002



For the People of the State of New York

THE HONORABLE ROBERT T. JOHNSON

District Attorney, Bronx County, New York

BY:JUAN D. SOTO, ESQ.

Assistant District Attorney

For Isabel Rivera

JOHN J. JANIEC, ESQ.

Dominic R. Massaro, J.

Isabelle Rivera was convicted, pursuant to a plea agreement on April 2, 2003, of Grand Larceny in the Third Degree (Penal Law § 155.35), and sentenced to pay restitution to the New York City Housing Authority in the amount of $8,360, as well as a three year conditional discharge. Defendant now moves, pursuant to Criminal Procedure Law Article 440.10, to vacate her judgment of conviction on the grounds that: the plea allocution failed to establish her intent to commit the crime to which she pled, thus, it was not knowing and intelligent; the guilty plea was the result of coercion on the part of her attorney and his office, thus, it was not voluntary; and there is newly discovered evidence in that certain documents found by Defendant after her guilty plea establish her innocence. The motion is denied.

Chronology

As explained in the Felony Complaint and Bill of Particulars, between August 1, 1998, and June 30, 1999, Defendant, a tenant residing at 2815 Creston Avenue, was a participant in the Housing Authority's Section Eight Existing Housing Voucher Program (hereinafter referred to as "Section 8"). Pursuant to Section 8, a tenant's rent is subsidized by the Housing Authority with payments made directly to the landlord. The amount of the subsidy is based on Affidavits of Income provided by the tenant. Here, during the abovementioned time period, Defendant failed to report on her Affidavits of Income employment as a bilingual teacher with the Department of Education in which she earned over $35,000 in 1998, and over $27,000 in 1999. As a result, Defendant received rent subsidies of $8,360 for which she was not eligible.



Following execution of a Jury Trial Waiver by Defendant, the People presented two [*2]witnesses and fifteen exhibits. After an extended in-court discussion with her attorney during the case-in-chief, Defendant indicated that she wished to plead guilty to Grand Larceny in the Third Degree in exchange for the abovementioned sentence. The Court was reluctant to accept the plea due to the fact that Defendant was unemployed and yet was going to be sentenced to pay $8,360 in restitution. Defendant then agreed to report to the Court every four months for updates on her employment status. In addition, the Court agreed to sign a Certificate of Relief from Civil Disability upon Defendant indicating that the Board of Education would not consider rehiring her unless it was granted. The Court stated "if you do have the possibility [of employment], the Certificate of Relief from Civil Disabilities as I mentioned to your attorney who is urging me to do so, I will issue it at any time that you so come forward with any possibility of employment" (Tr. at 17). After this agreement was reached, Defendant formally pled guilty to the top count of the indictment, namely Grand Larceny in the Third Degree, in satisfaction of the entire indictment.

In the course of her allocution, after Defendant was duly sworn and agreed with her attorney's statement that she wished to withdraw her plea of not guilty and plead guilty to the abovementioned charge, she indicated that: she was 52 years-old at the time the offense began and 57 years-old at the time of her plea; she had never been treated, confined or institutionalized for a mental or emotional disorder or a drug or narcotic addiction; she had taken no drugs or alcohol during the preceding twenty-four hours; and was in generally good physical and mental health on the date of the plea agreement, despite her planning to soon undergo surgery. Defendant then stated that she knew that she had the right to go to trial, and, indeed, acknowledged that, at the time of the plea, she was in the middle of her trial. Defendant further stated that she knew that, at trial, she would continue to be represented by her attorney, who was known to the Court for many years, and at trial, her attorney would continue to have the opportunity, indeed had been engaging in the opportunity, to cross-examine the People's witnesses.[FN1] Defendant also stated that she knew that her attorney could bring witnesses, including herself, to testify on her behalf, and would have the opportunity to make a summation regarding the lack of evidence presented against her. Defendant then stated that she understood that she was waiving all of these rights and indicated that she understood that her guilty plea had the same effect as her being found guilty after trial of the charge to which she was pleading. Defendant further stated that she was entering the plea "only after a careful balancing of the alternatives open to her and in consultation with her counsel" (Tr. at 19), and was entering it freely, voluntarily, after thinking about it, after discussing it with and being adequately counseled by her attorney, after deciding that it was the best way to end the matter under all of the circumstances, and because she was, in fact, guilty of the crime to which she pled.

The People then stated that, had the case proceeded to trial, they were prepared to prove [*3]that between August 1, 1998, and June 30, 1999, Defendant stole property with a value in excess of three thousand dollars, that being benefits owned by the Housing Authority. Defendant stated that as a result of her failure to report her income, which she was required to do, she received money from the Housing Authority that she otherwise would not have received and was "not eligible to receive but for the fact [she] didn't report the money" (Tr. at 15-16).

The Court stated that it was satisfied that the plea was strategically sound based on the proof offered by the People, Defendant's allocution, and the fact that "Defendant is urging [the Court] to accept her plea because she is fearful of being convicted after trial and receive a more serious punishment including the possibility of incarceration" (Tr. at 16). Undoubtedly, Defendant faced a sentence of an indeterminate term of imprisonment of from two and one-third to seven years. See Penal Law § 70.00. The Court then reiterated the agreed upon sentence and noted that the amount of restitution Defendant was to repay "is the amount of money being claimed having been misappropriated or mispaid to you by way of the non-reporting" (Tr. at 16).

In point of fact, in the course of several court appearances following her conviction, Defendant indicated that she neither sought nor obtained employment. Then, on June 28, 2004, due to a letter from Dr. David Engelbrecht of St. Barnabas Hospital stating that Defendant is unable "to work in any capacity, even part time," the Court held that she was medically disabled, terminated the case, and entered judgment against her in the amount of the restitution.

Defendant's Affidavit in Support of the Instant Motion

Defendant claims that in November, 1997, she stopped receiving Section 8 benefits, which she had been receiving for the preceding ten years, when she graduated from college and began working as a teacher for the Board of Education. While so employed, in February, 1998, she moved to 2815 Creston Avenue and paid $1,000 per month in rent. However, Defendant claims that she was injured at work in May, 1998, and, as a result, was unable to continue working. Therefore, in August, 1998, she applied for Section 8 benefits again and claims that she was accompanied by her landlord when so doing. Afterwards, Defendant claims that she never knew that she was approved because she never received notice so indicating, and when she previously received benefits, she was notified whenever there was a change in her benefit status. Therefore, Defendant claims that she assumed that her application had been denied and continued to pay her full rent.

Defendant further claims that she was never notified about her Section 8 status because her landlord stole the mail regarding her benefits. Therefore, she argues, her landlord is the actual person stealing from Section 8 because, while collecting full rent payments from her, the landlord was also receiving the rent subsidies.

Defendant claims that because she has no proof of her rent payments, she was told by her trial counsel that her defense was weak, especially because she filed a Section 8 application that did not contain her full income. Defendant further claims that when she recently moved, she was unable to unpack her belongings because of her disability. However, she has recently finished unpacking and, in so doing, found records of some of her alleged rent payments to the landlord which appear to be entries from her checkbook or handwritten notes from money orders she generated herself. She has attached the records, which, in addition to being completely unauthenticated, also fail to establish that she paid the full rent amount for each of the months [*4]during the time period in question; a few of the receipts suggest the full rent amount for some months at issue.

Regarding her decision to plead guilty, Defendant claims that on February 19, 2003, before

coming to court, she went to the Legal Aid Society, and although trial counsel was not present, four to five other attorneys were, including one who claimed to be her trial counsel's supervisor. Defendant claims that these attorneys repeatedly told her to take the plea offered by the People due to the fact that it was the best course of action as she could not prevail at trial given the subsidy application she filed. Defendant claims that these attorneys were not concerned with her claims that she paid her landlord, that her mail was stolen, and that she lacked any knowledge as to receiving these benefits. Defendant also claims that the attorneys told her that she would go to prison if she were convicted after trial. As a result, Defendant claims that she was confused and only took the plea because of this pressure.

As for the plea, Defendant claims that it was invalid because she never stated that she acted with the intent to steal Section 8 benefits, but, rather, only stated that she received benefits she was not supposed to receive because she did not properly complete certain paperwork. Defendant further states that although she admitted that her action caused payments to be made to her landlord that should not have been made, she did not intend to assist the landlord in receiving the benefits that Defendant was not entitled to receive.

Lastly, Defendant acknowledges that the plea she "received in this case was eminently fair and . . . voice[s] no complaint in that regard." However, she states that she is filing the instant motion because she has been unable to obtain employment, and, thus, has had financial difficulties due to her conviction. This is despite the fact that she previously submitted paperwork indicating that she was medically unable "to work in any capacity, even part time," which resulted in the case being terminated and judgment entered against her in the amount of restitution.

Discussion

It is well settled that "[t]he longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369, 88 L. Ed. 2d 203, 208 (1985), quoting, North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164, 27 L. Ed. 2d 162, 168 (1970). " [A] plea of guilty entered by one fully aware of the direct consequences' of the plea is voluntary . . . [and] a plea [i]s intelligent . . . [if the defendant] [i]s advised by competent counsel, [i]s in control of his mental faculties, and [i]s made aware of the nature of the charge against him.'" Bousley v. United States, 523 U.S. 614, 618-19, 118 S. Ct. 1604, 1609, 140 L. Ed. 2d 828, 837-38 (1998), quoting, Brady v. United States, 397 U.S. 742, 748-57, 90 S. Ct. 1463, 1469-73, 25 L. Ed. 2d 747, 756-61 (1970). Nevertheless, the Court of Appeals

[h]as consistently rejected a formalistic approach to guilty pleas, preferring instead to leave the ascertainment of whether the defendant has entered the plea voluntarily, knowingly and intelligently to the trial court's "sound discretion exercised in cases on an individual basis" (People v. Nixon, 21 NY2d 338, 355 [*5][1967], cert. denied, sub nom., Robinson v. New York, 393 U.S. 1067, 89 S. Ct. 721, 21 L. Ed. 2d 709 [1969]). Thus, . . . there "is no requirement for a uniform mandatory catechism of pleading defendants'" (People v. Harris, 61 NY2d 9, 16 [1983] [quoting, Nixon, supra, at 353]).

People v. Fiumefreddo, 82 NY2d 536, 543-47 (1993). See also People v. Ford, 86 NY2d 397, 402-03 (1995) ("a criminal court is in no position to advise on all the ramifications of a guilty plea personal to a defendant"); People v. Moisset, 76 NY2d 909, 910-11 (1990) ("trial courts are not required to engage in any particular litany during an allocution in order to obtain a valid guilty plea in which defendant waives a plethora of rights"). Indeed, more recently, in People v. Victor, 262 AD2d 872, 873-74 (1st Dept. 1999), lv. denied, 94 NY2d 830 (1999), the First Department held that a "defendant entered a knowing, intelligent and voluntary guilty plea" when

while represented by counsel, was advised of his rights and the consequences of pleading guilty and communicated his understanding to the court. Defendant further indicated that he had not been threatened, coerced or pressured in any way into entering into the plea, nor was he under the influence of alcohol, controlled substances or medication.

Similarly here, after agreeing with her attorney's statement that she wished to withdraw her plea of not guilty and plead guilty to Grand Larceny in the Third Degree in satisfaction of the entire indictment, Defendant, a fifty-seven year-old college educated former teacher, acknowledged that, despite upcoming surgery, she had no physical or mental impediments to her plea nor any alcohol or controlled substance use that would affect her plea. See People v. McElhiney, 237 AD2d 827, 827-28 (1st Dept. 1997) ("during the plea allocution, defendant specifically denied that his medical condition was affecting him in any way that would reduce his ability to comprehend the proceeding, and he stated that he understood the ramifications"), lv. denied, 90 NY2d 861 (1997). In addition, as Defendant had already executed a Jury Trial Waiver, she had already waived her right to be tried by a jury of twelve Bronx County citizens, to participate in their selection, and to not be found guilty unless her guilt of every element was proven unanimously beyond a reasonable doubt. Defendant further stated that she understood that: she was waiving her right before a jury to confront any witnesses brought against her, which her attorney had been doing in the course of her bench trial; to call any witnesses, including herself; and to have her attorney make a summation on her behalf. See People v. Hannon, 209 AD2d 319, 321 (1st Dept. 1994) ("Defendant knowingly acknowledged his desire to plead guilty; . . . acknowledged and waived his right to a trial by jury, where the People would have the burden of proving his guilt; and acknowledged and waived his right to question the People's witnesses, his right to call witnesses, and his right to testify."), lv. denied, 85 NY2d 862 (1995). Defendant also indicated that she understood that her plea had the same effect as being found guilty by a jury. Defendant then noted that she was pleading guilty freely, voluntarily, after thinking about it, after discussing it with and being adequately counseled by her attorney, after determining that it was the best manner in which to dispose of the case in light of all of the circumstances, and because she was, in fact, guilty of the charge to which he pled. The Court [*6]also noted that one of the reasons for Defendant pleading guilty was her fear of facing a term of imprisonment if she were unsuccessful at trial. See People v. Contreras, 219 AD2d 495 (1st Dept. 1995) ("plea minutes . . . show that defendant pleaded guilty, after an extensive allocution, because he was guilty and wanted to avoid the risk of a longer sentence"), lv. denied, 87 NY2d 845 (1995).

As such, "[n]othing in the record of the plea allocution called into question the voluntary, knowing and intelligent nature of defendant's bargained-for plea. . . . Defendant entered her plea after detailed cautionary warnings from [the] Court and extensive consultation with her counsel." People v. Seeber, 4 NY3d 780, 781 (2005). "Under oath defendant told the court that, after consulting with counsel, [s]he understood the nature of the proceedings and that h[er] guilty plea entailed a waiver of various rights. . . . There was not the slightest indication that defendant was uninformed, confused or incompetent." People v. Alexander, 97 NY2d 482, 486 (2002). See also Fiumefreddo, supra; People v. Frederick, 45 NY2d 520, 525-28 (1978); People v. Esajerre, 35 NY2d 463, 469 (1974). In addition, "[t]he court was able firsthand to assess whether defendant was alert and knowledgeable enough to plead guilty voluntarily." Alexander, supra. Therefore, the "plea should be sustained on the ground that it was sought by defendant and freely taken as a part of a bargain which was struck for the defendant's benefit." People v. Foster, 19 NY2d 150, 154 (1967).

Moreover, as Defendant's plea was voluntary, intelligent, and made while being advised by competent counsel, it "may not be collaterally attacked." Mabry v. Johnson, 467 U.S. 504, 508, 104 S. Ct. 2543, 2546-47, 81 L. Ed. 2d 437, 442-43 (1984). See also People v. Melton, 35 NY2d 327, 329 (1974) ("By pleading guilty, [a defendant] . . . evinces, prima facie, an intention to forego . . . review of his conviction."); People v. Guiliano, 52 AD2d 240, 243, 247 (1st Dept. 1976) ("A plea of guilty, . . . negotiated in good faith and with the help of counsel should signal the end of the criminal action."). Indeed, as explained in Blackledge v. Allison, 431 U.S. 63, 71-74, 97 S. Ct. 1621, 1628-29, 52 L. Ed. 2d 136, 145-47 (1977): To allow indiscriminate hearings in . . . postconviction proceedings . . . would eliminate the chief virtues of the plea system speed, economy, and finality. . . . [T]he representations of the defendant, his lawyer, and the prosecutor at such a [plea] hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the fact of the record are wholly incredible.

See also United States v. Timmreck, 441 U.S. 780, 99 S. Ct. 2085, 60 L. Ed. 2d 634 (1979); Frederick, supra, at 525 ("Only rigorous adherence by the courts to a policy of affording guilty pleas a great measure of finality will immunize plea negotiations for indiscriminate potshots."). In light of this well settled rule, Defendant's three claims all must be rejected.

1. Sufficiency of the Plea Allocution

Determining whether a plea allocution is sufficient solely requires reviewing the record. As such, this claim does not dehors the record, and, therefore, must be denied pursuant to CPL § [*7]440.10 (2) (a). In any event, were the Court to review the merits of this claim, it would still be meritless. Although "if, in pleading guilty, a defendant has cast doubt upon his guilt, he . . . shall not be permitted to plead guilty under such circumstances until the court ascertains that the defendant is aware of what he is doing, [i]t should never be enough to undo a plea because of some omission in inquiry at the time of plea without a showing of prejudice." Nixon, supra, at 344, 355. Indeed, in Seeber, supra, at 781-82, in rejecting a defendant's claim "that an element of the pleaded-to offense . . . was not established," the Court of Appeals opined: [W]e have never held that a plea is effective only if a defendant acknowledges committing every element of the pleaded-to offense . . . or provides a factual exposition for each element of the pleaded-to offense. . . . Because nothing that defendant said or failed to say in her allocution negated any element of the offense to which she pleaded . . . or otherwise called into question her admitted guilt . . . or the voluntariness of her plea, she provided . . . [the] Court with no basis for allowing the plea's withdrawal.

Similarly, in People v. Moore, 71 NY2d 1002, 1005 (1988), the Court of Appeals held that "merely showing that the defendant did not expressly admit a particular element of the crime in the factual allocution is not sufficient, by itself, to raise a constitutional claim; all of the circumstances surrounding the plea must be considered to determine whether the defendant understood the nature of the charges against him. . . . [Here,] the record indicates that defendant agreed to plead to this charge on advice of counsel, that the prosecutor stated [the contested elements], without dispute, . . . and that, upon inquiry by the court, defendant agreed. . . . This inquiry, coupled with the unrefuted statements of the prosecutor, sufficiently established that defendant [committed the crime,] . . . and that he understood the nature of the charges." Id. at 1006. See also People v. Lopez, 71 NY2d 662, 667-68 (1988) ("Although defendant's responses to one series of questions posed by the court indicated that he may not have [had] inten[t,] . . . [t]he plea minutes demonstrate that the trial court, when confronted with statements causing significant doubt upon defendant's guilt, properly conducted further inquiry to ensure that defendant's plea was knowing and voluntary; [and] that he possessed the necessary criminal intent."); Victor, supra, at 873-74 ("In pleading guilty, . . . defendant was not required to recite all of the elements of the crime nor was . . . [the] Court required to elicit from defendant a narrative of events."); People v. Harris, 251 AD2d 79 (1st Dept. 1998) ("factual allocution did not cast significant doubt on his guilt . . . and his exculpatory statements made other than during the plea allocution itself are irrelevant"), lv. denied, 92 NY2d 925 (1998); People v. Galvan, 197 AD2d 394, 394-95 (1st Dept. 1993) ("[A]fter the prosecutor recited the underlying facts, . . . defendant admitted the truth of those allegations."); People v. Emanuel, 179 AD2d 356, 356-57 (1st Dept. 1992) ("The fact that defendant, earlier in the plea, had made vague statements . . . does not invalidate the plea accepted on the basis of his subsequent acknowledgment of guilt."), lv. denied, 79 NY2d 947 (1992).

Here, after Defendant's stated that she was pleading guilty to Grand Larceny in the Third Degree because she was, in fact, guilty of that crime, the People noted that they were prepared to prove at trial, and indeed had been proving at trial, that Defendant stole Housing Authority benefits in excess of three thousand dollars. Defendant herself did not contest this recitation of [*8]the underlying facts, but rather, stated that she received money from the Housing Authority to which she was not entitled due to her failure to report her income. Defendant then agreed with the Court's statement that the amount of restitution she was to repay was equivalent to the amount of money misappropriated to her. These statements, as well as her failure to object, taken in their totality, clearly establish all of the elements of Grand Larceny in the Third Degree, including Defendant's intent. Moreover, Defendant's guilt was further corroborated by the damning evidence that the People had already introduced at trial prior to her plea. See Fiumefreddo, supra, at 547 (in determining if there was an "ample factual basis for accepting [a] defendant's plea," a court can take into consideration evidence other than the defendant's own admission during the plea colloquy which corroborate the plea). As nothing in Defendant's allocution negated or placed into doubt the element of intent, nor did any statement by Defendant refute the statements of the prosecutor, which sufficiently established Defendant's intent, this subsequent challenge to the factual basis of Defendant's plea must fail pursuant to CPL § 440.30 (4) (d) (claim contradicted by record and no reasonable possibility it is true).

2. Coercion by Defense Counsel

A claim that "a plea of guilty was secured by coercion and intimidation" is to be denied without a hearing where the "defendant failed to submit an affidavit from the attorney who represented him [or her] at plea and sentence or offer an explanation of his [or her] failure to do so." People v. Morales, 58 NY2d 1008, 1009 (1983). Indeed, in People v. Dixon, 29 NY2d 55, 56 (1971), a case in which the defendant claimed that he was innocent and only pled guilty because his attorney "advised him that he had no chance of proving his innocence" the Court of Appeals held that as "[n]o factual matters were presented in support of these assertions. . . . [and] the court had before it only the unsupported allegations of the defendant," the defendant failed to establish that he plea "was not made voluntarily following consultation with his first attorney." See also People v. Lowrance, 41 NY2d 303, 304-05 (1977) ("an application to set aside a guilty plea, on the often asserted ground it was exacted from defendant by duress of circumstances, is entitled more often then not to short shrift when supported only by the convicted defendant's say-so"); People v. Scott, 10 NY2d 380, 381-82 (1961) ("It was not error to have insisted that [defendant] obtain an affidavit from this lawyer . . . who represented [him] at the time of his plea . . . as a minimum earnest of good faith. . . . [If] the lawyer had declined to comply with a request for an affidavit, there would be time enough to consider whether to grant a hearing at which the lawyer's attendance might be compelled."). Here, Defendant's failure to obtain an affidavit from her attorney or provide a reason for so failing precludes relief based upon this claim.

In any event, in Melton, supra, at 329, note 2, the Court of Appeals held that to establish that a plea was coerced by counsel, a defendant must allege facts "from which it could be inferred that his will was overborne and that the plea was not his free choice." Furthermore, in Frederick, supra, at 525-28, in rejecting a defendant's claim that "he was induced to plead guilty by his attorney," the Court of Appeals held that a court "must be entitled to rely on the record. . . . A defendant will not be heard to challenge his guilty plea when the minutes of the plea are unequivocal. . . . [W]here the record flatly contradicts any claim, . . . no judicial recognition of defendant's averments will be forthcoming." See also Lowrance, supra, at 304-05 ("The record reveals that . . . defendant responded in the negative when asked if anyone threatened him or coerced him into pleading guilty. . . . [T]he record, far from showing duress or even coercion, [*9]indicates there was none.").

In People v. Bowden, 186 AD2d 362 (1st Dept. 1992), a case analogous to that at bar, the First Department held that defense counsel informing his client "that it would be stupid' to take his case to trial," was blunt advice and not an attempt to "coerce [him] . . . into pleading guilty." See also People v. Cross, 262 AD2d 223, 224 (1st Dept. 1999) ("defendant's routine attorney-coercion claim amounted to nothing more than the attorney's fulfillment of his obligation to render appropriate advice concerning the strength of the prosecution's case"), lv. denied, 94 NY2d 902 (2000); People v. Spinks, 227 AD2d 310 (1st Dept. 1996) ("Far from being coercive, defense counsel's advice, as related by defendant, that the case could not be won, and that the two, who had a prior social relationship, would have a chance of playing basketball together again only if defendant accepted the plea offer, fulfilled defense counsel's duty to warn his client of the risks of going to trial."), lv. denied, 88 NY2d 985 (1996), lv. denied, 88 NY2d 995 (1996), lv. denied, 88 NY2d 996 (1996).

Here, the record clearly establishes that Defendant's plea was voluntary and not the result of coercion as she indicated that she was entering the plea "only after a careful balancing of the alternatives open to her and in consultation with her counsel" (Tr. at 19), and was entering it freely, voluntarily, after thinking about it, after discussing it with and being adequately counseled by her attorney, after deciding that it was the best way to end the matter under all of the circumstances, and because she was, in fact, guilty of the crime to which she pled. Moreover, the Court noted that "Defendant is urging [the Court] to accept her plea because she is fearful of being convicted after trial and receive a more serious punishment including the possibility of incarceration" (Tr. at 16). See Fiumefreddo, supra, at 548 ("defendant's . . . motion might have been obviated completely if the court . . . had elicited from defendant a statement that she was entering the plea solely because she deemed it to be in her own best interest and without any feeling of pressure or influence"). Furthermore, even if the Court accepted Defendant's unsubstantiated allegation that a cabal of Legal Aid attorneys recommended that she plead guilty based on the substantial proof brought out against her, and the fact that her defense was weak, this does not establish that her will was overborne, but, rather, that these attorneys were preforming their proper function, especially in light of the sentencing differential between the guilty plea and the amount of incarceration she faced if she were found guilty after trial. See Purdy v. United States, 208 F.3d 41, 44-48 (2nd Cir. 2000) ("[Counsel must] successfully steer[] a course between the Scylla of inadequate advice and the Charybdis of coercing a plea."); Boria v. Keane, 99 F.3d 492, 497 (2nd Cir. 1996), cert. denied, 521 U.S. 1118, 117 S. Ct. 2508, 138 L. Ed. 2d 1012 (1997). Therefore, this claim is denied without a hearing pursuant to CPL § 440.30 (4) (b) and (d), as the motion papers do not contain sworn allegations tending to substantiate all of the essential facts, essential allegations of fact are contradicted by the record, made solely by Defendant, unsupported by other affidavits or evidence, and there is no reasonable possibility that they are true. See Fiumefreddo, supra, at 548 ("[D]efendant's claim[] of . . . coercion did not necessitate a hearing. . . . [H]er contention . . . was little more than a perfunctory statement . . . [that] the plea was under duress."); People v. Nin, 276 AD2d 350, 351 (1st Dept. 2000) ("conclusory assertion[] of . . . coercion . . . [is] belied by the record and did not require a hearing"), lv. denied, 96 NY2d 732 (2001), lv. denied, 96 NY2d 737 (2001); People v. Sepulveda, 198 AD2d 66 (1st Dept. 1993) ("the court's review of defendant's written motion [*10]afforded defendant a reasonable opportunity to present his views"), lv. denied, 82 NY2d 930 (1994).

3. The Newly Discovered Evidence Issue

Criminal Procedure Law § 440.10 (1) (g) states, in pertinent part, that: the court . . . may . . . vacate . . . judgment upon the ground that . . . [n]ew evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence.

As recently opined in People v. Lahon, 17 AD3d 778 (3rd Dept. 2005), lv. denied, 5 NY3d 790 (2005), "inasmuch as vacatur of judgment of conviction on this ground . . . of newly discovered evidence . . . is expressly conditioned upon the existence of a verdict of guilty after trial' (People v. Sides, 242 AD2d 750, 751 [3rd Dept. 1997], lv. denied, 91 NY2d 836 [1997]), defendant's guilty plea precludes relief on this ground." Indeed, as further explained in People v. Latella, 112 AD2d 321, 322 (2nd Dept. 1985), lv. denied, 65 NY2d 983 (1985), lv. denied, 66 NY2d 616 (1985): [E]ntry of a guilty plea forecloses the relief provided by CPL § 440.10 (1) (g). . . . The applicability of this provision is expressly conditioned upon the existence of a verdict of guilty rendered after trial. Thus, the absence of such a verdict precludes . . . relief. . . . Inasmuch as defendant elected to enter a guilty plea, and in the course thereof, admitted his factual guilt, utilization of the newly discovered evidence motion was inappropriate as well as procedurally improper.

See generally People v. Flores, 237 AD2d 128, 129 (1st Dept. 1997) ("factual issues are waived by . . . guilty plea"), lv. denied, 90 NY2d 857 (1997). Therefore, as Defendant pled guilty, her newly discovered evidence claim is precluded. See CPL § 440.30 (4) (a) (no legal basis for claim alleged).

In any event, even if the Court were to review the claim, it must be rejected. It is well settled that a "[n]ewly-discovered evidence [claim]. . . must fulfill all of the following requirements: 1. It must be such as will probably change the result if a new trial is granted; 2. It must have been discovered since the trial; 3. It must be such as could have not been discovered before the trial by the exercise of due diligence; 4. It must be material to the issue; 5. It must not be cumulative to the former issue; and, 6. It must not be merely impeaching or contradicting the former evidence." People v. Salemi, 309 NY 208, 215-16, 226 (1955), cert. denied, sub nom., Salemi v. New York, 350 U.S. 950, 76 S. Ct. 325, 100 L. Ed. 827 (1956).

In Melton, supra, at 329, note 2, the Court of Appeals rejected a newly discovered [*11]evidence claim on the ground that "defendant fail[ed] to alleged that the facts on which the claim is based were unavailable to him at the time of the underlying conviction. Moreover, he offer[ed] no explanation for failing to press it at that time. On this record, we may only assume that, by his plea of guilty, he made a conscious choice to forego this purported defense." More recently, in People v. Wainwright, 285 AD2d 358 (1st Dept. 2001), a defendant in a heroin sale case alleged that his co-defendant stated at the time of their arrest that he had not acquired the heroin from defendant. However, the defendant in that case made no attempt to locate his codefendant and believed that he was deceased. Upon locating the co-defendant after trial, the First Department held that this did not constitute newly discovered evidence because the defendant's interest in the co-defendant as a witness dated from prior to his filing his motion. The First Department explained that: Defendant did not use due diligence in locating [the co-defendant] prior to trial. . . . [D]efendant claims that during the year prior to his trial he knew [the co-defendant] would be an important witness. Despite that knowledge, defendant made little effort to locate [him] . . . and told his trial attorney that [the co-defendant] was probably dead. . . . These are hardly the actions of a defendant who considered a prospective witness critical. . . . Such efforts . . . were insufficient to establish that he could not have been located prior to trial.

Wainwright, supra, at 360.

Likewise, in People v. Taylor, 246 AD2d 410, 411-12 (1st Dept. 1998), lv. denied, 91 NY2d 978 (1998), the First Department held that: [An affidavit] was not newly discovered' or discoverable only after trial. The actual date of the affidavit . . . is not dispositive; the issue is whether the information contained therein . . . was new. Clearly such information was known . . . from the very moment they were arrested and cannot be said to have been newly discovered.'. . . [W]hat was new' at the time of the motion was simply that [the affiant] was prepared to testify. . . . [However,] defendant himself could have testified to this effect (in direct conflict with the notion that the evidence was new' or newly discovered').

See also People v. Williams, 292 AD2d 292 (1st Dept. 2002) ("The record establishes that this evidence, concerning defendant's own background, was not newly discovered in that it was known to defendant himself before . . . trial."), lv. denied, 98 NY2d 714 (2002); People v. Brown, 126 AD2d 898, 900 (3rd Dept. 1987) (defendant failed to explain "why he could not have obtained the exculpatory evidence . . . before entering his guilty plea."), lv. denied, 70 NY2d 703 (1987).

Although it dealt with Brady (see Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 [1963]) material rather than newly discovered evidence, in People v. Doshi, 93 [*12]NY2d 499, 506-07 (1999), a virtually analogous case to the one at bar, the Court of Appeals held that a defendant should have reasonably known of evidence and its exculpatory nature when it consisted of "billing statements [that] were essentially generated by defendant himself, inasmuch as they stemmed from his submitted claims to Medicaid for psychiatric services allegedly rendered. . . . Moreover, . . . defendant received a copy of every . . . remittance statement along with every Medicaid payment for serviced billed by him. Thus, . . . the existence of the Medicaid payment records was necessarily known to defendant by virtue of his having billed Medicaid and received payment' (People v. Doshi, 250 AD2d 431, 433 [1st Dept. 1998], aff'd, supra). . . . [These were] documents which defendant knew about and could have himself procured by maintaining orderly business records."

Similarly here, the rent receipts at issue do not constitute newly discovered evidence as they were created, kept and known about by Defendant prior to her trial. Indeed, Defendant herself generated these documents of questionable payments and could have testified to their contents whether or not she physically possessed them. The only change in circumstances since the trial is that Defendant decided to unpack her belongings. However, regardless of her physical limitations, if these documents were of such import, Defendant could have sought assistance in retrieving them in a timely matter. Lethargy on the part of a defendant does not transform already existing documents into newly discovered evidence.

Furthermore, it is well settled that evidence that does not give rise to a probability of a verdict more favorable to a defendant, but, instead, "merely tend[s] to impeach the [People's case] . . . [i]s not the sort of newly discovered evidence that . . . entitle[s] a defendant to a new trial.'" People v. Hicks, 6 NY3d 737, 739 (2005), quoting, People v. Jackson, 78 NY2d 638, 645 (1991). See also People v. Hicks, 11 AD3d 261, 262 (1st Dept. 2004) ("no showing that had the witness in question testified at trial, the outcome of the trial would have been affected, since . . . it merely tended to impeach the victim's testimony"), aff'd, 6 NY3d 737 (2005); People v. McAllister, 295 AD2d 162 (1st Dept. 2002) ("alleged newly discovered evidence would, at most, have constituted impeachment material that would not have probably' changed the result"), lv. denied, 98 NY2d 769 (2002), lv. denied, 99 NY2d 561 (2002), quoting, People v. Taylor, 246 AD2d 410, 412, lv. denied, 91 NY2d 978 (1998); Brown, supra, at 900 ("evidence that defendant did not actually participate . . . merely contradicted the inculpatory admission made by defendant . . . [at] plea colloquy").

Again, here, these documents would have merely supported the contention that Defendant was not the primary source of the larceny. Rather, that she acted as an agent of her landlord. As such, it would have merely impeached, but not refuted, the abundant amount of evidence proffered by the People during the trial before Defendant pled guilty, most notably, the Affidavits of Income that Defendant falsely completed. Indeed, Defendant still offers no explanation as to why she initially completed the Affidavits of Income falsely, both before and after the alleged nefarious acts of her landlord, nor does she offer any evidence is support of her contention that her landlord stole her mail regarding her Section 8 benefits. Additionally, even if these records were to be credited, they only establish that Defendant made full rent payments for, perhaps, some, but not all, of the time period at issue; and do not rebut her income affidavits nor the other evidence establishing her theft of Housing Authority benefits. Therefore, these documents, in addition to constituting mere impeachment evidence, would not have created a probability of a [*13]different verdict.

Moreover, as recently explained by the First Department Hicks, supra, "[t]here was no showing that had the witness in question testified at trial, the outcome of the trial would have been affected, since the proposed testimony was equivocal and unreliable." See also People v. Lugo, 25 AD3d 460 (1st Dept. 2006) ("two affidavits that consist entirely of hearsay and lack any exculpatory value . . . and a patently incredible recantation affidavit . . . even when viewed as a whole, does not warrant a new trial on a theory of newly discovered evidence or violation of due process, nor does it warrant an evidentiary hearing"), lv. denied, 6 NY3d 815 (2006); People v. Brown, 220 AD2d 289 (1st Dept. 1995) ("unsupported protestations of innocence" insufficient to warrant relief), lv. denied, 88 NY2d 876 (1996); Brown, 126 AD2d at 900 (the alleged evidence in that case did not meet the standard of newly discovered evidence because it consisted of "unsubstantiated, inadmissible hearsay of statements"). Herein, these hearsay documents are completely unsubstantiated and unreliable as it is not known when they were actually completed, if they accurately reflect the payments made by Defendant, or if they are merely recent fabrications. Indeed, the records necessary to corroborate these documents would have been available at the time of trial.

Therefore, Defendant's claim is denied without a hearing pursuant to CPL § 440.10 (3) (a) as she failed to act with due diligence, as well as CPL § 440.30 (4) (a), (b), and (d) as the motion papers do not allege any ground constituting a legal basis for the motion, do not contain sworn allegations tending to substantiate all of the essential facts, and the claim is made solely by Defendant, is unsupported by any other affidavit or evidence, and under all of the circumstances attending the case, there is no reasonable possibility that the allegation is true. See People v. Messina, 73 AD2d 899, 900 (1st Dept. 1980) (" To grant . . . a hearing where the court is able to reach its conclusion on the papers alone would serve no end of justice but would only protract futile litigation.'"), quoting, People v. Crimmins, 38 NY2d 407, 417 (1975).

Conclusion

The Court notes Defendant's lack of candor in the entire course of this matter. Initially, in order to avoid incarceration and obtain a Certificate of Relief from Civil Disabilities, Defendant informed the Court that she would pay restitution and, despite being unemployed, would obtain the funds by obtaining employment, for which she needed said certificate. However, Defendant never paid the restitution nor sought employment to comply with her sentence, but submitted a physician's note claiming that she was unable to work. This resulted in judgment being entered against Defendant, and, thus, she received no term of incarceration nor financial penalty despite her admitted crime. Now, despite her claim that employment was unavailable to her due to her medical condition, Defendant has the audacity to claim that she needs the instant motion to be granted so that she can obtain employment. The contradictory assertions set forth by Defendant to support her attempts to avoid any type of penalty in this matter are beyond cavil.

ORDERED, that Defendant's motion to vacate her judgment of conviction is denied.

The foregoing constitutes the opinion and decision of the Court.

Dated: Bronx, New York

June 8, 2006

DOMINIC R. MASSARO, [*14]

Justice of the Supreme Court Footnotes

Footnote 1:As Defendant had already signed a Jury Trial Waiver, it was not necessary to inform her that she initially had the right to by tried by a jury of twelve, that she and her attorney would participate in selecting the jurors, all twelve jurors would have to unanimously agree beyond a reasonable doubt that she committed each and every element of each crime charged against her in order to be found guilty, and she would not be found guilty of a crime if just one juror was not convinced beyond a reasonable doubt that she committed even a single element of that crime.