People v Matos

[*1] People v Matos 2006 NY Slip Op 52336(U) [13 Misc 3d 1244(A)] Decided on May 18, 2006 Supreme Court, Kings County McKay, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2006
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Jason Matos, Defendant.



1978/97

JOSEPH KEVIN McKAY, J.

Defendant, Jason Matos, has served and filed a CPL 440.10 [FN1] motion on April 26, 2006, to vacate his judgment of conviction in the above-captioned

case, which has come before me as the Miscellaneous Judge. The People have

served and filed an Affirmation in Opposition to the motion on May 9, 2006.

Defendant has belatedly served and filed his affidavit in support of his motion on

May 11, 2006.

In return for a non-jail sentence promise, defendant pleaded guilty

before the now retired Honorable Rose McBrien on June 23, 1997 ( in Part ACA 120) to aggravated unlicensed operation of a motor vehicle in the first degree

( VTL § 511-3), a class E felony. During his plea allocution defendant admitted that at the time of his arrest at the age of 19 he knew his license had been suspended 43 times on 15 different dates. [ June 23, 1997 Plea Transcript- p3 lines 21-23]. On August 11, 1997 Justice McBrien imposed the promised sentence of five years probation and a five hundred dollar fine.

Defendant contends that neither his counsel nor Justice McBrien advised him that, as a consequence of entering the Vehicle and Traffic Law plea, he was pleading guilty to a felony which would cause him to face an enhanced sentence if he were to be convicted of a future felony within a certain statutory

period. Accordingly, defendant now claims that his plea was not knowing or voluntary, and that he received ineffective assistance of counsel.Defendant is presently charged under indictment No. 7182/05 with criminal [*2]possession of a weapon in the third degree ( Penal Law § 265.02-4 ) a class D violent felony. That case is presently pending in Part 31 [ the Gun Part ] and defense counsel, in his motion papers, candidly concedes that the instant motion is an attempt to facilitate a negotiated non-predicate probationary sentence on the weapons charge. [FN2]

This Court is procedurally barred from reviewing defendant's claim that Justice McBrien was required to advise him that his plea conviction

would serve as a predicate for any future felony conviction. The plea minutes annexed to defendant's moving papers were sufficient to permit review of this issue on direct appeal, although defendant did not in fact appeal this favorable plea. See, CPL 440.10 (2) ( c ); People v Cooks, 67 NY2d 100 (1986 ); see also, People v Brunner, 244 AD2d 831 (3rd Dept 1997). In any event, defendant's contention is without merit.

A trial court must advise a defendant of the "direct" consequences of a plea but has no obligation to explain that "collateral" consequences may attach to the conviction. See, People v Catu, 4 NY3d 242 (2005). Contrary to defendant's unsupported assertion in his moving papers, a court is not required to advise a defendant that one of the consequences of his plea is that he is the subject of an enhanced sentence on a future felony because this is a collateral and not a direct consequence. See, People v McGrath, 43 NY2d 803 ( 1977); People v Zayas, 23 AD3d 683 (2d Dept 2005); People v Outer, 197 AD2d 543( 2d Dept 1993 ), lv denied 82 NY2d 900 (1993); People v Depeyster, 115 AD2d 613 (2d Dept 1985 ); People v Formey, 4 AD3d 134 ( lst Dept 2004 ), lv denied 2 NY3d 739 ( 2004 ); People v Nenni, 269 AD2d 785 (4th Dept 2000), lv denied 95 NY2d 801 (2000), error coram nobis denied 285 AD2d 997 (2001), habeas corpus denied 2004 WL 1858138 (W.D.NY 8/13/04); People v Lancaster, 260 AD2d 660 (3rd Dept 1999). The First Department clearly articulated the guiding principle when it stated, "As we have previously held: The predicate consequences of a felony conviction can be of no significance to a defendant unless he is bent on a life of crime. We cannot accept as a serious proposition that a defendant not so inclined would actually consider rejecting an offered plea upon the basis of advice that by accepting it he would be exposing himself to enhanced penalties the next time around' ". People v Hannon, 209 AD2d 319, 320-321 (1st Dept 1994), lv denied 85 NY2d 862 ( 1985 ) ( citations omitted ). [*3]

Defendant also claims he was denied the effective assistance of counsel. Although defense counsel's moving papers refer inter alia to trial counsel's failure to advise defendant about his right to remain silent, proceed to trial, the presumption of innocence and the burden of proof, defendant's own affidavit fails to contain any sworn allegations addressing these issues. See, CPL 440.30 (4) (b). Moreover, the plea minutes reflect that defendant discussed his case with his attorney, [ Plea Transcript- p2 lines 23-25] and that the court also advised defendant that he had the right to proceed to trial, remain silent, cross-examine witnesses, and call witnesses on his own behalf. Defendant responded that he understood these rights [ p3 lines 6-13].

As part of his ineffective assistance claim defendant further asserts that not only the court but also his trial attorney as well should have advised him that one of the consequences of taking the VTL plea was that he was subject to an enhanced sentence should he be convicted of a future felony. Defendant's reliance on this argument is similarly misplaced. See, People v Carter, 280 AD2d 977 (4th Dept 2001), lv denied 96 NY2d 860 (2001); People v Watkins, 244 AD2d 269 (1st Dept 1997), lv denied 92 NY2d 863 (1998).

While under certain circumstances trial counsel's "incorrect" advice to a client about the collateral consequences of a plea may constitute ineffective assistance of counsel, Matos has failed to present such a case. See, People v McDonald, 1 NY3d 109 (2003). The Matos affidavit alleges only that trial counsel

failed to give him any advice regarding an enhanced sentence for a future felony,

not that he was given incorrect advice See, CPL 440.30 (4) (b).In any event, it is highly dubious that even erroneous advice regarding sentencing for a future felony would rise to the level of ineffective assistance of counsel, especially in the context now claimed by defendant and in light of his favorable plea and sentence in 1997. Accordingly, I conclude that on this point as well as all others raised by defendant, he has failed to establish that he received ineffective assistance of counsel requiring vacatur of his plea. [FN3] [*4]

Defendant's request for equitable relief on his pending weapons case[ including the numerous character letters annexed to the instant motion ] should

properly be addressed to Part 31 where that indictment is pending, if defendant

is so advised.

For all the reasons addressed herein defendant's CPL 440.10 motion to vacate the judgment is DENIED in all respects.

SO ORDERED.

ENTER,

JOSEPH KEVIN McKAY Footnotes

Footnote 1:The Court notes that although defendant's Notice of Motion refers to CPL 440.10 (1) (e) [mental disease or defect ] this appears to be a typographical error and

I therefore deem the motion to be one brought pursuant to subdivision (h) [violation of

constitutional rights].

Footnote 2: Defendant claims in his affidavit if he had been aware of "the nature of the conviction as a predicate felony" he would have moved earlier to vacate or appeal the judgment.

Footnote 3: Defendant's claim that he was not informed by the court or substitute counsel at sentence that this was a conviction of "a felony offender" ( Affidavit p3) is a equally unavailing. He was told he was pleading guilty to a class E felony during the plea proceeding by the court clerk [Plea Transcript p4 line

7-13] as well as by the indictment itself.