People v Yates

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[*1] People v Yates 2009 NY Slip Op 50129(U) [22 Misc 3d 1114(A)] Decided on January 28, 2009 Yates County Ct Falvey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 28, 2009
Yates County Ct

The People of the State of New York,

against

Philip G. Yates, Defendant.



06-48



APPEARANCES:

Hon. Susan H. Lindenmuth

Yates County District Attorney,

(Allison M. Connor, Esq. of counsel)

Counsel for the People

Philip G. Yates,

Pro Se

W. Patrick Falvey, J.

MEMORANDUM-DECISION AND ORDER

W. Patrick Falvey, J.C.C.

The defendant, acting Pro Se, moves this Court to vacate his April 3, 2007 judgment of conviction, upon his guilty pleas, to two counts of Driving While Intoxicated, VTL §§1192(3) and 1193(1)(c)(i) and one count of Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree, VTL §511 (3)(a), all class E felonies, pursuant to Article 440 of the Criminal Procedure Law (CPL). The pleas combined two separate prosecutions, the first for crimes committed on February 5, 2006 (Ind. # 06-48) and the second for crimes committed on March 9, 2007 (SCI# 07-21).

Based on the defendant's submissions, the People's submission in response and all the proceedings had herein the Court decides as follows:

The defendant essentially alleges the following grounds for vacatur: 1)Improper plea of guilty due to the fact that defendant suffered from a mental defect at the time he made the plea, making him incapable of understanding or participating in the proceedings; 2) the conviction was obtained in violation of the defendant's constitutional rights to effective representation of counsel, essentially, that his attorney should have raised the defense of his suffering from a mental disease or defect, and there was no tactical reason for his attorney to allow him to plead guilty to the two sets of independent charges. Defendant notes that he refused to be breathalyzed at either arrest, and so there was no proof of his intoxication. Essentially, he claims that his physical and mental condition at the time of the two arrests made him appear to be intoxicated. He argues his attorney should have pursued this defense instead of counseling him to plead [*2]guilty.

Defendant notes that he waived his right to appeal, and in fact, did not appeal his convictions.

The People in response to the motion note that a timely notice of appeal was filed on behalf of the defendant and since the matter is presently under appeal and the facts relating thereto are part of the record, the Court must deny this motion, citing CPL § 440.10(2)(b).

As for defendant's argument that he lacked the ability to understand and consent to the guilty pleas due to a mental disability, the People note that the defendant at the time of his guilty pleas said that he understood what was happening and that he was not suffering from any mental disease or defect that would prevent him from understanding what was happening. At the time he pled to Indictment #06-28 (March 13, 2007), he stated that he had not taken any drugs, narcotics or alcohol within the past 24 hours. On April 3, 2007, when he pled to SCI #07-21 he also stated that he was on medication for diabetes, high blood pressure, cholesterol and depression, but that it did not affect his ability to understand what was happening. Further, the minutes show that he was not delusional or unable to comprehend the nature of his actions. In addition, the record would show that extensive information concerning the defendant's mental health was available at the time of plea and had been made available by defendant's counsel, and this information would be part of the record for appeal purposes.

When presented with a motion pursuant to CPL Article 440, the Court must deny the same when, "The judgment, is, at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal "[CPL §440.10(2)(b)] or "Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or of his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him." CPL §440.10(2)(c).

Although a Notice of Appeal was filed in this matter, the People have not provided any proof that such an appeal was perfected. Defendant asserts that he did not know a notice of appeal had been filed by his attorney. In any event, the matters the defendant asserts are not entirely contained in the record, and so the motion is not denied under CPL §440.10(2).

The defendant argues that he is entitled to a hearing on the issue of his alleged mental illness at the time he pled guilty. In order to be entitled to a hearing upon a CPL Article 440 motion, a defendant must establish that there is a triable issue of fact to overcome the presumption of the validity of the subject judgment (People v Session, 34 NY2d 254), and that the non-record facts sought to be established at a hearing are material and would entitle him to relief. People v Satterfield, 66 NY2d 796,799.

The Court concludes that the defendant's non-record proof now asserted, which include his affidavit, a copy of prescription logs, an unsigned report allegedly made by Johnnie Walker, MA, ABD on May 12, 2006, and September 8, 2006 statement signed by Leibing Tang, MD are insufficient to raise a triable issue of fact to overcome the presumption of the validity of the subject judgment. CPL §440.30. [*3]

Defendant has not provided any medical records showing a mental illness that would cause him to not understand the proceedings in March and April of 2007, when he entered his pleas and/or was sentenced on the two accusatory instruments. This Court also notes the extensive colloquy at the time of these proceedings, occurring on two separate dates a month apart, during which the defendant testified that he took medication for depression, among other things, but that such medication, and such depression, did not cause him to be unable to understand the proceedings. Nor does defendant's non-record proof establish that he failed to receive adequate legal representation.

Defendant's motion is denied in all respects.

The foregoing constitutes the Opinion, Decision and Judgment of this Court.

SO ORDERED.

Dated: January 28, 2009_________________________

W. Patrick Falvey

Yates County Judge