People v Coles

[*1] People v Coles 2009 NY Slip Op 50889(U) [23 Misc 3d 1122(A)] Decided on May 8, 2009 Nassau Dist Ct Spergel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2009
Nassau Dist Ct

The People of the State of New York, Plaintiff,

against

James Coles, Defendant(s)



2007NA030693



REPRESENTATION:

Adam Raffo, A.D.A., of counsel to Kathleen M. Rice, District Attorney, Attorney for the Plaintiff, Nassau County District Court, 99 Main Street, Hempstead, New York 11550, (516) 572-2620. Steven M. Raiser, Esq., Attorney for the Defendant, 1517 Franklin Avenue, Suite 300, Mineola, New York 11501, (516) 742-7600.

Robert H. Spergel, J.

Defendant's motion for an order pursuant to CPL§ 440.10(h) or in the alternative CPL§ 220.60 vacating his plea and sentence is denied in its entirety for the following reasons.

On March 5, 2009 defendant was before this Court whereby he admitted to violations of probation as to dockets 2007NA030693, 2007NA013735 and 2007NA003693. Defendant was re-sentenced on each of these dockets to one year in jail, with the terms of incarceration to run concurrent. In addition, defendant pleaded guilty to dockets 2008NA14756, 2008NA14757 and 2008NA12758. Each of these dockets consisted of one count of Penal Law § 155.25-Petit Larceny. Defendant was sentenced to one year on each Petit Larceny docket, with the terms of incarceration to run concurrent. As part of the sentencing agreement, the concurrent sentence of incarceration imposed on the three violation of probation dockets would run consecutive to the sentence of concurrent incarceration on the Petit Larceny dockets.

Defendant argues that his plea and sentence should be vacated in that on or about March 3, 2009, he was given misinformation by his attorney concerning his expected release date from incarceration. Counsel for defendant states in his affirmation that he calculated the time of release to be March 5, 2009, the date of the plea and sentence, and [*2]that the jail has incorrectly calculated defendants release date as August 27, 2009.

Prior to addressing the merits of defendants argument, it should be noted that this Court held conferences on March 3, 2009, March 4, 2009 and again on March 5, 2009

concerning disposition for these cases. Moreover, this Court has reviewed the record for the charges of the underlying violations of probation, for which a plea was originally taken on January 8, 2008 for dockets 2007NA013735 and 2007NA030693 by this Court and for

docket 2007NA003693 for which a plea was taken on May 4, 2007 by the Hon. Dana M. Jaffe. As such, this Court may be "presumed to be fully familiar with all aspects of the case."See, People v. Demetsenare, 14 AD3d 792, 793 (3d Dept., 2005) citing People v. Loomis, 256 AD2d 808, 808-809 (3d Dept., 1998), and any formal hearing which would be required under CPL § 440.30(5) is not necessary.

For purposes of full disclosure the Court would further note that after the plea and sentence on March 5, 2009, counsel for the defendant made numerous calls to chambers concerning the subject matter of the instant motion and was advised by the Courts secretary concerning ex parte communications. Shortly thereafter, the Court entertained a bench conference off calendar with counsel for the defendant and a member of the District Attorneys Office. At that conference, counsel for defendant requested the Court vacate the plea and sentence as he believed the Nassau County Correctional Facility was incorrectly applying defendants jail credit. It was further discussed that if defendant believed the release date of August 27, 2009, calculated by the jail was an illegality, there were other, more appropriate remedies. Defendants counsel was also reminded that during the numerous conferences prior to the plea and sentence on March 5, 2009, this Court advised him that he should undertake due diligence concerning jail credit as this court was not going to modify the commitment of the sentence.

Pursuant to C.P.L. § 440.10(1)(h), a judgment of conviction may be vacated when it was "obtained in violation of a right of the defendant under the constitution of this state or of the United States." Criminal Procedure Law § 440.10(h). The right to the effective assistance of counsel is guaranteed to all defendants through the Federal and State Constitutions. The United States Supreme Court, in Strickland v. Washington, has established a two part test for evaluating claims of ineffective assistance of counsel which requires that defendant show (1) counsel's performance was deficient and (2) that the substandard representation prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

Under the first prong of the two part test established in Strickland, a defendant must show that counsel's representation fell below an objective standard of reasonableness.

[*3]People v. McDonald, 1 NY3d 109, 113 (2003). To establish the second requirement of Strickland, a Defendant must prove prejudice by showing "that there is a reasonable

probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." McDonald at 115 citing Hill v. Lockhart, 474 U.S. 52 at 58

(1985).

Applying the first prong as articulated in Strickland, defendant has failed to meet his burden. Notwithstanding defense counsel's acknowledgment of misinformation being provided to defendant concerning his expected release date, defense counsel, in his

affirmation places the blame upon any misinformation on the illegality of the jail calculation by the Nassau County Correctional facility. Based upon counsel's shifting of blame to the jail, it would be inconsistent for this Court to then find that counsel's representation fell below an objective standard of reasonableness as articulated in McDonald. Even had this Court viewed the first prong of Strickland narrowly, which under the facts of this case it does not, and were to find that any misinformation provided to a defendant by his counsel should be considered representation that would fall below the standard of reasonableness,defendant still would not be entitled to the relief he requests as he has failed to meet his burden as to the second prong of Strickland.

In applying Strickland's second prong, defendant has failed to show any level of

prejudice "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." McDonald. In evaluating Defendant's moving papers, the Court files and transcripts, including the Courts in depth knowledge of the proceedings in this matter, defendant has failed to show any factual allegations as to prejudice.

"A trial court has the constitutional duty to ensure that a defendant, before pleading

guilty, has a full understanding of what the plea connotes and its consequences" (People v Ford, 86 NY2d 397, 402-403 ([1995).. "The court is not required to engage in any particular litany when allocuting the defendant, but due process requires that the record must be clear that the plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant" (id. at 403.) To fulfill this constitutional obligation, the trial judge must advise a defendant of the direct consequences of a plea and the resulting waiver of rights. In the instant matter the Court asked the following questions of the defendant concerning the three open Petit larceny dockets:

"THE COURT: Sir, I understand you want to change your pea from not guilty to guilty concerning dockets ending 14756, 14757 and 14758; is that correct?

THE DEFENDANT: yes. [*4]

THE COURT: Have you discussed this matter with your attorney?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand that a plea of guilty is same as a conviction after a trial?

THE DEFENDANT: Yes.

THE COURT: Do you understand that by pleading guilty, you're waiving certain rights including your right to a jury trial?

THE DEFENDANT: Yes.

THE COURT: Do you understand that you're waiving your right to cross-examine witnesses?

THE DEFENDANT: Yes.

THE COURT: Do you understand that you're waiving your right to testify?

THE DEFENDANT: Yes.

THE COURT: Do you understand that you're waiving your right to remain silent?

THE DEFENDANT: Yes.

THE COURT: Has anyone forced or threatened you to plead guilty?

THE DEFENDANT: No.

THE COURT: Has anyone promised you anything to induce you to plead guilty?

THE DEFENDANT: No."

As to the Violation of Probation dockets, the following discussion was held:

"THE COURT: We have multiple issues here. We have three violations of probation. The first is docket ending in 030693. It's my understanding that regarding this VOP on this docket that its already been discussed with your client; is that correct? [*5]

MR. RAISER: That's correct, your Honor.

THE COURT: Sir, you've discussed this with your attorney?

THE DEFENDANT: Yes.

MR. RAISER: That's our application , Judge.

THE COURT: Also, we have a violation of probation warrant for docket ending 013735. Sir, you've discussed the violations of probation with your attorney regarding that docket?

THE DEFENDANT: Yes, sir.

In as much as defendant has rested his argument on the illegality of the jail calculation concerning his release date by Nassau County, his motion for this Court to vacate his plea pursuant to CPL § 440.10(h) is misplaced. Notwithstanding, After a complete review of the instant matter, this Court can not find that defendant's plea, and subsequent sentence of incarceration was not knowing, voluntary and intelligently made under the circumstances. There is no evidence on the record presented that this defendant did not understand the terms of his plea bargain and subsequent incarceration. During the plea allocution defendant's answers were clear and unequivocal. Most importantly, in this case, is that defendant was specifically asked if any promises had been made to him to induce his plea of guilty. Defendant responded, "No sir." As such, defendant has failed to satisfy Strickland's second prong.

Defendant's alternative argument pursuant to CPL§ 220.60 vacating his plea is denied as a motion pursuant to CPL § 220.60 can only be made before the imposition of sentence.

Based on the foregoing, the defendant's motion is denied in all respects. .

This constitutes the decision and order of the Court.

So Ordered:

/s/ Hon. Robert H. Spergel

Robert H. Spergel

District Court Judge

Dated: May 8, 2009

cc:Kathleen M. Rice, District Attorney of Nassau County [*6]

Steven M. Raiser, Esq. (Attorney for the Defendant)