People v Wolfer
Annotate this CaseDecided on June 12, 2009
Supreme Court, Monroe County
The People of the State of New York, Plaintiff,
against
Yong Dae Wolfer, Defendant.
03-09854
MICHAEL C. GREEN,
DISTRICT ATTORNEY
Nicole Fantigrossi, Esq.
Attorney for People
YONG DAE WOLFER
By: Jeanne M. Vinal, Esq.
Attorney for Defendant
David D. Egan, J.
Defendant moves this Court pursuant to CPL §440.10(1)(g, h) for an Order setting aside a judgment of conviction imposed in 2003 pursuant to a negotiated plea of guilty to Attempted Burglary in the Second Degree (Penal Law §§110 & 140.25(1)( c ). The Court imposed a period of five years of probation. The Defendant did not appeal this conviction.
BACKGROUND
The Defendant alleges in his motion papers that he was adopted from Korea by American parents. Unfortunately, due to an oversight, no naturalization papers were timely submitted to render Defendant an American citizen. Defendant advises that due to Korean law, and our own federal immigration laws, naturalization did not occur by operation of law upon adoption—as it does for some alien adoptees. Thus, Defendant appears to be in an alien status. It is based upon this putative alien status that Defendant seeks relief upon, in part.
In 2005, the Defendant's probation was violated. The matter was assigned to the Hon. Francis Affronti, JSC. The Defendant unsuccessfully filed a CPL §440 motion to have the violation of probation dismissed. The Defendant filed a Notice of Appeal in relation to the motion denied by [*2]Justice Affronti. The Defendant was found guilty of the violation and was re-sentenced to a definite term of imprisonment of one year. Ostensibly, he was then taken into the custody of federal immigration officials. The Defendant advises that he has a final deportation hearing scheduled for June 18, 2009.The Defendant's papers suggest that if this Court grants his motion to vacate the within judgment of conviction, then the "aggravated felony" which serves as a basis of his deportation proceeding would be abated and Defendant would not face deportation.
The People oppose Defendant's motion.
.
DISCUSSION
After reviewing all of the papers, the Court denies the Defendant's motion. The Defendant's papers provide no legal basis for relief under CPL §440.10(1)(g) or (h). While the facts alleged in the motion concerning Defendant's adoption and the failure of his parents to file appropriate naturalization papers are lamentable, this Court is powerless to grant relief on this record. The circumstances of the negotiated plea do not rise to the level of a mistake of fact such that the plea must be vacated. Likewise, the disposition of the co-Defendant's case has no bearing on the merits of Defendant's plea or this motion.
The Defendant's motion under CPL §440.10(g) is without merit. In the first instance, CPL §440.10(g) provides no relief to a Defendant who pleads guilty. People v. Philips, 30 AD3d 621 (2nd Dept. 2006). Criminal Procedure Law §440.10 concerns claims of new evidence discovered "since the entry of a judgment based upon a verdict after trial". The posture of this case is just the opposite: Defendant entered a negotiated plea of guilty.
Even if Article 440 did provide a remedy for judgments based upon pleas of guilty, there is no "new evidence" adduced which would entitle Defendant to a vacatur of his plea, or to a new trial. Rather, Defendant's papers are more in the nature of extenuation and mitigation of the circumstances of his crime and the resulting plea of guilty. There is no showing on this record of the "due diligence" required before relief could be granted under this section. Moreover, there was no "due diligence" in bringing this motion in the first instance, as is required for a motion under CPL §440.10(g). It would appear from Defendant's papers that the "new evidence" had been available for at least several years and that the only reason the motion is being brought now is as an attempt to de-rail the pending deportation proceedings. The circumstances of the victim of the underling criminal offense, or the handling of the co-defendant's case, do not constitute "new evidence" within the meaning of CPL §440.10. There is no showing by Defendant that this information, even if truly considered "evidence", was not available upon the exercise of due diligence.Apparently, this information would have been available to Defendant or his attorney with little effort. Consequently, the Defendant cannot now avail himself of the relief contemplated by CPL §440.10(g).
Defendant's attack on the facts underlying the indictment cannot be collaterally attacked on a motion under CPL §440.10, especially in light of the fact that the Defendant received the benefit of a plea bargain in which the pending robbery charge was taken in satisfaction with a plea to the Attempted Burglary charge; and, especially since there is no factual support in this record for the assertions made by the Defendant as to why the facts do not support the charges in the indictment. See, CPL §440.30(4)(d).
Defendant's papers also attempt to interpolate an "interest of justice" ground into either his motion under CPL§ 440.10(g) or (h). However, as the People point out, there is no such ground [*3]available under CPL §440.10. People v. Reyati, 254 AD2d 199, 200 (1st Dept. 1998) leave denied 93 NY2d 856 (1999); People v. Cole, 1 Misc 3d 531 (NY Sup. 2003).
Defendant's motion under CPL §440.10(h) fares no better. The Defendant's papers do not set forth a constitutional issue which would warrant relief under this section. The gravamen of Defendant's constitutional claim seems to be that the charges vis a vis the facts are inordinately severe, and that a co-Defendant's case was dismissed. These facts, even if true, do not support relief under this section. The deportation problem Defendant faces is a collateral consequence of his plea. This fact does not deprive Defendant of a constitutional right insofar as the deportation machinery is outside the jurisdiction of this Court. Cf., People v. DeJesus, 12 Misc 3d 913 (Crim. Ct., New York Cty. 2006); People v. Argueta, 46 AD3d 46, 50 (2nd Dept. 2007) leave to appeal dismissed, 10 NY3d 761 (2008). There is no claim on this record that Defendant had been erroneously told that he would not be deported upon a plea of guilty to an "aggravated felony". People v. McDonald, 1 NY3d 109 (2003).
Lastly, Defendant's resort to Article 36 of the Vienna Convention on Consular Relations ("Vienna Convention"), Apr. 23, 1963 [1970] 21 U..S.T. 77, 100-101, is entirely misplaced. Article 36 of the Vienna Convention provides in part that non-citizens may contact the consulate of the country of their origin for the purpose of allowing free communication between the consulate and the non-citizen. Sanchez-LLamas v. Oregon, 548 US 331, 337-338 (2006). The Vienna Convention does not create any fundamental rights for non-citizens which can be enforced in a CPL§ 440.10 context. Cf., United States v. De La Pava, 268 F3d 157, 165 (2nd Cir. 2001). Even assuming, arguendo, that this Defendant's rights under the Vienna Convention were violated, such violation does not warrant vacatur of his guilty plea and resulting judgment of conviction. United States v. Hurtado, 195 Fed. Appx. 132, 2006 WL 2457184 (4th Cir. [NC]); People v. Aybar, 13 Misc 3d 1221(A) (Sup.Ct., NY County 2006). Furthermore, there is no showing on this record that the Defendant received affirmative representations from anybody concerning his rights under Article 36 of the Vienna Convention. Therefore, there is no fact upon which Defendant mistakenly based his understanding of his guilty plea that could somehow diminish the voluntariness of his plea.
On this record, the Court finds that a hearing is unwarranted and unnecessary. The Defendant has failed to establish that there are non-record facts which he seeks to admit which are material and which would support his request for relief. People v. Satterfield, 66 NY2d 796, 799 (1985).
The Defendant's remaining contentions are without merit.
ORDERED that Defendant's motion to set aside the judgment of conviction is denied in all respects.
This Decision shall constitute the Order of the Court.
DATED: Rochester, New York
June 12, 2009
________________________
Hon. David D. Egan
Supreme Court Justice
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